Rule-Making Notices
Notice of Hearing
Agriculture, Trade and Consumer Protection
(Reprinted from September 30 Register)
The Wisconsin Department of Agriculture, Trade and Consumer Protection (DATCP) announces that it will hold a public hearing on rules revising Chapter ATCP 30, relating to expanding and joining two current atrazine prohibition areas near Poynette in Columbia County.
Hearing Information
DATCP will hold the public hearing at the time and location shown below.
Date and Time
Location
October 23, 2008
Thursday
3:00 p.m. to 5:00 p.m. and
6:00 p.m. to 8:00 p.m.
MacKenzie Environmental
Center
Badger Den Conference Rm.
W7303 Co. Hwy CS
Poynette, WI 53955
Hearing impaired persons may request an interpreter for these hearings. Please make reservations for a hearing interpreter by October 16, by writing to Claire Fried, Division of Agricultural Resource Management, P.O. Box 8911, Madison, WI 53708-8911, Claire.Fried@wisconsin.gov, telephone (608) 224-4523. Alternatively, you may contact the DATCP TDD at (608) 224-5058. Handicap access is available at the hearings.
Analysis Prepared by the Department of Agriculture, Trade and Consumer Protection
In order to protect Wisconsin groundwater, the Department of Agriculture, Trade and Consumer Protection (“DATCP") administers rules that limit atrazine herbicide application rates throughout the state, and prohibit atrazine applications in areas where groundwater contamination levels attain or exceed state enforcement standards adopted by the Department of Natural Resources. Based on new groundwater test data, this rule will expand and join two current atrazine prohibition areas in Columbia County.
Statutes interpreted
Sections 94.69, 160.19 (2), and 160.21 (1), Stats.
Statutory authority
Sections 93.07 (1), 94.69 (1), 160.19 (2), and 160.21 (1), Stats.
Explanation of statutory authority
DATCP has broad authority, under s. 93.07 (1), Stats., to adopt rules to implement programs under its jurisdiction. DATCP has authority to adopt pesticide rules under s. 94.69(1), Stats. Under ss. 160.19 (2) and 160.21 (1), Stats., DATCP must regulate pesticide use, as necessary, to prevent groundwater contamination and restore groundwater quality.
Related rules or statutes
Under the state groundwater law, ch. 160, Stats., DATCP must regulate pesticide use as necessary to prevent groundwater contamination and restore groundwater quality. DATCP has adopted general rules for its groundwater protection program under ch. ATCP 31, Wis. Adm. Code. DNR has adopted groundwater enforcement standards and preventive action limits for atrazine and its metabolites under NR 140, Wis. Adm. Code.
This rule is consistent with the state groundwater law (ch. 160, Stats.) and DATCP's general groundwater protection rules (ATCP 31), and is designed to attain compliance with the groundwater enforcement standards and preventive action limits specified by DNR rules (NR 140).
Background
Atrazine is a widely used agricultural herbicide that has been found in groundwater throughout the state. Current DATCP rules under ch. ATCP 30, Wis. Adm. Code, limit atrazine application rates throughout the state to ½ the current federal label rate. The current rules also prohibit the use of atrazine where atrazine contamination of groundwater has attained or exceeded the state groundwater enforcement standard under ch. NR 140, Wis. Adm. Code. Current rules prohibit atrazine use in 102 designated areas, including major prohibition areas in the lower Wisconsin River Valley and much of Dane and Columbia counties.
Rule content
Based on new groundwater sampling data, this rule expands and joins two current atrazine prohibition areas in Columbia County. The expansion will increase the total statewide acreage of atrazine prohibition areas by approximately 1,830 acres. By joining two prohibition areas, this rule will reduce the total number of prohibition areas from 102 to 101. This rule includes maps describing the revised prohibition areas.
Within every prohibition area, atrazine applications are prohibited. Atrazine mixing and loading operations are also prohibited unless conducted over a spill containment surface that complies with s. ATCP 29.45, Wis. Adm. Code.
Comparison with federal regulations
Pesticides and pesticide labels must be registered with the federal Environmental Protection Agency (“EPA"). Persons may not use pesticides in a manner inconsistent with the federal label.
The maximum atrazine application rate in Wisconsin is ½ of the maximum federal rate. However, the current federally-registered atrazine label suggests that atrazine should not be used on permeable soils with groundwater near the soil surface. Wisconsin has clear, definite restrictions on atrazine use, based on actual findings of groundwater contamination in this state.
EPA is proposing federal rules that would require states to have pesticide management plans for pesticides that have the potential to contaminate groundwater. Wisconsin's current regulatory scheme for atrazine pesticides would likely comply with the proposed federal rules.
Comparison with rules in adjacent states
Wisconsin atrazine regulations are stronger than those in adjacent states:
  Iowa restricts atrazine application rates to 1/2 the federal label rate in 23 counties (7 with county-wide restrictions and 16 with restrictions in some townships).
  Minnesota has a program of voluntary use limitations when surface water or groundwater contamination exceeds a level of concern. This program suggests pesticide use restrictions or management practices to reduce surface water or groundwater contamination. To date, this program has not been implemented anywhere in Minnesota.
  Illinois and Michigan have no atrazine regulations.
Data and analytical methodologies
This rule is based on groundwater sample results for atrazine and atrazine metabolites obtained from the affected areas during the past year. Groundwater samples contained atrazine contamination in excess of 3.0 ug/L (the state enforcement standard established by DNR groundwater rules under ch. NR 140, Wis. Adm. Code).
Preliminary contamination findings were based on groundwater samples analyzed by the University of Wisconsin – Stevens Point. DATCP confirmed the existence of groundwater contamination, in excess of the state enforcement standard, based on DATCP analysis of groundwater samples collected by DATCP. DATCP collected and analyzed the samples using official collection and analytical methods.
Small Business Impact
This rule will affect four or five farmers, in the expanded prohibition areas, who currently use atrazine to control weeds in corn. Those farmers, who are “small businesses," will no longer be able to use atrazine. However, other effective weed control products are available, so the rule will not have a significant impact on the affected farmers. This rule may also have a slight impact on distributors and applicators of atrazine herbicides, crop consultants and equipment dealers, but the impact will not be significant.
This rule will not have a significant adverse impact on small business, and is not subject to the delayed small business effective date provided in s. 227.22 (2) (e), Stats.
Fiscal Estimate
Administration and enforcement of this rule will involve some new costs for DATCP. Staff time will be needed to monitor compliance (0.1 FTE, cost approximately $7,800). Compliance monitoring will be coordinated with current compliance monitoring activities. Soil sampling and testing may be used to monitor compliance, and may require an estimated $1,000 in analytical services.
Total costs are estimated at $8,800. DATCP expects to absorb these costs within its current budget. There will be no additional costs to any other state agencies or local governments.
Submission of Written Comments
DATCP invites the public to attend the hearing and comment on the rules. Following the hearing, the hearing record will remain open until November 7, 2008 for additional written comments. Comments may be sent to the Division of Agricultural Resource Management at the address below, by email to Rick.Graham@wisconsin.gov or online at https://apps4.dhfs.state.wi.us/admrules/public/Home.
To provide comments or concerns relating to small business, you may also contact DATCP's small business regulatory coordinator Keeley Moll at the address below, or by emailing to Keeley.Moll@wisconsin.gov or by telephone at (608) 224-5039.
Copies of Proposed Rule
You may obtain free copies of the proposed rule by contacting the Wisconsin Department of Agriculture, Trade and Consumer Protection, Division of Agricultural Resource Management, 2811 Agriculture Drive, P.O. Box 8911, Madison, WI 53708. You may also obtain copies by calling (608) 224-4502 or emailing Rick.Graham@wisconsin.gov. Copies will also be available at the hearing. To view the proposed rule online, go to: https://apps4.dhfs.state.wi.us/ admrules/public/Home.
Agency Contact Person
Questions and comments related to this rule may be directed to:
Rick Graham
Dept. of Agriculture, Trade and Consumer Protection
P.O. Box 8911
Madison, WI 53708-8911
Telephone (608) 224-4502
Notice of Hearing
Commerce
Licenses, Certifications and Registrations, Ch. Comm 5
NOTICE IS HEREBY GIVEN that pursuant to ss. 101.02 (2) and (15) and 101.16, Stats., the Department of Commerce will hold a public hearing on proposed rules under Chapter Comm 5, relating to retail liquefied gas suppliers and affecting small business.
Hearing Information
The public hearing will be held as follows:
Date and Time:
Location:
November 4, 2008
1:00 p.m.
Conference Room 3B
Thompson Commerce Center
201 W. Washington Avenue
Madison
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 contact through Wisconsin Relay 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
Section 101.16, Stats., as affected by 2007 Wisconsin Act 203.
Statutory authority
Sections 101.02 (1) and (15), and 101.16 (2), Stats., as affected by 2007 Wisconsin Act 203.
Explanation of agency authority
Under the statutes cited, the Department of Commerce protects public health, safety, and welfare by promulgating comprehensive requirements for design, construction, use and maintenance of public buildings and places of employment. Under section 101.16, Stats., the Department has the responsibility for developing rules specifically for minimum safety standards for the design, construction, installation, operation, inspection, repair and maintenance of liquefied petroleum gas systems.
Related statute or rule
Chapter Comm 40, Gas Systems
Chapter Comm 65, Fuel Gas Appliances
Summary of proposed rules
The proposed rules establish administrative procedures for licensing of liquefied gas suppliers as mandated by 2007 Wisconsin Act 203.
Comparison with federal regulations
An internet search on U.S. federal regulations and U.S. federal register yielded no results regarding the licensing of liquefied gas suppliers.
Comparison with rules in adjacent states
An Internet-based search of liquefied petroleum gas suppliers in the states of Illinois, Iowa, Michigan and Minnesota found that none of the states have specific rules or programs regarding these types of grants.
Summary of factual data and analytical methodologies
The proposed rules were developed by reviewing the provisions under 2007 Wisconsin Act 203 in conjunction with the current licensing rules relating to businesses under ch. Comm 5.
Small Business Impact
Analysis and supporting documents used to determine effect on small business
The proposed rules implement the licensing mandates imposed by 2007 Wisconsin Act 203. The primary businesses affected by these licensing mandates are suppliers who fill propane gas cylinders. This would include bulk gas suppliers, cooperatives, hardware stores and camp grounds. The department does not believe that the proposed rules will increase the effect on small businesses over that imposed by the Act.
An economic impact report has not been required pursuant to s. 227.137, Stats.
Initial regulatory flexibility analysis
Types of small businesses that will be affected by the rules
The proposed rules implement the licensing mandates imposed by 2007 Wisconsin Act 203. The primary businesses affected by these licensing mandates are suppliers who fill propane gas cylinders. This would include bulk gas suppliers, cooperatives, hardware stores and camp grounds.
Reporting, bookkeeping and other procedures required for compliance with the rules
The Act under s. 101.16 (3r), Stats., requires the licensed gas suppliers to maintain proof of financial responsibility. The financial amounts vary with the type of tanks to be filled.
Types of professional skills necessary for compliance with the rules.
No other types of professional skills are necessary for compliance with the rules
Rules have a significant economic impact on small businesses?
No.
Environmental Impact
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
Summary
The proposed rules implement the licensing mandates imposed by 2007 Wisconsin Act 203 relating to businesses which supply/fill liquid petroleum gas cylinders. The primary businesses affected by these licensing mandates would include bulk gas suppliers, cooperatives, hardware stores and camp grounds. The department estimates there would be 600 suppliers who would be required to obtain licenses. The department proposes to charge $60 for a license and $40 for a restricted license which would be limited to filling only DOT cylinders. The department also anticipates that a majority of the suppliers would obtain the restricted licenses. The department estimates that it would realize approximately $26,000 in revenue for the two-year licenses or $13,000 annually. The department anticipates that workload associated with this licensing can be absorbed within current resources and staff levels.
State government fiscal impact
Increase existing revenues.
Increase costs - may be possible to absorb within agency's budget.
Local government fiscal impact
None
Fund sources affected
PRO
Long-range fiscal implications
None are anticipated
Submission of Written Comments
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 November 14, 2008, 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.
Copies of Proposed Rules
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 contact through Wisconsin Relay. Copies will also be available at the public hearing.
Agency Contact
James Quast, Program Manager, telephone (608) 266-9292 or Email at jim.quast@wisconsin.gov.
The small business regulatory coordinator for the Department of Commerce is Carol Dunn, who may be contacted at telephone (608) 267-0297, or Email at carol.dunn@wisconsin.gov.
Notice of Hearing
Commerce
Financial Resources for Businesses and Communities, Chs. Comm 104
Housing Assistance, Chs. Comm 150
NOTICE IS HEREBY GIVEN that pursuant to section 560.032 of the Statutes, the Department of Commerce will hold a public hearing on emergency rules under Chapters Comm 113 and 154, relating to allocation of volume cap on tax-exempt private activity bonds.
Hearing Information
The public hearing will be held as follows:
Date and Time:
Location:
October 27, 2008
Monday
at 10:00 a.m.
Thompson Commerce Center Third Floor, Room 3B
201 West Washington Avenue
Madison, Wisconsin
This hearing will be held in an accessible facility. If you have special needs or circumstances that may make communication or accessibility difficult at the hearing, please call Sam Rockweiler at (608) 266-0797 or contact through Relay 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
Section 560.032.
Statutory authority
Section 560.032, Stats.
Explanation of agency authority
Section 560.032 of the Statutes requires the Department to promulgate rules for establishing and administering a system, under 26 USC 146, for allocating the federal volume cap on tax-exempt private activity bonds, as defined under 26 USC 141 (a), among various Wisconsin issuers, including the Wisconsin Housing and Economic Development Authority (WHEDA).
Related statute or rule
The Department has statutes and rules for several programs associated with housing assistance and community development – such as chapter Comm 154, Small Cities Community Development Block Grants for Housing; and chapter Comm 108, Community Development Block Grant Program – but only chapter Comm 113 contains rules relating to allocating a volume cap on tax-exempt private activity bonds for housing.
Plain language analysis
The rules in this order allocate to WHEDA for calendar year 2008 the one-time additional $175.4 million in tax-exempt bonding authority that has been awarded to Wisconsin for single-family and multifamily housing activities, under section 3021 of the federal Housing and Economic Recovery Act of 2008.
Comparison with federal regulations
Section 3021 of the federal Housing and Economic Recovery Act of 2008 amends subsection (d) of section 146 of the Internal Revenue Code to create a special one-time increase in the allocation of volume cap for calendar year 2008, to be used for the issuance of single-family housing bonds and multifamily bonds. Notice 2008-79 from the Internal Revenue Service specifies the amount of the increase that is allocated to each State.
Comparison with rules in adjacent states
Michigan. According to staff in the Michigan Department of Revenue, Michigan has statutes that address allocation of their volume cap for tax-exempt private activity bonds, and they are administering the allocation directly under those statutes rather than under corresponding rules. Consequently, no rulemaking is anticipated for administering their one-time, 2008 volume cap increase of $315.4 million.
Minnesota. According to staff in the Minnesota Department of Finance and Employee Relations, Minnesota has statutes that address allocation of their volume cap for tax-exempt private activity bonds, and they are administering the allocation directly under those statutes rather than under corresponding rules. Consequently, no rulemaking is anticipated for administering their one-time, 2008 volume cap increase of $162.7 million.
Iowa. According to staff in the Iowa Finance Authority, Iowa has statutes and corresponding rules that address allocation of their volume cap for tax-exempt private activity bonds, and they are administering the allocation under those statutes and rules. However, no rulemaking is anticipated for administering their one-time, 2008 volume cap increase of $96.6 million.
Illinois. Section 30 ILCA 345 of the Illinois statutes designates the Governor's Office as the entity charged with allocating their volume cap for tax-exempt private activity bonds, and specifies that the guidelines and procedures which are issued by the Governor's Office govern and control the administration of the allocation process in accordance with section 30 ILCA 345. The one-time, 2008 volume cap increase for Illinois is $402.4 million.
Summary of factual data and analytical methodologies
The data and methodology for developing these rules were derived from and consisted of reviewing the criteria in section 3021 of the federal Housing and Economic Recovery Act of 2008; a summary of the Act, from the National Council of State Housing Agencies; and Notice 2008-79 from the Internal Revenue Service.
Small Business Impact
Analysis and supporting documents used to determine effect on small business
The primary documents that were used to determine the effect of the rules on small business were the federal Housing and Economic Recovery Act of 2008; a summary of the Act, from the National Council of State Housing Agencies; and Notice 2008-79 from the Internal Revenue Service.
No economic impact report was prepared.
Summary
The rules are expected to result in only beneficial effects on small business because the rules only address a temporary increase in WHEDA bonding authority for single-family and multifamily housing activities.
Initial Regulatory Flexibility Analysis
Types of small businesses that will be affected by the rules
Businesses that receive payments from funds which become available because of the rules.
Reporting, bookkeeping and other procedures required for compliance with the rules
No new reporting, bookkeeping or other procedures are necessary for compliance with the rules.
Types of professional skills necessary for compliance with the rules
No new professional skills are necessary for compliance with the rules.
Rules have a significant economic impact on small businesses
No
Environmental Impact
In accordance with chapter Comm 1, the 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
Summary
The rules are not expected to have a significant fiscal effect on the Department because they simply allocate new tax-exempt bonding authority of $175.4 million to the Wisconsin Housing and Economic Development Authority for calendar year 2008.
The rules are likewise not expected to impose any significant costs on the private sector.
State government fiscal impact
None
Local government fiscal impact
None
Long-range fiscal implications
None known
Submission of Written Comments
Interested persons are invited to appear at the hearing and present comments on the emergency rules. Persons making oral presentations are requested to submit their comments in writing, via e-mail. Persons submitting comments will not receive individual responses. The hearing record on this rulemaking will remain open until November 1, 2008, 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. E-mail comments should be sent to srockweiler@commerce.state.wi.us. If e-mail submittal is not possible, written comments may be submitted to Sam Rockweiler, Department of Commerce, Division of Environmental and Regulatory Services, P.O. Box 14427, Madison, WI 53708-0427.
Copies of Emergency Rules
The emergency rules and an analysis of the rules are available on the Internet by entering “Comm 113" in the search engine at the following Web site: http://adminrules.wisconsin.gov. Paper copies may be obtained without cost from Sam Rockweiler at the Department of Commerce, Division of Environmental and Regulatory Services, P.O. Box 14427, Madison, WI 53707, or at srockweiler@commerce.state.wi.us, or at telephone (608) 266-0797. Copies will also be available at the public hearing.
Agency Contact Person
Tarna Gahan-Hunter, Wisconsin Department of Commerce, Bureau of Policy and Budget, P.O. Box 7970, Madison, WI, 53707-7970; telephone (608) 267-9382; e-mail tarna.gahanhunter@wisconsin.gov.
Any inquiries for the small business regulatory coordinator for the Department of Commerce can be directed to Sam Rockweiler, as listed above.
Notice of Hearing
Financial Institutions - Securities
EmR0829 and Permanent Rule
NOTICE IS HEREBY GIVEN that the Division of Securities of the Department of Financial Institutions will hold a public hearing to consider the adoption of emergency and permanent rules revising Chapters DFI-Sec 4, 5 and 10, relating to making it a dishonest or unethical practice for securities licensees to make use of misleading designations or certifications purporting to demonstrate special expertise in the financial or retirement needs of seniors.
Hearing Information
The public hearing will be held:
Date and Time
Location
November 18, 2008
Tuesday
at 10:00 a.m.
Hearing Room
411 South, State Capitol
Madison
Analysis Prepared by the Department of Financial Institutions - Division of Securities
Statutes interpreted
Under current Chapter 551: Section 551.34 (1) (g), Stats.
Under 2007 Wis. Act 196: Section 551.412 (4) (m), Stats.
Statutory authority
Under current Chapter 551: Sections 551.63 (1) and (2), Stats.
Under 2007 Wis. Act 196: Sections 551.605 (1) (b), (2) and 551.608 (1), (2) and (3) (i), Stats.
Plain language analysis
The rule-making procedures under Chapter 227 of the Wisconsin Statutes are being implemented for the purpose of adopting permanent rules to be in effect upon expiration of emergency rules issued by the Division on September 11, 2008 to protect seniors in Wisconsin from being misled through the use by securities licensees of designations and credentials that imply or represent that a person has special expertise, certification, or training in financial planning for seniors, but where such designations and/or credentials are either non-existent or do not involve significant education, testing, training or experience, and in reality are marketing ploys.
The Division's rulemaking is based on a “Model Rule On the Use of Senior-Specific Certifications and Professional Designations," developed by the North American Securities Administrators Association, Inc. ("NASAA Model Rule"), and adopted by the NASAA membership, including Wisconsin, with an effective date of April 1, 2008. The Wisconsin rule-making involves amending the list of “dishonest or unethical business practice" provisions applicable to broker-dealers, agents, investment advisers and investment adviser representatives to provide that the misleading use by licensees of senior designations or certifications -- as particularized in the rules -- can be a basis for denial, censure, suspension or revocation of a license.
Because the “senior designation/certification problem" is current and ongoing, and represents a serious source of potential harm for seniors in Wisconsin, the Division used the emergency rule-making procedures to adopt the NASAA Model Rule to be able to have such rule in place immediately to protect Wisconsin seniors, rather than using the regular, permanent rule-making process which requires a 5-6 month process to complete.
Additional justification for this rule-making action relates to the discussion in the following paragraphs which describes the need for acting on a uniform, Model NASAA Rule basis, and the involvement of U.S. Senator Herb Kohl who has expressed interest in this problem and has introduced federal legislation to promote action by individual states to adopt the uniform, NASAA Model Rule.
The background of the discovery by NASAA of the current and ongoing “senior designation" problem and development of the NASAA Model Rule began in 2004 when licensing examiners for the Securities Divisions in a number of states across the U.S., including Wisconsin, noted while conducting office examinations of securities professionals that some securities agents and advisers were using sets of various, new acronyms in their marketing materials. Such acronyms relate to numerous different certifications or designations to make it appear that the salesperson has special qualifications or specialized education in addressing the needs of senior citizens or retirees in areas of finance, financial planning, estate planning, or investing, and thus are used by those licensees to provide an edge in attracting seniors who are nearing retirement, or are in retirement, to become clients/customers.
Summary of the rule. The NASAA Model Rule being adopted in Wisconsin covers a broad array of practices. It prohibits licensees from using any non-existent or self-conferred certification. Also prohibited would be any designation that “indicates or implies a level of occupational qualification obtained through education, training, or experience" that the person doesn't actually have. Furthermore, the proposed rule would disallow designations obtained from organizations that are “primarily engaged in the business of instruction in sales and/or marketing." Additionally, reasonable standards for competency would be required, along with monitoring designees and minimum continuing-education standards. Also included is a listing of nationally recognized accrediting agencies whose accreditation of an organization would not be disqualified under the Model Rule.
Comparison with federal regulations
There currently are no federal statutes or regulations dealing with this specific issue. However, shortly after NASAA detected the misleading senior certifications/designations problem that was occurring on a multi-state basis, Senator Herb Kohl of Wisconsin, who chaired (and continues to chair) the US Senate Committee on Aging, called a series of hearings in 2006 on various aspects concerning older investors, one of the results of which was Senator Kohl's interest in creating federal legislation to limit the use of misleading certification/designations. However, based upon NASAA's intent to create a model rule for its members to adopt on a uniform basis throughout the states, the Senator instead drafted legislation that recognizes the need for developing a uniform, model rule, and which rewards individual states for adopting such a model rule. The legislation, S. 2794, the Senior Investor Protection Act of 2008, would establish a grant program under which a State may receive a grant of up to $100,000 per year if it has “adopted rules on the appropriate use of designations in the offer or sale of securities or investment advice, which conform to the minimum requirements of the NASAA Model Rule."
Comparison with rules in adjacent states
Currently, no states adjacent to Wisconsin have adopted the NASAA Model Rule. However, the need for uniform treatment in dealing with the problem was highlighted by a few states who undertook separate rule-making actions using divergent approaches in 2007 (before the NASAA Model Rule was completed), thus creating difficulties for large securities firms with brokers and advisers across the country trying to comply with non-uniform approaches to the problem. Those firms, justifiably, have asked for a single, uniform rule that would make it possible to design systems to facilitate compliance throughout all state jurisdictions. Several non-adjacent states have already adopted the NASAA Model Rule, including Virginia, Washington, New Hampshire, Alabama and California.
Small Business Impact
Initial regulatory flexibility analysis
Types of small businesses that could be affected by the proposed rules
Broker-dealer and investment adviser registrants under the new Wisconsin Uniform Securities Law (2007 Wisconsin Act 196) with fewer than 25 full-time employees who meet the other criteria of sec. 227.114 (l) (a), Wis. Stats. However, the proposed Prohibited Conduct rule provisions are made applicable equally to all broker-dealers and investment advisers -- irrespective of the size of the firm -- because the requirements involved are for the protection and benefit of Wisconsin customers of those firms. All Wisconsin customers of securities broker-dealers and investment advisers are entitled to the public investor protection benefits of such Prohibited Conduct rule requirements, irrespective of the size of the firm providing the securities services.
Reporting, bookkeeping and other procedures required for compliance with the rules
No new or additional reporting, bookkeeping, or other procedures are contained in the proposed rules.
Fiscal Estimate
State government fiscal impact
None
Local government fiscal impact
None
One-time revenue fluctuations
None
Long-range fiscal implications
None
Submission of Written Comments
Written comments in lieu of public hearing testimony may be submitted which must be received no later than the hearing date and should be addressed to the Administrator of the Division of Securities, 345 West Washington Avenue, PO Box 1768, Madison Wisconsin, 53701.
Copies of Proposed Rule and Agency Contact Person
A copy of the full text of the proposed rules and fiscal estimate may be obtained from:
Randall E. Schumann (608) 266-3414
Legal Counsel for the Division of Securities
Department of Financial Institutions
345 West Washington Avenue, 4th Floor
P. O. Box 1768
Madison, WI 53701
Additionally, the full text of the proposed rules is available at the DFI Website: www.wdfi.org/securities&franchising.
Notice of Hearing
Government Accountability Board
NOTICE IS HEREBY GIVEN that pursuant to ss. 5.05 (1) (f) and 227.11 (2) (a), Stats., and pursuant to a written request from Paul Malischke and more than 35 other electors of Wisconsin, the Government Accountability Board will hold a public hearing to consider adoption of a rule to repeal and recreate Chapter GAB 5, Wis. Adm. Code, relating to ballot security.
Hearing Information
The public hearing will be held at the time and location shown below.
Date and Time
Location
November 11, 2008
at 9:30 a.m.
Board's offices
201 W. Washington Avenue
Madison
Analysis Prepared by the Government Accountability Board
Statutes interpreted
Sections 5.84, 5.86, 5.87, 5.90, 5.905, 5.91, 7.23, 7.51, and 9.01, Stats.
Statutory authority
Explanation of agency authority
The Government Accountability Board's rule on ballot security, under ss.7.23 and 7.51, Stats., has become outdated because of advances in technology and because of heightened administrative and public concerns about ballot security in light of recent security and chain-of-custody problems in elections both in Wisconsin and in other states. To address those concerns and to update ballot security in Wisconsin, the Board proposes to repeal and recreate chapter GAB 5, the ballot security rule.
Related statute or rule
Sections 5.66, 5.85, 5.86, 5.87, 5.90, 7.10, 7.15, 7.24, 7.37, 7.53, 9.01, and 12.13, Stats.
Plain language analysis
The proposed rule provides the requirements for maintaining the security of ballots that are cast at an election and maintaining the integrity of the tabulation of those ballots in the canvass of an election.
Comparison with federal regulations
Federal law does not apply to the preparation, printing, or security of ballots. Federal law does require that materials, including ballots, relating to any election in which a federal office is on the ballot, must be preserved for not fewer than 22 months.
Comparison with rules in adjacent states
Illinois, Iowa, Michigan, and Minnesota all statutorily require that after ballots have been counted, they shall be secured in a sealed envelope or other container in such a manner that no ballot may be removed without breaking the seal on that container. The ballots and other election documents in those sealed containers are returned to the custody of the local election official who will hold them until they may be destroyed under state and federal law.
Generally, unlike Wisconsin's rule, the law in all four states provides for the retention of unused ballots until destruction of all ballots is authorized by state and federal law.
Summary of factual data and analytical methodologies
Adoption of the rule was predicated on federal and state mandate rather than on any factual data or analytical methodology.
Small Business Impact
The creation of this rule will have no effect on small business, nor any economic impact.
Fiscal Estimate
The creation of this rule has no fiscal effect.
Submission of Written Comments
Written comments should be sent to the Government Accountability Board, 17 West Main Street, P.O. Box 2973, Madison, WI 53701-2973; email: elections.state.wi.us. The deadline for submitting written comments that will be included in the rule-making record is November 18, 2008.
Agency Contact Person
George A. Dunst, Staff Counsel
Government Accountability Board
17 West Main Street, P.O. Box 2973
Madison, Wisconsin 53701-2973
Phone: 608-266-0136
Text of Proposed Rules
SECTION 1. Chapter GAB 5 is repealed and recreated to read:
Chapter GAB 5
Ballot and Electronic Voting System Security
GAB 5.01 Ballot security. (1) In this section:
(a) “Board" means the government accountability board.
(b) “Certificate of performance compliance" means the document provided by voting equipment vendors certifying that the equipment complies with the performance requirements of s. 5.91, Stats.
(c) “Chain-of-custody" means the recorded movement and location of election ballots from the time of delivery of the ballots to the municipal clerk or board of election commissioners until the destruction of the ballots is authorized under s. 7.23, Stats.
(d) “Custodian" means the election official who is authorized by chs. 5 to 12 to take possession and control of the ballots from the time of delivery of the ballots to the clerk or board of election commissioners until destruction of the ballots is authorized under s. 7.23, Stats.
(e) “Electronic voting system" has the meaning given in s. 5.02 (4m), Stats.
(f) “Firmware" means the computer software stored in read-only memory or programmable read-only memory.
(g) “Modem" means a device for transmitting data between two computers over telephone or other communication lines.
(h) “Results report" means the print-out of voting data by a piece of electronic voting equipment.
(i) “Software" has the meaning given in s. 5.905 (1), Stats.
(2) Within the requirements of s. 7.51 (3), Stats., the terms “secure" and “seal" shall be interpreted together to mean that the voted ballot container must be closed in such a manner that no ballot may be removed, nor any ballot added, without visible evidence of interference or damage to the ballot container.
(3) Within the requirements of s. 7.51 (3) (a), Stats., a ballot container shall be considered “sealed" or “locked," only if no voted ballot may be removed from or deposited into the container, and no other form of access to the ballots inside may be gained without leaving visible evidence of that entry or access into the container. Ballot bags shall be sealed with a tamper-evident, serialized numbered seal. The serial number shall be recorded on the signed ballot container certification (EB-101) attached to the bag. Serial numbers of the seals also shall be recorded on the Inspectors' Statement (EB-104). Ballot boxes or containers shall have all potential openings secured in such a manner that no ballot may be removed, nor any ballot added, without visible evidence of interference or damage to that ballot container. Ballot boxes or containers shall have attached a signed ballot container certification (EB-101).
(4) A sealed ballot container shall not be considered “secured" unless it is stored in a manner in which access to the container is limited only to the clerk of the election district, board of election commissioners, or to persons authorized by the clerk or the board of election commissioners, and access to which is not available to any other person.
(5) Whenever the custodian is required to open the ballot container and unseal the ballots as part of a central count proceeding under s. 5.86, Stats., board of canvass proceeding under Ch. 7, Stats., audit of electronic voting equipment after an election under s. 7.08 (6), Stats., recount or an appeal of a recount under s. 9.01, Stats., or as part of a public records request under s. 19.35, Stats., before opening the container the custodian shall record in the minutes of the proceeding whether the container is sealed and shall record the serialized number of the seal. The custodian shall make a record of the entry and of the ballot review. Upon completion of the review, the custodian shall re-secure them in the manner provided in s. 7.51, Stats., unless destruction is authorized under s. 7.23, Stats.
(6) Security of the ballots and the ballot container shall be maintained as provided under s. 7.51, Stats., until destruction of the ballots is conducted under s. 7.23, Stats. Destruction of the ballots authorized under s. 7.23, Stats., requires shredding, incineration, or some other form of obliteration of the ballots.
(7) At the time of a recount, the serial numbers on the seals of the ballot container shall be compared with the serial numbers written on the signed ballot container certification (EB-101). All containers shall be compared in a recount. The ward numbers and the results of the serial number verification shall be recorded in the minutes of the recount.
(8) The municipal clerk or board of election commissioners shall securely maintain all ballots from the time of receipt from the printer or county clerk through delivery to the polling place.
5.02 General electronic voting system security procedures. (1) These procedures apply to all electronic tabulating voting equipment memory devices, including prom packs, memory cards, or any other removable memory devices that can be programmed or functioned to store and transfer ballot images or tabulation data.
(2) Throughout the life of the electronic voting system, the municipal or county clerk shall maintain control of all memory devices in a secure manner at all times. With the agreement of the municipal clerk or board of election commissioners, the county clerk or county board of election commissioners may store memory devices in a secure location. The municipal clerk or board of election commissioners shall secure all keys to the electronic voting equipment.
(3) For each election, there shall be a separate, written chain-of-custody record for each programmed memory device used with an electronic voting system. Each transfer shall be logged in the written chain-of-custody record.
(4) Each programmed memory device shall have or be assigned a unique and permanent serial number. If the memory device does not have a permanent serial number affixed by the manufacturer, a clerk shall, if possible, affix to the device a serial number or unique identifier.
(5) The municipality shall use controlled, serialized seals that are tamper-evident and resistant to accidental breakage along with a written record of all seals and associated serial numbers.
(6) For each election, the municipal clerk shall record on the Inspectors' Statement (EB-104), which memory devices and which serialized tamper-evident seals are assigned to particular voting stations or units.
5.03 Pre-election procedures. (1) The clerk who has possession of the electronic voting systems or memory devices shall ensure that the equipment and memory devices have been secured properly since the previous election.
(2) Memory devices shall be programmed to print a list of the software and firmware versions of the electronic voting system on each beginning-of-election-day zero report under s. 5.84 (2), Stats. For electronic voting systems that cannot accommodate this requirement, the software and firmware information shall be recorded from the system start-up screen, either by municipal or county staff during the pre-election testing under s. 5.84 (1), Stats., or by election inspectors on Election Day under s. 5.84 (2), Stats.
(3) The records for the pre-election test under s. 5.84, Stats., pre-recount test under s. 5.90, Stats., and Election Day reports under ss. 7.51 and 7.53, Stats., must be maintained by the appropriate clerk or board of election commissioners.
(4) Except when necessary to program, test, or operate the electronic voting and/or programming equipment, any point by which access can be gained to the system controls must be closed and locked or secured with a tamper-evident seal that can be tracked using a unique and permanent serial number. The appropriate clerk shall maintain a written record of the serial numbers required by this subsection.
(5) After a memory device is programmed, tested, and delivered to the municipal clerk for the election, it shall be immediately and continuously maintained in a secure location with controlled access limited only to users authorized by the clerk or board of election commissioners.
Upon insertion of a memory device into its assigned unit, it shall be sealed against unauthorized access with a serialized, tamper-evident seal that can be tracked using a unique and permanent serial number. The municipal clerk or board of election commissioners shall record the serial numbers on the Inspectors' Statement (EB-104).
(6) When applicable, for each election the municipal or county clerk or board of election commissioners shall obtain a signed “Certificate of Performance Compliance: Memory Device Security" from each voting equipment manufacturer that provides programming services or memory devices to the municipality or county.
(7) The municipality shall take reasonable precautions to ensure the security of the equipment between the time it leaves the possession of the clerk or board of election commissioners to be delivered to the polling place, and the time the chief inspector assumes possession at the polling place on Election Day.
5.04 Election-day procedures. (1) Before any ballots are cast on any piece of voting equipment, the integrity of the tamper-evident seals shall be verified by the chief election inspector verifying that the tamper-evident seal serial number on the Inspectors' Statement (EB-104) matches the tamper-evident seal serial number contained on the electronic voting equipment. Any irregularity or discrepancy between the two numbers shall be reconciled before using the equipment.
(2) After the polls have opened, ballot removal from an optical scan machine or paper roll removal or replacement on a direct recording electronic (DRE) machine shall be conducted with at least two election inspectors (or other sworn election team members appointed by the municipal clerk or board of election commissioners) present. The removal process, the names of the election inspectors or sworn election team members, and the time of removal must be recorded on the Inspectors' Statement (EB-104).
(3) After the polls have closed, election officials shall print a results report before breaking any seal on the equipment and before the removal of the memory device from any piece of voting equipment. If additional reports other than the results reports are required, these reports shall also be printed before breaking any seal on the equipment and before the removal of the memory device.
(4) The chief election inspector shall compare the serial numbers of all security seals, then verify by initialing the Inspectors' Statement (EB-104). Any additional seals used during the election must also be recorded on the Inspectors' Statement (EB-104).
(5) The memory device shall be secured in a separate, tamper-evident sealed container or envelope by the chief election inspector. The memory devices shall be promptly returned to the municipal or county clerk or board of election commissioners.
(6) If vote results are transmitted by modem, the municipal clerk or board of election commissioners may access the memory device for transmission of those results, but shall reseal the memory device in a secured envelope or container.
(7) If removal of the memory device is not required, the device may remain sealed in the voting equipment. The serial numbers of the security seals shall be verified and initialed on the Inspectors' Statement (EB-104).
5.05 Post election procedures. (1) After each election, the clerk or board of election commissioners responsible for storing the voting equipment shall conduct an inspection to ensure all system access points are closed, locked, and secured.
(2) At each post-election meeting of the municipal board of canvassers, the members shall verify that the tamper-evident serial numbers from the voting equipment have been recorded on five Inspectors' Statements (EB-104) or 10% (whichever is greater) of the total statements, and have been initialed by the Chief Election Inspector. The county board of canvassers shall verify ten Inspectors' Statements. All Inspectors' Statements (EB-104) shall be verified by the appropriate board of canvassers in a recount. Proper documentation shall be maintained.
5.15 Alternate security procedures. (1) The Government Accountability Board recognizes the need for flexibility when implementing these procedures, and acknowledges that alternative means may be used to achieve and ensure an acceptable level of electronic voting equipment security.
(2) The Board will consider requests from counties to implement alternative security procedures.
(a) The county clerk, or the municipal clerk or board of election commissioners through the county clerk or county board of election commissioners, shall submit a written request to implement alternative security procedures to the Board's director and general counsel.
(b) The request shall describe the proposed security procedures in detail and include any documentation such as logs, flow charts, and certification forms.
(c) The director and general counsel may approve the use of alternative security procedures for one election cycle.
(d) The Board shall review the director and general counsel's approval of any alternative security procedures and may authorize continued use of those procedures.
Notice of Hearing
Marriage and Family Therapy, Professional Counseling and Social Work Examining Board
NOTICE IS HEREBY GIVEN that pursuant to authority vested in the Marriage and Family Therapy, Professional Counseling and Social Work Examining Board in ss. 15.08 (5) (b), 227.11 (2) and 457.03 (1), Stats., the Professional Counselor Section of the Marriage and Family Therapy, Professional Counseling and Social Work Examining Board will hold a public hearing at the time and place indicated below to consider an order to amend sections MPSW 11.01 (1) (b), 12.01 and 14.01 (2) (intro.); and to create section MPSW 12.01 (3) and (4), relating to supervised practice, training licenses and academic programs for professional counselors.
Hearing Information
Date:   October 27, 2008
Time:   9:15 a.m.
Location:   1400 East Washington Avenue
  (Enter at 55 North Dickinson Street)
  Room 121A
  Madison, Wisconsin
Analysis Prepared by the Department of Regulation and Licensing
Statutes interpreted
Sections 457.12 and 457.13, Stats.
Statutory authority
Sections 15.08 (5) (b), 227.11 (2) and 457.03 (1), Stats.
Explanation of agency authority
The Marriage and Family Therapy, Professional Counseling and Social Work Examining Board has the authority under s. 457.03, Stats., to promulgate rules.
Related statutes or rules
There are no other related statutes or rules other than those listed above.
Plain language analysis
One of the requirements for becoming licensed as a professional counselor is the accrual of 3,000 hours of supervised practice. The addition of s. MPSW 12.01 (3) and (4) is intended to permit applicants who are interested in becoming licensed in Wisconsin as professional counselors to use supervised professional counselor practice hours that were accrued in another state. The existing rules do not allow the professional counselor section to consider supervised practice hours that were obtained out-of-state. These changes are intended to remedy that situation and will likely result in more clinicians being eligible to practice in Wisconsin.
SECTION 1 adds the acronym “CORE" for the Council on Rehabilitation Education, to make it consistent with the rest of the paragraph.
SECTION 2 provides for an exception to the requirement that applicants obtain their supervised professional counseling practice in another state. It also amends the section to make it clear that a training license is required in order to begin accruing supervised professional counseling hours.
SECTION 3 allows applicants who obtained their supervised professional counseling practice hours in another state to be given credit for those hours provided they are sufficiently clinical in nature and are completed under the direction of a supervisor acceptable to the professional counselor's section.
SECTION 4 clarifies that a single counseling theory course is required. It also eliminates the requirement that certain courses be a minimum of three credits, instead allowing for multiple courses to count towards the required credit amount.
Comparison with federal regulations
There is no applicable existing federal legislation.
Comparison with rules in adjacent states
Minnesota. Minnesota requires a 48 credit minimum master's or doctoral degree in counseling. The degree must be from a regionally accredited institution or the degree program accredited through the Commission for Accreditation of Counseling and Related Educational Programs (CACREP). The board requires specific topic areas, similar or equivalent to that of Wisconsin's, however will automatically accept CACREP as meeting the standards in the statutes.
If the applicants graduated prior to 2003 and they hold a master's degree with 5 years of experience, they are exempt from the 48 credit or CACREP requirement (experience counselor transition language found in the statutes).
Interestingly, a license applicant may apply and receive the license only after completing 12 semester hour graduate credits with the qualification that they complete the remainder in 4 years.
The supervised practice requirement is post licensure (first 2,000 hours).
Iowa. Iowa licenses mental health counselors rather than professional counselors. To qualify for licensure in Iowa, an applicant must either demonstrate that they hold a master's or doctoral degree in counseling with a mental health counseling concentration from a CACREP accreditation specifically in mental health counseling (CACREP accredits both community counseling and mental health counseling). If they do not have a CACREP mental health counseling degree, they must submit a “content equivalent degree of at least 45 hours over a number of counseling specific areas (similar to Wisconsin). The courses in the program must be made up of 3 semester hour courses.
Iowa requires 2 years of supervised clinical practice completed post coursework and practicum (but the applicant may start to accumulate hours prior to their thesis – curious). There does not appear to be a training level or limited credential to practice under while accumulating the hours. It appears that Iowa MHC is envisioned as “clinical" licensure meaning expectations for DSM IV diagnosis and treatment of mental health disorders rather than the more common community counselor level. This is evident in the requirement for CACREP mental health counselor accreditation and the psychopathology requirement in the equivalency.
It is not clear that Iowa approves programs or approves applicants on an as reviewed basis (though from the application materials and the lack of an approval list, it appears through the latter).
Iowa considers applicants who have obtained Certified Clinical Mental Health Counselor status with the National Board for Certified Counselors (NBCC) as having met the educational and clinical experience requirements necessary for licensure.
Illinois. Licensure requires a master's or doctoral degree in counseling, psychology or rehabilitation counseling. Illinois will also accept a bachelor's degree in the aforementioned programs along with 5 years of supervised practice.
Beginning January 1, 2005, the Illinois licensing division approves programs that are 48 hours minimum in length with at least one course in each of the 13 identified content areas. After January 1, 2008, Illinois is requiring that the courses submitted be at least 3 semester hours in length (similar to Wisconsin's equivalency standards).
It appears that Illinois preapproves programs on a per school basis. All Master's Degree programs that are CACREP or Council on Rehabilitation Education (CORE) accredited are automatically considered approved. All Doctoral degree programs in psychology of the APA or the Council for the National Register of Health Service Providers in psychology are preapproved.
For those who graduate in a program that has not been approved, they will have to submit their transcripts and program materials to the board for review.
Michigan. Professional Counseling Licensure requires a master's or doctoral degree in counseling or student personnel work in a program approved by the board. The license also requires 3,000 hours of supervised practice. Effective January 1, 2005, the supervision shall begin upon the issuance of a limited license.
The board has program approval standards that describe the approval of counselor training programs which includes a minimum of 48 hours over a number of specified topic areas without any minimum credit hour per course requirement. The board shall also accept any programs accredited by CORE or CACREP as automatically approved.
Summary of factual data and analytical methodologies
The Professional Counselor Section is amending their degree equivalency rules which require a minimum of a one 3-credit semester hour or 4-quarter hour course in a number of “topic areas" to eliminate the minimum 3-credit-course requirement. The section has found that applicants denied for licensure based on the 3-credit-course requirement for degree equivalency are licensable in other states and have been practicing successfully in Wisconsin under the exemption in the statutes allowing psychotherapeutic practice in s. HFS 61.96 certified clinics. In addition, the Council for Accreditation of Counseling and Related Education Programs (CACREP), a nationally recognized accreditation body, does not specify a 3-credit-course minimum.
The section is also amending their rules to include a requirement to hold a professional counselor training license in order to accrue hours of supervised professional counseling practice towards licensure. The practice of professional counseling is a protected practice (pursuant to s. 457.04 (6), Stats.); however, the requirement to hold a training license in order to accrue supervised professional counseling practice hours is not found explicitly in the rules. The section has found that people practicing professional counseling without training certification or licensure may constitute a violation of law and could pose a significant risk to the health, safety and well-being of the public. In addition to adding the requirement for accruing supervised hours while holding the training license, the section has determined that due to increased mobility, such rules should also include flexibility in considering practice hours gained out of state if those hours are substantially equivalent to practice hours gained in other states.
Analysis and supporting documents used to determine effect on small business
The changes proposed should not provide substantial negative effect on small business in terms of increased operating costs. Since approximately 2004, the section has attempted to advise those entering the field that in order to practice and train for full licensure, one needs to accrue hours under a training license. The cost to obtain a training license is $53 and expires after four years (and is renewable at the discretion of the section). The benefit of a training license is that it assures the trainee that their supervisor is approved. The benefit to the public is that they can be assured that the training license holder has met certain standards required for safe practice under supervision – including that they hold an approved master's degree in professional counseling and they have passed the State ethics examination – and that they are required to observe their code of conduct, violation of which opens practitioners to disciplinary action.
The additional changes, including changes for purpose of clarification, elimination of minimum credit per course requirements and acceptance of supervised hours gained out-of-state will make it easier for applicants to achieve state licensure thus helping to assure availability for the workforce and does not without compromising public safety.
Section 227.137, Stats., requires an “agency" to prepare an economic impact report before submitting the proposed rule-making order to the Wisconsin Legislative Council. The Department of Regulation and Licensing is not included as an “agency" in this section.
Small Business Impact
These proposed rules will have no significant economic impact on a substantial number of small businesses, as defined in s. 227.114 (1), Stats. The Department's Regulatory Review Coordinator may be contacted by email at larry.martin@drl.state.wi.us, or by calling 608-266-8608.
Fiscal Estimate
Summary
The department estimates that this rule will require staff time in the Office of Legal Counsel, Office of Exams, and the Division of Professional Credentialing. The total one-time salary and fringe costs are estimated at $2,533.
Anticipated costs incurred by private sector
The department finds that this rule has no significant fiscal effect on the private sector.
Submission of Written Comments
Interested persons are invited to present information at the hearing. Persons appearing may make an oral presentation but are urged to submit facts, opinions and argument in writing as well. Facts, opinions and argument may also be submitted in writing without a personal appearance by mail addressed to Pamela Haack, Paralegal, Department of Regulation and Licensing, Office of Legal Counsel, 1400 East Washington Avenue, Room 152, P.O. Box 8935, Madison, Wisconsin 53708-8935, or by email to pamela.haack@ drl.state.wi.us. Comments must be received on or before November 10, 2008 to be included in the record of rule-making proceedings.
Agency Contact Person
Pamela Haack, Paralegal, Department of Regulation and Licensing, Office of Legal Counsel, 1400 East Washington Avenue, Room 152, P.O. Box 8935, Madison, Wisconsin 53708; telephone 608-266-0495; email at pamela.haack@ drl.state.wi.us.
Text of Proposed Rules
SECTION 1. MPSW 11.01 (1) (b) is amended to read:
(b) Verification that the institution which awarded the degree was a regionally accredited college or university, or accredited by the commission for accreditation of counseling and related educational programs (CACREP), or the council on rehabilitation education (CORE) at the time the applicant graduated from the school, or that a degree awarded by a foreign institution of higher learning has been determined by the National Board for Certified Counselors (NBCC) or by another organization approved by the section to be equivalent to a degree from a program accredited by CACREP. If the applicant's education was not received in English, the applicant must demonstrate proficiency in English by achieving a score of 550 (or 213 on the computer-based exam) or above on the Test Of English as a Foreign Language (TOEFL) or an equivalent score on an equivalent examination.
SECTION 2. MPSW 12.01 is amended to read:
MPSW 12.01 Supervised practice requirement. An Except as provided in sub. (3), an applicant for licensure as a professional counselor under s. 457.12, Stats., shall complete a period of supervised practice to become while holding a training license before being eligible for the license licensure. Supervision of the practice of professional counseling undertaken to meet the pre-licensure requirement may be exercised by a person other than an employment supervisor. The supervisor may exercise discretion as to the frequency, duration, and intensity of the supervision sessions to meet an average of one hour of supervision per week during the supervised practice period.
SECTION 3. MPSW 12.01 (3) and (4) are created to read:
(3) An applicant who has received a master's degree in professional counseling or its equivalent and has completed any portion of his or her 3,000 hours of supervised professional counseling practice in another state shall be given credit for those hours provided they included at least 1,000 hours of face-to-face client contact, or a proportionate number thereof, and are completed under the supervision of a supervisor acceptable to the professional counselor section.
(4) An applicant who has received a doctoral degree in professional counseling or its equivalent and has completed any portion of his or her 1,000 hours of supervised professional counseling practice in another state shall be given credit for those hours provided they are completed under the supervision of a supervisor acceptable to the professional counselor section.
SECTION 4. MPSW 14.01 (2) (intro.) is amended to read:
(2) (intro.) The course work included successful completion of at least 3 semester hours or 4 quarter hours academic credit in a supervised counseling practicum; at least 3 semester hours or 4 quarter hours academic credit in a single counseling theory course; and at least one course of at least 3 semester hours or 4 quarter hours academic credit in at least 6 of the following 8 topic areas; and the course work included a total of at least 42 semester hours or 63 quarter hours of academic credit in counseling related courses distributed among at least 6 of the following 8 topic areas:
Notice of Hearing
Marriage and Family Therapy, Professional Counseling and Social Work Examining Board
NOTICE IS HEREBY GIVEN that pursuant to authority vested in the Marriage and Family Therapy, Professional Counseling and Social Work Examining Board in ss. 15.08 (5) (b), 227.11 (2) and 457.03 (3), Stats., the Social Worker Section of the Marriage and Family Therapy, Professional Counseling and Social Work Examining Board will hold a public hearing at the time and place indicated below to consider an order to amend ss. MPSW 3.09 (3) and 3.13 (3) (a); and to create s. MPSW 3.09 (7), relating to practice hours and internship for social workers.
Hearing Information
Date:   October 29, 2008
Time:   9:15 a.m.
Location:   1400 East Washington Avenue
  (Enter at 55 North Dickinson Street)
  Room 121A
  Madison, Wisconsin
Analysis Prepared by the Department of Regulation and Licensing
Statutes interpreted
Sections 457.08 (4) and 457.09 (4) (b) 1., Stats.
Statutory authority
Sections 15.08 (5) (b), 227.11 (2) and 457.03 (3), Stats.
Explanation of agency authority
The Marriage and Family Therapy, Professional Counseling and Social Work Examining Board has the authority under s. 457.03, Stats., to promulgate rules.
Related statutes or rules
There are no other related statutes or rules other than those listed above.
Plain language analysis
Among the requirements for becoming licensed in Wisconsin as a clinical social worker is the completion of at least 3,000 hours of supervised clinical practice, including 1,000 hours of face-to-face client contact. Currently, the social worker section cannot consider those hours that were accrued out-of-state, despite the fact that the applicant may have met all of the other requirements for licensure. As a result, the section is amending its rules to permit consideration of clinical social work practice hours accrued out-of-state under an appropriate supervisor. It is also adding a provision to its rules for social worker training certificates to ensure that applicants have completed a human services internship under the auspices of an accredited college or university.
One of the requirements for becoming licensed as a clinical social worker is the accrual of 3,000 hours of supervised practice. The changes to s. MPSW 3.09 are intended to permit applicants who are interested in becoming licensed in Wisconsin as clinical social workers to use supervised clinical social work practice hours that were accrued in another state. The existing rules do not allow the social worker section to consider clinical hours that were obtained out-of-state. These changes are intended to remedy that situation and will likely result in more clinicians being eligible to practice in Wisconsin.
The section is also modifying s. MPSW 3.13 (3) (a) to clarify that a human services internship used to meet one of the requirements for an entry-level social work credential be completed under the auspices of an accredited college or university.
SECTION 1 provides for an exception to the requirement that applicants obtain their supervised clinical social work practice in another state. It also amends the term “pre-certification" to “pre-licensed."
SECTION 2 allows applicants who obtained their supervised clinical social work practice hours in another state to be given credit for those hours provided they are sufficiently clinical in nature and are completed under the direction of a supervisor acceptable to the social worker section.
SECTION 3 requires that a human services internship be completed under the auspices of an accredited college or university.
Comparison with federal regulations
There is no existing or proposed federal regulation for summary and comparison.
Comparison with rules in adjacent states
Iowa. Iowa has two levels of master's level social work licensure, the licensed master social worker (LMSW) and the licensed independent social worker (LISW). The LISW is the highest-level of social work licensure and requires a master's or doctoral degree in social work and 4,000 hours of supervised practice. There does not appear to be any explicit requirement that a person hold the Iowa LMSW before accumulating the supervised practice experience. (Wisconsin rules explicitly require applicants to achieve certification as an advanced practice social worker or independent social worker prior to accumulating supervised practice hours toward clinical social work licensure.) Iowa's rules do require that before applying for the LISW, the “social worker" must have received a master's or doctoral degree in social work and practiced at that level.
As to the proposed changes to the internship requirements under the social worker training certificate, Iowa does not have a training certificate or equivalency process for converting a health services degree into a bachelor's degree in social work.
Iowa's administrative rules for licensure of social work are found under chapter 280 of Iowa administrative rule.
Illinois. Illinois has two levels of social work licensure, the licensed social worker and licensed clinical social worker. The clinical license requires 3,000 hours of supervised practice before being eligible for clinical licensure. There does not appear to be any explicit requirement that a person hold the social worker license before accumulating the supervised practice experience. (Wisconsin rules explicitly require applicants to achieve certification as an advanced practice social worker or independent social worker prior to accumulating supervised practice hours toward clinical social work licensure.) There are explicit provisions in Illinois administrative code which would allow applicants to count hours gained in other jurisdictions outside of Illinois towards clinical licensure.
As to the proposed changes to the internship requirements under the social worker training certificate, Illinois does not have a training certificate or equivalency process for converting a health services degree into a bachelor's degree in social work.
Illinois' administrative rules for licensure of social work are found under Title 68, Part 1470.
Michigan: Michigan has a master's level social work license, aptly entitled Master's Social Work License. An applicant for the license must indicate the area of intended practice on the application, which includes a license designation of “macro" or “clinical." The macro designation, also known as an administrative designation, is similar to the Wisconsin independent social worker certification and denotes advanced generalist practice of social work. The clinical designation is similar to the Wisconsin clinical social work license and denotes therapeutic clinical practice. The clinical designation requires at least 4,000 hours of supervised practice under the supervision of a Michigan-licensed master's social worker or a person who holds the equivalent license, certificate, or registration from the state in which the experience was obtained. To obtain the supervised practice experience required for licensure – for Michigan residents – the administrative rules appear to require that the applicant holds a limited master's level social work license, however there are provisions, as noted above, which allow transference of hours from jurisdictions outside of Michigan so long as the supervisor held an equivalent credential to that of a Michigan licensed master's level social worker.
As to the proposed changes to the internship requirements under the social worker training certificate, Michigan does not have a training certificate or equivalency process for converting a health services degree into a bachelor's degree in social work.
Michigan's administrative rules for licensure of social work are found under sections R. 338.2901 to R. 338.2910.
Minnesota: Minnesota has three levels of master's degreed social work licenses, the graduate social worker, independent social worker and the licensed independent clinical social worker, the latter license being the most similar to Wisconsin's licensed clinical social worker. To qualify for the independent clinical social work license in Minnesota requires 4,000 hours of supervised practice. The rules require that Minnesota residents acquire the supervised practice under the graduate social worker or independent social worker license. The rules also specify that that supervised practice must be acquired under a licensed independent clinical social worker, a “mental health professional" (under state regulatory rules of healthcare locations, a mental health professional includes a certified psychiatric nurse, clinical social worker, a psychologist, psychiatrist or marriage and family therapist) or an equivalent mental health professional who is credentialed by another state, territorial, provincial, or foreign licensing agency. This appears to indicate that they could acquire supervised practice hours outside of Minnesota, but this is not explicitly indicated in statute.
As to the proposed changes to the internship requirements under the social work training certificate, Minnesota does not have a training certificate or equivalency process for converting a health services degree into a bachelor's degree in social work.
Minnesota regulates social work under Minnesota statutes sections 148D.001 to 149D.290.
Summary of factual data and analytical methodologies
Regarding changes to rules allowing acceptance of hours gained out of state: The Social Worker Section has found that a small number of applicants for clinical social work licensure have recently located to Wisconsin and have applied to the Section with supervised practice gained out of state. The Marriage and Family Therapy, Professional Counseling and Social Work Examining Board's rules require that applicants for clinical social work licensure acquire supervised practice while holding a Wisconsin certification as an advanced practice social worker (APSW) or independent social worker (ISW) under an approved supervisor; consequently the Section has denied these applications for licensure on the grounds that they were not acquired under an appropriate credential. The Section, in review of the supervised experience gained out of state, opines that as the credentialing authority, they should be able to review supervised experience gained out of state, and if found adequate, the Section should be able to accept the applicant's experience as sufficient for achieving clinical social work licensure.
Regarding changes to rules specifying internship requirements for social work training certificate holders: The rules specifying the requirements for converting a human services degree to a bachelor's degree in social work degree require that a person complete an approved human services internship of 400 hours or one year of social work employment with at least 400 hours of face-to-face client experience. Under existing social work programs, human services internships are structured and concentrated social work experiences designed to adequately educate and prepare students for the rigors of professional practice under guidance of an academic program and are not to be considered as abbreviated employment. To compensate for the lack of academic structure and focus by the academic programs, the rules also allow for an applicant to submit one full year of full-time social work practice with at least 400 hours of face-to-face client contact if they did not have the benefit of the internship. In review of internships submitted by applicants for certification through degree equivalency, the Section has found instances of self structured internships which appear to be nothing more than volunteer social work experiences, essentially unpaid social work employment, submitted as a human services internship. These internships are substantially shorter than the one year of social work experience, and in some cases substantially shorter than those human services internships provided by an academic program; furthermore, they lack benefit of oversight and guidance provided by an academic institution. The Section has found that the current rules do not adequately define the social work internship, therefore preventing the section from denying the applications on the basis that their internship was not provided by an academic institution, and therefore did not adequately prepare the applicant for meeting the minimum competencies required for safe practice.
Analysis and supporting documents used to determine effect on small business
Adjusting the rules for accepting supervised hours gained out of state should not impact small business. The effect of the rule change, if effected, will allow a small number of applicants that the social worker section has identified as attempting to transfer their supervised practice gained out of state to qualify for clinical licensure rather than having to complete two additional years of supervised practice. Based on application reviews, the section estimates this number to be less than five on an annual basis.
The section anticipates that clarifying the rules regarding the required human services internship to include a requirement that the internship be provided by an academic program or internship to have negligible or no impact on small business. Adjusting the internship requirement to require academic oversight may decrease human services employers (state certified clinics, community support programs, correctional institutions) access to free labor; however, the actual numbers of these applicants appear to be extremely low, and in recent experience the section estimates approximately ten or fewer applicants submit volunteer experiences as internships. Additionally, increasing academic oversight should result in better preparation of social workers.
Section 227.137, Stats., requires an “agency" to prepare an economic impact report before submitting the proposed rule-making order to the Wisconsin Legislative Council. The Department of Regulation and Licensing is not included as an “agency" in this section.
Small Business Impact
These proposed rules will have no significant economic impact on a substantial number of small businesses, as defined in s. 227.114 (1), Stats. The Department's Regulatory Review Coordinator may be contacted by email at larry.martin@ drl.state.wi.us, or by calling (608) 266-8608.
Fiscal Estimate
Summary
The department estimates that this rule will require staff time in the Office of Legal Counsel. The total one-time salary and fringe costs are estimated at $16,477.
Anticipated costs incurred by private sector
The department finds that this rule has no significant fiscal effect on the private sector.
Submission of Written Comments
Interested persons are invited to present information at the hearing. Persons appearing may make an oral presentation but are urged to submit facts, opinions and argument in writing as well. Facts, opinions and argument may also be submitted in writing without a personal appearance by mail addressed to Pamela Haack, Paralegal, Department of Regulation and Licensing, Office of Legal Counsel, 1400 East Washington Avenue, Room 152, P.O. Box 8935, Madison, Wisconsin 53708-8935, or by email at pamela.haack@ drl.state.wi.us. Written comments must be received by November 10, 2008, to be included in the record of rule-making proceedings.
Agency Contact Person
Pamela Haack, Paralegal, Department of Regulation and Licensing, Office of Legal Counsel, 1400 East Washington Avenue, Room 152, P.O. Box 8935, Madison, Wisconsin 53708-8935; telephone 608-266-0495; email pamela.haack @drl.state.wi.us.
Text of Proposed Rule
SECTION 1. MPSW 3.09 (3) is amended to read:
(3) An Except as provided in sub. (7), an affidavit that the applicant, after receiving a master's or doctoral degree and after receiving certification as an advanced practice social worker or an independent social worker, has completed at least 3,000 hours of clinical social work practice in no less than 2 years, including at least 1,000 hours of face-to-face client contact and including DSM diagnosis and treatment of individuals, under the supervision of a supervisor approved by the social worker section. Pre-certification Pre-licensed supervised practice shall meet the criteria under s. MPSW 4.01.
SECTION 2. MPSW 3.09 (7) is created to read:
(7) An applicant who after receiving a master's or doctoral degree in social work and completing any portion of their 3,000 hours of supervised clinical social work practice in another state will be given credit for those hours provided they included at least 1,000 hours of face-to-face-client contact, or a proportionate number thereof, and also included DSM diagnosis and treatment of individuals, completed under the supervision of a supervisor acceptable to the social worker section.
SECTION 3. MPSW 3.13 (3) (a) is amended to read:
(a) A human services internship of at least 400 hours that was part of the program leading to the degree the certificate holder specified to satisfy the requirement in s. 457.09 (1) (c) and (4m) (b), Stats., or completed while holding the training certificate, and involved direct practice with clients and that was supervised by a social worker certified under s. 457.08, Stats., and who has a bachelor's or master's degree in social work and provides direct, on-site supervision of the intern. A human services internship shall be under the auspices of an accredited college or a university.
Links to Admin. Code and Statutes in this Register are to current versions, which may not be the version that was referred to in the original published document.