Three well-publicized recent national examples are: The Federation of State Boards of Physical Therapy sued 4 candidates for trading more than 100 questions from the national licensing examination via an Internet chat room. The National Association of Boards of Pharmacy suspended its Educational Equivalency Examination for seven months after determining that 15 foreign candidates traded 200 national examination questions on 2 web sites in Korea and India. The National Board of Podiatric Medical Examiners refused to validate scores from four U.S. schools after determining that hundreds of students traded examination material by email and study guides.

Numbers of instances have been increasing at the state credentialing level, as well. In the twenty years from 1981 to 2001, there were 6 identified instances of cheating on record at the Department. There were about 15,000 administrations per year at the start of that period, gradually increasing to about 25,000 administrations today. In the four years since 2001, there have been 8 instances of cheating identified on state credentialing examinations. These instances include instances of identical answer sheets, missing booklets and copying questions to remove them from the room.

The increasing culture of cheating has been noted in the recent book by Gregory Cizek, Cheating on Tests, c 1999, Lawrence Erlbaum and Associates, and numerous articles such as, “New Calculators Force NCEES to Tighten Exam Security Policy," Engineering Times, Feb 2004; “Exam Security and High-Tech Cheating", The Bar Examiner, vol 67, no 3, c 1998. The online publication, “Cheating in the News" publishes five to ten recent articles each month about cheating around the world, often on state assessments of high school performance or college entrance examinations.

Analysis and supporting documents used to determine effect on small business or in preparation of economic impact report: The department finds that this rule has no significant fiscal effect on the private sector.

The department estimates the right to appeal may be used to require one hearing a year. The projected value of the staff time to conduct one hearing of this type is $300.

Pursuant to s. 227.114 (1), Stats., these proposed rules will have no significant economic impact on a substantial number of small businesses. The Department's Small Business Regulatory Review Coordinator may be contacted by email at christopher.klein@drl.state.wi.us, or by calling (608) 266-8608.

Pamela Haack, Department of Regulation and Licensing, Office of Legal Counsel, P.O. Box 8935, 1400 East Washington Avenue, Madison, Wisconsin 53708-8935. Email pamela.haack@drl.state.wi.us.

Place where comments are to be submitted and deadline for submission:

Comments may be submitted to Pamela Haack, Department of Regulation and Licensing, Office of Legal Counsel, 1400 East Washington Avenue, P.O. Box 8935, Madison, Wisconsin 53708-8935; email pamela.haack@drl.state.wi.us. Comments must be received on or before July 22, 2005 to be included in the record of rule-making proceedings.

TEXT OF RULE

SECTION 1. RL 1.03 (1g) and (1r) are created to read:

RL 1.03 (1g) “Breach of examination security" means any of the following:

(a) Removing from the examination room any examination materials without authorization.

(b) Reproducing, or assisting a person in reproducing, any portion of the credentialing examination by any means and without authorization.

(c) Paying a person to take the credentialing examination to discover the content of any portion of the credentialing examination.

(d) Obtaining examination questions or other examination materials, except by specific authorization before, during, or after an examination.

(e) Using, or purporting to use, improperly obtained examination questions or materials to instruct or prepare an applicant for the credentialing examination.

(f) Selling, distributing, buying, receiving or having unauthorized possession of any portion of a future, current, or previously administered credentialing examination.

(1r) “Cheating on an examination" includes but is not limited to:

(a) Communicating with other persons inside or outside of the examination room concerning examination content using any means of communication while the examination is being administered.

(b) Copying the answers of another applicant, or permitting answers to be copied by another applicant.

(c) Substituting another person for the applicant who writes one or more of the examination answers or papers in the place of the applicant.

(d) Referring to “crib notes," textbooks or other unauthorized information sources inside or outside the examination room while the examination is being administered.

(e) Disclosing the nature or content of any examination question or answer to another person prior to, during, or subsequent to the conclusion of the examination.

(f) Removing or attempting to remove any examination materials, notes or facsimiles of examination content such as photo, audiovisual, or electronic records from the examination room.

(g) Violating rules of conduct of the examination.

SECTION 2. RL 1.03 (4) is amended to read:

RL 1.03 (4) “Denial review proceeding" means a class 1 proceeding as defined in s. 227.01 (3) (a), Stats., in which a credentialing authority reviews either a decision to deny a completed application for a credential or a determination of cheating on an examination or breach of examination security.

SECTION 3. RL 1.03 (7) is created to read:

RL 1.03 (7). “Office of examinations" means the office of examinations in the department.

SECTION 4. RL 1.04 (title) is amended to read:

RL 1.04 (title) Examination failure: retake and hearing, consequences of cheating on an examination or breach of examination security.

SECTION 5. RL 1.04 (3) is created to read:

RL 1.04 (3)

Consequences imposed for cheating on an examination or for committing a breach of examination security shall be related to the seriousness of the offense and may include, but not be limited to; denial of grades; entering of a failing grade on all examinations in which cheating occurred; restrictions on reexamination; or denial of licensure. If more than one applicant is involved in a connected offense of cheating on an examination or breach of examination security, each applicant knowingly involved is subject to the consequences in this section.

(a) Restrictions on reexamination may include denying the applicant the right to retake the examination for a specified period of time, or the imposition of a permanent bar on reexamination.

(b) The department may provide information on the consequences imposed upon an applicant to other jurisdictions where the applicant may apply for credentialing or examination.

(c) If an approved or credentialed school or instructor is found to have facilitated actions constituting cheating on an examination or breach of examination security, the school or instructor may be subject to disciplinary action or revocation of approval.

SECTION 6. RL 1.05 (title) is amended to read:

RL 1.05 (title) Notice of intent to deny and, notice of denial and notice of cheating on an examination or breach of examination security.

SECTION 7. RL 1.05 (3) is created to read:

RL 1.05 (3) NOTICE OF CHEATING ON AN EXAMINATION OR BREACH OF EXAMINATION SECURITY. If after an investigation the office of examinations determines there is probable cause to believe that an applicant has cheated on an examination or breached examination security and the office of examinations and the applicant cannot agree upon a consequence acceptable to the credentialing authority, the office of examinations shall issue a notice of cheating on an examination or breach of examination security. The notice shall:

(a) Include the name and address of the applicant, the examination involved, and a statement identifying with reasonable particularity the grounds for the conclusion that the applicant has cheated on an examination or breached examination security.

(b) Be mailed to the applicant at the address provided in the materials submitted by the applicant when applying to take the examination. Notice is effective upon mailing.

SECTION 8. RL 1.07 (intro.) and (3) are amended to read:

RL 1.07 Request for hearing. (intro.) An applicant may request a hearing within 45 calendar days after the mailing of a notice of denial by the credentialing authority or notice of cheating on an examination or breach of examination security by the office of examinations. The request shall be in writing and set forth all of the following:

(3) A specific description of the mistake in fact or law that constitutes reasonable grounds for reversing the decision to deny the application for a credential or for reversing a determination of cheating on an examination or a determination of breach of examination security. If the applicant asserts that a mistake in fact was made, the request shall include a concise statement of the essential facts that the applicant intends to prove at the hearing. If the applicant asserts a mistake in law was made, the request shall include a statement of the law upon which the applicant relies.

SECTION 9. RL 1.08 (1) and (4) are amended to read:

RL 1.08 (1) REVIEW OF REQUEST FOR HEARING. Within 45 calendar days of receipt of a request for hearing, the credentialing authority or its designee shall grant or deny the request for a hearing on a denial of a credential or on a determination of cheating on an examination or a determination of breach of examination security. A request shall be granted if requirements in s. RL 1.07 are met, and the credentialing authority or its designee shall notify the applicant of the time, place and nature of the hearing. If the requirements in s. RL 1.07 are not met, a hearing shall be denied, and the credentialing authority or its designee shall inform the applicant in writing of the reason for denial. For purposes of a petition for review under s. 227.52, Stats., a request is denied if a response to a request for hearing is not issued within 45 calendar days of its receipt by the credentialing authority.

(4) BURDEN OF PROOF. The applicant has the burden of proof to show by evidence satisfactory to the credentialing authority that the applicant meets the eligibility requirements set by law for the credential. The office of examinations has the burden of proof to show by satisfactory evidence that the applicant cheated on an examination or breached examination security.

SECTION 10. RL 1.09 (5) is amended to read:

RL 1.09 (5) EVIDENCE. The credentialing authority, the office of examinations and the applicant shall have the right to appear in person or by counsel, to call, examine and cross-examine witnesses and to introduce evidence into the record. If the applicant submits evidence of eligibility for a credential which was not submitted to the credentialing authority prior to denial of the application, the presiding officer may request the credentialing authority to reconsider the application and the evidence of eligibility not previously considered.

SECTION 11. RL 1.09 (5m) is created to read:

RL 1.09 (5m) CONFIDENTIALITY OF EXAMINATION RECORDS. The presiding officer shall take appropriate precautions to preserve examination security in conjunction with the conduct of a hearing held pursuant to this section.

SECTION 12. RL 1.11 and 1.12 are amended to read:

RL 1.11 Failure to appear. In the event that neither the applicant nor his or her representative appears at the time and place designated for the hearing, the credentialing authority may take action based upon the record as submitted. By failing to appear, an applicant waives any right to appeal before the action taken by the credentialing authority which denied the license.

RL 1.12 Withdrawal of request. A request for hearing may be withdrawn at any time. Upon receipt of a request for withdrawal, the credentialing authority shall issue an order affirming the withdrawal of a request for hearing on the denial or on the determination of cheating on an examination or determination of breach of examination security.

NOTICE IS HEREBY GIVEN that pursuant to ss. 85.16 (1) and 348.07 (4), Stats., interpreting s. 348.07 (4), Stats., the Department of Transportation will hold a public hearing at the following location to consider the amendment of chapter Trans 276, Wisconsin Administrative Code, relating to allowing the operation of double bottoms and certain other vehicles on certain specified highways:

July 15, 2005 at 10:00 a.m.

Transportation Southeast Region

141 NW Barstow Street, Room 338A-B

Waukesha, WI

(Parking is available for persons with disabilities)

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.

STATUTORY AUTHORITY: ss. 85.16 (1) and 348.07 (4), Stats.

STATUTE INTERPRETED: s. 348.07 (4), Stats.

Plain Language Analysis and Summary of, and Preliminary Comparison with, Existing or Federal Regulation. In the Surface Transportation Assistance Act of 1982 (STAA), the federal government acted under the Commerce clause of the United States Constitution to provide uniform standards on vehicle length applicable in all states. The length provisions of STAA apply to truck tractor-semitrailer combinations and to truck tractor-semitrailer-trailer combinations. (See Jan. 6, 1983, Public Law 97-424, § 411) The uniform standards provide that:

• No state shall impose a limit of less than 48 feet on a semitrailer operating in a truck tractor-semitrailer combination.

• No state shall impose a length limit of less than 28 feet on any semitrailer or trailer operating in a truck tractor-semitrailer-trailer combination.

• No state may limit the length of truck tractors.

• No state shall impose an overall length limitation on commercial vehicles operating in truck tractor-semitrailer or truck tractor-semitrailer-trailer combinations.

• No state shall prohibit operation of truck tractor-semitrailer-trailer combinations.

The State of Wisconsin complied with the federal requirements outlined above by enacting 1983 Wisconsin Act 78 which amended § 348.07 (2), Stats., and § 348.08 (1), Stats. This act created §§ 348.07 (2) (f), (fm), (gm) and 348.08 (1) (e) to implement the federal length requirements. In 1986 the legislature created § 348.07 (2) (gr), Stats., to add 53 foot semitrailers as part of a two vehicle combination to the types of vehicles that may operate along with STAA authorized vehicles. (See 1985 Wisconsin Act 165)

The vehicles authorized by the STAA may operate on the national system of interstate and defense highways and on those federal aid primary highways designated by regulation of the secretary of the United States Department of Transportation. In 1984 the USDOT adopted 23 CFR Part 658 which in Appendix A lists the highways in each state upon which STAA authorized vehicles may operate. Collectively these highways are known as the National Network. In 1983 Wisconsin Act 78, the legislature enacted § 348.07 (4), Stats., which directs the Wisconsin Department of Transportation to adopt a rule designating the highways in Wisconsin on which STAA authorized vehicles may be operated consistent with federal regulations.

The Department of Transportation first adopted ch. Trans 276 of the Wisconsin Administrative Code in December of 1984. The rule is consistent with 23 CFR Part 658 in that the Wisconsin rule designates all of the highways in Wisconsin that are listed in 23 CFR Part 658 as part of the National Network for STAA authorized vehicles. The federal regulation does not prohibit states from allowing operation of STAA authorized vehicles on additional state highways. The rule making authority granted to the Wisconsin Department of Transportation in § 348.07 (4), Stats., allows the DOT to add routes in Wisconsin consistent with public safety. The rule making process also provides a mechanism to review requests from businesses and shipping firms for access to the designated highway system for points of origin and delivery beyond 5 miles from a designated route. A process to review and respond to requests for reasonable access is required by 23 CFR Part 658.

This rule amends Trans 276.07 (11) and (24), Wisconsin Administrative Code, to add two segments of highway to the designated highway system established under s. 348.07 (4), Stats. The actual highway segment that this rule adds to the designated highway system is:

The long trucks to which this rule applies are those with 53-foot semitrailers, double bottoms and the vehicles which may legally operate on the federal National Network, but which exceed Wisconsin's regular limits on overall length. Generally, no person may operate any of the following vehicles on Wisconsin's highways without a permit: A single vehicle with an overall length in excess of 40 feet, a combination of vehicles with an overall length in excess of 65 feet, a semitrailer longer than 48 feet, an automobile haulaway longer than 66 feet plus allowed overhangs, or a double bottom. Certain exceptions are provided under s. 348.07 (2), Stats., which implements provisions of the federal Surface Transportation Assistance Act in Wisconsin.

The effect of this rule will be to extend the provisions of s. 348.07 (2) (f), (fm), (gm) and (gr), and s. 348.08 (1) (e), Stats., to the highway segments listed above. As a result, vehicles which may legally operate on the federal National Network in Wisconsin will also be allowed to operate on the newly-designated highway. Specifically, this means there will be no overall length limitation for a tractor-semitrailer combination, a double bottom or an automobile haulaway on the affected highway segment. There also will be no length limitation for a truck tractor or road tractor when operated in a tractor-semitrailer combination or as part of a double bottom or an automobile haulaway. Double bottoms will be allowed to operate on the affected highway segment provided neither trailer is longer than 28 feet, 6 inches. Semitrailers up to 53 feet long may also be operated on this highway segment provided the kingpin to rear axle distance does not exceed 43 feet. This distance is measured from the kingpin to the center of the rear axle or, if the semitrailer has a tandem axle, to a point midway between the first and last axles of the tandem. Otherwise, semitrailers, including semitrailers which are part of an automobile haulaway, are limited to 48 feet in length.

These vehicles and combinations are also allowed to operate on undesignated highways for a distance of 5 miles or less from the designated highway in order to reach fuel, food, maintenance, repair, rest, staging, terminal or vehicle assembly or points of loading or unloading.