Rule-Making Notices (Hearing Notices)

Wisconsin Administrative Register No. 619, 7/14/2007

Rule-Making Notices

Notice of Hearings

Agriculture, Trade and Consumer Protection

[CR 07-061]

(Reprinted from 6/30/07 Wis. Adm. Register)

The State of Wisconsin Department of Agriculture, Trade and Consumer Protection (DATCP) announces that it will hold public hearings on a proposed rule affecting chs. ATCP 10 and 12, that increases some current animal health fees, and creates some new fees. Among other things, this rule affects license fees, voluntary herd certification fees, fees for veterinary certification forms, and fees for voluntary certification of animal health professionals. Some of the fee increases (veterinary certification forms, livestock market licenses, etc.) may affect several sectors of the livestock industry, while others are limited to specific livestock sectors.

DATCP will hold three public hearings at the times and places shown below. DATCP invites the public to attend the hearings and comment on the proposed rule Following the public hearings, the hearing record will remain open until July 31, 2007, for additional written comments. Comments may be sent to the Division of Animal Health at the address below or by email to [e-mail].

You may obtain a free copy of this rule by contacting the Wisconsin Department of Agriculture, Trade and Consumer Protection, Division of Animal Health, 2811 Agriculture Drive, P.O. Box 8911, Madison, WI 53708-8911. 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 July 2, 2007, by writing Anna Oehler, Division of Animal Health, P.O. Box 8911, Madison, WI 53708-8911, telephone [phone]. Alternatively, you may contact the DATCP TDD at 608-224-5058. Handicap access is available at the hearings.

Hearing Dates and Locations

Thursday, July 12, 2007

7:00 p.m. to 9:00 p.m.

Fox Valley Technical College

1825 N. Bluemound Drive, Room C140

Appleton, WI 54912

Monday, July 16, 2007

7:00 pm to 9:00 pm

Dept. of Agriculture, Trade and Consumer Protection

2811 Agriculture Drive

First Floor – Room 106 (Boardroom)

Madison, Wisconsin 53718

Tuesday, July 17, 2007

7:00 p.m. to 9:00 p.m.

Dept. of Natural Resources West Central Region Hdqrs.

1300 W. Clairemont Avenue – Room 158

Eau Claire, WI 54701

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

The Department of Agriculture, Trade and Consumer Protection (“DATCP") administers Wisconsin's animal health and disease control program. The program is funded, in significant part, by animal health fees. This rule increases animal health fees in order to remedy a serious deficit in the animal health fee revenue account.

Statutory authority: 93.07 (1), 95.55 (3), 95.57 (2), 95.60 (5), 95.68 (4) and (8), 95.69 (4) and (8), 95.71 (5) and (8), and 95.715 (2) (d).

Statutes interpreted: 93.06 (1d), (1g), (1m), (1p), (1q), 95.55, 95.57 (2), 95.60 (5), 95.68 (4) and (8), 95.69 (4) and (8), 95.71 (5) and (8), and 95.715 (2) (d).

DATCP has broad authority, under s. 93.07 (1), Stats., to adopt rules needed to implement laws under its jurisdiction. DATCP also has authority, under the provisions cited above, to charge certain animal health fees and determine the amount of those fees.

Rule Content.

Fee changes. This rule increases some current animal health fees, and creates some new fees. Among other things, this rule affects license fees, voluntary herd certification fees, fees for veterinary certification forms, and fees for voluntary certification of animal health professionals. Some of the fee increases (veterinary certification forms, livestock market licenses, etc.) may affect several sectors of the livestock industry, while others are limited to specific livestock sectors.

Fee For:	Current Fee:	Proposed Fee:
Certificate of Veterinary Inspection (blank form used by private veterinarians)	$3 per form (interstate or intrastate)	$5.60 per form (interstate) $0.60 per form (intrastate)
Cattle; Brucellosis-Free Herd Certification (Voluntary certification facilitates animal sale and movement)	No fee.	$50 annual certification
Cattle and Other Bovines; TB-Free Herd Certification (Voluntary certification facilitates sale and movement)	No fee	$50 annual certification
Johne's Disease Veterinarian; Certification (Voluntary 3-year certification)	No fee.	$50 per 3-year certification
Cattle and Other Bovines: Approved Import Feedlot Permit (Voluntary permit facilitates certain imports)	$75 annual permit	$140 annual permit
Swine; Qualified Pseudorabies Negative Herd, Qualified Pseudo-Rabies Negative Grow-out Herd, or Feeder Swine Pseudorabies Monitored Herd (Voluntary certification facilitates sale and movement)	No fee	$50 annual certification
Swine; Validated Brucellosis-Free Herd Certification (Voluntary certification facilitates swine sale and movement)	No fee	$50 annual certification
Equine Imports; Quarantine Station Permit (station may receive certain horse imports)	No fee	$100 annual permit and $100 permit per quarantined animal
Poultry Tester; Training	No fee	$25 training fee.
National Poultry Improvement Plan; Annual Flock Enrollment	Annual fee ranges from $40 to $200 based on flock type and size.	Annual fee ranges from $80 to $400 based on flock type and size.
Farm-raised Deer; Annual Herd Registration	Annual fee based on herd size: $50 if < 15 deer $100 if > 15 deer $150 minimum one-time inspection fee for 2nd herd at same site (not required for renewal). $100 surcharge if found operating without registration	Annual fee based on herd size: $162.50 if < 15 deer $325 if > 15 deer $200 minimum one-time inspection fee for 2nd herd at same site (not required for renewal). $250 surcharge if found operating without registration
Farm-raised Deer; Hunting Preserve Certificate	$150 for 10-year certificate	$500 for 10-year certificate
Farm-raised Deer; TB-Free Herd Certification (Voluntary certification facilitates deer sales and movement)	No fee.	$50 per year of certification
Farm-raised Deer; Brucellosis-Free Herd Certification (Voluntary certification facilitates deer sales and movement)	No fee.	$50 per year of certification
Fish Farm (Type 1); Annual Registration	$25 annual fee covers any number of Type 1 fish farms	$37.50 annual fee covers one Type 1 fish farm; $50 annual fee covers any number of Type 1 fish farms
Fish Farm (Type 2); Annual Registration	$50 annual fee covers any number of Type 2 fish farms	$125 annual fee covers 1-5 Type 2 fish farms; $150 annual fee covers 6-10 Type 2 fish farms; $200 annual fee covers 11-20 Type 2 fish farms; $300 annual fee covers 20 or more Type 2 fish farms.
Fish Import Permit (may cover multiple import shipments for up to one year)	$50	$90
Sheep; Brucella-Ovis Free Flock Certification (Voluntary certification facilitates animal sale and movement)	No fee	$50 per year of certification
Goats; Brucellosis-Free Flock Certification (Voluntary certification facilitates animal sale and movement)	No fee	$50 per year of certification
Goats; Tuberculosis Free Flock Certification (Voluntary certification facilitates animal sale and movement)	No fee	$50 annual certification
Animal Market; Annual License	$225 annual fee for Class A license $115 annual fee for Class B license $150 annual fee for Class C license	$420 annual fee for Class A license $220 annual fee for Class B license $280 annual fee for Class C license
Animal Dealer; Annual License	$115 annual fee	$220 annual fee
Animal Trucker; Annual License	$30 annual fee	$60 annual fee
Animal Transport Vehicle; Annual Registration Sticker	$10 annual fee per vehicle	$20 annual fee per vehicle

Other Rule Changes. This rule eliminates current fish farm registration fee exemptions for research institutions and government agencies. Those entities will now have to pay the same registration fees as other fish farm operators.

Rule Effective Date. This rule will not take effect until calendar year 2008. There are different annual license cycles for different types of licensed entities, and license fee increases will not be implemented until the first annual license cycle beginning after the rule effective date.

Fiscal Estimate

State fiscal effect. Animal Health program operations are funded by a combination of general state tax dollars (79%), animal health fee revenues (19%) and federal funds (2%). This does not include federal funds that are passed through to program beneficiaries in the form of grants or other assistance.

Recent state budgets have done the following:

•   Reduced annual GPR funding (general tax dollars) for animal health by nearly $300,000.

•   Lapsed approximately $130,000 in animal health fee revenue (one-time lapse) to the state general fund.

•   Assigned more staff to be paid from animal health fee revenues.

Program costs have gone up this year, as DATCP has filled critical animal health positions that had been held vacant. DATCP has only about 37 authorized permanent positions (field and office positions) for its entire animal health and disease control program, so it is important that key positions be filled.

As a result of these combined factors, the positive cash balance in the animal health fee revenue account is declining rapidly. DATCP collects about $300,000 in animal health fees each year, and projects fee revenue expenditures approaching $600,000 each year. DATCP projects a negative cash balance of $131,500 in the animal health fee revenue account beginning in FY 2008. If nothing is done, the negative cash balance will go to $371,400 in FY 2009, $633,300 in FY 2010 and $924,500 in FY 2011. DATCP is proposing a fee increase to remedy this funding deficit and maintain critical disease control programs.

This rule will increase animal health fee revenues by approximately $375,150 per year when it is fully implemented beginning in FY 2008-09. DATCP projects that this fee increase will stabilize animal health program staffing and funding for the foreseeable future, without further fee increases.

Without this fee increase or other funding support, DATCP will need to reduce animal health staffing at a time when bio-security and disease threats have grown. DATCP has only about 37 permanent staff for all of its animal health and disease control programs (does not count temporary, federally-funded positions). Staff reductions will increase risks to Wisconsin's major livestock industries, which rely on effective animal health and disease control programs. Staff reductions will also increase disease risks to humans and wildlife.

Local fiscal effect. This rule will have no fiscal impact on local units of government.

Business impact. This rule affects animal markets, animal dealers, animal truckers, livestock farmers, deer farmers, fish farmers and veterinarians. Many of these businesses are “small businesses" as defined in s. 227.114 (1) (a), Stats.

This rule increases some current animal health fees, and creates some new fees. Some fee increases may affect several sectors of the livestock industry, while others are limited to specific livestock sectors.

This rule will increase overall industry costs by a combined total of approximately $375,150 per year, once the rule is fully implemented. Fee increases for individual businesses are generally modest, and will depend on business size and type. Smaller businesses generally pay lower fees than large businesses. Fees are based, in part, on animal health costs related to each affected industry.

This rule does not change other animal health regulations. This rule requires no additional recordkeeping, and no added professional services to comply. For small businesses, the effective date of this rule is automatically delayed by 2 months, pursuant to s. 227.22(2)(e), Stats. The delayed effective date is not expected to have a significant impact on the timing or amount of fee collections under this rule.

Federal Regulation

DATCP administers animal disease control programs in cooperation with the United States Department of Agriculture, Animal and Plant Health Inspection Service (“the federal bureau").

Federal grants pay for about 2% of Wisconsin's animal health program operations. This does not include federal funds that are passed through to program beneficiaries in the form of grants or other assistance.

The federal bureau has well-established control programs for historically important diseases such as tuberculosis and brucellosis. The federal bureau has less well-developed programs for new or localized diseases, or emerging animal-based industries. In those areas, states often play a leadership role. For example, Wisconsin is a recognized national leader in the regulation of farm-raised deer (chronic wasting disease) and aquaculture.

States have independent authority to regulate animal health and movement, including imports from other states. However, states strive for reasonable consistency, based on standards spelled out in federal regulations. States typically incorporate federal standards where they exist, and play a key role in implementing federal standards.

The federal bureau does not license animal businesses, or regulate state fees. This fee rule does not duplicate or conflict with any federal fees or standards.

Surrounding State Programs

Surrounding state animal health programs are broadly comparable to those in Wisconsin, but differ in a number of ways. State programs reflect differences in animal populations, animal-based industries, and disease threats. Programs for historically important diseases, such as tuberculosis and brucellosis, tend to be fairly similar between states and are based on well-established federal standards. Programs for newer diseases or newer forms of agriculture, such as farm-raised deer and aquaculture, tend to be more variable.

Animal health fees fund about 19% of Wisconsin's animal health program operations. In the surrounding states, by contrast, animal health program operations are funded almost entirely by state general fund appropriations. Some states charge almost no license fees. Other states charge fees but deposit them to the state general fund (so they do not have a direct impact on program appropriations).

Minnesota: The state-funded portion of Minnesota's animal health program is funded 98% by state general fund appropriations and 2% by industry fees. The farm-raised deer (chronic wasting disease control) program is the only program that charges fees. That fee is $10 per farm-raised deer, up to maximum of $100 per herd.

Iowa: The state-funded portion of Iowa's animal health program is funded 100% by state general fund appropriations. Iowa charges nominal industry fees that are deposited to the state general fund. The cost to collect the fees (which are set by statute) exceeds the amount of revenue produced. Fees include the following:

•   $50 for an annual animal market license, plus $10 for each market agent.

•   $25 for an annual animal dealer license, plus $10 for each dealer agent.

•   $5 for an annual pig dealer license, plus $3 for each dealer agent.

•   $3 for an annual poultry buyer license.

•   $10 for an annual hatchery license.

•   $25 to register a livestock brand for 5 years.

•   $10 for an annual sheep dealer license.

•   $10 for an annual bull breeder license.

Michigan: The state-funded portion of Michigan's animal health program is funded 95% by state general fund appropriations, 2% by segregated fees from racing, and 3% by animal industry fees. Michigan fees include the following:

•   $400 for an annual livestock market (auction) license.

•   $250 for an annual livestock collection point (buy station) license.

•   $150 for an annual horse market (auction) license.

$50 for an annual livestock dealer license.

•   $100 for an annual fish farm license ($75 for a renewal).

Illinois: The state-funded portion of Illinois' animal health program is funded 100% by state general fund appropriations, except that part of its poultry program (eggs) is funded by industry fees. The state also charges some lab testing fees for non-traditional diseases. Illinois charges nominal license fees that are deposited to the state general fund. The cost to collect the fees (which are set by statute) exceeds the amount of revenue produced. Fees include the following:

•   $200 for an annual livestock market (auction) license.

•   $25 for an annual livestock dealer license ($10 for a renewal license), plus $10 for each additional business location and $5 for each dealer agent.

•   $25 for an annual feeder swine dealer license ($10 for a renewal license), plus $5 for each dealer agent.

Notice of Hearings

Agriculture, Trade and Consumer Protection

The State of Wisconsin Department of Agriculture, Trade and Consumer Protection (DATCP) announces that it will hold public hearings on a proposed amendment to chapters ATCP 140, 141, 147 and 148, Wis. Adm. Code, relating to the Marketing Order Program and Wisconsin Commodities organized under ATCP 140. Those commodities being directly affected are Cherries, Ginseng and Mint.

DATCP will hold three public hearings at the times and places shown below. DATCP invites the public to attend the hearings and comment on the proposed rule. Following the public hearings, the hearing record will remain open until Wednesday, August 29, 2007 for additional written comments. Comments may be sent to the Division of Agricultural Development at the address below or by e-mail to [e-mail].

Copy of Rule

You may obtain a free copy of this rule by contacting the Wisconsin Department of Agriculture, Trade and Consumer Protection, Division of Agricultural Development, Marketing Order Program, 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

Comments

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 August 1, 2007, by writing to Noel Favia, Division of Agricultural Development, 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

Tuesday, August 9, 2007

7:00 p.m. to 8:00 p.m.

Marathon County, UW Extension Office

212 River Drive, Rooms 1 & 2

Wausau, WI 54403

Tuesday, August 14, 2007

1:00 p.m. to 2:30 p.m.

Wisconsin Dept. of Agriculture

1st Floor, Board Room

2811 Agriculture Drive

Madison, WI 53708

Wednesday, August 15, 2007

7:00 p.m. to 8:00 p.m.

Wisconsin Peninsular Research Station

Conference Room

4312 Hwy 42

Sturgeon Bay, WI 54235

Analysis Prepared by the Dept. of Agriculture, Trade and Consumer Protection

Statutory Authority:   Sections 93.07 (1), and 96.15, Stats.

Statutes Interpreted:   Ch. 96, Stats.

DATCP has general authority, under s. 93.07(1), Stats., to adopt rules interpreting statutes under its jurisdiction. DATCP is specifically authorized, under s. 96.15, Stats., to adopt rules to administer the marketing order program under ch. 96, Stats.

Background

The Department of Agriculture, Trade and Consumer Protection (DATCP) administers Wisconsin's agricultural marketing order program under ch. 96, Stats. DATCP may adopt marketing orders for Wisconsin agricultural commodities, with the approval of affected commodity producers. DATCP has adopted marketing orders for cherries, cranberries, corn, milk, mint, soybeans, ginseng and potatoes.

A marketing order imposes assessments on commodity producers. Affected producers elect a marketing board, which spends assessment revenues for purposes specified in the marketing order. Marketing orders may be used to finance market development, research and education. DATCP monitors marketing board activities for compliance with applicable law, including the marketing order.

DATCP has adopted general rules to govern the operation of marketing orders and marketing boards. DATCP must also adopt marketing orders as rules. Affected producers must approve (by referendum) the adoption, amendment or repeal of a marketing order. DATCP may bill a marketing board for administrative services provided to the marketing board.

Rule Contents

This rule does all of the following:

•   Amends current rules (ATCP 140) governing all marketing order referenda and marketing board elections:

•   Authorizes, but does not require, DATCP to conduct referenda and elections by electronic mail.

•   As an alternative to mailing ballots to all eligible producers in a marketing board election (but not a marketing order referendum), authorizes DATCP to notify producers how they may obtain election ballots.

•   Amends the cherry marketing order (ATCP 141) to eliminate the requirement of an advisory referendum every 4 years (non-binding advisory referendum asks producers whether they wish to continue the cherry marketing order). A marketing order may be repealed at any time, with or without a non-binding advisory referendum, if the repeal is approved in a formal binding referendum of affected producers.

•   Repeals the mint marketing order (ATCP 147).

•   Amends the ginseng marketing order (ATCP 148):

•   Eliminates the current annual producer assessment based on sales, and replaces it with an assessment based on acres in ginseng production.

•   The ginseng marketing board must annually determine the assessment rate, which may not exceed $150 per acre in ginseng production. The ginseng board may require affected producers to report acreage in production.

•   The ginseng board may verify reported acreage by aerial photography or other reliable means.

•   The ginseng board must annually notify each producer of the assessment amount owed by that producer.

•   DATCP no longer determines assessment amounts, but may audit the ginseng board's determination of assessment amounts.

•   Eliminates the requirement of an advisory referendum every 5 years (advisory referendum asks producers whether they wish to continue the ginseng marketing order). A marketing order may be repealed at any time, with or without a non-binding advisory referendum, if the repeal is approved in a formal binding referendum of affected producers.

•   Makes other minor changes to current rules.

The voting requirement for the amendments to the cherry, ginseng and mint marketing orders as provided in s. 96.08 (1) (b) 3., Stats., is that the applicable referendum most be approved by not less than 50% of the producers voting provided that 50% of the producers on the established list vote in the referendum. For each of the cherry, ginseng and mint marketing orders, the voting requirement identified in s. 96.08 (1) (b) 3., Stats., was used to adopt the original marketing order.

Business Impact

Businesses Affected. In a general sense, this rule affects producers of all agricultural commodities that are covered by an agricultural marketing order or that may be covered in the future. This rule more specifically affects cherry, mint and ginseng producers. Many of the affected businesses are “small businesses." The effects of this rule are generally insignificant.

Agricultural producers; general. This rule gives DATCP more procedural flexibility related to the conduct of marketing order referenda and marketing board elections. Under this rule:

•   DATCP may use electronic mail to conduct referenda and elections (DATCP is not required to use electronic mail).

•   In a marketing board election (but not a marketing order referendum), DATCP may notify producers how to obtain ballots rather than actually mailing ballots to all producers.

DATCP may use these alternative procedures where appropriate. In appropriate circumstances, the alternative procedures may be at least as effective in encouraging producer participation, and may be substantially cheaper. Cost savings may be passed on to marketing boards and individual producers. Cost savings to individual producers will not be significant.

Mint Producers. This rule repeals the current mint marketing order, and eliminates the producer assessments associated with that order. There may be some cost savings to individual mint producers, but the savings will be insignificant. Currently, there are only 14 mint producers in Wisconsin.

Cherry Producers. This rule repeals a current marketing order provision that requires an advisory referendum of cherry producers every 4 years, to determine whether they support continuation of the marketing order. The repeal will save some costs for the marketing board and affected producers. The savings for individual producers will not be significant.

Ginseng Producers. This rule requires ginseng marketing order assessments based on acres in production, rather than sales. Sales assessments are difficult to collect, because most buyers are outside the United States. This rule will charge assessments based on reported acres in production (verified by aerial photography or other reliable means). Assessments based on acres in production will be more fair and reliable. Some individual assessments will go up, but others will go down. Overall assessments will increase, but there will not be a major financial impact on ginseng producers.

This rule repeals a current marketing order provision that requires an advisory referendum of ginseng producers every 5 years, to determine whether they support continuation of the marketing order. The repeal will save some costs for the marketing board and affected producers. The savings for individual producers will not be significant.

Federal Regulation

The United States Department of Agriculture (USDA) administers an agricultural marketing order program, under which USDA has broad authority to regulate prices and production, as well as to charge assessments for market development, promotion, research and education. USDA has adopted marketing orders for some of the same commodities covered by Wisconsin marketing orders (including potatoes, corn, milk and soybeans). However, the state marketing orders do not directly duplicate or conflict with the federal marketing orders.

Surrounding State Regulation

Surrounding states have marketing orders for some, but not all, of the commodities covered by Wisconsin marketing orders. For example, Illinois, Iowa, Minnesota and Michigan have marketing orders for corn. Illinois and Iowa also have marketing orders for soybeans, milk and other commodities. Nearly all United States ginseng is grown in Wisconsin, so no other states have ginseng marketing orders.

Fiscal Impact

The proposed rules will not have a significant fiscal impact on DATCP and will have no fiscal effect on local government.

Notice of Hearing

Employee Trust Funds

[CR 07-066]

A public hearing on this proposed rule will be held on Wednesday, August 1, 2007, at 9:30 AM in Conference Room GB at the offices of the Department of Employee Trust Funds, 801 West Badger Road, Madison, Wisconsin. Persons attending should come to the reception desk up the stairs (or elevator) from the main entrance.

Analysis Prepared by Dept. of Employee Trust Funds

Statute Interpreted: Sections 40.03 (1) (j), (6) (I), (7) (f), (8) (f) and 40.80 (2g), Stats., concerning the hearing authority of the Employee Trust Funds, Group Insurance, Teachers Retirement, Wisconsin Retirement and Deferred Compensation Boards, respectively.

Statutory Authority: Sections 40.03 (2) (i) and 227.11 (2) (a), Stats.

Explanation of Agency Authority: By statute, the DETF Secretary is expressly authorized, with Board approval, to promulgate rules required for the efficient administration of any benefit plan established in ch. 40, Stats. Also, each state agency may promulgate rules interpreting the provisions of any statute enforced or administered by the agency, if the agency considers it necessary to effectuate the purpose of the statute.

Related Statute or Rule: None.

Plain Language Analysis

The purpose of this rule is to allow the five Boards hearing appeals of determinations made by the Department of Employee Trust Funds (DETF) to rely upon hearsay evidence to make factual findings in administrative hearings to the same extent permitted in state court.

The present s. ETF 11.12 (2) (b) prohibits a Board from basing any finding of fact on hearsay. The proposed rule eliminates that absolute prohibition. This change permits the Board hearing the appeal to base its findings of fact upon hearsay when that hearsay is corroborated by other non-hearsay evidence, or in any other circumstances in which Wisconsin courts may determine that reliance upon hearsay evidence is permissible in administrative proceedings. The proposed rule expressly allows the Boards to rely upon hearsay evidence as the basis for their factual findings to the same extent permitted in hearings in Wisconsin courts.

Comparison with Federal Regulations

No existing or proposed federal regulations apply to the evidentiary standards that may be applied by the Boards in hearing administrative appeals of determinations made by the Department of Employee Trust Funds.

Comparison with Rules in Adjacent States

Although there are a number of governmental retirement plans in Illinois, Iowa, Minnesota and Michigan, their administrative rules are not directly relevant to interpreting the Wisconsin statutes governing the Wisconsin Retirement System. Governmental plans differ in the degree to which the terms of the plan are established by enabling legislation or left to subsequent administrative rulemaking or other means.

Illinois. The various governmental retirement systems in Illinois have not adopted administrative rules specifically concerning hearsay evidence in their administrative proceedings. Other state administrative rules deal with hearsay in different ways. For example:

•   The Department of Children and Family Services mandates that previous statements by the child relating to abuse or neglect must be admitted as hearsay exceptions. Ill. Admin. Code tit. 89, §§ 336.120 b) 10) and 412.60 g) 1) B).

•   The Illinois Gaming Board permits hearsay to support a finding of the Administrative Law Judge if it is the best evidence available, has sufficient indicia of trustworthiness and reliability and is of the type reasonably and customarily relied on in the gaming industry. See Ill. Admin. Code tit. 86, § 3000.430 a).

•   The Department of Central Management Services appeal rules provide that the technical rules of evidence do not apply. Any material evidence, including hearsay, may be accepted, but the finder-of-fact must weigh the hearsay nature of such evidence. See Ill. Admin. Code tit. 14, § 105.60 l) 6).

•   In consumer protection hearings by the Attorney General any relevant evidence which is not privileged is admissible, whether or not the evidence is hearsay or would be inadmissible in a court of law. See Ill. Admin. Code tit. 14, § 450.20 b) 3).

•   The State Board of Elections permits hearsay evidence to be admitted into evidence if the hearing examiner deems it reliable and trustworthy. See Ill. Admin. Code tit. 26, § 150.115 a).

On the other hand, some administrative rules appear to discourage hearsay evidence with general statements that the common rule against hearsay will be deemed substantive, not merely technical, for hearing purposes. For examples, see Ill. Admin. Code tit. 41, § 123.180 b) [Office of the State Fire Marshall], Ill. Admin. Code tit. 56, § 2605.360 b) [Department of Commerce and Economic Opportunity] and Ill. Admin. Code tit. 68, § 1110.180 b) [Department of Financial and Professional Regulation]. In many cases, however, the agency's rules then go on to recognize exceptions to this exclusion of hearsay evidence. For instance:

•   The State Fire Marshal's rules for contested cases involving boiler and other pressure vessels state that hearsay is not admissible –– unless the statement is subject to a hearsay exception under Illinois law or has circumstantial guarantees of trustworthiness. The probative value of the hearsay statement must also outweigh any prejudice resulting from an inability to cross-examine the maker of the statement. See ll. Admin. Code tit. 41, § 123.220 b). The rules also identify the kinds of statements which will not be viewed as hearsay, including certain kinds of prior statements made by the witness and admissions made by the other party. See Ill. Admin. Code tit. 41, § 123.220 c).

•   The Department of Commerce and Economic Opportunity, the Department of Financial and Professional Regulation and the Illinois Comptroller have taken similar approaches virtually identical to the State Fire Marshall's. See Ill. Admin. Code tit. 56, § 2605.340 d) and e), Ill. Admin. Code tit. 68, § 1110.220 b) and c) and Ill. Admin. Code tit. 74, § 310.220 b) and c), respectively.

•   Language recognizing the hearsay exceptions in Illinois law or circumstantial guarantees of trustworthiness (and of probative value outweighing the prejudice of the inability to cross-examine) is also found in the Department of Children and Family Services rules, although those rules do not contain the list of statements not considered hearsay. See Ill. Admin. Code tit. 89, § 412.60 g) 1) C).

•   Under Ill. Admin. Code tit. 56 § 2830.335 c), the Department of Employment Security provides that, in actions pertaining to the re-issuance of benefit checks, hearsay which was not objected to may nevertheless not form the sole basis for a decision, if the claimant testified under oath to the contrary. The sole exception is if the Department's special agent finds that the claimant's testimony is incredible, inconsistent or inherently improbable.

•   The Illinois Department of Revenue, in Ill. Admin. Code tit. 86, § 200.155 a), provides that hearsay may not be admitted, except to the extent that it is of a type commonly relied upon by reasonably prudent persons in the conduct of their affairs.

Iowa. The only Iowa administrative rules expressly concerning hearsay evidence in administrative proceedings allow findings to be based on hearsay, regardless of whether the evidence would be admissible in a jury trial, if the evidence is of a kind that reasonably prudent persons are accustomed to rely upon for the conduct of their serious affairs. See Iowa Admin. Code r. 193-7.26(7) [contested cases concerning professional licensing and regulation], Iowa Admin. Code r. 263-9.10(4)(intro.) [City Development Board involuntary development actions], and Iowa Admin. Code r. 721-25.24(7) [Secretary of State administrative complaints regarding elections].

Michigan. The State Employee Retirement System does not yet have administrative rules. The Michigan Administrative Code contains no rules relating specifically to hearsay.

Minnesota. The Minnesota governmental retirement systems have not adopted administrative rules specifically concerning hearsay evidence. Other state administrative rules deal with hearsay in a fairly uniform way.

Under Minnesota's Office of Administrative Hearings, the rules governing a variety of different kinds of hearings, including contested cases, allow hearsay evidence with probative value to be admitted into evidence. See Minn. R. 1400.7300 subp. 1., Minn. R. 1400.8601 subp. 1., and Minn. R. 1405.1700 subp. 3. The rules on hearings by other state agencies also permit receiving any evidence, expressly including hearsay, if it is the type of evidence on which reasonable, prudent persons are accustomed to rely in the conduct of their serious affairs. See Minn. R. 3310.2922 [unemployment compensation procedure], Minn. R. 3525.4320 [Dept. of Education disabled children hearings], Minn. R. 5510.1910 subp. 9 [Public employment labor relations], Minn. R. 7897.0170 subp. 3 [Racing Commission], Minn. R. 9200.4800 subp. 19 A. [Environmental quality board].

The rules of two boards specify that hearsay evidence may be used to supplement or explain direct evidence, but is insufficient to support a finding in itself, unless the hearsay would be admissible over objection in a civil action. See Minn. R. 5601.3145 [Board of Physical Therapy] and Minn. R. 5615.0900 subp. 3 [Board of Medical Practice].

Summary of Factual Data and Analytical Methodologies

The proposed rule is based on logical analysis of the evidentiary issues that can arise under the administrative appeal process as well as many years of experience with evidence offered in such hearings.

Analysis to Determine Effect on Small Business or in Preparation of Economic Impact Report

This rule-making affects only administrative hearings before the Employee Trust Funds Board and four other Boards attached to the DETF. The parties to such hearings are governmental employees affected by determinations made by the DETF in administering the pension, insurance and other fringe benefit plans under ch. 40, Stats. their beneficiaries and sometimes the governmental agencies that employ them. Third party administrators contracted by the DETF or Boards to assist in the administration of particular benefit plans may sometimes participate as parties, if they wish. However, such third-party administrators do not now, and have not in the past, met the definition of a “small business" in s. 227.114 (1), Stats.

Anticipated Costs Incurred by Private Sector

None.

Effect on Small Business

No effect

Agency Contact Person

Please direct any questions about the proposed rule to Robert Weber, Chief Counsel, Department of Employee Trust Funds, P.O. Box 7931, Madison WI 53707. Telephone: [phone]. E-mail address: [e-mail].

Submission of and Deadline for Comments

Written comments on the proposed rule may be submitted to Robert Weber, Department of Employee Trust Funds, 801 W. Badger Road, P.O. Box 7931, Madison, WI 53707-7931. Written comments must be received at the Department of Employee Trust Funds no later than 4:30 PM on Friday, August 10, 2007.

Initial Regulatory Flexibility Analysis

The proposed rule has no effect on small businesses.

Fiscal Estimate

The proposed rule is expected to have no fiscal effect on any county, city, village, town, school district, technical college district or sewerage district. Although such governmental entities may appear as parties in the administrative appeals affected by this rule, they remain free to present their evidence in those administrative appeals in exactly the same manner as at present. It is possible that the rule will enable some limited savings if evidence can be presented in the form of corroborated, or otherwise reliable, hearsay rather than through, for example, expert testimony.

Free Copies of Proposed Rule

Copies of the proposed rule are available without cost from the Office of the Secretary, Department of Employee Trust Funds, P.O. Box 7931, Madison WI 53707-7931, telephone [phone].

Notice of Hearing

Funeral Directors Examining Board

[CR 07-049]

NOTICE IS HEREBY GIVEN that pursuant to authority vested in the Funeral Directors Examining Board in ss. 15.08 (5) (b), 227.11 (2) and 445.03, Stats., and interpreting s. 445.06, Stats., the Funeral Directors Examining Board will hold a public hearing at the time and place indicated below to consider an order to amend s. FD 4.04 (1) (intro.); and to create s. FD 4.04 (8), relating to continuing education requirements.

Hearing Date, Time and Location

Date:   August 7, 2007

Time:   9:45 a.m.

Location:   1400 East Washington Avenue
  (Enter at 55 North Dickinson Street)
  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 the Department of Regulation and Licensing, Office of Legal Counsel, P.O. Box 8935, Madison, Wisconsin 53708. Written comments must be received by August 8, 2007, to be included in the record of rule-making proceedings.

Analysis Prepared by Dept. of Regulation and Licensing

Statutes Interpreted:   Section 445.06, Stats.

Statutory Authority:   Sections 15.08 (5) (b), 227.11 (2) and 445.03, Stats.

Related Statute or Rule: There are no other statutes or rules other than those listed above.

Explanation of Agency Authority: The Funeral Directors Examining Board is authorized to promulgate rules relating to continuing education under s. 445.03, Stats.

Plain Language Analysis

This proposed rule-making order relates to continuing education requirements for funeral directors. Licensed funeral directors are required to complete 15 hours of continuing education during each 2-year licensure period. The modifications to the existing continuing education rules will enable funeral directors to take a wider selection of courses from certain recognized providers without also having to go through the course approval process.

SECTION 1 adds an exception to the existing continuing education rules for licensed funeral directors which will permit licensees to obtain continuing education credits from certain recognized entities.

SECTION 2 adds another acceptable means for obtaining continuing education. Under this provision, funeral directors may take continuing education courses from one of these recognized providers without having to go through the formal course approval process.

Comparison with Federal Regulations

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

Illinois: Twelve hours of continuing education are required every two years. Attendance at programs that are sponsored by accredited colleges or universities and several local, state, and national associations and meet certain criteria is acceptable continuing education by rule and does not need preapproval. Sponsors are required to fill out an application that states that they are meeting all required criteria. Rules can be viewed by going to the Illinois Department of Financial & Professional Regulation Division of Professional Regulation at http://www.idfpr.com/dpr/default.asp, click on Funeral Director and then Funeral Director Rules.

Michigan: Continuing education is not required in Michigan. Rules can be viewed by going to the Department of Labor & Economic Growth at http://www.michigan. gov/cis, click on Commercial Services & Corporations and then Licensing Services, followed by Funeral Directors, then Administrative Rules.

Minnesota: Twelve hours of continuing education are required every two years. Rules specifically state that the “commissioner may, upon presentation of an appropriate program of continuing education developed by the Minnesota Funeral Directors Association, require continuing education hours for renewal of a license to practice mortuary science." Rules can be viewed by going to the Minnesota Department of Public Health Mortuary Science Section at http://www.health.state.mn.us/divs/hpsc/mortsci/, click on Regulations.

Iowa: Twenty-four hours of continuing education are required every two years. Attendance at programs that are sponsored by state or national funeral associations that meets certain criteria is acceptable continuing education by rule and does not need preapproval. Rules can be viewed by going to the Iowa Department of Public Health at http://idph.state.ia.us/licensure/default.asp, click on Mortuary Science Board and then Continuing Education.

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 board's analysis and determination that a rule change is necessary.

Analysis to Determine Effect on Small Business or in Preparation of Economic Impact Report

The proposed rules would allow certain continuing education course providers to receive pre-approval from the board rather than have to submit each course for approval. There are 1313 funeral directors licensed in Wisconsin. Of the 1313 funeral directors, a significant percentage of them probably work in small business. This rule change will have a minimal, if any, effect on small business. The proposed rules would make it easier for certain providers to obtain approval for continuing education. Also, it may make it more likely that a course will receive board approval and a licensee will receive their continuing education credit as some providers will no longer have to affirmatively submit their course for approval.

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 for Private Sector

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

Fiscal Estimate

The department estimates that the proposed rule will have no significant fiscal impact.

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].

Submission of and Deadline for Comments

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 pamela.haack@drl. state.wi.us. Comments must be received on or before August 8, 2007 to be included in the record of rule-making proceedings.

Text of Rule

SECTION 1. FD 4.04 (1) (intro.) is amended to read:

FD 4.04 Approval of continuing education programs. (1) (intro.) To Except as provided in sub. (8), to obtain approval of a continuing education program, the program provider shall submit an application to the board on a form provided by the board which shall include:

SECTION 2. FD 4.04 (8) is created to read:

FD 4.04 (8) A continuing education course sponsored by a national, international, state or regional funeral director's association, or an educational institution accredited by the American Board of Funeral Service Education or otherwise deemed to be equivalent by the board, which satisfies the criteria established in sub. (1) and s. FD 4.405, shall be approved by the board without receipt of a course approval application from the program provider.

Notice of Hearings

Natural Resources

(Environmental Protection - General,
Chs. NR 100—)

(Reprinted and amended from 6/30/07
Wis. Adm. Register)

NOTICE IS HEREBY GIVEN that pursuant to ss. 59.692, 227.11(2)(a) and 281.31, Stats., interpreting ss. 59.69, 59.692, 59.694 and 281.31, Stats., the Department of Natural Resources will hold public hearings on revisions to ch. NR 115, Wis. Adm. Code, relating to minimum standards for county shoreland zoning ordinances. Major provisions of the proposed rule include changes to vegetation management in the primary shoreland buffer and changes to regulation of nonconforming structures. New requirements include minimum lot size and density requirements for multi-unit residential development, mobile home parks and campgrounds; two formulas to calculate reduced shoreland setbacks; an impervious surface standard; and mitigation standards. The proposals include:

Land Division Review – NR 115.09

1. The requirement for land division review is changed from the creation of “3 or more lots" to the creation of “one or more lots" to ensure that all new lots created meet minimum lot size requirements.

2. If new lots are created that are divided by a stream or river, one side of the lot shall have a compliant building location.

Lot Size and Development Density – NR 115.11

1. Minimum lot size and density standards have changed eliminating a distinction between sewered and unsewered areas. The new minimum lot size for all lots created after the effective date of the rule is 20,000 square feet and 100 feet of width at the building setback and ordinary high water mark. Counties may allow development on a substandard lot.

2. Counties are required to develop minimum area or lot size requirements for multi-family residential structures, mobile home parks and campgrounds.

3. Counties may request the approval of standards for alternative forms of development with reduced lot sizes for planned unit developments, cluster developments, conservation subdivisions and other similar alternative forms of development if they include larger shoreland buffers, larger lot sizes or larger setbacks on those lots adjacent to the water.

Shoreland Setback – NR 115.13

1. Language is added to address structures exempted by other state or federal laws from the shoreland setback standards.

2. Provisions are added to allow counties to exempt structures from the shoreland setback if they meet certain requirements outlined in s. NR 115.13(4).

3. The construction of new dry boathouses is still exempted; however, a size limit of 250 square feet has been added to the rule.

4. Standards are established to qualify a lot for a reduced setback if there is not a compliant building location.

Height Requirements – NR 115.15

1. A new section on structure height was added to protect and preserve the natural scenic beauty of lake and riverine environments.

Shoreland Vegetation and Buffers – NR 115.17

1. Language governing management of shoreland vegetation in the primary shoreland buffer is improved, resulting in a more functional buffer protecting habitat and water quality.

2. Tree and shrubbery pruning is allowed. Removal of trees and shrubs may be allowed if they are exotic or invasive species, diseased or damaged, or if an imminent safety hazard, but removed trees and shrubbery must be replaced.

3. Provisions are added to allow counties to exempt 7 types of activities from the shoreland vegetation provisions.

4. A formula for the width of access corridors is provided, replacing the “30 feet in any 100 feet" provision, which was confusing if a lot had less than 100 feet of frontage. A second formula for lots with greater than 200 feet of frontage was also added to address larger developments adjacent to the water.

Impervious Surfaces – NR 115.19

1. Development is regulated through the use of percentages of total impervious surface rather than through the use of a nonconforming structure provision. The impervious surface percentages of 10% for new principal structures or 15% for existing development may be exceeded up to a maximum of 20% total impervious surface within 300 feet of the ordinary high water mark if mitigation measures are implemented and maintained.

2. Provisions are also included for shared impervious surfaces, expansion, enclosing existing impervious surfaces, replacements and relocation.

Mitigation Provisions – NR 115.21

1. Provisions are now a performance measure to protect, preserve and enhance water quality and wildlife habitat while achieving natural scenic beauty.

2. There is a water quality standard and a wildlife standard that the counties will have to flesh out in their individual ordinances. The water quality standard will require infiltration of runoff.

3. A provision on proportionality has been added to ensure the mitigation measures required will not outweigh the impacts of the proposed project.

Land Disturbing Construction Activities – NR 115.23

1. A county permit is required for land disturbing construction activities in the shoreland zone to minimize erosion and sedimentation.

2. Counties shall exempt from the permit requirement activities that have already received permits from other identified permitting authorities.

NOTICE IS HEREBY FURTHER GIVEN that pursuant to s. 227.114, Stats., it is not anticipated that the proposed rule will have an economic impact on small businesses.

NOTICE IS HEREBY FURTHER GIVEN that pursuant to s. 1.11, Stats., and ch. NR 150, Wis. Adm. Code, the Department has prepared an Environmental Assessment for this action. The Department has made a preliminary determination that the proposal will not cause significant adverse environmental effects and that an Environmental Impact Statement will not be required.

NOTICE IS HEREBY FURTHER GIVEN that the Department will hold an open house from 4:30 p.m. to 5:30 p.m. prior to each hearing. Department staff will be available to answer questions regarding the proposed rules.

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

July 24, 2007 Tuesday at 5:45 p.m.	Auditorium Health & Science Bldg. North Central Tech. College 1000 W. Campus Drive Wausau
July 25, 2007 Wednesday at 5:45 p.m.	Auditorium Rhinelander High School 665 Coolidge Avenue Rhinelander
July 26, 2007 Thursday at 5:45 p.m.	Blue Hills Masonic Center 225 West South Street Rice Lake
July 31, 2007 Tuesday at 5:45 p.m.	Community Room Farmers & Merchants Bank 1001 Superior Avenue Tomah
August 2, 2007 Thursday at 5:45 p.m.	Neville Museum Theater 210 Museum Place Green Bay
August 7, 2007 Tuesday at 5:45 p.m.	Anderson Education Center Waukesha Co. Tech. College 800 Main Street Pewaukee
August 8, 2007 Wednesday at 5:45 p.m.	Opera House 381 E. Main Street Stoughton

NOTICE IS HEREBY FURTHER GIVEN that pursuant to the Americans with Disabilities Act, reasonable accommodations, including the provision of informational material in an alternative format, will be provided for qualified individuals with disabilities upon request. Please call Toni Herkert at [phone] with specific information on your request at least 10 days before the date of the scheduled hearing.

Submission of Comments and Copy of Rule

The proposed rule, fiscal estimate and Environmental Assessment may be reviewed and comments electronically submitted at either of the following Internet sites: http://dnr.wi.gov/org/water/wm/dsfm/shore/news.htm or http://adminrules.wisconsin.gov. Written comments on the proposed rule and Environmental Assessment may be submitted via U.S. mail to Toni Herkert, Bureau of Watershed Management, P.O. Box 7921, Madison, WI 53707. Comments may be submitted until September 7, 2007. Written comments whether submitted electronically or by U.S. mail will have the same weight and effect as oral statements presented at the public hearings. A personal copy of the proposed rule, fiscal estimate and Environmental Assessment may be obtained from Ms. Herkert.

Notice of Hearing

Transportation

[CR 07-065]

NOTICE IS HEREBY GIVEN that pursuant to ss. 85.13, 227.11, 345.28 and 345.47 (1) (d), Stats., and interpreting ss. 85.13, 341.08 (4m), 341.10 (7) and (7m), 341.63, 341.64, 345.17, 345.28 and 345.47 (1) (d), Stats., and ch. 342, Stats., the Department of Transportation will hold a public hearing in Room 144-B of the Hill Farms State Transportation Building, 4802 Sheboygan Avenue, Madison, Wisconsin on the 7th day of August, 2007, at 9:30 AM, to consider the amendment of ch. Trans 128, Wis. Adm. Code, relating to the traffic violation and registration 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 Dept. of Transportation

Statutes Interpreted: ss. 85.13, 341.08(4m), 341.10(7) and (7m), 341.63, 341.64, 345.17, 345.28 and 345.47(1)(d), Stats., and ch. 342, Stats.

Statutory Authority: ss. 85.13, 227.11, 345.28 and 345.47(1)(d), Stats.

Explanation of Agency Authority: The Department is charged with responsibility for suspending or refusing registration of vehicles for failure to pay various debts related to unpaid judgments, parking citations or towing and storage charges associated with parking citations. This chapter implements those requirements.

Related Statute or Rule: ss. 85.13, 341.08 (4m), 341.10 (7) and (7m), 341.63, 341.64, 345.17, 345.28 and 345.47 (1) (d), Stats., and chs. 341 and 342, Stats.

Plain Language Analysis

This proposed rule makes the following changes to current rule regarding the Traffic Violations Registration Program (TVRP): First, it adds towing and storage charges as eligible for TVRP action, as enacted in 2003 Act 201. Second, it adds provisions to accommodate electronic submission of notices that suspending authorities submit to the Department of Transportation, as well as manual or paper submission of notices. Third, the rule includes language to clarify the effect of bankruptcy on vehicle registration suspensions, to comport with federal and state law. The remainder of the rule making consists of re-organizing existing provisions into more readable and understandable format, elaborating on current policies for added clarity, and adding definitions that may be needed.

Comparison with Federal Regulation

No federal regulations require, encourage or discuss registration suspension or refusal for unpaid debts such as judgments, citations, or towing and storage charges.

Comparison with Rules in Adjacent States

Michigan: Michigan will sanction a person's driver's license for unpaid tickets rather than vehicle registration. If a person accumulates 6 or more parking tickets or 2 or more disabled parking tickets, the person is prevented from renewing his or her driver's license. Parking tickets only are included, not towing and storage charges. Information is submitted to DMV by the courts electronically. Some smaller jurisdictions may submit paper.

Minnesota: Minnesota will suspend the driver's licenses when the counties notify DMV. If there is an unpaid judgment, it could include unpaid towing/storage charges, but the parking citations do not. Information is submitted electronically from the counties to DMV.

Illinois: Illinois will suspend the person's driver's license, if the person accumulates 10 or more parking citations. The city determines the amount of the payment, so it may or may not include towing and storage charges. Information is sent to DMV in paper form.

Iowa: Iowa will suspend the person `s driver's license, if parking ticket (and subsequent charges from towing) are not paid; all charges would have to be paid before the suspension is lifted. Most parking authorities submit information electronically.

Summary of Factual Data and Analytical Methodologies

The regulatory approach in this proposed rule reflects no change from current regulatory approach governing the TVRP administration. No data analysis was required.

Analysis to Determine Effect on Small Businesses

The statutory provisions upon which this rule is based apply to governmental units, not to small businesses. Thus, this rule does not apply to small businesses.

Effect on Small Business

This rule affects governmental units, authorized by law to enforce non-moving traffic violations. The rule has no effect on small business, with the exception of any small business that might engage by contract with a governmental unit to process non-moving traffic violation notices to the Department. In that case, the business would be bound by its contract with the governmental unit. The Department's Regulatory Review Coordinator may be contacted by e-mail at [e-mail], or by calling [phone].

Fiscal Effect and Anticipated Costs by Private Sector

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. The Department estimates that there will be no fiscal impact on state revenues or liabilities.

This rule also has no effect on costs incurred by the private sector.

Agency Contact Person and Submission of Comments

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 Carson Frazier, Department of Transportation, Bureau of Vehicle Services, Room 253, P. O. Box 7911, Madison, WI 53707-7911. You may also contact Ms. Frazier by phone at [phone] or e-mail: [e-mail].

Copy of Rule on Internet

To view the proposed amendments to the rule, view the current rule, and submit written comments via e-mail/internet, you may visit the following website: http://www.dot.wisconsin.gov/library/research/law/rulenotices.htm.

Notice of Hearing

Transportation

[CR 07-064]

NOTICE IS HEREBY GIVEN that pursuant to s. 227.11, Stats., and interpreting ss. 19.35, 85.105, 341.17, 342.09 and 343.24, Stats., the Department of Transportation will hold a public hearing in Room 144-B of the Hill Farms State Transportation Building, 4802 Sheboygan Avenue, Madison, Wisconsin on the 2nd day of August, 2007, at 10:30 AM, to consider the amendment of ch. Trans 195, Wis. Adm. Code, relating to fees and procedures for searches and documentation of division of motor vehicle records.

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 Dept. of Transportation

Statutes Interpreted: ss. 19.35, 85.105, 341.17, 342.09 and 343.24, Stats.

Statutory Authority: s. 227.11, Stats.

Explanation of Agency Authority: This is addressed in the next section, related statute or rule.

Related Statute or Rule

DMV may charge reasonable copy and search fees. These fees may not exceed DMV's actual, necessary and direct costs. Wis. Stat. s. 19.35(3). DMV is currently authorized to charge a search fee for driver and vehicle title and registration records. DMV can charge $5 for conducting a file search of vehicle registration records. Wis. Stat. s. 341.17(8) and ss. Trans 195.04 and 195.09. DMV can charge $5 for conducting a file search of vehicle title records. Wis. Stat. s. 342.09(3) and ss. Trans 195.04 and 195.09. DMV can charge $5 for conducting a file search of vehicle operator records. Wis. Stat. s. 343.24(2) and (2m). DMV shall charge a copy fee of $5 for each file of uniform traffic citations or motor vehicle accidents. Wis. Stat. s. 343.24(2m). The Wisconsin Supreme Court has ruled that custodians can charge requesters for the cost of separating confidential from public information (redaction). Osborn v. Board of Regents, 2002 WI 83, 254 Wis. 2d 266, 299-305 (2002).

DMV may contract with businesses to periodically provide information in an electronic medium from motor vehicle accidents and uniform traffic citations. Wis. Stat. ss. 85.105 and 343.24(2m).

The Federal Drivers' Privacy Protection Act 18 U.S.C. sections 2721-2725 prohibits motor vehicle departments from disclosing personal information about any individual derived from motor vehicle records. 18 U.S.C. section 2721(a).

Information in motor vehicle and driver records protected from disclosure under Wisconsin law includes:

Medical records, Wis. Stat. s. 343.16(5)

Juvenile records, Wis. Stat. ss. 343.24 (3), 343.30 (5) and (6), 938.396 (3)

Driver license photograph, Wis. Stat. s. 343.237 (2)

Identification card information, Wis. Stat. s. 343.50 (8)

Fingerprints, Wis. Stat. s. 343.237 (2)

Signatures, Wis. Stat. s. 343.027

DMV may not disclose personal identifiers relating to driver licenses and identification cards in requests for 10 or more persons, if a person requests that this information not be disclosed. Personal identifiers may be disclosed to a law enforcement agency, state authority, or federal government agency to perform a legally authorized function; or to an insurer for insurance purposes. Wis. Stat. ss. 85.103, 343.14(2m), 343.235 and 343.51(1m).

DMV may not disclose personal identifiers relating to vehicle registrations in requests for 10 or more persons, if a person requests that this information not be disclosed. Personal identifiers may be disclosed to a law enforcement agency, state authority, or federal government agency to perform a legally authorized function; or to an insurer for insurance purposes. Wis. Stat. ss. 85.103, 341.08(1m), and 341.17(9).

DMV may not disclose personal identifiers relating to vehicle titles in requests for 10 or more persons, if a person requests that this information not be disclosed. Personal identifiers may be disclosed to a law enforcement agency, state authority, or federal government agency to perform a legally authorized function; or to an insurer for insurance purposes. Wis. Stat. ss. 85.103, 342.06(1)(i) and 341.17(9).

Section ADM 12.05(3) requires agencies to restrict and limit access to confidential records maintained in an electronic format.

Plain Language Analysis

Ch. Trans 195 establishes fees for searches of vehicle and driver records. The provisions cover both single (individual) driver and vehicle records, and also large volumes of data that include many records, of multiple drivers or vehicles.

The amendment defines “records in bulk" to refer to more than 10 individual vehicle or driver records that are provided at one time, and distinguishes records in bulk from individual vehicle or driver license records. The amendment defines several terms relating to personal information that may not be disclosed under federal law or provisions of state law, and defines “redaction" as separating that personal information from records.

The amendment clarifies the procedure for a request to search vehicle and driver license records, eliminating obsolete, contradictory, and redundant provisions. The amendment clarifies what the fee is for search of individual vehicle or driver record, as distinct from the fee for records in bulk, which is a compilation of multiple individual records. The amendment establishes the fee for redaction or records.

The amendment adds a provision to reflect current technological ability to offer direct access to vehicle and driver license records. The provision allows DOT to provide direct access to vehicle and driver license records, under a contract developed by DOT. With certain exceptions, any person who enters such a contract must obtain a criminal history background check for any person who will have direct access to vehicle or driver license records.

Comparison with Federal Regulation

The federal Drivers Privacy Protection Act governs all State DMVs' authority to release certain personal information. This rule complies with DPPA.

Comparison with Rules in the Following States

Michigan: Michigan charges for individual record search $7; and $16/1,000 for records in bulk that are routinely generated, and $64/1000 that are custom-prepared. Charge is based on preparation plus market-based price. Michigan has statutory authority to sell records.

Minnesota: Minnesota charges for individual record search $9 if provided in paper and $5 if electronic; and $5,000 plus $850 weekly for records in bulk routinely generated. Charge is based on a reasonable fee in addition to costs of preparation. Minnesota has statutory authority to sell records.

Illinois: Illinois charges for individual record search $5 per record; and $50/1,000 for records in bulk that are routinely generated. Charge is based on costs of preparation or $50/1000, whichever is greater. Illinois has statutory authority to sell records.

Iowa: Iowa charges for individual driver record for $5.50 if provided in certified (paper) and $8.50 if electronic, and fee based on staff time and copy cost for vehicle records; and $12.09 per computer minute for certain records in bulk or $8.50 per record for certain other records in bulk. Iowa has statutory authority to sell records.

Summary of Factual Data and Analytical Methodologies

This rule making clarifies current DMV policies. No new regulatory approach is created.

Analysis to Determine Effect on Small Businesses

This amendment clarifies current DMV policies on fee calculation, and current contract requirement for any person who enters a contract with DOT for direct access to vehicle or driver license records. Fees are not changed by this rule making. A redaction fee would seldom be needed for record requests made by small businesses.

Effect on Small Business

This amendment will have minimal increased cost on small business. The rule requires that a business obtain a criminal background check from the Wisconsin Department of Justice for all persons who will have direct access to vehicle or driver license records. The Department of Justice currently charges a fee of $13 (request by internet) or $18 (request by mail or fax) for each criminal background check. For example, if a small business has 25 employees and 10 of those employees are proposed to have direct access to vehicle or driver license records, the small business would need to pay the Department of Justice up to $180 for criminal background checks. The Department's Regulatory Review Coordinator may be contacted by e-mail at [e-mail], or by calling [phone].

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.

Anticipated Costs Incurred by Private Sector

The Department estimates that there will be no fiscal impact on state or private sector revenues or liabilities.

Agency Contact Person and Submission of Comments

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 Carson Frazier, Department of Transportation, Bureau of Vehicle Services, Room 253, P. O. Box 7911, Madison, WI 53707-7911. You may also contact Ms. Frazier by phone at [phone] or e-mail: [e-mail].

Copy of Rule on Internet

To view the proposed amendments to the rule, view the current rule, and submit written comments via e-mail/internet, you may visit the following website: http://www.dot.wisconsin.gov/library/research/law/rulenotices.htm.

Notice of Hearing

Veterinary Examining Board

[CR 07-051]

NOTICE IS HEREBY GIVEN that pursuant to authority vested in the Veterinary Examining Board in ss. 15.08 (5) (b), 227.11 (2) and 453.03, Stats., and interpreting ss. 453.062 and 453.07, Stats., the Veterinary Examining Board will hold a public hearing at the time and place indicated below to consider an order to renumber s. VE 1.02 (1); and to create ss. VE 1.02 (1), 7.01 (5), 7.025, 7.03 (2) (q) and (3) (k), 7.06 (23) and 10.03 (4) (g), relating to continuing education, informed consent and recordkeeping.

Hearing Date, Time and Location

Date:   August 8, 2007

Time:   10:00 a.m.

Location:   1400 East Washington Avenue
  (Enter at 55 North Dickinson Street)
  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 the Department of Regulation and Licensing, Office of Legal Counsel, P.O. Box 8935, Madison, Wisconsin 53708. Written comments must be received by August 10, 2007, to be included in the record of rule-making proceedings.

Analysis Prepared by Dept. of Regulation and Licensing

Statute Interpreted:   Sections 453.062 and 453.07, Stats.

Statutory Authority:   Sections 15.08 (5) (b), 227.11 (2) and 453.03, Stats.

Related Statute or Rule: There are no other related statutes or rules other than those listed above.

Explanation of Agency Authority: The Veterinary Examining Board is authorized under s. 453.03 (1), Stats., to promulgate rules establishing the scope of practice permitted for veterinarians and rules relating to continuing education and unprofessional conduct.

Plain Language Analysis

SECTION 1. Section VE 1.02 is renumbered VE 1.02 (1e).

SECTION 2. Section VE 1.02 (1) is created to define “accredited college or university." The proposed rule clarifies that only coursework completed at educational institutions that are accredited by a regional or national accrediting agency recognized by the U.S. Department of Education will be acceptable for continuing education hours.

SECTION 3. Section VE 7.01 (5) is created to define “viable veterinary diagnostic procedures and modes of treatment." The proposed rule clarifies that viable veterinary diagnostic procedures and modes of treatment are those that are generally considered by the veterinary profession to be within the scope of current, acceptable standards of care.

SECTION 4. Section VE 7.025 is created to require, with some exceptions, veterinarians to disclose all viable veterinary diagnostic procedures and modes of treatment to clients.

SECTION 5. Section VE 7.03 (2) (q) is created to state that veterinarians are required to document in patient records communications of information provided to clients relating to all viable veterinary diagnostic procedures and modes of treatment.

SECTION 6. Section VE 7.03 (3) (k) is created to state that veterinarians are required to document in patient records communications of information provided to clients relating to all viable veterinary diagnostic procedures and modes of treatment.

SECTION 7. Section VE 7.06 (23) is created to state that it shall be unprofessional conduct for a veterinarian to fail to inform a client about the availability of all viable veterinary diagnostic procedures and modes of treatment and about the benefits and risks of each, as required under s. VE 7.025.

SECTION 8. Section VE 10.03 (4) (g) is created to clarify that a foreign veterinary medical or veterinary technician association, an accredited college or university, or a governmental agency that is, as determined by the board, comparable to a program provider listed under s. VE 10.03 (4) (a) to (f), may be approved as a continuing education course provider.

Comparison with Federal Regulation

There is no existing or proposed federal regulation.

Comparison with Rules in Adjacent States

Minnesota: A rule on record keeping includes a list of what must be recorded. A rule on informed consent requires a client to be informed of treatment choices and alternatives, including an estimated cost of alternatives, prior to treatment. There is also language about the veterinarian assuming responsibility for clinical judgments and caretakers agreeing to follow the veterinarian's instructions.

Illinois: The statute includes language about the veterinarian assuming responsibility for clinical judgments and caretakers agreeing to follow the veterinarian's instructions. This provision is similar to Minnesota's law. A rule on recordkeeping includes a list of 10 items that must be included. Informed consent is one of them.

Iowa: Does not have provisions relating to informed consent/disclosure of certain information to clients regarding treatment options.

Michigan: Does not have provisions relating to informed consent/disclosure of certain information to clients regarding treatment options.

Summary of Factual Data and Analytical Methodologies

The Veterinary Examining Board reviewed the proposed rule change during open session at its meetings in 2006 and 2007. Professional expertise and opinions of board members were offered and discussed at the meetings. The chair of the board invited comment from a representative of the Wisconsin Veterinary Medical Association (WVMA), and the board consulted the Department of Regulation and Licensing's Division of Enforcement regarding the impact of the current rule on its ability to prosecute unprofessional practice cases relating to informed consent and recordkeeping. The division attorney explained how the current rule does not adequately ensure that clients receive communication from veterinarians regarding viable treatment alternatives, their risks and benefits, and that explicit language would aid in prosecutions and increase protection of the public.

Analysis to Determine Effect on Small Business or in Preparation of Economic Impact Report

The requirement has no impact on the bookkeeping operations of veterinary clinics, most of which are small businesses. The proposed rule would not disproportionately impact small business veterinarians. The patient recordkeeping requirements for all veterinarians apply irrespective of practice size.

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.

Fiscal Estimate

The department estimates that the proposed rule will have no significant fiscal impact.

Anticipated Costs for Private Sector

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

Effect on Small Business

These proposed rules were reviewed by the department's Small Business Review Advisory Committee to determine whether the rules will have any significant economic impact on a substantial number of small businesses, as defined in s. 227.114 (1), Stats. The Committee determined that the fiscal impact on small businesses would be minimal and is justified by the practice improvements required by the rule. 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].

Submission of and Deadline for Comments

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 August 10, 2007 to be included in the record of rule-making proceedings.

Text of Rule

SECTION 1. VE 1.02 (1) is renumbered VE 1.02 (1e).

SECTION 2. VE 1.02 (1) is created to read:

VE 1.02 (1) “Accredited college or university" means an educational institution that is accredited by a regional or national accrediting agency recognized by the U.S. Department of Education.

SECTION 3. VE 7.01 (5) is created to read:

VE 7.01 (5) “Viable veterinary diagnostic procedures and modes of treatment" means diagnostic procedures and modes of treatment generally considered by the veterinary profession to be within the scope of current, acceptable standards of care.

SECTION 4. VE 7.025 is created to read:

VE 7.025 Disclosure of all viable veterinary diagnostic procedures and modes of treatment. (1) Except as provided in sub. (2), a veterinarian shall inform a client about the availability of all viable veterinary diagnostic procedures and modes of treatment, including the benefits and risks of each, in a manner sufficient to allow the client to make a prudent decision.

(2) A veterinarian is not required to inform a client about the availability of all viable veterinary diagnostic procedures and modes of treatment, or about the benefits and risks of each, in any of the following instances:

(a) When the communication would involve providing detailed technical information relating to procedures that are inherent to a particular diagnostic procedure or mode of treatment.

(b) When the communication would involve providing information relating to diagnostic procedures or modes of treatment which are not viable or which are experimental.

(c) When a veterinarian refers a patient to another veterinarian, the referring veterinarian is not required to inform the client of all viable veterinary diagnostic procedures or modes of treatment that may be provided by the veterinarian to whom the patient is being referred.

(d) When the communication would involve providing information relating to diagnostic procedures or modes of treatment which involve extremely remote possibilities that might falsely or detrimentally alarm the client.

(e) When the communication would involve providing information beyond what a reasonably well-qualified veterinarian treating the same condition would know.

(f) When the client cannot be located.

(g) When the client informs the veterinarian that he or she is not interested in receiving information regarding all viable veterinary diagnostic procedures and modes of treatment.

(h) In emergencies, when failure to provide treatment, including any necessary diagnostic tests relating to that treatment, to stabilize the patient would be detrimental to the patient's health.

SECTION 5. VE 7.03 (2) (q) is created to read:

VE 7.03 (2) (q) Communications of information provided to clients relating to all viable veterinary diagnostic procedures and modes of treatment.

SECTION 6. VE 7.03 (3) (k) is created to read:

VE 7.03 (3) (k) Communications of information provided to clients relating to all viable veterinary diagnostic procedures and modes of treatment.

SECTION 7. VE 7.06 (23) is created to read:

VE 7.06 (23) Failure to inform a client about the availability of all viable veterinary diagnostic procedures and modes of treatment, or about the benefits and risks of each, as required under s. VE 7.025.

SECTION 8. VE 10.03 (4) (g) is created to read:

VE 10.03 (4) (g) A foreign veterinary medical or veterinary technician association, an accredited college or university, or a governmental agency that is, as determined by the board, comparable to a program provider listed under pars. (a) to (f).