Illinois is in the preliminary stages of rulemaking, and has not yet developed draft rules. The State Fire Marshall's office has contacted Wisconsin to survey our experiences with stakeholder meetings and to obtain a copy of our proposed rules.
Summary of factual data and analytical methodologies
The information from which the proposed operator-training rules were developed consisted of (1) the EPA criteria published in EPA-510-R-07-005, (2) existing and proposed rules from about 15 other states, and (3) personal contacts with staff from the International Code Council and with private-sector trainers for operators of underground storage tank systems.
The proposed miscellaneous changes to chapter Comm 10 were developed primarily from six regional training sessions the Department conducted statewide in January and February of 2009 in conjunction with implementing a comprehensive update of chapter Comm 10 that became effective on February 1, 2009.
The proposed rules were also developed with assistance from the Department's advisory committee for flammable, combustible and hazardous liquids. The members of that advisory committee are as follows:
Name Representing
Randy Shervey Wisconsin Fire Inspectors Association
Erin Roth Wisconsin Petroleum Council
Tim Clay Wisconsin Federation of Cooperatives
Tara Wetzel Wisconsin Transportation Builders
Association
Paul Knower Wisconsin Petroleum Equipment
Contractors Association
Scott Miller Wisconsin Fire Chiefs Association
Steve Danner Wisconsin Aviation Trades
Association
Elizabeth Hellman Wisconsin Utilities Association
Gary Pate Wisconsin Insurance Alliance
John Reed Wisconsin Airport Management
Association
Dale Safer Wisconsin Innkeepers
Bill Noel Wisconsin Paper Council
Matt Hauser Wisconsin Petroleum Marketers and
Convenience Store Association
Analysis and supporting documents used to determine effect on small business
The Department derived the cost estimates in the following section from input from the International Code Council and private-sector trainers for operators of underground storage tank systems.
Anticipated costs incurred by private sector
The base-level, International Code Council certification service has been adopted by California and Wyoming. The cost is about $150 per person – which covers the cost of the State and EPA reference material, and a test. The ICC service is a self-directed process where individuals purchase the State and federal regulations and pertinent publications, and then go to a test center to take the test. The cost for taking the ICC test, without the training, is $75.
If a private-sector group such as Petroleum Training Solutions (PTS) provides open-to-the-public training, like they currently provide in Oregon and other States, the charge should be about $325 per person. PTS is partnering with several petroleum-marketer associations in Oregon and other States to get reductions in cost, in exchange for marketing the classes within the respective associations. In Oregon, the fee for members of the Oregon Petroleum Marketers Association is $280.
In Kansas, the State pays for the training, and the cost is about $5,000 per classroom. (PTS prefers to limit class sizes to 35, but in Kansas they accommodated rooms of 50.) These sessions would cost approximately $125 to $150 per person.
Williams & Company also provides classroom training in Kansas, with opportunities for direct questions and answers, and they bring in UST equipment for hands-on training. The company prefers to conduct a class of at least 50 persons – and does some classes back-to-back to minimize travel costs. These sessions would cost approximately $125 to $150 per person. The company provides an open-book group test, and certifies the participants at the conclusion of the class. Testing can be designed any way the State desires. The company maintains a spreadsheet of the individuals who are certified, along with the site identification, and provides the list to the State of Kansas to use to verify training, during annual renewals of UST permits.
Williams & Company also provides two types of webinars – the first is a video Web broadcast of a speaker in front of a local audience, and other participants can access the presentation over the Web. The second is a log-in to a Web site where participants have audio via a phone line and watch a PowerPoint presentation on the Web site. The second is much less costly. The first may require a TV studio and production facilities, and broadcast services can be rather expensive. Depending on the number of participants and the type of webinar, these costs could range from $50 to $225, based on production costs of $10,000. The biggest difference between in-class training and on-line webinars is that for webinars, the participants do not have travel time and associated expenses, so the savings are immediate.
In Colorado, PTS will start presenting webinars in May, that will cost $325. Under this webinar model, the webinars will be free, and the fee will be collected when the test is taken from PTS.
The State of New Mexico estimates that classroom training for their Class A and Class B operators may range from $200 to $350 per person.
Costs for training Class C operators are not expected to be significant because all Class C training will be provided by, or authorized by, the Class B operator for the facility.
Small Business Impact
These rule changes may have an economic effect on any small business with at least one federally regulated underground storage tank containing a flammable, combustible or federally-regulated hazardous liquid. These economic effects are not expected to be significant, and are summarized above.
Any inquiries for the small business regulatory coordinator for the Department of Commerce can be directed to Sam Rockweiler, the agency contact person listed below.
Initial Regulatory Flexibility Analysis
Types of small businesses that will be affected by the rules.
Any small business with at least one federally regulated underground storage tank system containing a flammable, combustible or federally-regulated hazardous liquid.
Reporting, bookkeeping and other procedures required for compliance with the rules.
Each facility that has a tank system as described above must maintain documentation which (1) identifies the facility's Class A, Class B and Class C operators; (2) shows these operators have received the accreditation required by the rules; and (3) lists instructions the Class C operator is required to follow.
All Class A and Class B operators must be trained to understand the responsibilities prescribed in the rules, or pass a written examination demonstrating that understanding. All Class C operators must receive prescribed training that is provided by, or authorized by, an accredited Class A or Class B operator for the facility where the Class C operator is employed.
Types of professional skills necessary for compliance with the rules.
To receive the accreditation required in the rules, Class A, Class B and Class C operators must show they understand how to (1) safely operate and maintain underground storage tank systems and corresponding liquid fuel dispensing systems, including leak detection equipment; (2) appropriately respond to any spills, leaks or releases associated with these systems; and (3) appropriately maintain the records that chapter Comm 10 currently requires for these systems.
Rules have a significant economic impact on small businesses?
No
Environmental Analysis
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.
Fiscal Estimate
There are no requirements in this proposal that should significantly affect either state or local government costs or revenues.
The anticipated costs that may be incurred by the private sector in complying with new requirements in the proposed rules are adequately described in the rule summary which immediately precedes the proposed rules.
Agency Contact Information
Sam Rockweiler
Wisconsin Department of Commerce
Division of Environmental and Regulatory Services
P.O. Box 14427
Madison, WI 53708-0427
telephone (608) 266-0797
Notice of Hearing
Government Accountability Board
NOTICE IS HEREBY GIVEN that pursuant to ss.
5.05 (1) (f) and
227.11 (2) (a), Stats., the Government Accountability Board will hold a public hearing to consider adoption of a rule to amend s.
GAB 1.28, Wis. Adm. Code, relating to the definition of the term “political purpose."
Hearing Information
The public hearing will be held at the time and location shown below.
Date and Time Location
March 30, 2009 Government Accountability Board
at 9:30 a.m. Office
212 E. Washington Avenue
3rd Floor
Madison, Wisconsin 53703
This public hearing site is accessible to people with disabilities. If you have special needs or circumstances that may make communication or accessibility difficult at the hearing, please contact the agency contact person listed below.
Analysis Prepared by the Government Accountability Board
Statute interpreted
Statutory authority
Explanation of agency authority
Under the existing statute, s.
11.01 (16), Stats., an act is for “political purposes" when by its nature, intent or manner it directly or indirectly influences or tends to influence voting at an election. Such an act includes support or opposition to a person's present or future candidacy. Further, s.
11.01 (16) (a) 1., Stats., provides that acts which are for “political purposes" include but are not limited to the making of a communication which expressly advocates the election, defeat, recall or retention of a clearly identified candidate. The existing rule, s.
GAB 1.28 (2) (c), provides that the campaign finance regulations under ch.
11 of the Wisconsin Statutes apply to making a communication that contains one or more specific words “or their functional equivalents" with reference to a clearly identified candidate that expressly advocates the election or defeat of that candidate and that unambiguously relates to the campaign of that candidate.
Under the existing statute, s.
11.01 (16) (a) 1., Stats., and rule, s.
GAB 1.28 (2) (c), individuals and organizations that do not spend money to expressly advocate the election or defeat of a clearly identified candidate, or to advocate a vote “Yes" or vote “No" at a referendum, are not subject to campaign finance regulation under ch.
11 of the Wisconsin Statutes. The term “expressly advocate" initially was limited to so-called “magic words" or their verbal equivalents. The Wisconsin Supreme Court, in
Wisconsin Manufacturers & Commerce (WMC) v. State Elections Board,
227 Wis.2d 650 (1999), has opined that if the Government Accountability Board's predecessor, the Elections Board, wished to adopt a more inclusive interpretation of the term “express advocacy," it could do so by way of a rule. The Wisconsin Court of Appeals, in
Wisconsin Coalition for Voter Participation, Inc. v. State Elections Board,
231 Wis.2d 670 (Wis. Ct. App. 1999), further opined:
And while, as plaintiffs point out, “express advocacy" on behalf of a candidate is one part of the statutory definition of “political purpose," it is not the only part. Under s.
11.01 (16), Stats., for example, an act is also done for a political purpose if it is undertaken “for the purpose of influencing the election . . . of any individual.
Contrary to plaintiffs' assertions, then, the term “political purposes" is not restricted by the cases, the statutes or the code to acts of express advocacy. It encompasses many acts undertaken to influence a candidate's election—including making contributions to an election campaign.
The United States Supreme Court, in
McConnell et al. v. Federal Election Commission (FEC) et al.,
540 U.S. 93 (2003), in a December 10, 2003 opinion, has said that Congress and state legislatures may regulate political speech that is not limited to “express advocacy." Specifically, the
McConnell Court upheld, as facially constitutional, broader federal regulations of communications that (1) refer to a clearly identified candidate; (2) are made within 60 days before a general election or 30 days before a primary election; and (3) are targeted to the relevant electorate. The
McConnell Court further opined:
Nor are we persuaded, independent of our precedents, that the First Amendment erects a rigid barrier between express advocacy and so-called issue advocacy. That notion cannot be squared with our longstanding recognition that the presence or absence of magic words cannot meaningfully distinguish electioneering speech from a true issue ad . . . Indeed, the unmistakable lesson from the record in this litigation . . . is that Buckley's magic-words requirement is functionally meaningless . . . Not only can advertisers easily evade the line by eschewing the use of magic words, but they would seldom choose to use such words even if permitted. And although the resulting advertisements do not urge the viewer to vote for or against a candidate in so many words, they are no less clearly intended to influence the election.
In Federal Election Comm'n. v. Wisconsin Right To Life, Inc. (WRTL II), 550 U.S. (2007), a United States Supreme Court case, Chief Justice Roberts writing for the majority, opined that an ad is the functional equivalent of express advocacy, if the ad is susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific candidate, i.e. mentions an election, candidacy, political party, or challenger; takes a position on a candidate's character, qualifications, or fitness for office; condemns a candidate's record on a particular issue.
The revised rule will more clearly specify those communications that may not reach the level of “magic words" express advocacy, yet are subject to regulation because they are the functional equivalent to express advocacy, for “political purposes," and susceptible of no other reasonable interpretation other than as an appeal to vote for or against a specific candidate.
Related statutes or rules
Plain language analysis
The revised rule will subject to regulation communications that are “susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific candidate." The revised rule will subject communications meeting this criteria to the applicable campaign finance regulations and requirements of ch.
11, Stats.
Comparison with federal regulations
The United States Supreme Court upheld regulation of political communications called “electioneering communications" in its December 10, 2003 decision: McConnell et al. v. Federal Election Commission, et al. (No.02-1674) and pursuant to its June 25, 2007 decision of: Federal Election Commission (FEC) v. Wisconsin Right to Life, Inc. (WRTL II), (No.06-969and 970).
The McConnell decision is a review of relatively recent federal legislation – The Bipartisan Campaign Reform Act of 2002 (BCRA) – amending, principally, the Federal Election Campaign Act of 1971 (as amended). A substantial portion of the McConnell Court's decision upholds provisions of BCRA that establish a new form of regulated political communication – “electioneering communications" – and that subject that form of communication to disclosure requirements as well as to other limitations, such as the prohibition of corporate and labor disbursements for electioneering communications in BCRA ss. 201, 203. BCRA generally defines an “electioneering communication" as a broadcast, cable, or satellite advertisement that “refers" to a clearly identified federal candidate, is made within 60 days of a general election or 30 days of a primary and if for House or Senate elections, is targeted to the relevant electorate.
In addition, the Federal Election Commission (FEC) promulgated regulations further implementing BCRA (generally
11 CFR Parts 100-
114) and made revisions incorporating the
WRTL II decision by the United States Supreme Court (generally
11 CFR Parts 104,
114.) The FEC regulates “electioneering communications."
Comparison with rules in adjacent states
Illinois:
