Section
227.11(2)(a), Stats., gives state agencies general rule-making authority. Section
285.11(1), Stats., gives the Department the authority to promulgate rules implementing and consistent with ch.
285, Stats. Section
285.11(6), Stats., requires the Department to develop a plan for the prevention, abatement and control of air pollution. The plan must conform with the Clean Air Act and federal regulations for ozone control. Since volatile organic compounds (VOC) are a precursor to ozone, having the state definition of VOC conform to the federal definition is consistent with s.
285.11(6), Stats.
Related statute or rule
Chapters
NR 401 to
499 reference the definitions presented in s.
NR 400.02, Wis. Adm. Code.
Plain language analysis
The proposed rule amendment contained in this order reflects a recent conclusion by the United States Environmental Protection Agency (EPA) that dimethyl carbonate and propylene carbonate make a negligible contribution to tropospheric ozone formation. EPA excluded these two compounds from its regulatory definition of VOC through a January 21, 2009 Federal Register notice (74 FR 3437).
Currently, s.
NR 400.02 (162) (a), Wis. Adm. Code, lists 50 compounds that are excluded from the state regulatory definition of VOC. The Department is proposing to add dimethyl carbonate and propylene carbonate to this list to ensure consistency between state and federal definitions of VOC.
The proposed rule amendment may create an incentive for certain entities, such as paint and coating manufacturers, to use these compounds in place of other more highly reactive organic compounds thereby potentially reducing ground- level ozone concentrations.
Comparison with federal regulations
The proposed rule amendment will ensure consistency between state and federal VOC definitions.
Comparison with similar rules in adjacent states
Each of the adjacent states has exempted or is in the process of exempting these two compounds from the regulatory definition of VOC through state rulemaking processes. The following lists the expected state exemption dates for dimethyl carbonate and propylene carbonate:
Illinois — Expected exemption January, 2010.
Iowa — Compounds are exempt from emissions reporting starting in 2009.
Michigan — Expected exemption late 2010.
Minnesota — Compounds are currently exempt because EPA's VOC definition is referenced.
Summary of factual data and analytical methodologies
Since the proposed rule amendment is based on federal rule changes, the Department is relying on the factual data and analytical methodologies used by EPA to support its rule change. Information on the federal rule changes may be found in the Federal Register notice published on January 21, 2009 (74 FR 3437).
Analysis and supporting documents used to determine effect on small business
An analysis of the effect of the proposed rule amendment on small business was not performed since this change would only provide additional flexibility in allowing them to choose from additional chemical compounds.
Preparation of an economic impact report was not requested.
Small Business Impact
The proposed rule amendment is not expected to have a significant economic impact on small business because it does not impose any new regulations on them, but rather removes two compounds from the state regulatory definition of VOC. This may provide lower cost alternatives to compounds currently being used.
Environmental Analysis
The Department has made a preliminary determination that adoption of the proposed rules would not involve significant adverse environmental effects and would not need an environmental analysis under ch.
NR 150, Wis. Adm. Code. However, based on comments received, an environmental analysis may be prepared before proceeding. This analysis would summarize the Department's consideration of the impacts of the proposal and any reasonable alternatives.
Fiscal Estimate
The proposed changes are being done so that the Department's regulations are updated to reflect current federal regulations. These are definition changes with no fiscal impact to state and local governments, and no anticipated significant fiscal impact to the private sector.
Notice of Hearings
Public Instruction
NOTICE IS HEREBY GIVEN That pursuant to ss.
115.762 (3) (a) and
227.11 (2) (a), Stats., the Department of Public Instruction will hold public hearings to consider proposed permanent rules amending section
PI 11.36 (6), relating to the identification of children with specific learning disabilities.
Hearing Information
The hearings will be held as follows:
Date and Time Location
March 16, 2010 Madison
4:00 - 7:00 p.m. GEF 3 Building
125 South Webster St.
Room 041
March 18, 2010 Oshkosh
4:00 - 7:00 p.m. CESA 6
2300 State Road 44
Conference Room
April 7, 2010 Chippewa Falls
4:00 - 7:00 p.m. CESA 10
725 West Park Ave.
Conference Room
April 14, 2010 Brookfield
4:00 - 7:00 p.m. CESA 1
19601 Bluemound Road
Room A
The hearing sites are fully accessible to people with disabilities. If you require reasonable accommodation to access any meeting, please call Vaunce Ashby, Specific Learning Disability Educational Consultant at (608) 267-2841 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 Proposed Rule and Submittal of Written Comments
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 April 23, 2010, will be given the same consideration as testimony presented at the hearing.
Analysis Prepared by the Department of Public Instruction
Statute interpreted
Statutory authority
Explanation of agency authority
Section
115.762 (3) (a), Stats., requires the department to ensure that all children with disabilities are identified, located and evaluated.
Section
227.11 (2) (a), Stats., gives an agency rule-making authority to interpret the provisions of any statute enforced or administered by it, if the agency considers it necessary to effectuate the purpose of the statute.
Related statute or rule
Chapter PI 11, Wis. Adm. Code.
Plain language analysis
In 2004, the Individuals with Disabilities Education Act (IDEA) modified the evaluation procedures for the identification of children with specific learning disabilities (SLD) under
20 U.S.C. 1414 (b) (6). As specified in IDEA, the evaluation procedures relating to the identification of specific learning disabilities provide that: States may not require the use of significant discrepancy as part of a determination of SLD, and must permit the use of a process based on a child's responses to scientifically-based intervention as part of its determination of SLD. This proposed rule clarifies the insignificant progress component commonly known as scientific, research-based or evidence-based interventions and the interventions' integrity. The IEP team needs to include a person qualified to assess data on a pupil's individual rate of progress, who has implemented a scientific, research-based or evidenced-based intervention with that pupil, and who has observed the pupil while he or she is receiving the intervention. If an existing IEP team member can fulfill these roles, an additional team member is unnecessary.
IDEA also added reading fluency skills as an area of identification for SLD. Because the department's current rule under s.
PI 11.36 (6), relating to specific learning disabilities is not consistent with the federal requirements, the rule will be recreated to align with the U.S. Code. The proposed rules will allow a five-year period during which a school district "is permitted but not required" to continue to use the significant discrepancy formula in identifying children with SLD. After that five-year period, the significant discrepancy formula may not be used.
The department submitted a rule modifying the SLD criteria and significant developmental delay (SDD) criteria to the Legislative Clearinghouse for review on June 4, 2007 (See CHR 07-058). The SLD criteria has changed significantly from the version in CHR 07-058, and therefore, is being re-submitted for Clearinghouse review and public hearings. The information relating to the SLD criteria will be removed from CHR 07-058 before the rule is submitted to the chief clerk of each house of the legislature in final draft form
under s.
227.19 (2), Stats.
Comparison with federal regulations
The proposed rules reflect the SLD language under 34 ss. CFR 300.307 to 300.311 as authorized under 20 U.S.C. s. 1221e-3, 1401 (30), and 1414 (b) (6). In addition, the rule clarifies the insignificant progress component commonly known as scientific, research-based or evidence-based interventions and the interventions' integrity. The IEP team needs to include a person qualified to assess data on a pupil's individual rate of progress, who has implemented a scientific, research-based or evidenced-based intervention with that pupil, and who has observed the pupil while he or she is receiving the intervention. If an existing IEP team member can fulfill these roles, an additional team member is unnecessary.
Comparison with rules in adjacent states
Illinois:
Beginning in 2010-2011 Illinois will require school districts to use a process based on a child's response to scientific, research-based interventions as part of SLD evaluation.
Iowa:
Beginning August, 2010, Iowa will require the use of a process based on the child's response to scientific, research-based intervention or the use of other alternative research-based approaches and prohibits the use of a severe discrepancy between intellectual ability and achievement.
Michigan:
Language going to public hearings in November, 2009 proposes the use of methods for determining SLD eligibility based on the use of scientific, research-based interventions and patterns of strengths and weaknesses. At this point the discrepancy model or a sunset clause is not mentioned.
Minnesota:
The SLD criteria states that the child does not achieve adequately, has a disorder in one or more of the basic psychological processes, and the demonstration of a severe discrepancy or the demonstration of inadequate rate of progress.
Summary of factual data and analytical methodologies
In 2004, the Individuals with Disabilities Education Act (IDEA) modified the evaluation procedures for the identification of children with specific learning disabilities (SLD) under
20 U.S.C. 1414 (b) (6). As specified in IDEA, the evaluation procedures relating to the identification of specific learning disabilities provide that: 1) States may not require the use of significant discrepancy as part of a determination of SLD, 2) States must permit the use of a process based on a child's responses to scientifically-based intervention as part of its determination of a SLD, and 3) States may permit the use of other alternative research-based procedures to determine whether a child has a SLD. IDEA also added reading fluency skills as an area of identification for SLD. Because the department's current rule under s.
PI 11.36 (6), relating to specific learning disabilities is not consistent with the federal requirements, the rule will be modified to align with the U.S. Code. The proposed rules will allow a five-year period during which a school district "is permitted but not required to" continue to use the significant discrepancy formula in identifying children with SLD.
Analysis and supporting documents used to determine effect on small business
N/A
Small Business Impact
The proposed rules will have no significant economic impact on small businesses, as defined in s.
227.114 (1) (a), Stats.
Fiscal Estimate
Summary
The proposed rules modify eligibility criteria used to identify children with specific learning disabilities (SLD) to be consistent with federal requirements. The federal requirements now specify state local education agencies (LEAs) shall not be required to consider a severe discrepancy and must permit the use of a process based on child's response to scientific, researched-based intervention in determining whether a child has an SLD. This rule modification should not result in altering the size of the population of children identified as having a disability. Wisconsin must comply with federal requirements in order to remain eligible to receive more than $200 million in federal IDEA funds.
State fiscal effect
None.
Local government fiscal effect
None.
Anticipated costs incurred by private sector
N/A
Agency Contact Person
Stephanie Petska, Director, Special Education
