Rule-Making Notices
Notice of Hearings
Agriculture, Trade and Consumer Protection
[
CR 07-067]
(Reprinted from 7/15/07 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 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
noel.favia@datcp.state.wi.us.
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 (608) 224-5140 or emailing
noel.favia@datcp.state.wi.us.
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
Keeley.Moll@datcp.state.wi.us or by telephone at (608) 224-5039.
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 (608) 224-5140. Alternatively, you may contact the DATCP TDD at (608) 224-5058. 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
Statutes interpreted
Agency authority
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 Estimate
The proposed rules will not have a significant fiscal impact on DATCP and will have no fiscal effect on local government.
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 99, 100, and 101, Wis. Adm. Code, relating to the Agricultural Producer Security.
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, October 31, 2008 for additional written comments.
Hearing impaired persons may request an interpreter for these hearings. Please make reservations for a hearing interpreter by August 6, 2007, by writing to Kevin LeRoy, Division of Trade and Consumer Protection, P.O. Box 8911, Madison, WI 53708-8911, telephone (608) 224-4928. Alternatively, you may contact the DATCP TDD at (608) 224-5058. Handicap access is available at the hearings.
Submission of Comments and 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 Trade and Consumer Protection, 2811 Agriculture Drive, P.O. Box 8911, Madison, WI 53708. You can also obtain a copy by calling (608) 224-4928 or emailing
kevin.leroy@wisconsin.gov. Copies will also be available at the hearings. To view the proposed rule online, go to:
To provide comments or concerns relating to small business, please contact DATCP's small business regulatory coordinator Keeley Moll at the address above, by emailing to
Keeley.Moll@datcp.state.wi.us or by telephone at (608) 224-5039.
Hearing Dates and Locations
Thursday, August 16, 2007, 2:00 p.m.
DATCP Northwest Regional Office
3610 Oakwood Hills Pkwy
Eau Claire, WI 54701-7754
Tuesday, August 21, 2007, 2:00 p.m.
DATCP Northeast Regional Office
Room 152A
200 N Jefferson St.
Green Bay, WI 54301
Wednesday, August 22, 2007, 10:00 a.m.
Department of Agriculture, Trade and Consumer Protection
2811 Agriculture Dr.
Board Room (CR-106)
Madison, WI 53718-6777
Analysis Prepared by the Department of Agriculture, Trade and Consumer Protection
Wisconsin's agricultural producer security program helps protect agricultural producers against catastrophic financial defaults by grain dealers, grain warehouse keepers, milk contractors and vegetable contractors (collectively referred to as “contractors").
Contractors must be licensed by the Department of Agriculture, Trade and Consumer Protection (“DATCP") and pay license fees. Most contractors must also pay assessments to an agricultural producer security fund (“fund"). In the event of a contractor default, DATCP may compensate producers from the fund.
This rule changes current grain dealer, grain warehouse keeper and vegetable contractor license fees. This rule changes current fund assessments for grain dealers (deferred payment assessment) and grain warehouse keepers, and changes required minimum fund assessments for grain dealers, grain warehouse keepers, milk contractors and vegetable contractors. This rule does not make any other significant changes in current contractor regulations.
Statutory authority
Statutes interpreted
Agency authority
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 ss.
126.81 and
126.88, Stats., to establish license fees and fund assessments under the agricultural producer security program. Chapter
126, Stats., establishes license fees and fund assessments, but authorizes DATCP to change those license fees and fund assessments by rule.
Under current law, DATCP must modify fund assessments whenever fund balances fall outside a specified range. The fund balance attributed to the grain warehouse keeper sector currently falls below the required minimum of $200,000. Therefore, DATCP must modify fund assessments for grain warehouse keepers. DATCP is authorized, but not required, to modify fund assessments for other contractors.
Background
DATCP administers the agricultural producer security program under ch.
126, Stats. DATCP has adopted rules to implement the program. The rules are contained in chs.
ATCP 99-
101, Wis. Adm. Code. Under current law:
• Licensed contractors must pay license fees to fund DATCP administration of the agricultural producer security program. Administration includes grain warehouse inspections, review of contractor financial statements, license administration and response to contractor financial defaults and law violations.
• Most contractors (“contributing contractors") must pay fund assessments to finance the agricultural producer security fund. The fund is held in trust, for the benefit of producers. If a contractor defaults on payments to agricultural producers, DATCP may reimburse producers from the fund. Fund assessments are like insurance premiums, and are based on contractor size, financial condition and risk practices.
Prior to 2003, DATCP administrative costs were paid by a combination of general tax revenue (“GPR") and contractor license fees. However, the 2003-2004 Biennial Budget Act eliminated virtually all GPR funding for program administration. That made it necessary to transfer staff from GPR funding to license fee funding. Partly as a result of that change, current license fee funding is no longer adequate to cover administrative costs. There has been a gradual growth in administrative costs, due to factors (such as statewide union contracts for accountants and auditors) that are outside DATCP control.
Funding shortfalls are especially severe in the grain dealer and grain warehouse keeper programs. Administrative costs now annually exceed license fee revenues by over $200,000 in each of those programs, and each program has a negative cash balance of more than $350,000. In the vegetable contractor program, administrative costs now annually exceed license fee revenues by over $20,000, and the program has a negative cash balance (January 1, 2007) of more than $50,000.
Deficits in the grain and vegetable administration accounts are currently being covered by milk contractor license fee revenues and by fund assessment revenues that would normally go to the producer security fund. That unfairly affects milk contractors and reduces fund coverage for all producers (grain, milk and vegetable).
This rule increases annual license fees for grain dealers, grain warehouse keepers and vegetable contractors, to remedy current inequities and provide minimally adequate funding for program administration. This rule also adjusts fund assessments, especially for grain warehouse keepers (for whom an adjustment is required by law).
Notwithstanding this rule, the total of all contractor payments under the producer security (license fees plus fund assessments) will actually decline over the next few years, because of fee credits and declining formula rates that are built into the producer security law itself. This rule will slow, but not reverse, that overall decline. This rule will not have any significant impact on contractors' overall business costs.
Rule contents
Grain Dealer License Fees
Current Fees. Under current law, a grain dealer must pay the following annual license fees and surcharges:
• A license processing fee of $25.
• One of the following fees:
• $500 if the grain dealer purchased at least $500,000 worth of producer grain in this state during the grain dealer's last completed fiscal year.
• $200 if the grain dealer purchased at least $50,000 but less than $500,000 worth of producer grain in this state in the grain dealer's last completed fiscal year.
• $50 if the grain dealer purchased less than $50,000 worth of producer grain in this state in the grain dealer's last completed fiscal year.
• A $225 fee per business location in excess of one location (but only if the grain dealer purchased $500,000 worth of producer grain in this state during the grain dealer's last completed fiscal year).
• A $45 fee per truck, in excess of one truck, that the grain dealer uses to haul grain in this state.
• A $425 surcharge if the grain dealer submits a required financial statement that is not an audited financial statement.
• A $500 surcharge if the grain dealer operated without a license at any time during the preceding year.
• A $100 surcharge if the grain dealer, during the preceding year, failed to file a required financial statement by the required filing deadline.
• A $100 surcharge if the grain dealer failed to file a license renewal application by the license expiration date of August 31.
Proposed fees. This rule changes the calculation of grain dealer license fees. Under this rule, a grain dealer must pay the following fees and surcharges:
• A license processing fee of $25 (same as current law).
• A fee equal to the lesser of the following amounts:
• 0.175 cents per bushel of producer grain that the grain dealer procured in this state during the grain dealer's last completed fiscal year (the grain dealer must report the number of bushels of grain procured).
• $15,000.
• $100 per business location in excess of one location (regardless of the grain dealer's annual grain purchase amount).
• A surcharge of $500 if the grain dealer operated without a license at any time during the preceding year (same as current law).
• A surcharge of $100 if the grain dealer, during the preceding year, failed to file a required financial statement by the required filing deadline (same as current law).
• A surcharge of $100 if the grain dealer failed to file a license renewal application by the license expiration date of August 31 (same as current law).
This rule eliminates the following current grain dealer fees and surcharges:
• $45 fee per truck.
• $425 surcharge for submitting a required financial statement that is not an audited financial statement.
Grain Dealer Fund Assessments
Current Assessments. Under current law, a contributing grain dealer must pay the following annual fund assessments:
• A basic assessment, based on a formula that considers the total dollar value of Wisconsin grain purchased in the grain dealer's last completed fiscal year, the grain dealer's current ratio, and the grain dealer's debt-to-equity ratio. Other things equal, the formula yields declining basic assessments over time.
• A deferred payment assessment, if the grain dealer uses deferred payment contracts (which carry higher financial risk). The assessment equals total deferred payments for Wisconsin grain in the grain dealer's last completed fiscal year, multiplied by the following rate:
• 0.0035 if the grain dealer has contributed to the fund for less than 5 years.
• 0.002 if the grain dealer has contributed to the fund for 5 years or more.
Under current law, there is a minimum total assessment of $20 (basic assessment plus deferred payment assessment).
Proposed Assessments.
• Basic assessment. This rule does not change the calculation of a grain dealer's basic fund assessment (the formula continues to generate declining assessments over time), except that this rule creates a new minimum assessment based on volume (applies only to basic assessment):
• $20 for grain dealers who procured less than $500,000 worth of Wisconsin grain in the preceding license year.
• $200 for grain dealers who procured at least $500,000 but less than $3,000,000 worth of Wisconsin grain.
• $500 for grain dealers who procured Wisconsin grain worth $3,000,000 or more.
• Deferred payment fund assessment. Under this rule, the deferred payment assessment equals the grain dealer's total deferred payments for Wisconsin grain in the grain dealer's last completed fiscal year, multiplied by 0.0035 (regardless of how long the grain dealer has contributed to the fund). There is no minimum deferred payment assessment.
Grain Warehouse Keeper License Fees
Current fees. Under current law, a grain warehouse keeper must pay the following annual license fees and surcharges:
• A nonrefundable license processing fee of $25, plus an additional nonrefundable processing fee of $25 for each separate warehouse in excess of one warehouse.
• An inspection fee based on the combined capacity of the grain warehouse keeper's warehouses:
• A supplemental inspection fee of $275 for each grain warehouse that the grain warehouse keeper operates in excess of one warehouse.
• A surcharge of $500 if the grain warehouse keeper operated without a license at any time during the preceding year.
• A surcharge of $100 if the grain warehouse keeper failed to file an annual financial statement by the applicable deadline.
• A surcharge of $100 if the applicant fails to renew a license by the license expiration date of August 31.
Proposed Fees. This rule changes the calculation of grain warehouse inspection fees, but makes no other changes to current grain warehouse keeper license fees or surcharges. The current inspection fee schedule (see above) is replaced by a formula. Under the new formula, a grain warehouse keeper pays an annual inspection fee equal to the lesser of the following amounts:
• The warehouse keeper's highest daily grain obligations to depositors (in bushels) in the preceding license year, multiplied by 0.3 cent per bushel.
• $15,000.
Grain Warehouse Keeper Fund Assessments
Current Assessments. Under current law, a grain warehouse keeper must pay an annual fund assessment based on a formula that considers the warehouse keeper's licensed storage capacity, current ratio and debt-to-equity ratio. Other things equal, the formula yields declining assessments over time. There is a minimum assessment of $20.
Proposed Assessments. Under this rule, a grain warehouse keeper must pay an annual fund assessment that is 50% higher than the assessment generated by the current formula (the formula does not change, and continues to yield declining assessments over time). There is a new minimum assessment based on storage volume:
• $20 for grain warehouse keepers whose storage capacity is less than 300,000 bushels.
• $100 for grain warehouse keepers whose storage capacity is at least 300,000 but less than 500,000 bushels.
• $250 for grain warehouse keepers whose storage capacity is 500,000 bushels or more.
Milk Contractor License Fees
This rule makes no changes to current milk contractor license fees.
Milk Contractor Fund Assessments
Current Assessments. Under current law, a contributing milk contractor must pay an annual fund assessment based on a formula that considers the milk contractor's total Wisconsin milk payroll obligations for the contractor's last completed fiscal year, the milk contractor's current ratio, and the milk contractor's debt-to-equity ratio. Other things equal, the formula yields declining assessments over time. There is a minimum assessment of $20.
Proposed Assessments. This rule does not change the calculation of milk contractor fund assessments (the current formula continues to generate declining assessments over time), except that this rule creates a new minimum assessment based on the contractor's total Wisconsin milk payroll obligations in the contractor's last completed fiscal year:
• $20 for milk contractors with annual Wisconsin milk payroll obligations of less than $1,500,000.
• $200 for milk contractors with annual Wisconsin milk payroll obligations of at least $1,500,000 but less than $6,000,000.
• $500 for milk contractors with annual Wisconsin milk payroll obligations of $6,000,000 or more.
Vegetable Contractor License Fees
Current Fees. Under current law, vegetable contractors must pay the following annual license fees and surcharges:
• A nonrefundable license processing fee of $25.
• A fee of $25 plus 5.75 cents for each $100 in Wisconsin vegetable procurement contract obligations (to vegetable producers) that the contractor incurred during the contractor's last completed fiscal year. This fee does not apply to “nonparticipating processing potato buyers."
• A $500 fee if the vegetable contractor is a “nonparticipating processing potato buyer."
• A $500 surcharge if the vegetable contractor operated without a license at any time during the preceding year.
• A $100 surcharge if, during the preceding year, the vegetable contractor failed to file a required financial statement by its due date.
• A $100 surcharge if the vegetable contractor failed to file a license renewal application by the license expiration date of January 31.
Proposed fees. This rule increases the license fee component that is based on annual Wisconsin vegetable procurement contract obligations. It increases that fee component to $25 plus 8.75 cents (currently 5.75 cents) for each $100 in contract obligations.
This rule replaces the current $500 fee for “nonparticipating potato buyers" with a fee equal to the lesser of the following amounts:
• $25 plus 8.75 cents for each $100 in annual contract obligations (same as other vegetable contractors).
• $2,000.
This rule makes no other changes to current vegetable contractor license fees or surcharges.
Vegetable Contractor Fund Assessments
Current Assessments. Under current law, a contributing vegetable contractor must pay an annual fund assessment based on a formula that considers the contractor's total vegetable procurement contract obligations during the contractor's last completed fiscal year, the contractor's current ratio, and the contractor's debt-to-equity ratio. Other things equal, the formula yields declining assessments over time. There is a minimum assessment of $20.
Proposed Assessments. This rule does not change the calculation of vegetable contractor fund assessments (the current formula continues to generate declining assessments over time), except that this rule creates a new minimum assessment based on contract volume:
• $20 for vegetable contractors with contract obligations of less than $500,000.
• $200 for vegetable contractors with contract obligations of at least $500,000 and less than $4,000,000.
• $500 for vegetable contractors with contract obligations of $4,000,000 or more.
Business Impact
Agricultural Producers
This rule will benefit Wisconsin producers of grain, milk and vegetables, by preventing the erosion of the producer security program that helps protect them against catastrophic financial defaults by grain dealers, grain warehouse keepers, milk contractors and vegetable contractors (collectively “contractors").
This rule will generate enough license fee revenue to continue critical financial security monitoring activities, such as grain warehouse inspections and review of contractor financial statements. Without this rule, DATCP would have to curtail key monitoring activities that help control potentially catastrophic financial risks to producers and to the producer security fund.
This rule will also reverse the current diversion of fund assessment revenues from the agricultural producer security trust fund (to subsidize operating deficits in the grain and vegetable sectors). That will yield a slightly increased rate of fund growth which will, in turn, provide greater protection for producers in the event of a catastrophic contractor default.
This rule will not increase costs for agricultural producers, or have any significant impact on commodity prices paid to producers.
Contractors
This rule affects license fees and fund assessments paid by grain dealers, grain warehouse keepers, milk contractors and vegetable contractors, but does not change other contractor regulations.
Current Cost to Contractors. Current license fees and fund assessments represent a very small share of overall contractor costs. For example:
• Current grain dealer license fees and fund assessments represent only about 11 hundredths of one percent of the grain dealers' annual Wisconsin grain procurement costs ($672,000 in fees and fund assessments, compared to $599 million in grain purchased from Wisconsin producers in FY 2005-06).
• Current grain warehouse keeper license fees and fund assessments represent less than 2 hundredths of one percent of the grain warehouse keepers' annual Wisconsin “cost of sales" ($210,000 in fees and fund assessments, compared to about $1.7 billion in “cost of sales" for FY 2005-06).
• Current milk contractor license fees and fund assessments represent only about 3 hundredths of one percent of the contractors' annual Wisconsin milk procurement costs ($1.2 million in producer security license fees and fund assessments, compared to about $3.5 billion paid for milk produced by Wisconsin farmers in FY 2005-06).
• Current vegetable contractor license fees and fund assessments represent only about 8 hundredths of one percent of the contractors' annual vegetable procurement costs ($138,000 in producer security license fees and fund assessments, compared to $170 million in procurement contract obligations to Wisconsin producers in FY 2005-06).
Current contractor license fees and fund assessments represent an even smaller share of overall contractor costs (including costs for labor, buildings, equipment, debt service, overhead, etc., in addition to commodity procurement costs).
Declining Costs. Total contractor license fees and fund assessments will actually decline over the next few years, because of fee credits and declining formula rates built into the producer security law itself. This rule will reduce the rate at which overall contractor fees and fund assessments decline. But even with this rule, the total of all contractor license fees and fund assessments will be about 5% lower in FY 2009-10 than in FY 2005-06 (other things equal).
Total license fees and fund assessments will decline in every business sector except the grain dealer and grain warehouse sector, where license fees and assessments will increase to pay a proportionate share of administrative costs and to provide a proportionate contribution to the producer security fund.
The following table shows
combined total license fees and fund assessments by business sector for FY 2005-06. It also compares projected totals for FY 2009-10
with and
without this rule:
Total Contractor License Fees and Fund Assessments
(Net of Credits)
|
|
FY 2005-06
|
FY 2009-10*
Without this rule
|
FY 2009-10*
With this rule
|
Grain Dealers
|
$672, 000
|
$395,000
|
$674,000
|
Grain Warehouse Keepers
|
$210,000
|
$169,000
|
$428,000
|
Milk Contractors
|
$1,272,000
|
$1,018,000
|
$1,027,000
|
Vegetable
Contractors
|
$138,000
|
$42,000
|
$48,000
|
TOTAL
|
$2,292,000
|
$1,624,000
|
$2,177,000
|
* Projection assumes constant procurement volumes, commodity price levels and contractor financial strength.
The projected decline in total license fees and fund assessments (with or without this rule) results from the following features built into the current producer security law (this rule will not change those features):
• License fee credits. If the fund balance contributed by an industry sector reaches a specified statutory threshold, a portion of the balance is returned to contributing contractors in that sector (as a credit on their license fees). Contributing vegetable contractors are already enjoying credits that significantly reduce their license fees, and milk contractors began receiving credits in May, 2007. Those credits will dramatically reduce fees for contributing contractors, even when this rule is in effect.
• Falling assessment rates. Under the producer security law, fund assessment rates decline after a contractor has contributed to the fund for a specified number of years (4 to 6 years depending on contractor type and financial condition). Because the producer security fund is about five years old, most contributing contractors are now beginning to pay significantly lower fund assessments than they were a short time ago. That trend will continue, regardless of this rule.
Effects Vary Between Contractors. The impact of this rule may vary considerably between individual contractors within a business sector. License fees and assessments may be affected by a number of variables, including contractor size, contractor financial strength, contractor risk practices and commodity prices.
For many contractors, this rule will slow the rate at which the contractor's fees and fund assessments would otherwise decline. Some contractors (especially grain warehouse keepers) may have increased fees and fund assessments. For a few contractors, this rule will actually speed the reduction of fees and fund assessments. Many contractors (especially milk contractors) will be unaffected by this rule.
Federal regulations
There is no federal producer security program related to milk. The United States department of agriculture (USDA) administers a producer security program for federally licensed grain warehouses that store grain for producers. Grain warehouses may choose whether to be licensed under state or federal law. Federally-licensed warehouses are exempt from state warehouse licensing and security requirements. State-licensed warehouses are likewise exempt from federal requirements.
The federal grain warehouse program provides little or no protection against financial defaults by grain dealers. Grain dealers are persons who buy and sell grain. Sometimes, grain dealers also operate grain warehouses. DATCP currently licenses grain dealers. Licensed warehouse keepers must also hold a state grain dealer license if they engage in grain dealing.
USDA has informally proposed to regulate grain dealer activities (grain “merchandising") by federally licensed warehouse keepers, to the exclusion of state regulation. But USDA has not yet officially introduced its proposed regulations. In any case, the federal regulations would not apply to state-licensed grain warehouses, or to grain dealers who do not operate a warehouse.
There is a federal security program for vegetables. That security program is mainly limited to fresh market vegetables, and consists of a priority lien against vegetable-related assets. Wisconsin's vegetable security program applies only to processing vegetables (not fresh market vegetables covered by federal regulations). Wisconsin's program uses an indemnity fund, rather than a priority lien-type program. Unlike the federal priority lien program, a state priority lien program would not work because it would be preempted by federal bankruptcy law.
There may be some limited overlap between the Wisconsin and federal programs, but that overlap is justified because the scope of federal coverage is not entirely clear. Overlap was reduced by recent Wisconsin legislation, which permits certain potato buyers covered under the federal program to opt out of most of the state program.
Surrounding states regulations
In Minnesota, contractors must be licensed to procure grain, milk or processing vegetables from producers, or to operate grain warehouses. Regulated contractors must file bonds as security against default. The program is financed through industry fees and general tax revenues.
Neither Iowa nor Illinois have producer security programs for milk or vegetables. However, both states maintain indemnity funds to protect grain producers. Fund assessments are based solely on grain volume. In Wisconsin, by contrast, fund assessments are based on grain volume and financial condition. Iowa and Illinois finance their programs through industry fees and general tax revenues.
Michigan has the following producer security programs:
• Potato dealers must be licensed, and must post bonds as security against defaults. (Wisconsin's vegetable security program includes, but is not limited to, potatoes.)
• Dairy plants that fail to meet minimum financial standards must file security or pay cash for milk.
• Grain producers have the option of paying premiums into a state fund. In the event of a grain default, the fund reimburses participating producers.
• These programs are financed through industry fees and general tax revenues.
Fiscal Estimate
Under the agricultural producer security law:
• Licensed contractors must pay license fees to fund DATCP administration of the agricultural producer security program. Administration includes grain warehouse inspections, review of contractor financial statements, license administration, and response to contractor financial defaults and law violations.
• Most contractors (“contributing contractors") must pay fund assessments to finance the agricultural producer security fund. The fund is held in trust, for the benefit of producers. If a contractor defaults on payments to agricultural producers, DATCP may reimburse producers from the fund.
Prior to 2003, DATCP administrative costs were paid by a combination of general tax revenue (“GPR") and contractor license fees. However, as part of the GPR reductions in Act 33, the 2003-2005 Biennial Budget, 2.9 FTE positions and support costs were converted from GPR to the Agricultural Producer Security SEG fund. Partly as a result of that change, current license fee funding is no longer adequate to cover administrative costs. There has been a gradual growth in administrative costs, due to factors (such as statewide union contracts for accountants and auditors) that are outside DATCP control.
Funding shortfalls are especially severe in the grain dealer and grain warehouse keeper programs. Administrative costs now annually exceed license fee revenues by over $200,000 in each of those programs, and each program has a negative cash balance of more than $336,000. In the vegetable contractor program, administrative costs now annually exceed license fee revenues by over $20,000.
Deficits in the grain and vegetable administration sub accounts affect the total cash balance in Agriculture Producer Security Fund. This unfairly affects milk contractors since the total fund balance is incorporated into the formula that calculates their required security amounts and also affects the total funds available to pay a default.
This rule increases annual license fees for grain dealers, grain warehouse keepers and vegetable contractors, to remedy current inequities and provide minimally adequate funding for program administration (the fee increases for vegetable contractors will be largely offset by fee credits built into the producer security law). This rule also adjusts fund assessments, especially for grain warehouse keepers (for whom an adjustment is required by law).
Notwithstanding this rule, total revenue derived from contractor payments under the producer security program (license fees plus fund assessments) will actually decline over the next few years, because of fee credits and declining formula rates that are built into the producer security law itself. This rule will slow, but not reverse, that overall decline.
License Fee Revenues. The following table shows actual license fee revenues for FY 2005-06, compared to
projected license fee revenue in FY 2009-10 (
with and
without this rule):
Total License Fee Revenues (Net of Contractor Credits)
|
|
FY 2005-06
|
FY 2009-10*
Without this rule
|
FY 2009-10*
With this rule
|
Grain Dealers
|
$160,000
|
$155,000
|
$405,000
|
Grain Warehouse Keepers
|
$159,000
|
$149,000
|
$393,000
|
Milk Contractors
|
$363,000
|
$159,000
|
$159,000
|
Vegetable
Contractors
|
$16,000
|
$5,000
|
$8,000
|
TOTAL
|
$698,000
|
$468,000
|
$965,000
|
* Projection assumes constant procurement volumes, commodity price levels and contractor financial strength.
Projected milk and vegetable contractor license fee revenues for FY 2009-10 are affected, to a very considerable degree, by license fee credits built into the producer security law itself. When the producer security fund balance attributable to an industry sector (such as milk or vegetables) reaches a specified statutory “trigger" amount, a portion of the balance is returned to contributing contractors in that sector (as a credit on their license fees).
Contributing vegetable contractors are already enjoying credits that significantly reduce their license fees, and milk contractors began receiving credits in May, 2007. Grain dealers and grain warehouse keepers do not yet qualify for these credits, because their fund contributions have not yet attained the required level (nor are they likely to do so prior to FY 2009-10).
Increased annual license fee revenues will be adequate to cover annual DATCP administrative costs. To the extent that annual license fee revenues exceed annual administrative costs, the additional revenues will offset the deficit in the administrative sub account.
Producer Security Fund; Assessment Revenues
The agricultural producer security fund currently has a balance of approximately $7,493,000. No more than 60% of the fund balance can be paid out in any individual contractor default. The current fund balance is adequate to cover defaults by most, but not all, individual contractors. Continued fund growth will improve protection for producers, and minimize the need for supplementary security from contractors.
Contributing contractors pay fund assessments to finance the agricultural producer security fund. Annual assessment revenues will decline over the next few years (with or without this rule), because of fee credits and declining formula rates built into the producer security law. Annual assessment revenues will decline across all business sectors. This rule will slow (but not reverse) the projected decline of annual assessment revenues.
The following table shows actual fund assessment revenues for FY 2005-06, and
projected assessment revenues for FY 2009-10 (
with and
without this rule):
Total Fund Assessment Revenues
|
|
FY 2005-06
|
FY 2009-10*
Without this rule
|
FY 2009-10*
With this rule
|
Grain Dealers
|
$512,000
|
$240,000
|
$269,000
|
Grain Warehouse Keepers
|
$51,000
|
$20,000
|
$35,000
|
Milk Contractors
|
$909,000
|
$859,000
|
$868,000
|
Vegetable
Contractors
|
$122,000
|
$37,000
|
$40,000
|
TOTAL
|
$1,594,000
|
$1,156,000
|
$1,212,000
|
* Projection assumes constant procurement volumes, commodity price levels and contractor financial strength.
Cash in the assessment sub account currently covers the negative cash balances in the grain and vegetable administration sub accounts. That is slowing the rate of growth in the assessment sub account, and reducing the fund coverage for all producers (grain, milk, and vegetable). By correcting current grain and vegetable license fee revenue shortfalls, this rule will eliminate the current drain on the producer security fund. That, combined with the adjustment of fund assessment rates, will cause the fund balance to grow at a faster rate. Faster growth will increase protection for producers, and reduce supplementary security demands on contractors.
Without this rule, DATCP projects that the fund balance will grow to $8,332,000 at the end of FY 2009-10. With this rule, DATCP projects that the fund balance will grow to $9,425,000 by the end of FY 2009-10. Under this rule, the fund balance amount attributable to grain warehouse keeper assessments will build over several years toward the required statutory minimum (it currently falls short of the required minimum).
Notice of Hearing
Commerce
(Licenses, Certifications, etc., Ch.
Comm 5)
NOTICE IS HEREBY GIVEN that pursuant to ss.
101.63 and
101.645, Stats., as affected by
2005 Wisconsin Act 200 the Department of Commerce will hold a public hearing on rules affecting chs.
Comm 5 and
82, relating to administrative forfeitures for plumbing licensing violations, tracer wire for non metallic plumbing piping, and affecting small businesses.
Hearing Information
The public hearing will be held as follows:
Date and Time:
|
Location:
|
August 14, 2007
Tuesday
at 10:30 a.m.
|
Conference Room 3C
Thompson Commerce Center
201 West Washington Avenue
Madison
|
Interested persons are invited to appear at the hearing and present comments on the proposed rules. Persons making oral presentations are requested to submit their comments in writing. Persons submitting comments will not receive individual responses. The hearing record on this proposed rulemaking will remain open until August 27, 2007, to permit submittal of written comments from persons who are unable to attend the hearing or who wish to supplement testimony offered at the hearing. Written comments should be submitted to James Quast, at the Department of Commerce, P.O. Box 2689, Madison, WI 53701-2689, or Email at
jim.quast@wisconsin.gov.
This hearing is held in an accessible facility. If you have special needs or circumstances that may make communication or accessibility difficult at the hearing, please call (608) 266-8741 or (608) 264-8777 (TTY) at least 10 days prior to the hearing date. Accommodations such as interpreters, English translators, or materials in audio tape format will, to the fullest extent possible, be made available upon a request from a person with a disability.
Analysis Prepared by Department of Commerce
Statutes interpreted
Statutory authority
Related statute or rule
Agency authority
Section
145.02, Stats., grants the Department of Commerce general authority for protecting the health, safety and welfare of the public by establishing reasonable and effective standards for plumbing including the licensing of individuals to install plumbing. Section
145.06, Stats., specifies when and what types of plumbing licenses are needed for various plumbing activities. Section
145.12 (5), Stats., as affected by
2005 Wisconsin Act 182, allows the Department to directly assess forfeitures to individuals who violate the licensing provisions of s.
145.06, Stats. Section
182.0715 (2r), Stats., as affected by
2005 Wisconsin Act 425 requires the installation of tracer wire or some equally-effective means of locating non-metallic underground sewer and water laterals.
Summary of proposed rules
The proposed rules under chapter Comm 5 delineate the procedures for implementing the forfeiture assessments for plumbing licensing violations as allowed by
2005 Wisconsin Act 182. The proposed rules established a schedule for forfeitures based upon various situations and/or activities. The rules delineate a process for appealing a forfeiture assessment.
The proposed rules under chapter Comm 82 prescribe the requirements for installing tracer wire in order to locate non-metallic building sewers, private interceptor main sewers, water services and private water mains.
Federal regulation
There are no known federal regulations or proposed federal regulations that could be compared to the direct forfeiture provision. There are no known federal regulations or proposed federal regulations for the installation of the tracer wire installation provisions.
Surrounding states regulation
In Minnesota in addition to statutory fines and/or imprisonment, the laws allow the Minnesota Department of Health to administratively impose a penalty of up to $10,000.00 for violation of its various licensing laws in that state. The state of Illinois in addition to other statutory penalties allows the Department of Public Health to assess administratively a civil penalty up to $5,000 for unlicensed plumbing activity. Iowa has state registration for plumbing contractors, but only local licensing. Michigan has a penalty of $1,000.00 per day with a maximum fine of $5,000.00 for violations of its plumbing licensing regulations which may be pursued by the attorney general, local prosecuting attorney or an attorney representing the enforcing agency.
The state of Minnesota has a law requiring cities to create ordinances that include requirements for the installation of tracer wire or an equally-effective means of locating sewer and water laterals. The Minnesota tracer wire law requires that all nonconductive laterals installed after January 1, 2006 be accompanied by tracer wire. Illinois and Iowa have no known state-wide requirements for tracer wire. Michigan has adopted the International Plumbing Code which does not require any tracer wire installation.
The comparisons were completed via a web-search.
Factual data and analytical methodologies
The Department utilizes advisory councils in analyzing and developing proposed revisions to the Wisconsin Uniform Plumbing Code. The councils involved in the review of the proposed rules were the Plumbing Licensing Council and the Wisconsin Plumbing Code Advisory Council. These councils involve a variety of organizations whose memberships include small businesses and municipal staff. The Department utilizes these councils to gather information on potential impacts in complying with the administrative requirements of this proposal. A responsibility of council members is to bring forth concerns their respective organizations may have with the requirements, including concerns regarding economic impacts. (Copies of the council meetings summaries are on file in the Safety and Building Division.)
An economic impact report has not been required pursuant to s.
227.137, Stats.
Analysis and supporting documents used to determine effect on small business
The requirements relating to direct forfeiture under the credentialing code impact businesses of all sizes. The rules are intended to clarify and implement the s.145.12 (5), Stats.
The forfeiture could affect illegal plumbing businesses by the utilization of another enforcement tool to maintain code-compliant installations and therefore, public health and safety and the waters of the state.
The tracer wire rules will not significantly raise the cost of water and sewer installations.
Council members and representation
The proposed rules were developed with the assistance of the following Advisory Councils:
Plumbers Licensing Council:
Dave Jones, Master Plumber
Scott Hamilton, Journeyman Plumber
Lynita Docken, Department of Commerce
Plumbing Advisory Code Council:
Arthur J. Biesek, League of Wisconsin Municipalities
Thomas Boehnen, Chair, American Society of Plumbing Engineers
Patrick Casey, Wisconsin State AFL-CIO
Hallet Jenkins, City of Milwaukee
Dave Jones, Plumbing Contractor
Gary Kowalke, PHCC/MPA Wisconsin
Jeff Kuhn, Plumbing, Mechanical and Sheet Metal Contractors Alliance
Rudolf Petrowitsch, American Society of Sanitary Engineering
Gene Shumann, Plumbing Designer
David Viola, Plumbing Manufacturers Institute
Joseph Zoulek, PHCC/MPA Wisconsin
Environmental Analysis
NOTICE IS HEREBY GIVEN that the Department has considered the environmental impact of the proposed rules. In accordance with chapter Comm 1, the proposed rules are a Type III action. A Type III action normally does not have the potential to cause significant environmental effects and normally does not involve unresolved conflicts in the use of available resources. The Department has reviewed these rules and finds no reason to believe that any unusual conditions exist. At this time, the Department has issued this notice to serve as a finding of no significant impact.
Initial Regulatory Flexibility Analysis
Types of small businesses that will be affected by the rules
Section
145.12 (5), Stats., as affected by
2005 Wisconsin Act 182, allows the department to directly asses forfeitures to individuals who violate the plumbing licensing provisions of s.
145.06, Stats. Section
182.0715 (2r), Stats., requires the installation of tracer wire or some equally-effective means of locating non-metallic underground sewer and water piping laterals. The proposed rules are intended to implement these two statutory changes which may to a degree affect plumbing contracting businesses.
Reporting, bookkeeping and other procedures required for compliance with the rules
There are no reporting or bookkeeping procedures required for compliance with the rules.
Types of professional skills necessary for compliance with the rules
There are no new types of professional skills necessary for compliance with the rules.
Do rules have a significant economic impact on small businesses? No.
Small business regulatory coordinator
Fiscal Estimate
The proposed rules serve two purposes. One part of the rules implements Wisconsin Act 182 which allows the Department to directly assess forfeitures to individuals who violate the licensing provisions of s.
145.06, Stats. The rules establish the process for assessing and appealing the forfeitures. The other part of the rules clarifies s.
182.0715 (2r), Stats., which requires the installation of tracer wire or some equally-effective means of locating non-metallic underground sewer and water laterals. The rules establish specific methods for complying with this legislative mandate. The department does not anticipate that the rules will substantially increase its workload and the workload can be accommodated with current resources.
The cost for installers to provide a method for locating non-metallic sewer and water laterals is dependent upon various variables. Depending upon the method chosen and the length of the installation, the department estimates that installation costs can be as little as $10 per installation utilizing GIS technology, or $1.00 per foot utilizing tracer wire.
No long range fiscal implications are anticipated.
Copies of Rule
The proposed rules and an analysis of the proposed rules are available on the Internet at the Safety and Buildings Division Web site at
www.commerce.wi.gov/SB/. Paper copies may be obtained without cost from Roberta Ward, at the Department of Commerce, Program Development Bureau, P.O. Box 2689, Madison, WI 53701-2689, or Email at
roberta.ward@wisconsin.gov, or at telephone (608) 266-8741 or (608) 264-8777 (TTY). Copies will also be available at the public hearing.
Notice of Hearing
Employee Trust Funds
A public hearing on a proposed rule to create s.
ETF 20.37, regarding the status of a non-annuitant Wisconsin Retirement System participant at death, for purposes of determining the applicable death benefit, will be held on
August 14, 2007 at 10:30 AM in Conference Room GA at the offices of the Department of Employee Trust Funds, 801 West Badger Road, Madison, Wisconsin. Persons wishing to attend should come to the reception desk up the stairs (or elevator) from the main entrance.
Analysis Prepared by the Department of Employee Trust Funds
Statute interpreted
Statutory authority
Explanation of agency authority
By statute, the DETF Secretary is expressly authorized, with appropriate Board approval, to promulgate rules required for the efficient administration of any benefit plan established in ch.
40 of the Wisconsin Statutes. 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
Section
40.02 (46), Stats., which defines a participating employee, including the criteria that the person be “
… an employee who is currently in the service of, or an employee who is on a leave of absence from, a participating employer
… ."
Section
40.02 (26), Stats., which defines “employee" and provides in part that, “
… an employee is deemed to have separated from the service of an employer at the end of the day on which the employee last performed services for the employer, or, if later, the day on which the employee-employer relationship is terminated because of the expiration or termination of leave without pay, sick leave, vacation or other leave of absence.
… ."
Section
ETF 10.08 (3) (a), Wis. Adm. Code, governs the date of termination for purposes of purposes of establishing eligibility to receive benefits from the Wisconsin retirement system, including separation benefits, lump sum benefits and retirement annuity benefits. That rule expressly provides that the date of termination is the
earliest of several listed alternatives, among which are the expiration of an unpaid leave of absence (when the termination is based on failing to return to work after such a leave), the date the employer discharged the employee, the date the employee's resignation is effective, and the date of the employee's death.
Plain language analysis
The purpose of this rule is to codify an interpretation of s.
40.71 (1) (b), Stats., and eliminate a potential misunderstanding. The clarified interpretation will better effectuate the purpose of the statute and also reflect the Department's general policies of treating participants in the Wisconsin Retirement System impartially and of administering benefits in accord with the statutory eligibility criteria.
This rule applies to death benefits payable because of the death of a person who was not an annuitant of the Wisconsin Retirement System. The rule will codify that a person's actual status on the date of the person's death determines whether the death benefits payable from the Wisconsin Retirement System are those for an active employee or a former employee. If the person's employment was terminated prior to the date of death, then the benefits payable will be those appropriate for a former employee. The date the employer's report is received by the Department will not dictate the benefits due.
Section
40.71 (1) (b), Stats., is one of several statutes that determines whether a deceased participant is treated as an active employee, a former employee or an annuitant for purposes of paying the applicable death benefits from the Wisconsin Retirement System. This particular provision states:
If the date of death is less than one year after the last day for which earnings were paid, a participant is deemed a participating employee on leave of absence, notwithstanding the fact that no formal leave of absence is in effect, if the participating employer for which the participant last performed services as a participating employee has not filed notice of the termination of employment prior to the employee's death.
The purpose of the statute is clearly to treat a decedent whose employment had not been formally terminated as a person on leave of absence, for up to a year. Participating employees granted a leave of absence continue to be participating employees, as expressly provided by s.
40.02 (46), Stats.
It has come to the Department's attention that a misreading of the last clause of the statute is possible. The last clause might be misread to imply that if an employer terminated an employee, but did not report the termination to the Department until after the employee died, then the death benefits would be determined as if the decedent was “deemed" to be an active employee at the time of death. A clear interpretation of the last clause of s.
40.71 (1) (b), Stats., is necessary in order for the Department to calculate and pay the correct death benefits.
The interpretation to be promulgated by this rule will do nothing to change the one-year presumption in s.
40.71 (1) (b), Stats., that a deceased employee who was not terminated prior to death was an employee at death, even if no formal leave of absence had been granted.
Federal regulations
There are no known existing or proposed federal regulations that are intended to address the activities regulated by this rule.
Surrounding states regulations
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. There appear to be no Illinois administrative rules relating to the belated reporting of the severance or termination of employment of a person who subsequently dies, and the computation of death benefits from a public employee pension system.
A rule adopted by the State Employees Retirement System, Ill. Admin. Code title 80 § 1540.255 e), does not deal with the computation of a death benefit, but does provide that if the member has elected to use payroll deductions for the purchase of permissive service credits or reinstating past service credits, the deductions end upon the earliest of several alternative events, including the employee's death or termination of employment.
For purposes of making distributions, the rules governing the State of Illinois Employees Deferred Compensation Plan treat the employee's severance from employment or death as two distinctly different events. Death is not included in the definition of severance from employment. See Ill. Admin. Code title 80 §§ 2700.200 and 2700.700 b) 1) and 2).
Iowa. There appear to be no Iowa administrative rules relating to the belated reporting of the severance or termination of employment of a person who subsequently dies, and the computation of death benefits from a public employee pension system.
Michigan. There appear to be no Michigan administrative rules relating to the belated reporting of the severance or termination of employment of a person who subsequently dies, and the computation of death benefits from a public employee pension system.
Minnesota. There appear to be no Minnesota administrative rules relating to the belated reporting of the severance or termination of employment of a person who subsequently dies, and the computation of death benefits from a public employee pension system.
Factual data and analytical methodologies
The Department considered, and rejected, the alternative interpretation of the statute that would permit an employer to delay reporting a termination and thereby possibly increase the benefits payable if the former employee should die. The Department has a duty to administer benefits in accord with the laws governing the Wisconsin Retirement System. These laws include requirements for employers to make accurate, regular and timely reports to the Department concerning covered employees. The alternative interpretation would conflict with those duties by appearing to permit a delay in reporting terminations of employment. Any effort to administer such an interpretation would also likely give rise to differing treatment of similarly situated former employees. The Department has a duty to treat participants impartially within the laws governing the retirement system.
Analysis and supporting documents used to determine effect on small business
The rule can have no effect on small businesses because private employers and their employees do not participate in, and cannot be covered by, the Wisconsin Retirement System. The Wisconsin Retirement System is required to be maintained and administered as a qualified governmental plan, covering only governmental employees.
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, Office of Legal Services, Department of Employee Trust Funds, P.O. Box 7931, Madison WI 53707. Telephone: (608) 266-5804. E-mail address:
rob.weber@etf.state.wi.us.
Submission of 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 Wednesday, August 15, 2007.
Initial Regulatory Flexibility Analysis
The proposed rule has no effect on small businesses.
Fiscal Estimate
The rule will have no effect on county, city, village, town, school district, technical college district or sewerage district fiscal liabilities or revenues. The rule will have no effect on state funds.
Copies of 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 (608) 266-1071.
Notice of Hearing
Insurance
NOTICE IS HEREBY GIVEN that pursuant to the authority granted under s.
601.41 (3), Stats., and the procedures set forth in under s.
227.18, Stats., the Office of the Commissioner of Insurance will hold a public hearing to consider the adoption of a proposed rule affecting s.
Ins 2.81, Wis. Adm. Code, relating to use of the 2001 CSO Preferred Class Structure Mortality Table in determining reserve liabilities.
Hearing Information
Date: August 22, 2007
Time: 10:00 a.m., or as soon thereafter as the matter
may be reached
Place: OCI, Room 227
125 South Webster St, 2nd Floor
Madison, WI
Submission of Comments
Written comments can be mailed to:
James W. Harris
Legal Unit - OCI Rule Comment for Rule Ins 281
Office of the Commissioner of Insurance
PO Box 7873
Madison WI 53707-7873
Written comments can be hand delivered to:
James W. Harris
Legal Unit - OCI Rule Comment for Rule Ins 281
Office of the Commissioner of Insurance
125 South Webster Street - 2nd Floor
Madison WI 53703-3474
Comments can be emailed to:
James W. Harris
Web site:
The deadline for submitting comments is 4:00 p.m. on the 14th day after the date for the hearing stated in this Notice of Hearing.
Analysis Prepared by the Office of the Commissioner of Insurance (OCI)
Statutes interpreted
Statutory authority
Agency authority
The proposed rule is promulgated under the commissioner's authority to prescribe valuation of reserve liabilities and accounting standards and reporting for insurers.
Related statutes or rules
The proposed rule relates to existing rules prescribing valuation of liabilities, non-forfeiture values, and actuarial reporting and analysis under ss.
601.42,
623.06 and
632.43, Stats., and ss.
Ins 2.80 and ch.
50, Wis. Adm. Code.
Plain language analysis
Existing provisions establish mortality tables to be used by insurers to calculate minimum reserves and requirements related to testing and reporting of actuarial information. The proposed rules will allow insurers, meeting prescribed conditions, to use the 2001 CSO Preferred Class Structure Mortality Table as adopted by the National Association of Insurance Commissioners (NAIC) at the September, 2006, national meeting and published in the NAIC Proceedings (Third Quarter 2006), in determining minimum reserves on policies written after January 1, 2007. The table will allow insurers to reflect differences in mortality between preferred and standard lives in establishing reserve liabilities to more precisely fit the characteristics of outstanding policies. The proposed rule will increase the ability of management and regulators to monitor financial status.
Federal regulation
There are no federal regulations which address use of mortality tables to establish reserve liabilities for insurers doing business in Wisconsin.
Surrounding states regulation
Illinois: Adoption of the NAIC model regulation permitting the recognition of preferred mortality tables for use in determining minimum reserve liabilities of insurers is under consideration.
Iowa: Iowa Adm. Code 191-94.3, permits the use for purposes of reserve valuation, under prescribed conditions, of the 2001 CSO Preferred Class Structure Mortality Table, adopting the NAIC model regulation.
Michigan: Mich. Comp. Laws, s.
500.838a, permits the use for purposes of reserve valuation, under prescribed conditions, of the 2001 CSO Preferred Class Structure Mortality Table, adopting the NAIC model regulation.
Minnesota: Minn. Stat. Ch. 61A.257, effective August 1, 2007, adopts the NAIC model regulation permitting the recognition of preferred mortality tables for use in determining minimum reserve liabilities of insurers.
Factual data and analytical methodologies
The National Association of Insurance Commissioners (NAIC) adopted a model regulation permitting the recognition of preferred mortality tables for use in determining minimum reserve liabilities at the September, 2006, national meeting and published in the NAIC proceedings (Third Quarter 2206). The model allows insurers, meeting prescribed conditions, to use the 2001 CSO Preferred Class Structure Mortality Table to reflect differences in mortality between preferred and standard lives in determining reserves to more precisely fit the characteristics of outstanding policies, and enhance the ability of insurers and regulators to monitor financial status. The proposed rule has been recommended by the NAIC and has been, or is in the process of being adopted by a significant number of states.
Analysis and supporting documentation used to determine effect on small businesses
This rule relates to insurer determination of minimum reserves, and there is no significant effect on small business.
Effect on small business
This rule will have little or no effect on small businesses.
Agency contact person
A copy of the full text of the proposed rule changes, analysis and fiscal estimate may be obtained from the Web site at:
http://oci.wi.gov/ocirules.htm or by contacting:
Inger Williams, OCI Services Section, at:
Phone: (608) 264-8110
Address: 125 South Webster St – 2nd Floor,
Madison WI 53703-3474
Mail: PO Box 7873
Madison, WI 53707-7873
Initial Regulatory Flexibility Analysis
This rule does not impose any additional requirements on small businesses.
The OCI small business coordinator is Eileen Mallow and may be reached at phone number (608) 266-7843 or at email address:
Eileen.Mallow@oci.state.wi.us
Fiscal Estimate
There will be no state or local government fiscal effect.
This rule change will have no significant effect on the private sector regulated by the OCI.
Copy of Rule and Contact Person
A copy of the full text of the proposed rule changes, analysis and fiscal estimate may be obtained from the OCI internet Web site at
http://oci.wi.gov/ocirules.htm or by contacting Inger Williams, Public Information and Communications, OCI, at:
Inger.Williams@oci.state.wi.us, (608) 264-8110, 125 South Webster Street – 2
nd Floor, Madison WI or PO Box 7873, Madison WI 53707-7873.
Notice of Hearings
Natural Resources
(Fish, Game, etc., Chs.
NR 1—)
NOTICE IS HEREBY GIVEN that pursuant to ss.
23.09 (2) (intro.),
23.091,
23.11,
23.22 (2) (a) and
(b) 6.,
27.01 (2) (j),
29.014 (1),
29.041,
29.039 (1),
29.509 (4) and
(5) and
227.11 (2) (a), Stats., interpreting ss.
23.09 (2) (intro.),
23.22 (2) (a),
29.014 (1),
29.039 (1),
29.041 and
227.11 (2) (a), Stats., the Department of Natural Resources will hold public hearings on revisions to chs.
NR 19 and
20, Wis. Adm. Code, relating to control of fish diseases and invasive species. The proposed rule makes permanent and clarifies recent emergency measures for the control and prevention of viral hemorrhagic septicemia (VHS) in fish in waters of the state.
The proposed rule limits the transport of live fish away from specified waters and requires the immediate drainage of water from boats, boating equipment, fishing equipment and other containers upon removal from those specifies waters. Waters specified in the rule include Lake Michigan, Lake Superior, Mississippi River, Lake Winnebago and the Fox River downstream to Green Bay, and all connecting waters upstream to the first barrier impassable to fish. If VHS is found outside of the waters specified in the rule, than all waters of the state would be included.
The proposed rule also requires that bait dealers apply for and possess a department permit to harvest wild bait from any water and keep daily harvest and disposition records.
The proposed rule bans the use or possession of imported live bait (minnows, crayfish and frogs), with exceptions. It also prohibits any person from using dead fish, fish eggs, crayfish, frogs or any parts thereof as bait, with exceptions, and it limits the use of fish and fish parts as bait in crayfish traps and turtle traps, with exceptions.
Finally, the proposed rule adds a new criterion for the issuance of permits for licensed bait dealers to use nonstandard minor gear, allowing the permits to be denied if use of the gear could spread invasive species or diseases.
The Order makes permanent and clarifies the emergency measures put into effect April 8, 2007 by Order No. FH-22-07(E), May 2, 2007 by Order No. FH-25-07(E) and May 27, 2007 by Order No. FH-28-07(E) for the control and prevention of viral hemorrhagic septicemia (VHS) in fish in waters of the state.
SECTION 1 of this Order creates definitions of “live fish" and “live fish eggs" for purposes of the rule created by SECTION 3 that prohibits the transport of live fish and fish eggs taken from or possessed on any inland or outlying water or its bank or shore.
SECTION 2 revises the title of s.
NR 19.05.
SECTION 3 adds a new subsection (3) to s.
NR 19.05, that prohibits the transport of live fish or fish eggs that were taken from or possessed on the Great Lakes, the Mississippi River, Lake Winnebago, the lower Fox River from Lake Winnebago to Green Bay, or any connected waters upstream to the first fish barrier, or from the bank or shore of any of those waters.
SECTION 4 of the Order creates a new rule in ch.
NR 19 that requires any person who removes a boat, boat trailer, boating equipment or fishing equipment from the Great Lakes, the Mississippi River, Lake Winnebago, the lower Fox River from Lake Winnebago to Green Bay, or any connected waters upstream to the first fish barrier, or from the bank or shore of any of those waters, to immediately drain all water from the boat, boat trailer, boating equipment or fishing equipment, including water in any bilge, ballast tank, bait bucket, live well or other container, unless it has been exempted in writing by the department after determining that it will not allow VHS virus to be transported to other waters. In addition, if the department formally determines that any other water body is infected with Viral Hemorrhagic Septicemia virus, SECTION 4 makes the immediate drainage requirement apply to all waters of Wisconsin. The drainage requirement also applies to containers and fishing equipment used by bank or shore anglers. Finally, it exempts tanks or containers of potable drinking water and other beverages intended for human consumption.
SECTION 5 of the Order establishes a procedure for the department to formally notify the public if it determines that any water body other than the Great Lakes, the Mississippi River, Lake Winnebago, the lower Fox River from Lake Winnebago to Green Bay, or any connected water upstream to the first fish barrier, is infected with Viral Hemorrhagic Septicemia virus, based on test results or other empirical evidence that the virus is present. Public notice must be given by issuing a press release, by publication of a notice in the official state newspaper, and by any other means that is reasonably likely to inform the public. Following such a determination and public notice, the provisions of s.
NR 19.03 (3) restricting the transport of live fish and eggs from these waters, and of s.
NR 19.056 requiring immediate drainage of boats, boat trailers, boating equipment and fishing equipment upon removal from the water, bank or shore of these waters, thereafter apply state-wide to all waters.
SECTION 6 of the Order requires that bait dealers apply for and possess a department permit in order to harvest wild bait from any water, that they keep records of their harvest and of its disposition, except for retail sales to consumers, and that they not possess farm-raised fish while transporting wild harvested minnows, crayfish or frogs back to their business or to the point of sale.
SECTION 7 of the Order eliminates the current requirement that only fish or fish parts and meal may be used as bait for trapping crayfish. It then adds a requirement that if fish (or fish parts) are used as crayfish bait, they must come from the same water where they will be used as bait, except with written approval of the department.
SECTION 8 of the Order bans the use of fish (and fish parts) as bait to trap turtles unless the fish came from the same body of water where they will be used as bait, or with written approval of the department.
SECTION 9 of this Order creates definitions of “live fish" and “live fish eggs" for purposes of the rules created by SECTION 10 that restrict the use of improperly imported live bait and the use of dead bait that has not been preserved by a means that will kill the VHS virus.
SECTION 10 of the Order bans the use or possession of imported live bait (minnows, crayfish and frogs) except bait imported in compliance with DATCP's import and health requirements in ch.
ATCP 10, Wis. Adm. Code, and live bait from Iowa or Minnesota used or possessed on boundary waters with those states (the Mississippi River “between the tracks", Lake St. Croix, and the St. Croix river and the St. Louis river as defined in s.
NR 21.02 (16)). It also prohibits any person from possessing or using dead fish, dead fish eggs, dead crayfish, dead frogs, or any parts thereof as bait, with 3 exceptions: dead fish, dead fish eggs, dead crayfish, dead frogs, or any parts thereof may be used as bait on Lake Michigan, Green Bay and their tributaries upstream to the first dam or other obstruction impassible to fish; they may be used on the same water body from which they were obtained; and they may be used on any waters of the state if they have been preserved by means other than refrigeration or freezing. The rules also allow dead minnows to still be used as bait, as if they were alive, if certain conditions are met, even though the dead minnows are not preserved by any particular method.
SECTION 11 adds a provision to the current rule governing minnow collection, reiterating the requirement that a bait dealer must obtain the wild bait harvest permit created by SECTION 6 of this Order; describes the permit issued under s.
NR 20.39 as a “non-standard gear permit" to distinguish it from the wild harvest permit; and corrects the wording of the Note to NR 20.14 regarding transport of live minnows as affected by this Order. The current note incorrectly states that transportation of minnows is permitted throughout the state.
SECTION 12 of the Order adds a new criterion for the issuance of permits that allow licensed bait dealers to use non-standard minnow gear. The new rule stipulates that such permits may be denied if the department determines that use of the non-standard gear (minnow seines, minnow dip nets or minnow traps) is likely to result in the spread of invasive species or diseases. SECTION 12 also adds a Note to NR 20.39 regarding the need for a wild harvest permit issued under rules created by SECTION 6 of this Order.
Initial Regulatory Flexibility Analysis
NOTICE IS HEREBY FURTHER GIVEN that pursuant to s.
227.114, Stats., the proposed rule may have an impact on small businesses as follows:
a. Types of small businesses affected: Bait dealers, wholesale fish dealers, commercial fishers, anglers, boaters and individuals involved in the harvest, rearing or use of fish bait.
b. Description of reporting and bookkeeping procedures required: No new procedures
c. Description of professional skills required: No new skills
Environmental Analysis
NOTICE IS HEREBY FURTHER GIVEN that the Department has made a preliminary determination that this action does not involve significant adverse environmental effects and does not need an environmental analysis under ch.
NR 150, Wis. Adm. Code. However, based on the comments received, the Department may prepare an environmental analysis before proceeding with the proposal. This environmental review document would summarize the Department's consideration of the impacts of the proposal and reasonable alternatives.
Hearing Information
NOTICE IS HEREBY FURTHER GIVEN that the hearings will be held on:
August 14, 2007 South Central Region Hdqrs.
Tuesday 3911 Fish Hatchery Road
at 5:30 p.m. Fitchburg
August 15, 2007 Room B19
Wednesday La Crosse State Office Bldg.
at 5:30 p.m. 3550 Mormon Coulee Road
La Crosse
August 16, 2007 Room 140
Thursday DNR Southeast Region Hdqrs.
at 5:30 p.m. 2300 N. Dr. Martin Luther King
Jr. Dr.
Milwaukee
August 20, 2007 Wetland Room
Monday Green Bay Wildlife Sanctuary
at 5:30 p.m. 1660 East Shore Drive
Green Bay
August 23, 2007 Upstairs Meeting Room
Thursday State Highway Patrol Hdqrs.
at 5:30 p.m. 2805 Martin Avenue
Wausau
August 23, 2007 Classroom
Thursday Superior Public Library
at 5:30 p.m. 1530 Tower Avenue
Superior
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 Bill Horns at (608) 266-8782 with specific information on your request at least 10 days before the date of the scheduled hearing.
Fiscal Estimate
It is indeterminate whether the proposed changes will have any fiscal impact on state or local governments.
Assumptions used in arriving at fiscal estimate
The fiscal impact that this rule will have on state and local government--namely the increased costs associated with addressing or containing the VHS problem--is difficult to estimate given the short amount of time that has elapsed since the discovery of the virus and the uncertainty about the extent to which the virus may or may not spread to other parts of the state. Consequently, the Department is characterizing the state and local fiscal impact as “indeterminate" until more detailed cost information becomes available.
Copies of Rule, Written Comments, Contact Person
The proposed rule and fiscal estimate may be reviewed and comments electronically submitted at the following Internet site:
http://adminrules.wisconsin.gov. Written comments on the proposed rule may be submitted via U.S. mail to Mr. Bill Horns, Bureau of Fisheries Management and Habitat Protection, P.O. Box 7921, Madison, WI 53707. Comments may be submitted until August 23, 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 and fiscal estimate may be obtained from Mr. Horns.
Notice of Hearings
Natural Resources
(Fish, Game, etc., Chs.
NR 1—)
NOTICE IS HEREBY GIVEN that pursuant to ss.
29.014,
29.041,
227.24 and
29.192 (3), Stats., interpreting ss.
23.09 (2) (intro.),
29.014 (1),
29.041,
227.11 (2) (a) and
227.24 (1) (a), Stats. The Department of Natural Resources will hold a public hearing on Natural Resources Board Emergency Order No. FH-29-07(E) pertaining to the hook and line harvest of lake sturgeon. The emergency rule amends s.
NR 20.20 to increase the minimum length limit for lake sturgeon in inland waters from 50
‶ to 60
‶ and reduce the season length from 6 weeks to 4 weeks. This emergency order will take effect on July 23, 2007.
Hearing Information
NOTICE IS HEREBY FURTHER GIVEN that the public hearing will be held on:
August 13, 2007 Room G09
Monday GEF #2 Office Building
at 1:00 p.m. 101 South Webster Street
Madison
NOTICE IS HEREBY FURTHER GIVEN that pursuant to the Americans with Disabilities Act, reasonable accommodations, including the provision of informational material in an alternative format, will be provided for qualified individuals with disabilities upon request. Please call Karl Scheidegger at (608) 267-9426 with specific information on your request at least 10 days before the date of the scheduled hearing.
Fiscal Estimate
The proposed changes have no fiscal impact on state or local government.
Assumptions used in arriving at fiscal estimate
This emergency rule makes the following changes to the harvest of inland populations of lake sturgeon:
1) It increases the minimum length limit of lake sturgeon from 50‶ to 60‶ in inland waters where lake sturgeon are now harvested by hook and line.
2) It reduces the season length from 6 weeks to 4 weeks. Currently the open season for hook and line lake sturgeon is the first Saturday in September to October 15. The proposed season length would run from the first Saturday in September to September 30.
Copies of Rule, Written Comments, Contact Person
The proposed rule and fiscal estimate may be reviewed and comments electronically submitted at the following Internet site:
http://adminrules.wisconsin.gov. Written comments on the proposed rule may be submitted via U.S. mail to Mr. Karl Scheidegger, Bureau of Fisheries Management and Habitat Protection, P.O. Box 7921, Madison, WI 53707. Comments may be submitted until August 17, 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 and fiscal estimate may be obtained from Mr. Scheidegger.
Notice of Hearings
Natural Resources
(Fish, Game, etc., Chs.
NR 1—)
Yellow perch abundance fluctuates widely. For the most part these fluctuations can be attributed to weather and to biological factors outside our control. But commercial and recreational harvests can deplete a population and inhibit recovery when numbers are low, so the Department regulates the harvest of yellow perch from Green Bay by limiting the annual total allowable commercial harvest and the daily recreational bag limit. The Department attempts to split the allowable harvest equally between sport and commercial fishers. The proposed rule would increase the total allowable commercial harvest from 60,000 pounds to 100,000 pounds.
Initial Regulatory Flexibility Analysis
NOTICE IS HEREBY FURTHER GIVEN that pursuant to s.
227.114, Stats., the proposed rule may have an impact on small businesses as follows:
a. Types of small business affected: Commercial fishers for yellow perch in Green Bay
b. Description of reporting and bookkeeping procedures required: No new procedures
c. Description of professional skills required: No new skills
Environmental Analysis
NOTICE IS HEREBY FURTHER GIVEN that the Department has made a preliminary determination that this action does not involve significant adverse environmental effects and does not need an environmental analysis under ch.
NR 150, Wis. Adm. Code. However, based on the comments received, the Department may prepare an environmental analysis before proceeding with the proposal. This environmental review document would summarize the Department's consideration of the impacts of the proposal and reasonable alternatives.
Hearing Information
NOTICE IS HEREBY FURTHER GIVEN that the hearings will be held on:
August 13, 2007 Council Chambers
Monday Peshtigo Municipal Bldg.
at 1:00 p.m. 331 French Street
Peshtigo
at 4:30 p.m. Estuary Room
Green Bay Wildlife Sanctuary
1660 East Shore Drive
Green Bay
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 Bill Horns at (608) 266-8782 with specific information on your request at least 10 days before the date of the scheduled hearing.
Fiscal Estimate
There will be no fiscal impact. This is a simple adjustment of a harvest limit, and requires no special or additional work by state employees.
Copies of Rule, Written Comments, Contact Person
The proposed rule and fiscal estimate may be reviewed and comments electronically submitted at the following Internet site:
http://adminrules.wisconsin.gov. Written comments on the proposed rule may be submitted via U.S. mail to Mr. Bill Horns, Bureau of Fisheries Management and Habitat Protection, P.O. Box 7921, Madison, WI 53707. Comments may be submitted until August 23, 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 and fiscal estimate may be obtained from Mr. Horns.
Notice of Hearing
Natural Resources
(Environmental Protection-Water Regulation, Chs.
NR 300—)
NOTICE IS HEREBY GIVEN that pursuant to ss.
30.12 (1g) and
(3),
30.123 (6) and
(7),
30.19 (1m) and
(3r),
30.20 (1r) and
(1t),
30.206 and
227.24, Stats., interpreting ss.
30.12 (1g) and
(3),
30.123 (6) and
(7),
30.19 (1m) and
(3r),
30.20 (1r) and
(1t) and
30.206, Stats., the Department of Natural Resources will hold a public hearing on Natural Resources Board Emergency Order No. WT-32-07(E) pertaining to general permit criteria requiring decontamination of equipment for invasive species and viruses. The emergency rule, which took effect on July 12, 2007, creates provisions in chs.
NR 320,
323,
328,
329,
341,
343 and
345, Wis. Adm. Code.
The emergency rule modifies existing rules to establish a new exemption and general permit criteria requiring decontamination of equipment for invasive species and viruses (including but not limited to VHS (viral hemorrhagic septicemia)) for activities that would otherwise require an individual permit condition to which the same condition would apply. The new exemption or general permit standard requires any person conducting an exempt or general permit activity to:
1. Inspect and remove aquatic plants, animals and mud from equipment.
2. Drain all water from equipment, including but not limited to tracked vehicles, barges, boats, silt or turbidity curtain, hoses, sheet pile and pumps.
3. Dispose of aquatic plants, animals in the trash. Never release or transfer aquatic plants, animals or water from one waterbody to another.
4. Wash equipment with hot (>104° F) and/or high pressure water or allow equipment to dry thoroughly for 5 days.
Hearing Information
NOTICE IS HEREBY FURTHER GIVEN that the public hearing will be held on:
August 13, 2007 Room G09
Monday GEF #2 Office Building
at 2:00 p.m. 101 South Webster Street
Madison
NOTICE IS HEREBY FURTHER GIVEN that pursuant to the Americans with Disabilities Act, reasonable accommodations, including the provision of informational material in an alternative format, will be provided for qualified individuals with disabilities upon request. Please call Martye Griffin at (608) 266-2996 with specific information on your request at least 10 days before the date of the scheduled hearing.
Fiscal Estimate
This rule will increase operational costs for the state or for counties and municipalities to the extent that these precautionary practices are not already being implemented by these entities or by contractors acting on their behalf. However, since insufficient information is available to accurately estimate these costs, the department is characterizing the state and local fiscal impact as “indeterminate" until more detailed cost information becomes available
Copies of Rule, Written Comments, Contact Person
The proposed rule and fiscal estimate may be reviewed and comments electronically submitted at the following Internet site:
http://adminrules.wisconsin.gov. Written comments on the proposed rule may be submitted via U.S. mail to Mr. Martye Griffin, Bureau of Watershed Management, P.O. Box 7921, Madison, WI 53707. Comments may be submitted until August 23, 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 and fiscal estimate may be obtained from Mr. Griffin.
Notice of Hearing
Natural Resources
(Environmental Protection-Air Pollution Control, Chs.
NR 400—)
NOTICE IS HEREBY GIVEN that pursuant to ss.
285.11 (1),
285.13 and
285.17, Stats., interpreting ss.
285.11 (1),
285.13 and
285.17, Stats., the Department of Natural Resources will hold a public hearing on revisions to chs.
NR 406,
407 and
445, Wis. Adm. Code, relating to the timeline for implementation of air permit and hazardous air pollutant requirements for emissions associated with agricultural waste and minor technical corrections. The State Implementation Plan developed under s.
285.11 (6), Stats., is also revised.
The proposed rule will extend the compliance deadline to July 31, 2011 for air permit and hazardous air pollutant requirements associated with agricultural waste under chs.
NR 406,
407 and
445. The reason this rule is needed is that results of ongoing state and federal air monitoring studies of animal feeding operations will not be available in time to support implementation of current rules by the July 2007 and June 2008 compliance deadlines. Extension of the compliance deadline to July 31, 2011 will allow sufficient time for completion of these studies and development of compliance plans by affected sources. When the original rule language was adopted in 2004, it was anticipated that these study results would be available to support timely rule implementation.
The results of the state study will be available by mid-2008 and results of the federal study will be available by mid-2010. The study results will provide an emissions estimation methodology for calculating emissions associated with agricultural waste, which is necessary to determine rule applicability and compliance options.
In addition, this proposal includes minor technical corrections to ch.
NR 445.
Initial Regulatory Flexibility Analysis
NOTICE IS HEREBY FURTHER GIVEN that pursuant to s.
227.114, Stats., the proposed rules may have an impact on small businesses as follows:
a. Types of small businesses affected: Sources of hazardous air emissions associated with agricultural waste. It is anticipated this rule will impact large livestock operations.
b. Description of reporting and bookkeeping procedures required: None
c. Description of professional skills required: None
Environmental Analysis
NOTICE IS HEREBY FURTHER GIVEN that the Department has made a preliminary determination that this action does not involve significant adverse environmental effects and does not need an environmental analysis under ch.
NR 150, Wis. Adm. Code. However, based on the comments received, the Department may prepare an environmental analysis before proceeding with the proposal. This environmental review document would summarize the Department's consideration of the impacts of the proposal and reasonable alternatives.
Hearing Information
NOTICE IS HEREBY FURTHER GIVEN that the hearing will be held on:
September 10, 2007 Room 511
Monday GEF #2 Office Building
at 1:30 p.m. 101 South Webster Street
Madison
NOTICE IS HEREBY FURTHER GIVEN that pursuant to the Americans with Disabilities Act, reasonable accommodations, including the provision of informational material in an alternative format, will be provided for qualified individuals with disabilities upon request. Please call Bob Eckdale at (608) 266-2856 with specific information on your request at least 10 days before the date of the scheduled hearing.
Fiscal Estimate
The proposed changes have no fiscal impact on state or local governments.
Assumptions used in arriving at fiscal estimate
This proposal is to extend the compliance deadline to July 31, 2011, for air permit and hazardous air pollutant requirements associated with agricultural waste. In addition, this proposal includes minor technical corrections to ch.
NR 445. No action is required by local government. No new costs are associated with these proposed changes, neither to the private sector nor to government.
Copies of Rule, Written Comments, Contact Person
The proposed rule and supporting documents, including the fiscal estimate may be viewed and downloaded and comments electronically submitted at the following Internet site:
http://adminrules.wisconsin.gov. (Search this Web site using the Natural Resources Board Order No. AM-24-07. Written comments on the proposed rule may be submitted via U.S. mail to Ms. Eileen Pierce, South Central Regional Air and Waste Leader, 3911 Fish Hatchery Road, Madison, WI 53711 or by e-mail to
Eileen.Pierce@wisconsin.gov. Comments may be submitted until September 14, 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. If you do not have Internet access, a personal copy of the proposed rule and supporting documents, including the fiscal estimate may be obtained from Robert Eckdale, Bureau of Air Management, P.O. Box 7921, Madison, WI 53707 or by calling (608) 266-2856.
Notice of Hearings
Public Instruction
Hearing Information
The hearings will be held as follows:
Date and Time Location
August 20, 2007 Eau Claire
3:00 – 5:00 p.m. UW Eau Claire
Schneider Hall
1702 Park Avenue
Room 225
August 22, 2007 Stevens Point
3:00 – 5:00 p.m. UW – Stevens Point
CPS Building
1901 Fourth Avenue
Room 116
August 23, 2007 Madison
3:00 - 5:00 p.m. GEF 3 Building
125 South Webster Street
Room 041
The hearing sites are fully accessible to people with disabilities. If you require reasonable accommodation to access any meeting, please call Chrystyna Mursky, Consultant, Gifted and Talented, at (608) 267-9273 or leave a message with the Teletypewriter (TTY) at (608) 267-2427 at least 10 days prior to the hearing date. Reasonable accommodation includes materials prepared in an alternative format, as provided under the Americans with Disabilities Act.
Copies of Rule, Written Comments, Contact Person
Lori Slauson, Administrative Rules and Federal Grants Coordinator
Department of Public Instruction
125 South Webster Street
P.O. Box 7841
Madison, WI 53707
Written comments on the proposed rules received by Ms. Slauson at the above mail or email address no later than August 24, 2007, will be given the same consideration as testimony presented at the hearing.
Analysis by the Department of Public Instruction
Statute interpreted
Statutory authority
Agency authority
Section
118.35 (2), Stats., requires the state superintendent to establish guidelines for the identification of gifted and talented pupils by rule.
Section
121.02 (5), Stats., requires the department to promulgate rules to implement and administer the 20 school district standards under s.
121.02 (1), Stats. Gifted and talented is one of those standards.
Related statute or rule
Section
118.35, Stats., programs for gifted and talented pupils.
Plain language analysis
In
Todd Palmer v. The State Of Wisconsin Department Of Public Instruction, the Court instructed the department to promulgate a rule establishing guidelines for identifying gifted and talented pupils as required under s.
118.35 (2), Stats., because its current rule under s.
PI 8.01 (2) (t), is not sufficient.
Therefore, the department is modifying s.
PI 8.01 (2) (t) to establish more specific guidelines for the identification of gifted and talented pupils. The rule requires the school district board to identify pupils in grades kindergarten through grade 12 in the five areas specified in statute. Multiple measures must be used to build a pupil profile, instruments and measures must be validated for the specific purposes for which they are being used, and the identification process and tools must be responsive to the pupil's economic conditions, race, gender, culture, native language, developmental differences, handicapping conditions, and other factors.
Federal regulations
N/A
Surrounding states regulations
• Illinois – Illinois' rules apply only to locally developed GT programs for which state funding is sought. Illinois State Code requires the use of multiple measures (3 or more); the measures must be valid for their purpose; the process must be fair and impartial; and assessment instruments must be sensitive to inclusion of underrepresented groups. Illinois also requires an appeals process. Illinois' State Code allows any “area of aptitude" to be identified, but there is “an emphasis on" language arts and math (the top 5% locally must be identified in these two areas). The identification process must be of equal rigor in each area of aptitude but does not specify identification can be in more than one area. Finally, a procedure for notifying parents of identification results must be provided and there must be an annual report to the parents and community.
• Iowa – Iowa requires a school improvement plan be in place for each district. The plan must include valid and systematic procedures including multiple selection criteria and goals and performance measures. GT policies must be free from discrimination practices in the education program. Iowa does not specify areas of identification; and does not specify whether identification can be in more than one category.
• Michigan – No rule requirements for gifted identification criteria or programs.
• Minnesota – No rule requirements to identify or serve gifted students.
Summary of factual data and analytical methodologies
The primary reference source for developing the proposed rule is the document, Pre-K-Grade 12 Gifted Program Standards, published by the National Association for Gifted Children (NAGC). The NAGC supports and develops policies and practices that encourage and respond to the diverse expressions of gifts and talents in children and youth from all cultures, racial and ethnic backgrounds, and socioeconomic groups. It supports and engages in research and development, staff development, advocacy, communication, and collaboration with other organizations and agencies who strive to improve the quality of education for all students. The NAGC standards were developed in 1998 and represent consensus from professionals in the field on critical practice in gifted education. In addition, the proposed rule is consistent with the state superintendent's commitment to the children and youth of Wisconsin found in The New Wisconsin Promise.
Analysis and supporting documents used to determine effect on small business
N/A
Initial Regulatory Flexibility Analysis
The proposed rules will have no significant economic impact on small businesses, as defined in s.
227.114 (1) (a), Stats.
Fiscal Estimate
The proposed rules establish more specific guidelines for the identification of gifted and talented pupils. The size of the population of children identified as gifted and talented as a result of this rule is indeterminate. However, these rules are not expected to have a significant local or state fiscal effect. School districts may have to purchase some additional assessment materials if they need to use a tool they don't already have and assign staff to administer any new screening or testing that takes place.
There are no anticipated costs incurred by the private sector.
The proposed rules are not anticipated to have a fiscal effect on small businesses as defined under s.
227.114 (1) (a), Stats.
Agency Contact Person
Chrystyna Mursky, Consultant
Gifted and Talented
(608) 267-9273
Notice of Hearing
Transportation
NOTICE IS HEREBY GIVEN that pursuant to ss.
85.16(1) and
343.51(1) and
(2), Stats., and interpreting ss.
340.01(43g),
341.14(1),
(1a),
(1e),
(1m),
(1q) or
(1r)(a),
343.51,
343.52,
346.50(1m),
(2a)(h),
(j), and
(k) and
(3), 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
15th day of August, 2007, at
1:00 PM, to consider the amendment of ch.
Trans 130, Wisconsin Administrative Code, relating to special identification cards and special registration plates for physically disabled.
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
Statutes interpreted
Sections
340.01(43g),
341.14(1),
(1a),
(1e),
(1m),
(1q) or
(1r) (a),
343.51,
343.52,
346.50 (1m),
(2a)(h),
(j), and
(k) and
(3), Stats.
Statutory authority
Agency authority
The Department is required to provide special identification cards, to be used for access to reserved parking spaces, for persons with disabilities that limit or impair the ability to walk.
Related statute or rule
Plain language analysis
Chapter
Trans 130 governs the issuance and use of cards and special registration plates that authorize special parking privileges for persons with certain physical disabilities, and for organizations that regularly transport such persons.
This rule amendment updates language to conform to recent statute changes: expanding the persons who are authorized to sign a health care provider statement, and requiring the applicant to retain a copy of the health care provider statement.
In addition, as required by s.
343.51(2m)(b), Stats., this rule amendment provides policy and procedure for requesting replacement cards, in order to deter practice of obtaining replacement cards which are not legitimately needed and may be fraudulently distributed.
Finally, this rule amendment distinguishes between cards issued to individuals and to organizations.
Federal regulations
The federal Americans with Disabilities Act (ADA) and consequent regulations of the federal National Highway Traffic Safety Administration (NHTSA) govern states' issuance of disabled parking cards and license plates. Ch.
Trans 130 conforms to federal regulation.
Surrounding states regulation
Michigan: No fee is charged to replace a mutilated card, but the applicant must return the mutilated card. Replacement fee for lost or stolen card is $10. There is no limit on the number of replacements that can be requested. Initial permanent card is valid for 5 years and then renewed every 4 years.
Minnesota: Disability placards may be replaced if they are reported lost, stolen, or damaged. If a person reports 3 certificates lost in any 36-month period, they must explain why so many placards needed to be replaced, what they are doing to assure that placards are not lost in the future, and get permission from the State Council on Disability to receive another placard. By policy, damaged placards are requested to be turned in at the time of application for replacement and applications for placards reported stolen should include a copy of the police report; if this procedure is followed the stolen or damaged certificates do not count toward the lost certificate restriction. Long-term and permanent replacement placards are issued at no fee. Temporary and short-term placards require a $5 fee for replacement.
Illinois: Replacement fee $10. If a card is lost, stolen or damaged, the cardholder must submit a signed replacement card application. Only one card is issued per applicant. Fines for using lost, stolen, fraudulent, or altered card range from $1,000 to $2,500.
Iowa: No fee is charged for a replacement placard. If the request is for replacement of a temporary card, Iowa requires a new medical certification. No new certification needed for replacing a permanent card. There is no limit on the number of replacements that can be requested.
Factual data and analytical methodologies
Chapter
Trans 130 currently requires a person to check the reason that the person requires a replacement card: lost, stolen, destroyed, mutilated or illegible, or name change; but DMV does not deny replacement card issuance.
DMV has considered several possible approaches to strengthen replacement card issuance:
• Ask for the return of mutilated or damaged cards; possibly ask for a police report for stolen cards. This approach may reduce requests but places some burden on the applicant.
• Ask a person to file request via law enforcement or court. The disadvantage is workload burden on the law enforcement or court.
• Establish a replacement fee, possibly coupled with no charge if there's a stolen card report. Again, this approach may reduce requests but places some burden on the applicant.
• Put some unique feature on a replacement card, coupled with establishing more frequent renewal or reissue periods – to more frequently purge the database of obsolete cards. However, this would result in large cost to DOT and a burden to all cardholders.
• Not allow a person to apply for a replacement card within a period of time after their last replacement card. A disadvantage is this could deny a legitimate replacement to someone who needs a replacement immediately.
• Informing local law enforcement whenever a person receives a replacement card. This approach results in cost to DMV and law enforcement and it is uncertain whether this would actually have any value.
DOT has chosen to require additional documentation in the form of a signed, notarized statement from applicants who have had possibly excessive requests for replacement cards. DOT has chosen not to charge a fee for replacement cards, and not to ask cardholders to return cards to DOT, to minimize the burden on customers, the vast majority of whom have a legitimate need to obtain a replacement card. The signed, notarized statement additionally provides a record of facts that the applicant is attesting to, in requesting a replacement card.
Analysis and supporting documentation used to determine effect on small businesses
This rule making affects disabled individuals and organizations that provide transportation to disabled individuals. The rule has no effect on small business.
Effect on Small Business
The rule has no effect on small business. 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 Estimate
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 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 Carson Frazier, Department of Transportation, Division of Motor Vehicles, Room 255, P. O. Box 7911, Madison, WI 53707-7911. You may also contact Ms. Frazier by phone at (608) 266-7857 or via e-mail:
carson.frazier@dot.state. wi.us.
Notice of Hearing
Workforce Development
NOTICE IS HEREBY GIVEN that pursuant to Section
49.155 (1d), Stats., as affected by
2005 Wisconsin Act 165; and s.
227.11 (2) (a), Stats., the Department of Workforce Development proposes to hold a public hearing to consider rules affecting ch.
DWD 55, relating to child care certification and affecting small businesses.
Hearing Information
August 15, 2007
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MADISON
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Wednesday
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G.E.F. 1 Building, A415
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1:30 p.m.
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201 E. Washington Avenue
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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
Statutory authority
Statutes interpreted
Related statutes and rules
Explanation of agency authority
Section
49.155 (1d), Stats., provides that the department shall promulgate rules establishing standards for the certification of child care providers under s.
48.651, Stats. The department shall consult with the Child Abuse and Neglect Prevention Board before promulgating those rules. In establishing the requirements for certification of a child care provider, the department shall include a requirement that all providers and all employees and volunteers of a provider who provide care and supervision for children receive, before the date on which the provider is certified or the employment or volunteer work commences, whichever is applicable, training in the most current medically accepted methods of preventing sudden infant death syndrome, if the provider, employee, or volunteer provides care and supervision for children under one year of age, and the training relating to shaken baby syndrome and impacted babies required under s.
253.15 (4), Stats., if the provider, employee, or volunteer provides care and supervision for children under 5 years of age.
In establishing the requirements for certification as a Level II certified family child care provider, the department may not include any other requirement for training for providers.
Section 48. 651, Stats., provides that each county department shall certify, according to the standards adopted by the Department of Workforce Development under s.
49.155 (1d), each child care provider reimbursed for child care services provided to families determined eligible under s.
49.155, unless the provider is a child care center licensed by the Department of Health and Family Services under s.
48.65, Stats., or is established or contracted for by a school board under s.
120.13 (14), Stats. The county shall certify two categories of child care providers: Level I and Level II.
Summary of proposed rules
The proposed rules make the following changes:
Shaken baby syndrome.
The proposed rules implement the requirements of
2005 Wisconsin Act 165, relating to training to prevent shaken baby syndrome. The proposed rules require county and tribal agencies provide information on shaken baby syndrome to applicants prior to initial certification. All certified family child care operators, employees, and volunteers who provide care and supervision for children under 5 years of age shall receive department-approved training on shaken baby syndrome and appropriate ways to manage crying or fussing children
before the date on which the child care operator is certified or the employment or volunteer work commences.
Restraints for children in motor vehicles.
The proposed rules also adopt the changes required by
2005 Wisconsin Act 106 on using booster seats and other restraints for children under 8 years old in motor vehicles used to transport children. If the child is less than one year old or weighs less than 20 pounds, the child shall be properly restrained in a rear-facing individual child care safety seat. If the child is at least 1 year old and weighs at least 20 pounds but less than 4 years old or weighs less than 40 pounds, the child shall be properly restrained in a forward-facing individual child car safety seat. If the child is at least 4 years old but less than 8 years old, weighs at least 40 pounds but not more than 80 pounds, and is not more than 57 inches in height, the child shall be properly restrained in a shoulder- positioning child booster seat. Children under age 13 years may not ride in the front seat of a vehicle.
Definitions
The proposed rules use the term “certified child care operator" to mean an individual, corporation, partnership, limited liability corporation, non–incorporated association, or cooperative that has legal and financial responsibility for the operation of a child care program and for meeting the requirements under this chapter. A “provider" means a certified child care operator or an employee or volunteer of the child care operator who provides care and supervision for infant, preschool, or school–age children on behalf of the operator.
The proposed rules also use the term “child care" in place of “day care."
Certification process.
• Each county or tribal agency may determine whether to require an applicant to submit references. Under the current rules, the department requires that applicants for certification provide references to the county or tribal agency.
• Under the current rules, within 60 days after receiving a completed application for certification or recertification, a county or tribal agency must either approve the application and issue a certificate or deny the application. Under the proposed rules, the county or tribal agency shall issue a certification to an applicant within 60 days after determining that the applicant is fit and qualified and the applicable standards in ss.
DWD 55.08 or
55.09 are in compliance. The rules define “fit and qualified" as displaying the capacity to successfully nurture and care for children, including consideration of abuse of alcohol or drugs, history of a civil or criminal conviction or rule violation that substantially relates to caring for children as described in ch.
HFS 12, exercise of unsound judgment, or a history of civil or criminal offenses or any other actions that demonstrate an inability to manage the activities of a child care program. A county or tribal agency may backdate approval to the date that the county or tribal agency received the child care operator's completed application for certification.
• A county or tribal agency may charge a fee for school-age child care certification not to exceed the licensing fee for a group child care center that provides care and supervision for 9 or more children, plus the costs of required criminal record checks.
• A county or tribal agency shall conduct an inspection of the tract of land on which the home used for child care is located and all buildings and structures on that land, including areas that will not be used for child care.
• A county or tribal agency shall limit certification to one operator for each family residence. This limit is necessary to ensure accurate monitoring of group size and has been departmental policy since 2002.
• A county or tribal agency may require an evaluation and written statement by a physician or licensed mental health professional of any person associated with the care of children or any household resident if the county or tribal agency has reason to believe that the person's physical or mental health may endanger children in care. The county or tribal agency may deny, suspend, revoke or refuse to renew certification if the evaluation gives the county or tribe reasonable concern that the person's physical or mental health may endanger children in care.
• The authority for a county or tribal agency to discontinue payment for various violations is repealed from the section on certification denial because it is not an issue of certification. Termination of payment is a subsidy issue that is covered by Chapter
DWD 56, relating to the administration of child care funds.
• If a certified family child care operator violates the provisions of this chapter, s.
48.685, Stats, or ch.
HFS 12, the county or tribal agency shall require the operator to submit a plan of correction for violation in writing and may forbid the operator to enroll any new children until all violations have been corrected; issue a warning of revocation in writing; or suspend the operator's certification for not more than 60 days. The agency shall either reinstate or revoke the certification by the date that the suspension expires.
Qualifications of child care operators and providers
• A certified child care operator shall demonstrate that he or she is free from tuberculosis test prior to recertification as well as certification.
• The current rule provides that a Level I certified family child care operator
shall have completed at least 15 hours of child care training approved by the county or tribal agency responsible for certification. The proposed rule provides that a family child care operator shall have completed at 2 credits of early childhood training or non-credit department- approved training prior to Level I certification.
• Prior to issuing a Level I certification, the county or tribal agency may require that an applicant graduated from high school, obtained a high school equivalency diploma, or obtained a certificate of general education development.
• A substitute who has worked more than 240 hours for a certified family child care operator with a Level I (regular) certification must complete the same early childhood training as the operator. A substitute is a provider who replaces the certified child care operator or staff in a school-age program on a pre-arranged or planned basis.
• The current rule provides that a certified provider shall report immediately to the certifying agency any changes that affect the certified provider's eligibility for certification, including changes in individuals living in the household. The proposed rule provides that a certified child care operator shall report as soon as possible, but no later than the operator's next working day changes that affect eligibility, including the following:
° Death of a child in care or accident that results in an injury that requires professional medical treatment.
° Any damage to the premises that may affect compliance with this chapter.
° Any construction or remodeling of the premises that might have an effect on health and safety of children in care.
° Convictions, pending charges, or other offenses of the child care operator, household member, or other persons subject to a caregiver background check that could potentially relate to the care of children.
° Any incident involving law enforcement, including outstanding warrant or child protective services contact.
° Any inappropriate discipline of a child by a provider, volunteer, or household member, including any incident that results in a child being forcefully shaken or thrown against a hard or soft surface during the child's hours of attendance.
° Changes in individuals living in the household.
° Changes in hours of operation, phone number, or physical address.
° Upon the hiring of a new employee or volunteer and before the employment or volunteer work commences. A substitute or volunteer must be approved by the certifying agency before employment of volunteer work commences.
Home for providing family child care.
• The current rule provides that each floor level used for child care shall have at least one unblocked exit. The proposed rule provides that each floor level used for child care shall have at least 2 exits, all exits shall be clear of obstruction, and the primary exit shall be a door or stairway providing unobstructed travel to the outside at street or ground level. The secondary exit must be either a door or stairway that provides unobstructed travel to the outside at street or ground level; a door or stairway leading to a platform or roof with railings which has an area of at least 25 square feet, is at least 4 feet long, and is not more than 15 feet above the ground level; or a window not more than 46 inches above the floor that is capable of being opened from the inside without the use of tool or removal of a sash, and which has a nominal window opening size of at least 20 inches in width and 24 inches in height. If the care is provided in a basement, the primary exit must be a door or stairway that provides unobstructed travel to the outside of the building at street or ground level and the secondary exit must be a door or stairway that provides unobstructed travel or a window not more than 46 inches above the floor that is capable of being opened from the inside without the use of tool or removal of a sash and which has a nominal window opening size of at least 20 inches in width and 24 inches in height.
• The home shall have a working carbon monoxide detector.
• The inside temperature of the home may not be less than 67 degrees Fahrenheit. If the inside temperature exceeds 80 degrees Fahrenheit, there must be air circulation with safe fans or other means if the home is not air conditioned.
• The home shall be free of hazards, including recalled products.
• The premises may not have any flaking or deteriorating paint on exterior or interior surfaces in areas accessible for children. Lead-based paint may not be used on any surface on the premises.
• Appliances for food preparation, serving, and clean-up must be kept clean, sanitary, and in good working condition.
Child health care
If a child attending child care or
a child care operator's own child has a reportable communicable disease under ch.
HFS 145 that is transmitted through normal contact, such as chicken pox, German measles, infectious hepatitis, measles, mumps, scarlet fever, or meningitis, a provider shall notify the local public health officer and parents of all the enrolled children. A child who has or had may not be admitted to certified child care unless the child's parents provide a statement from a physician that the child's condition is no longer contagious or the child has been absent for a period of time equal to the longest usual incubation period for the disease as specified by the Department of Health and Family Services.
Supervision
• The child care operator shall have a designated adult who can provide assistance in the event an unexpected emergency. The emergency back-up provider must be at least 18 years of age and able to provide an acceptable level of child care.
• When the children are playing outside, a provider must be outside with the children and provide both sight and sound supervision at all times.
• When a child care operator cares for children in the children's own home, the operator is not required to comply the group size limits and the operator may not care for any children who do not reside in the home.
Activities and equipment
• The proposed rules refine the requirements on activities that providers must plan for children in care based on the Wisconsin Model Early Learning Standards. The proposed rules add new requirements that a provider read to the children at least 15 minutes daily and plan a balance of activities to protect children from excess fatigue and overstimulation.
• The proposed rules create a new subsection on safe indoor and outdoor play equipment. The rules require that:
• Equipment shall be scaled to the size and developmental level of the children in care.
• Equipment shall be constructed in a sturdy manner and be in good operating condition with no sharp, rough, loose, or pointed edges.
• Large, inflatable jumping toys may not be used during hours of child care.
• Various types of play equipment shall be provided to allow for large and small muscle activity, dramatic play, and intellectual stimulation.
• Indoor play equipment shall be provided to allow each child a choice of at least 3 activities involving equipment when all children are using equipment.
• Outdoor play equipment shall be provided to allow each child at least one activity when all children are using equipment at the same time.
Provider and parent communication
The current rules require the provider to develop written information that specifies the charge for child care and the expected frequency of payment for the service. The proposed rules require that the payment information be in a contract that is signed by the child care operator and each child's parent or guardian. The child care operator shall charge the same rates for publicly funded parents and private pay parents.
Prohibited discrimination
The current rule provides that a child care operator may not discriminate on the basis of race, color, sex, sexual orientation, creed, handicap, national origin, or ancestry in accepting children or in the employment of employees. The proposed rules add socioeconomic background as a basis on which child care operators may not discriminate.
School-age child care programs.
• The director of a school-age program must have graduated from high school, obtained a high school equivalency diploma, or obtained a certificate of general education development.
• No staff member, volunteer, visitor or parent with symptoms of communicable disease or physical illness, or whose behavior gives a reason to be concerned for the safety of the children, may be allowed on the premises of the program.
• The staff members shall be physically and emotionally able to provide responsible child care.
• The facility inspection report by the Department of Commerce must be filed in the county or tribal agency. The current rule requires the report to be filed in licensing office of the Department of Health and Family Services' regional office.
• The premises shall have no flaking or deteriorating paint on exterior or interior surfaces in areas accessible for children. Lead-based paint may not be used on any surface on the premises.
• The inside temperature may not be less than 67 degrees Fahrenheit.
• If the inside temperature exceeds 80 degrees Fahrenheit, fans must be provided to improve air circulation.
• The certified child care operator shall keep a current, written record of the daily hours of attendance of each child in care, including the actual arrival and departure times for each child. Attendance records shall be kept for at least 3 years.
• A working cellular phone shall be taken on field trips.
• May not hit, spank, pinch, shake or inflict any other form of corporal punishment on a child, or use any discipline which is frightening to the child, including binding or trying to restrict the child's movement or enclosing the child in a confined space such as a closet, basement, locked room, box, or similar cubicle.
• Each child and adult being transported in a vehicle with a seating capacity of 15 or fewer shall be seated and properly restrained in
an individual seat belt or, for a child under 8 years of age, a child safety restraint system in compliance with s.
347.48 (2m) and
(4), Stats as follows:
• If a child is at least 4 years old but less than 8 years old, weighs at least 40 pounds but not more than 80 pounds, and is not more than 57 inches in height, the child shall be properly restrained in a shoulder-positioning child booster seat.
• A child under 13 years of age may not ride in the front seat of a vehicle.
• The program shall have a written transportation permission slip signed by a parent or guardian on file.
• No child may be left unattended in a vehicle.
Federal regulations
There are no applicable federal regulations.
Surrounding states regulations
Iowa allows child care subsidy payments to be made to a nonregistered family child care home. The Iowa Department of Human Services sends the adult caretaker selected by the parent a pamphlet on minimum health and safety requirements and a payment application. The application must be signed by the provider and returned to the department before payment may be made. Signature on the form certifies the provider's understanding of and compliance with the conditions and requirements, including minimum health and safety requirements, limits on the number of children for whom care may be provided, unlimited parental access to the children during hours when care is provided, and conditions that warrant nonpayment.
Illinois allows child care subsidy payments to a day care home exempt from licensing if not more than 3 children are care for, including the provider's own children, unless all children are from the same household. The provider may not have certain criminal convictions or child abuse and neglect findings.
Minnesota allows child care subsidy payments to legal nonlicensed providers who satisfy registration requirements and provide the county with an assurance that the provider is in compliance with state and local health ordinances and building and fire codes applicable to the premises where child care is provided. A county may conduct criminal history background, county record, and district court record investigations on providers and other persons with access to children in care. A county may deny payment if a the county know a particular provider is unsafe or that the circumstances of the child care arrangement are unsafe. A provider must obtain an immunization record for each child in care within 90 days of starting to care for the child. A provider may not charge child care assistance participants more than families not receiving child care assistance for like services.
Michigan regulates family child care homes for the care of 1 to 6 unrelated children by requiring registration and certification of compliance with applicable rules. The rules require that the registrant have a high school diploma or equivalent, have a written and signed agreement with a responsible person who is 18 years of age or older to provide care during an emergency situation, report to the department within 7 days if any person who care for children or lives in the home has been treated on an inpatient or outpatient basis for an emotional, mental, or substance abuse problem during the last 2 years or if any person has been admitted to or released from a correctional facility. The registrant shall complete no fewer than 10 hours of training each year, shall maintain a file with a statement by a licensed physician that attests to the mental and physical health of all caregivers, and shall retain daily attendance records for 4 years that show arrival and departure times for each child in care. All child care homes shall have at least 2 remotely located exits for every floor level occupied by children. A window may be used as a second exit if, among other things, it is of a size and design to allow for the evacuation of all children and caregiving staff.
Factual data and analytical methodologies
The Department collaborated with the Child Abuse and Neglect Prevention Board and the child care licensing staff of the Department of Health and Family Services to implement the requirement on training to prevent shaken baby syndrome in
2005 Wisconsin Act 165. The proposed rules incorporate the changes required by
2005 Wisconsin Act 106 on using booster seats and other restraints for children under 8 years old in motor vehicles used to transport children. The Department also met with certification workers in county and tribal agencies and with family child care providers represented by AFSCME to discuss suggested rule changes.
Effect on Small Businesses
The proposed rules 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 businesses
The standards in these rules are intended to protect and promote the health, safety and welfare of children in the care of unlicensed child care providers who receive reimbursement through state or federal funds.
Reporting requirements in the current rule include a general requirement to report any changes that affect the provider's eligibility under this chapter. Providers found this general requirement unclear so the proposed rules specify the important eligibility changes that must be reported to the county or tribal agency.
Bookkeeping requirements in the proposed rules include a requirement that there be a contract for each enrolled child be signed by the child care operator and a parent or guardian, and the operator must have on file a copy of the driver's license for all persons transporting children.
Professional skills include a requirement that a school-age child care operator have a high school diploma or equivalent; all certified family child care operators, employees, and volunteers who provide care and supervision for children under 5 years of age shall receive department-approved training on shaken baby syndrome and appropriate ways to manage crying or fussing children; and all family child care operators and substitutes who have worked at least 240 hours in a Level I (regular) home must take 2 credits of early childhood training or non-credit department-approved training. The T.E.A.C.H. Early Childhood® WISCONSIN Scholarship Program offers scholarship opportunities to teachers, family child care providers, center directors and administrators for credit-based training.
Fiscal Estimate
The cost to implement training to prevent shaken baby syndrome was included in the fiscal estimate for
2005 Wisconsin Act 165 (SB 221). The proposed rules add no cost beyond the bill estimate.
The rule allows a county or tribal agency to charge a fee for school-age child care certification not to exceed the licensing fee for a group child care center that provides care and supervision for 9 or more children, plus the costs of the required criminal record checks. There are currently 28 school-age certified child care programs in the state. It is not known how many counties will charge a certification fee. Counties currently have the authority the charge fees for family child care certification and approximately half of the counties assess a fee. The potential increase in county revenue is indeterminate and likely to be very minor.
No other rule proposals are expected to have a fiscal effect.
Agency Contact Person
Submission of 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 August 16, 2007, will be given the same consideration as testimony presented at the hearing.
