Rule-Making Notices (Hearing Notices)

Wisconsin Administrative Register No. 585, 9/14/2004

Rule-making notices

Notice of Hearing

Agriculture, Trade and Consumer Protection

[CR 04-094]

The state of Wisconsin Department of Agriculture, Trade and Consumer Protection announces that it will hold public hearings on a proposed amendment to chapter ATCP 30, Wis. Adm. Code, relating to the use of atrazine pesticides. The hearing will be held at the time and place shown below. The department invites the public to attend the hearings and comment on the proposed rule. Following the public hearing, the hearing record will remain open until October 22, 2004, for additional written comments.

Written comments should be sent to the Wisconsin Department of Agriculture, Trade and Consumer Protection, Division of Agricultural Resource Management attention Randy Zogbaum, 2811 Agriculture Drive, P.O. Box 8911, Madison WI 53708. Written comments can be submitted via email to [e-mail].

You may obtain a free copy of this rule and the environmental impact statement 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 can also obtain a copy by calling [phone] or emailing [e-mail]. Copies will also be available at the hearings. To view the proposed rule online, go to:

http://folio.legis.state.wi.us/cgi-bin/om_isapi.dll?clientID=26421661&infobase=code.nfo&j1=atcp%20&jump=atcp%20&softpage=Browse_Frame_Pg

Hearing impaired persons may request an interpreter for these hearings. Please make reservations for a hearing interpreter by September 24, 2004, by writing to Randy Zogbaum, Division of Agricultural Resource Management, P.O. Box 8911, Madison, WI 53708-8911, telephone [phone]. Alternatively, you may contact the Department TDD at [phone]. Handicap access is available at the hearings.

Hearing Location:

Tuesday, October 5, 2004, 4 p.m. to 7 p.m.

Adams County Library

569 North Cedar Street

Meeting Room

Adams, WI 53910

Handicapped accessible

Analysis Prepared by the Department of Agriculture, Trade and Consumer Protection

The Department of Agriculture, Trade and Consumer Protection (“DATCP") regulates pesticide use to prevent groundwater contamination. Current rules restrict the use of atrazine pesticides, and prohibit atrazine use in areas where groundwater contamination has exceeded state enforcement standards established by the Department of Natural Resources (“DNR").

This rule update expands one current atrazine prohibition area in Adams County, based on new groundwater data showing atrazine contamination in excess of DNR enforcement standards. This rule adds 1,280 acres to the current prohibition area. This rule does not eliminate any prohibition areas.

Statutory Authority

Statutory authority: ss. 93.07 (1), 94.69 (1), 160.19 (2), and 160.21 (1), Stats.

Statutes interpreted: ss. 94.69, 160.19, 160.21, 160.23 and 160.25, Stats.

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.

Background

DATCP currently regulates atrazine use to protect Wisconsin groundwater. Atrazine is an agricultural herbicide that has been widely used for many years. Atrazine has been found in groundwater in many areas of the state. Current DATCP rules do all the following:

• Specify maximum atrazine use rates. These rates are about half the rates normally allowed under the federal label.

•Limit the timing of atrazine applications. Under current rules, atrazine applications are allowed only from April 1 through July 31.

•Prohibit atrazine use on 1.2 million acres of land. Current rules prohibit atrazine use in 102 designated areas where contamination has been found at or above groundwater enforcement standards adopted by DNR. Current rules also prohibit atrazine mixing and loading operations that are not conducted over a spill containment surface.

Current rules spell out standards for the creation and repeal of prohibition areas. DATCP updates its atrazine rules each year, based on existing regulatory standards and new groundwater findings. This rule is a routine annual update to DATCP's current atrazine rules.

Rule Content

This rule expands one current prohibition area in Adams County, based on existing regulatory standards and new groundwater findings. This rule adds 1,280 acres to the current prohibition area (this rule contains a map showing the expanded prohibition area). This rule does not repeal any existing prohibition areas.

Environmental Impact

This rule will help to protect and restore groundwater quality in Adams County. The attached Environmental Impact Statement provides background information related to DATCP's overall regulation of atrazine pesticides. This rule is consistent with the state groundwater law, and with the overall protocol for atrazine regulation that has been in effect since 1991.

Fiscal Impact

This rule will require some additional department expenditures for groundwater testing and informational services related to the expanded prohibition area. The department expects to absorb these expenditures within the department's current budget. For more information contact Randy Zogbaum at [phone].

Business Impact

This rule will have affect 2 to 4 farmers located in the expanded atrazine prohibition area created by the rule. However, those farmers have other pesticides available for weed control. This rule will not have a significant economic impact on farmers or other businesses, and is not subject to the delayed small business effective date provision in s. 227.22(2)(e), Stats.. For more information contact DATCP small business regulatory coordinator Dennis Fay at [phone] or email at [e-mail].

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 current federal label for atrazine suggests that atrazine should not be used on permeable soils with groundwater near the soil surface. Wisconsin has clearer, more 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 create a 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.

Adjacent State Regulations

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.

Businesses Affected

The changes to ch. ATCP 30, Wis. Adm. Code, Appendix A will affect small businesses in Wisconsin. The greatest small business impact of the changes will be on users of atrazine -- farmers who grow corn. The proposed prohibition area contains approximately 1280 acres. Assuming that 50% of this land is in corn and that 50% of these acres are treated with atrazine, then 320 acres of corn will be affected. Between 2 and 4 producers would be affected, depending on their corn acreage and their reliance on atrazine products. These producers are small businesses, as defined by s. 227.114 (1) (a), Stats. Secondary effects may be felt by distributors and applicators of atrazine pesticides, crop consultants and equipment dealers. Since the secondary effects relate to identifying and assisting farmers in implementing alternative weed control methods, these effects will most likely result in additional or replacement business and the impacts are not further discussed in this document.

Specific economic impacts of alternative pest control techniques are discussed in the environmental impact statement for this rule.

Reporting, Recordkeeping and Other Procedures Required for Compliance

The maximum application rate for atrazine use in Wisconsin is based on soil texture. This may necessitate referring to a soil survey map or obtaining a soil test. While this activity is routine, documentation would need to be maintained to justify the selected application rate. A map delineating application areas must be prepared if the field is subdivided and variable application rates are used. This procedure is already required under the current rule.

All users of atrazine, including farmers, will need to maintain specific records for each application. This procedure is already required under the current rule.

Atrazine cannot be used in certain areas of Wisconsin where groundwater contamination exceeds the atrazine enforcement standard in s. NR 140.10 Wis. Adm. Code.

Professional Skills Required to Comply

The proposed changes affect how much atrazine can be applied and on which fields. Because overall use of atrazine will be reduced in Wisconsin, alternative weed control techniques may be needed in some situations. These techniques may include different crop rotations, reduced atrazine rates, either alone or in combination with other herbicides, or combinations of herbicides and mechanical weed control measures.

While alternative weed control techniques are available, adoption of these techniques on individual farms will in some cases require assistance. In the past, this type of assistance has been provided by University of Wisconsin Extension personnel and farm chemical dealers. In recent years, many farmers have been using crop consultants to scout fields, identify specific pest problems and recommend control measures. The department anticipates these three information sources will continue to be used as the primary source of information, both on whether atrazine can be used and which alternatives are likely to work for each situation.

Notice of Hearings

Agriculture, Trade and Consumer Protection

[CR 04-096]

The Wisconsin Department of Agriculture, Trade and Consumer Protection (DATCP) announces that it will hold a joint hearing with the Wisconsin Department of Health and Family Services (DHFS). At the hearing, DATCP will propose to make minor changes to the rule regulating food safety in retail food establishments, such as grocery stores, and to update the Wisconsin Food Code. DHFS will propose separate but nearly identical rules for restaurants.

The public hearing will by held by videoconference on October 7, 2004, at the places shown below. DATCP invites the public to attend the hearing at these locations and comment on the proposed rule. Following the public hearing date, the hearing record will remain open until October 22, 2004, for additional written comments, which may be sent to the Division of Food Safety at the address (below) or by e-mail to [e-mail].

DATCP's proposed rule will be posted at on the Wisconsin Legislative Council web site at http://www.legis.state.wi.us/lc/adm_rules.htm. You may also obtain a free copy of this rule by making a request to the department:

Division of Food Safety

Department of Agriculture, Trade and Consumer Protection

P.O. Box 8911

Madison, WI 53708-8911

Telephone: [phone]

E-mail: [e-mail]

Copies will also be available at the public hearing.

To provide comments or concerns relating to small business, please contact DATCP's small business regulatory coordinator, Keeley Moll (e-mail: [e-mail]), at the Department of Agriculture, Trade and Consumer Protection, P.O. Box 8911, Madison, WI 53708-8911; telephone [phone].

Hearing-impaired persons may request an interpreter for the hearing. Please make reservations for a hearing interpreter by Thursday, September 24, 2004, by contacting Debbie Mazanec (e-mail: [e-mail]), P.O. Box 8911, Madison WI 53708-8911; telephone [phone]; or telephone message relay system (TTY) at [phone] to forward your call to the department at [phone]. Handicap access is available at all locations for the hearing.

Hearing will be held on Thursday, October 7, 2004, from 9:30 a.m. through 12:30 p.m., via interactive videoconferencing at the following locations:

Madison - Main Broadcast Center

UW Pyle Center

Room 227

702 Langdon St.

Madison, WI 53706

Waukesha

Waukesha State Office Building

Department of Transportation Offices

Room 153

141 NW Barstow St.

Waukesha, WI 53188

Appleton

Fox Valley Technical College

Room G1131

1825 Bluemound Dr.

Appleton, WI 54913-2277

Wisconsin Rapids

Dept. of Transportation

Room 120

1681 2nd Ave. S

P.O. Box 8021

Wisconsin Rapids, WI 54495-8021

Eau Claire

Eau Claire State Office Building

Room 139

718 W. Clairemont Ave.

Eau Claire, WI 54702

Spooner

WI DNR Northern Region Office

Conference Room

810 West Maple St.

Spooner, WI 54801

Analysis Prepared by the Department of Agriculture, Trade and Consumer Protection (DATCP)

The Department of Agriculture, Trade and Consumer Protection (“DATCP") currently licenses and inspects retail food establishments, such as grocery stores. DATCP has adopted food safety rules for retail food establishments. The current rules are based on the federal Model Food Code. This rule updates the Wisconsin Food Code, based on changes contained in the most current (2001) edition of the federal Model Food Code. This rule also makes other minor changes to clarify current rules.

The Wisconsin Department of Health and Family Services (“DHFS") is proposing nearly identical rules for restaurants. This is a joint effort by DATCP and DHFS to maintain consistent and up-to-date standards for all retail food operations. Some grocery stores include restaurants, and vice-versa. DATCP and DHFS coordinate their licensing and inspection activities so that there is no regulatory overlap.

Rulemaking Authority

Statutory Authority:   ss. 93.07 (1), 97.30 (5) and 227.14 (1s), Stats.

Statute Interpreted: s. 97.30, Stats.

DATCP has broad authority, under s. 93.07 (1), Stats., to adopt rules needed to implement laws under its jurisdiction. DATCP licenses retail food establishments under s. 97.30, Stats. DATCP may adopt rules for retail food establishments, pursuant to s. 97.30 (5), Stats. Rules may include standards for the construction and maintenance of facilities; the design, installation, cleaning and maintenance of equipment and utensils; personnel sanitation; food handling, display and storage; and food sources and food labeling.

The format of the Wisconsin Food Code is different from that of most state administrative rules. DATCP and DHFS are authorized, under s. 227.14 (1s), Stats., to use the drafting format of the federal model food code. This rule follows that authorized format.

Background

The United States Food and Drug Administration (“FDA") publishes a federal model food code. The model food code provides practical, science-based food safety standards for grocery stores, restaurants and other retail food establishments. Many states base their retail food regulations on the federal model food code.

Current DATCP and DHFS rules are based on the 1999 version of the model food code. DATCP has adopted the model food code as an Appendix to ch. ATCP 75, Wis. Adm. Code (the Wisconsin Food Code). DHFS has adopted the model food code as an Appendix to ch. HFS 196, Wis. Adm. Code.

FDA updated the model food code in 2001. This rule updates the Wisconsin food code based on the 2001 updates to the federal model food code. This rule also makes other minor changes and clarifications to current rules.

Rule Content

This rule makes a large number of updates and technical changes to current DATCP rules. The following are some of the more significant changes:

Food Temperatures

Under current rules, “potentially hazardous foods" must be kept sufficiently hot (or sufficiently cold) to prevent the rapid and progressive growth of infectious or toxigenic microorganisms. This rule changes the required minimum temperature of hot “potentially hazardous" foods from 140o F. to 135o F. This rule also allows cold “potentially hazardous" foods (which are normally refrigerated at 41o F. or lower) to remain unrefrigerated for up to 6 hours if certain procedures are followed.

Definitions

A restaurant is a place that prepares or serves “meals." This rule modifies the definition of “meal" so that it no longer includes individual pastry items served with a beverage. For example, a grocery store will no longer be subject to potential regulation as a “restaurant" merely because it serves doughnuts and coffee. This rule also makes a number of other technical changes to current definitions.

Food Employees

This rule clarifies current standards related to food employee health and sanitation. Among other things, this rule does the following:

-- Allows employees to contact ready-to-eat food with bare hands under certain limited conditions (special requirements apply).

-- Clarifies current provisions limiting food contact by employees affected with certain illnesses or symptoms.

-- Clarifies current requirements related to food employee hand-washing, and requires employees to wash hands before putting on gloves to work with food.

Food Safety and Labeling

This rule clarifies current standards related to the safety and labeling of food offered for sale in a retail food establishment. Among other things, this rule does the following:

-- Clarifies current requirements related to food sources.

-- Clarifies provisions related to the handling and sale of raw eggs and shellfish.

-- Requires hazard control (HACCP) procedures or warning labels for unpasteurized juice.

-- Clarifies date-marking requirements for ready-to-eat “potentially hazardous" foods.

-- Requires warning disclosures related to the sale of certain uncooked ready-to-eat foods, including uncooked meat, fish, eggs and shellfish.

Food Equipment and Utensils

This rule makes minor clarifications related to current standards for food equipment and utensils.

Water, Plumbing and Waste

This rule makes minor technical changes suggested by the Department of Commerce, Wisconsin's plumbing code agency. It also makes minor technical changes related to handwash sinks and temporary food establishments.

Buildings and Facilities

This rule does the following:

-- Prohibits facility configurations that cause the general public to enter or exit a retail food establishment through a food processing area.

-- Requires food establishments to comply with applicable provisions of the Wisconsin commercial building code.

-- Makes other minor technical changes related to standards for retail food buildings and facilities.

License Fee Correction

Current rules incorrectly set an annual license fee of $60 for retail food establishments with annual food sales of less than $25,000. This rule corrects (reduces) the license fee to $40, which is the fee established by s. 97.30(3m)(cm), Stats.

Fiscal Impact

This rule will have no significant fiscal effect on state or local government. The rule will not alter state or local retail food enforcement activities. A fiscal estimate is attached.

Business Impact

This rule affects retail food establishments such as grocery stores, bakeries and convenience stores. Many of these businesses are small businesses. This rule will benefit affected businesses by clarifying existing regulatory requirements. In some cases, this rule gives affected businesses wider latitude to choose a preferred method of compliance. This rule will not have a significant economic impact on small business, and is not subject to the delayed small business effective date provision in s. 227.22 (2) (e), Stats.

The rule adds some minor new requirements for some retail food establishments, but these requirements are not expected to impose any significant burdens. This rule will benefit businesses that have combined grocery and restaurant operations, because it will maintain consistency with DHFS restaurant rules. A small business analysis (“initial regulatory flexibility analysis") is attached.

Under 2003 Wis. Act 145, DATCP and other agencies must adopt rules spelling out their rule enforcement policy for small businesses. DATCP has not incorporated a small business enforcement policy in this rule, but will propose a separate rule on that subject. DATCP will, to the maximum extent feasible, seek voluntary compliance with this rule.

Federal Regulation

Federal law, like state law, generally prohibits the sale of adulterated or misbranded food. There are no federal regulations that specifically address retail food operations. However, FDA publishes a model food code that is based on the best available science and information related to retail food safety.

FDA, the United States Department of Health and Human Services, and the United States Department of Agriculture encourage state and local governments to adopt retail food safety regulations that are consistent with the federal model food code. The current Wisconsin Food Code is based on the 1999 edition of the federal model food code. This rule updates the Wisconsin Food Code to incorporate changes contained in the 2001 (most recent) edition of the federal model food code.

Regulatory Approach and Supporting Information

FDA developed and published the federal model food code based on the best available science and information related to retail food safety. The federal model food code encourages consistent state and local regulation of retail food establishments. Numerous states have adopted state retail food regulations based on the federal model food code. FDA periodically updates the federal model food code. FDA adopted the latest edition in 2001 and added a supplement in 2003.

The current Wisconsin Food Code is based on the 1999 edition of the federal model food code. This rule updates the Wisconsin Food Code based on the 2001 edition of the federal model food code (as supplemented in 2003). DATCP and DHFS made minor adjustments to the model food code in consultation with Wisconsin local health agencies, the Wisconsin Conference on Food Protection, and the National Conference on Food Protection. DATCP and DHFS also drew on 2 years of field experience with the current rule.

DATCP and DHFS also developed this rule in consultation with an advisory committee that included local health agencies (large and small), the Wisconsin Grocers Association, the Wisconsin Restaurant Association, the Tavern League of Wisconsin and the University of Wisconsin Extension-Food Science.

Surrounding State Programs

The states adjacent to Wisconsin have all adopted retail food regulations based on some version of the federal model food code:

Minnesota – Minnesota's current regulations are based on the 1997 edition of the federal model food code.

Iowa - Iowa's current regulations are based on the 1997 edition of the federal model food code.

Illinois – Illinois' current regulations are based on the 1995 edition of the federal model food code. Like Wisconsin, Illinois is proposing to update its regulations based on the 2001 edition of the federal model food code.

Michigan – Michigan's current regulations, like Wisconsin's, are based on the 1999 edition of the federal model food code.

Notice of Hearing

Dentistry Examining Board

[CR 04-095]

NOTICE IS HEREBY GIVEN that pursuant to authority vested in the Dentistry Examining Board in ss. 15.08 (5) (b). 227.11 (2) and 447.02 (2) (b), Stats., and interpreting s. 447.02 (2) (b), Stats., the Dentistry Examining Board will hold a public hearing at the time and place indicated below to consider an order to repeal ss. DE 11.11 and 11.12; to amend s. DE 11.02 (1) to (4); to repeal and recreate ss. DE 11.02 (5) and 11.03 to 11.10; and to create s. DE 11.02 (1m), (3m) and (6) to (11), relating to the requirements for administering the office facilities and equipment for safe and effective administration and the applicable standards of care, and to provide for reporting of adverse occurrences related to anesthesia.

Hearing Date, Time and Location

Date:   November 3, 2004

Time:   9:00 a.m.

Location:   1400 East Washington Avenue

  Room 179A

  Madison, Wisconsin

Appearances at the Hearing

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 the Department of Regulation and Licensing, Office of Administrative Rules, P.O. Box 8935, Madison, Wisconsin 53708. Written comments must be received by November 15, 2004, to be included in the record of rule-making proceedings. Analysis prepared by the Department of Regulation and Licensing.

Analysis

Statutes authorizing promulgation: ss. 15.08 (5) (b), 227.11 (2) and 447.02 (2) (b), Stats.

Statutes interpreted: s. 447.02 (2) (b), Stats.

The purpose of this rule is to establish and modify the requirements for administering the office facilities and equipment required for safe and effective administration and the applicable standards of care, in addition to providing for reporting of adverse occurrences related to anesthesia administration.

These requirements are part of a recent attempt by state licensing boards to regulate “oral conscious sedation." Oral conscious sedation drugs are being marketed to dentists for the purpose of managing patient anxiety surrounding dental work in patients that remain conscious throughout the procedure. There are inherent risks to public health and safety that must be managed.

SECTIONS 1, 2, 3, 4, 5, 6 and 7 add new definitions for “anxiolysis," various levels of sedation, types of sedation, routes of sedation and sedation levels; and amends definitions of “local anesthesia," “conscious sedation" and “direct supervision."

SECTION 8 establishes and modifies requirements for administering levels 1 and 2 nitrous oxide or oxygen inhalation analgesia, level 3 enteral conscious sedation, level 3 parenteral sedation, and levels 4 and 5 deep sedation and general anesthesia. It further establishes the requirements for conforming the office facilities and equipment required for safe and effective administration and the applicable standards of care, e.g. emergency preparedness, in addition to providing for reporting of adverse occurrences related to anesthesia administration. In addition to the supervision levels set forth in this section, a permit requirement is added. Finally, the section adds a reporting requirement for dentists for any mortality or other incident resulting in any physical or mental injury that requires hospitalization if that event occurred as a result of anesthesia administration regulated by this chapter.

SECTION 9 repeals ss. DE 11. 11 and 11.12.

A comparison with any existing or proposed federal regulation:

No proposed or existing federal regulation intended to address oral conscious sedation currently exists.

A comparison of similar rules in adjacent states:

Illinois

The Illinois Dental Practice Act contains specific provisions governing anesthesia. Permits are required for the administration of conscious sedation. Dentists are required to have specialized training and office facilities must contain certain equipment Adverse occurrences are also required to be reported. Permits must be renewed biennially. Additional information is available at the Illinois website: http://www.ildpr.com/WHO/ARpropsd/WEBdentrules.pdf

Indiana

The Indiana State Board of Dentistry requires dentists to obtain a permit prior to administering general anesthesia, deep sedation, or light parenteral conscious sedation. Education and training are required to obtain such permits. Permits must be renewed biennially. Five hours of continuing education are required for permit renewal. Certain emergency equipment is also required. Additional information is available at Indiana's website: http://www.ai.org/legislative/iac/T08280/A00030.PDF

Iowa

The Iowa Board of Dental Examiners requires a permit for the administration of deep sedation, general anesthesia, and conscious sedation. Dentists are required to have specialized training and office facilities must contain certain equipment. Adverse occurrences are also required to be reported Six hours of continuing education are required for permit renewals. Additional information is available at Iowa's website: http://www.legis.state.ia.us/Rules/Current/iac/650iac/65029/65029.pdf

Michigan

The Michigan Board of Dentistry has rules governing general anesthesia and intravenous conscious sedation. The Michigan Board is currently contemplating a rules' revision to include specific rules for conscious sedation. Additional information is available at Michigan's website: http://www.state.mi.us/orr/emi/admincode.asp?AdminCode=Single&Admin_Num=33811101&Dpt=CH&RngHigh

Minnesota

The Minnesota Board of Dentistry has rules governing general anesthesia and conscious sedation. Education and training are required for both. However, no special permit is issued. Additional information is available at Minnesota's website: http://www.revisor.leg.state.mn.us/arule/3100/3600.html

To view the proposed rule and submit written comments via e-mail/internet, you may visit the following website:

http://www.dot.wisconsin.gov/library/research/law/rulenotices.htm.

Fiscal Estimate

The Department of Regulation and Licensing has determined that this rule has no significant fiscal effect on the private sector.

Initial Regulatory Flexibility Analysis

These proposed rules will have no significant economic impact on a substantial number of small businesses, as defined in s. 227.114 (1) (a), Stats

Copies of Rule and Contact Person

Copies of this proposed rule are available without cost upon request to: Pamela Haack, Department of Regulation and Licensing, Office of Administrative Rules, 1400 East Washington Avenue, Room 171, P.O. Box 8935, Madison, Wisconsin 53708 [phone]

Notice of Hearings

Health and Family Services

(Health, Chs. 110-)

[CR 04-093]

NOTICE IS HEREBY GIVEN that pursuant to ss. ss. 254.71 (6) and 254.74 (1), Stats., and interpreting ss. 254.61 to 254.62, 254.64 to 254.72, 254.74 and 254.85, Stats., the Department of Health and Family Services will hold public hearings to consider the proposed permanent rules amending HFS 196.04 (1) (b), (2) (b) 4., Table HFS 196.04, 196.05 (2) (a) and (b), 196.07 and Appendix; and creating HFS 196.03 (1g), (1r) and (3m) and 196.04 (1) (d) and (e), relating to restaurants and affecting small businesses.

Hearing Information

The public is invited to attend the hearing at the time and locations listed below. Comments will be heard by interactive videoconferencing from each of the listed sites.

Thursday October 7, 2004, 9:30 a.m. to 12:30 p.m.

Main Broadcast Center

Madison

UW Pyle Center

Room 227

702 Langdon Street

Madison, WI 53706

Waukesha

Waukesha State Office Building

Department of Transportation Offices

Room 153

141 NW Barstow St.

Waukesha, WI 53188

Appleton

Fox Valley Technical College

Room G1131

1825 Bluemound Dr

Appleton, WI 54913-2277

Wisconsin Rapids

Dept of Transportation

Room 120

1681 2nd Ave S

PO Box 8021

Wisconsin Rapids, WI 54495-8021

Eau Claire

Eau Claire State Office Building

Room 139

718 W. Clairemont Ave

Eau Claire, WI 54702

Spooner

WI DNR Northern Region Office

Conference Room

810 West Maple St.

Spooner, WI 54801

The hearing sites are fully accessible to people with disabilities. If you are hearing or visually impaired, do not speak English, or have circumstances that might make communication at a hearing difficult and if you, therefore, require an interpreter or a non-English, large print or taped version of the hearing document, contact the person at the address or phone number given above at least 10 days before the hearing. With less than 10 days notice, an interpreter may not be available.

Written comments may be submitted at the public hearing or in lieu of attending a public hearing, written comments can be submitted by regular mail or email to the contact person listed below. Written comments may also be submitted to the Department using the Wisconsin Administrative Rules Internet website at the web address listed below.

Deadline for Comment Submission

The deadline for submitting comments is 4:30 p.m., on October 22, 2004.

Analysis Prepared by the Department of Health and Family Services

This order proposes revising ch. HFS 196, relating to restaurants, including its Appendix, known as the Wisconsin Food Code. The operator of every restaurant in the state must have a permit from the Department of Health and Family Services or an agent local health department before the restaurant may open for business and the restaurant must maintain its permit in order for it to continue operating. The permit signifies that the restaurant complies with the requirements in ch. HFS 196, which is intended to protect public health and safety. The requirements of this chapter are enforced either by the Department or a local health department that the Department has designated as the Department's agent.

The Department's current rules for restaurants were established in 1985 and most recently revised in 2001. Through sections one to six of this order, the Department is proposing to make the following revisions in HFS 196:

•change the term “limited term restaurant" to “pre-packaged restaurant;"

•define the terms “caterer," “contract cook" and “pre-packaged restaurant;"

•modify table HFS 196.04 to eliminate reference to the term “limited;"

•clarify that caterers operating from their permitted restaurants need not obtain additional permits for locations where the caterer serves food; and

•specify operating conditions under which contract cooks are not required to obtain restaurant permits.

Section seven of this order pertains to the Wisconsin Food Code Appendix to HFS 196 and contains the bulk of the proposed changes. The existing Wisconsin Food Code is modeled after the 1999 Food and Drug Administration (FDA) Model Food Code, which contains model requirements for safeguarding public health and ensuring food is unadulterated and honestly presented when offered to the consumer. It represents FDA's best advice for a uniform system of provisions that address the safety and protection of food offered at retail and in food service. Over 44 U.S. states and territories have adopted some version of the FDA Model Food Code and 9 states or territories are in the rulemaking process to adopt the FDA Model Food Code. The Department, which regulates Wisconsin restaurants under ch. HFS 196, and the Department of Agriculture, Trade, and Consumer Protection (DATCP), which licenses and inspects retail food establishments, such as grocery stores under ch. ATCP 75, jointly adopted the Wisconsin Food Code in 2001 for their respective regulatory activities. A common Wisconsin Food Code for restaurants and retail food establishments ensures that the same rules will apply to all types of food establishments, including combinations. Although DATCP and DHFS (or their local agents) coordinate their activities so that a combined grocery store and restaurant is regulated by DATCP or DHFS, but not both, joint adoption and updating of the Wisconsin Food Code is still important for consistent regulation.

The FDA revised its Model Food Code in 2001. The Department proposes to update the Wisconsin Food Code to the 2001 FDA Model Food Code, which reflects the most currently available science and trends in food safety. In addition, the Department proposes to clarify or correct areas of the Wisconsin Food Code that do not reflect current Department policy. Revisions to the Wisconsin Food Code will also reflect modifications from both the Wisconsin Conference on Food Protection and the National Conference on Food Protection, as well as mutually agreed upon suggestions derived from two years of field application by both the Department and DATCP.

Initial Regulatory Flexibility Analysis

The proposed changes to ch. HFS 196 will have a minimal effect on restaurants. The proposed rule changes principally clarify rule intent and allow flexibility for restaurant compliance.

Small Business Coordinator

Rosie Greer

Department of Health and Family Services

1 W. Wilson St. Rm. 658

Madison, WI 53702

[e-mail]

608-266-1279

Fax: [phone]

Fiscal Estimate

None of the changes in the Wisconsin Food Code will appreciably, if at all, have a fiscal effect on local government or the private sector. The only costs the Department will incur in implementing this rule will be that of copying and distributing the revised Wisconsin Food Code to affected parties. The Department can absorb this cost in its current budget.

For More Information

A copy of the full text of the rules and the full text of the fiscal estimate, and other documents associated with this rulemaking may be obtained, at no charge, from the Wisconsin Administrative Rules website at http://adminrules.wisconsin.gov. At this website you can also register to receive email notification whenever the Department posts new information about this rulemaking and, during the public comment period, you can submit comments on the rulemaking order electronically and view comments that others have submitted about the rule.

Copies of Rule and Contact Person

A copy of the full text of the rule and the fiscal estimate may also be obtained by contacting the Department's representative listed below:

James Kaplanek

Division of Public Health

Bureau of Environmental and Occupational Health

Food Safety and Recreational Licensing Section

1 W. Wilson St. Room #1051

P.O. Box 2659

Madison WI 53701-2659

608-261-8361

[e-mail]

Fax: [phone]

Notice of Hearings
(amended from 8/31/04 Wis. Adm. Register)

Natural Resources

Fish, Game, etc., Chs. NR 1—

[CR 04-091]

NOTICE IS HEREBY GIVEN that pursuant to ss. 29.014 and 227.11, Stats., interpreting s. 29.014, Stats., the Department of Natural Resources will hold public hearings on revisions to ch. NR 10, Wis. Adm. Code, relating to deer management unit population goals and boundaries. The proposed rule would modify the boundaries of Deer Management Units 35, 38, 39, 75A and 76. The rule would modify the overwinter deer population goals for Units 3, 4, 15, 28, 29A, 61 and 74A. In addition, based on public comments, the Department may make goal or boundary changes to Units 3, 5, 23, 49A, 51B, 59A, 59B, 61 and 74B.

NOTICE IS HEREBY FURTHER GIVEN that pursuant to s. 227.114, Stats., it is not anticipated that the proposed rule will have an economic impact on small businesses. The Department's Small Business Regulatory Coordinator may be contacted at:
[e-mail] or by calling [phone].

NOTICE IS HEREBY FURTHER GIVEN that the Department has made a preliminary determination that this action does not involve significant adverse environmental effects and does not need an environmental analysis under ch. NR 150, Wis. Adm. Code. However, based on the comments received, the Department may prepare an environmental analysis before proceeding with the proposal. This environmental review document would summarize the Department's consideration of the impacts of the proposal and reasonable alternatives.

NOTICE IS HEREBY FURTHER GIVEN that the Department will hold an open house for one-half hour prior to each hearing. Department staff will be available to answer questions regarding the proposed rule.

NOTICE IS HEREBY FURTHER GIVEN that the hearings will be held on:

Wednesday, September 22, 2004

Bill Lazansky Community Center

13412 Hwy. 32/64, Mountain at 6:30 p.m.

Iron River Community Center

East U.S. Highway 2

Iron River at 7:30 p.m.

Thursday, September 23, 2004

2nd Floor Conference Room

Law Enforcement Center

222 N. Beaumont

Prairie du Chien at 6:30 p.m.

Lower Level Meeting Room

Terminal Building

Rhinelander/Oneida County Airport

Airport Road off U.S. Highway 8 West

Rhinelander at 630 p.m.

Town of Brooklyn Administrative Building

400 Main Street

Brooklyn at 6:30 p.m.

Monday, September 27, 2004

Chippewa Valley Technical College

620 W. Clairemont Ave.

Eau Claire at 7:00 p.m.

Tuesday, September 28, 2004

UW Extension Ag Research Station

W6646 Hwy. 70 East

Spooner at 7:00 p.m.

Mercer Community Center

2648 W. Margaret Street

Mercer at 6:30 p.m.

Lower Level West Meeting Room

Rusk Co. Community Library

418 W. Corbett Avenue

Ladysmith at 6:30 p.m.

NOTICE IS HEREBY FURTHER GIVEN that pursuant to the Americans with Disabilities Act, reasonable accommodations, including the provision of informational material in an alternative format, will be provided for qualified individuals with disabilities upon request. Please call Kurt Thiede at [phone] with specific information on your request at least 10 days before the date of the scheduled hearing.

The proposed rule may be reviewed and comments electronically submitted at the following Internet site: http://adminrules.wisconsin.gov. Written comments on the proposed rule may be submitted via U.S. Mail to Mr. Brad Koele, Bureau of Wildlife Management, P.O. Box 7921, Madison, WI 53707. Comments may be submitted until October 14, 2004. Written comments whether submitted electronically or by U.S. mail will have the same weight and effect as oral statements presented at the public hearings. A personal copy of the proposed rule and fiscal estimate may be obtained from Mr. Kurt Thiede, Bureau of Wildlife Management, P.O. Box 7921, Madison, WI 53707.

Notice of Hearing

Natural Resources

Environmental Protection - Water Regulation, Chs. NR 300—

NOTICE IS HEREBY GIVEN that pursuant to 30.01 (1am), 30.12, 30.121, 30.123, 30.13, 30.19, 30.20, 30.2035, 30.206, 30.208, 30.209, 30.28, 30.291, 30.298, 227.11 (2), 227.24, 281.22, 281.36 and 281.37, Stats., interpreting ss. 30.01 (1am), 30.10 to 30.27, 30.281, 31.02 to 31.38, 281.22, 281.36 and 281.37, Stats., the Department of Natural Resources will hold a public hearing on Natural Resources Board Emergency Order Nos. FH-59-04(E), FH-60-04(E), FH-61-04(E), FH-62-04(E), FH-63-04(E), FH-64-04(E) and FH-65-04(E) pertaining to regulation of activities in Wisconsin's navigable public waters. These emergency orders took effect on August 24, 2004.

The emergency rules explain procedures for exemptions, general permits and individual permits, designate waters where exemptions don't apply, and provide standards for dredging and shore protection and other activities along lakes and rivers. The proposed emergency rules implement 2003 Wisconsin Act 118, which went into effect on February 6, 2004. The rules are intended to speed waterway permit decisions and assure the law changes are applied consistently statewide while maintaining the protections for lakes and rivers that are guaranteed by Wisconsin's courts and constitution. The individual emergency orders include:

• FH-59-04(E) creating ss. NR 1.05, 1.06 and 1.07 relating to Natural Resources Board policies on protection and management of public waters

• FH-60-04(E) creating ch. NR 310 relating to timelines and procedures for exemptions, general permits and individual permits for activities in navigable waterways

• FH-61-04(E) revising ch. NR 320 relating to the regulation of bridges and culverts in or over navigable waterways

• FH-62-04(E) creating ch. NR 329 relating to miscellaneous structures in navigable waterways

• FH-63-04(E) creating ch. NR 343 relating to regulation of construction dredging and enlargement of an artificial water body

• FH-64-04(E) creating ch. NR 345 relating to dredging in navigable waterways

• FH-65-04(E) creating subch. I of ch. NR 328 relating to shore erosion control of inland lakes and impoundments

NOTICE IS HEREBY FURTHER GIVEN that the hearing will be held on:

Tuesday, September 28, 2004 at 3:00 p.m.

Room 511, GEF #2

101 South Webster Street

Madison

NOTICE IS HEREBY FURTHER GIVEN that pursuant to the Americans with Disabilities Act, reasonable accommodations, including the provision of informational material in an alternative format, will be provided for qualified individuals with disabilities upon request. Please call Ms. Roberta Lund at [phone] with specific information on your request at least 10 days before the date of the scheduled hearing.

Fiscal Impact

The net fiscal impact of the rule on the Department is an ongoing cost of $274,900 and 5 FTE, and a one time cost of $1,976,900 and 34 FTE.

The emergency rule may be reviewed and comments electronically submitted at the following Internet site: http://adminrules.wisconsin.gov. Written comments on the proposed rule may be submitted via U.S. Mail to Ms. Roberta Lund, Bureau of Fisheries Management and Habitat Protection, P.O. Box 7921, Madison, WI 53707. Comments may be submitted until October 1, 2004. Written comments whether submitted electronically or by U.S. mail will have the same weight and effect as oral statements presented at the public hearings.

A personal copy of the individual emergency rules and fiscal estimate may be obtained from Ms. Lund or they are available on either the Revisor of Statutes website at www.legis.state.wi.us/rsb/code or the Department`s website at www.dnr.wi.gov/org/water/fhp/waterway/emergencyrules.shtml.

Notice of Hearing

Regulation and Licensing

NOTICE IS HEREBY GIVEN that pursuant to authority vested in the Department of Regulation and Licensing in s. 227.11 (2), Stats., and s. 440.03 (13) (a), Stats., as renumbered and amended by 2003 Wisconsin Act 151, and s. 440.03 (13) (b) and (c), Stats., as created by 2003 Wisconsin Act 151, and interpreting s. 440.03 (13) (a), (b) and (c), Stats., will hold a public hearing at the time and place indicated below on the order adopting emergency rules to repeal RL 31.035 (1m) and 31.036 (1m); and to create RL 4.01 (3g), (3r) and (5m), 4.07 and 4.09, relating to criminal background investigations of applicant.

Hearing Date, Time and Location

Date:   October 1, 2004

Time:   9:00 A.M.

Location:   1400 East Washington Avenue

  Room 179A

  Madison, Wisconsin

Appearances at the Hearing:

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 the Department of Regulation and Licensing, Office of Administrative Rules, P.O. Box 8935, Madison, Wisconsin 53708. Written comments must be received by October 11, 2004 to be included in the record of rule-making proceedings.

Analysis prepared by the Department of Regulation and Licensing.

Statutes authorizing promulgation: s. 227.11 (2), Stats., and s. 440.03 (13) (a), Stats., as renumbered and amended by 2003 Wisconsin Act 151, and s. 440.03 (13) (b) and (c), Stats., as created by 2003 Wisconsin Act 151.

Statutes interpreted: s. 440.03 (13) (a), (b) and (c), Stats.

This emergency rule is promulgated pursuant to 2003 Wisconsin Act 151. Act 151 was created in response to federal Public Law 92-544, which required authorization by state statute to continue the FBI's policy of honoring state requests for criminal background reports.

Act 151 modifies the authority of the Department of Regulation and Licensing to conduct criminal background checks of applicants and requires rule-making by the Department to conduct investigations whether an applicant for or holder of any credential issued by the Department has been charged with or convicted of a crime. The emergency rule preserves the ability of the Department to continue its practice of conducting criminal background investigations of applicants and credential holders.

Section RL 4.01 (3g) creates a definition for “credential."

Section RL 4.01 (3r) creates a definition for “credentialing authority."

Section RL 4.01 (5m) creates a definition for “investigate."

Section RL 4.07 authorizes the Department of Regulation and Licensing to continue to conduct investigations to determine whether an applicant for a credential issued by the department, an attached examining board, affiliated credentialing board or board having authority to issue or deny a credential has been charged with or convicted of a crime.

Section RL 4.09 authorizes the Department of Regulation and Licensing to continue to conduct investigations to determine whether a holder of a credential issued by the department, an attached examining board, affiliated credentialing board or board having authority to issue or deny a credential has been charged with or convicted of a crime.

Sections RL 31.035 (1m) and 31.036 (1m) are repealed, as s. 440.03 (13), Stats., as amended, eliminates the ability of the Department to exempt peace officers from the finger printing requirement for credentialing as a private detective or private security person.

Fiscal Estimate

The promulgation of this rule should produce no significant impact on the private sector. The Department of Regulation and Licensing will incur $500 in costs for staff to print and distribute the rule change.

Copies of Rule and Contact Person

Copies of this emergency rule are available without cost upon request to: Pamela Haack, Department of Regulation and Licensing, Office of Administrative Rules, 1400 East Washington Avenue, Room 171, P.O. Box 8935, Madison, Wisconsin 53708 [phone]

Notice of Hearing

Regulation and Licensing

[CR 04-097]

NOTICE IS HEREBY GIVEN that pursuant to authority vested in the Department of Regulation and Licensing in s. 227.11 (2), Stats., and s. 440.03 (13) (a), Stats., as renumbered and amended by 2003 Wisconsin Act 151, and s. 440.03 (13) (b) and (c), Stats., as created by 2003 Wisconsin Act 151, and interpreting s. 440.03 (13) (a), (b) and (c), Stats., will hold a public hearing at the time and place indicated below to consider an order to repeal RL 31.035 (1m) and 31.036 (1m); and to create RL 4.01 (3g), (3r) and (5m), 4.07, 4.08 and 4.09, relating to criminal background investigations and fingerprinting of applicants.

Hearing Date, Time and Location

Date:   October 1, 2004

Time:   9:00 A.M.

  Location:

  1400 East Washington Avenue

  Room 179A

  Madison, Wisconsin

Appearances at the Hearing

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 the Department of Regulation and Licensing, Office of Administrative Rules, P.O. Box 8935, Madison, Wisconsin 53708. Written comments must be received by October 11, 2004 to be included in the record of rule-making proceedings.

Analysis prepared by the Department of Regulation and Licensing.

Statutes authorizing promulgation: s. 227.11 (2), Stats., s. 440.03 (13) (a), Stats., as renumbered and amended by 2003 Wisconsin Act 151, and s. 440.03 (13) (b) and (c), Stats., as created by 2003 Wisconsin Act 151.

Statutes interpreted: s. 440.03 (13) (a), (b) and (c), Stats.

This proposed rule-making order is being promulgated pursuant to 2003 Wisconsin Act 151. 2003 Wisconsin Act 151 was created in response to federal Public Law 92-544, which required authorization by state statute to continue the Federal Bureau of Investigation's policy of honoring state requests for criminal background reports.

2003 Wisconsin Act 151 modifies the authority of the Department of Regulation and Licensing to conduct criminal background checks of applicants and requires rule-making by the Department to conduct investigations whether an applicant for or holder of any credential issued by the Department has been charged with or convicted of a crime.

SECTION 1 creates definitions for “credential," “credentialing authority" and “investigate."

SECTION 2 creates s. RL 4.07 to authorize the department to conduct investigations to determine whether an applicant for a credential issued by the department, an attached examining board, affiliated credentialing board or board having authority to issue or deny a credential has been charged with or convicted of a crime.

SECTION 2 creates s. RL 4.08 to allow the department to require that an applicant be photographed and fingerprinted as part of the credentialing process, if there exists reason to believe that the applicant has failed to accurately describe his or her conviction record.

SECTION 2 also creates s. RL 4.09 to authorize the department to conduct investigations to determine whether a holder of a credential issued by the department, an attached examining board, affiliated credentialing board or board having authority to issue or deny a credential has been charged with or convicted of a crime. In addition, s. RL 4.09 establishes that credential holders are required to self-report convictions to the department.

SECTIONS 4 and 5 repeal ss. RL 31.035 (1m) and 31.036 (1m) to conform to the requirements of 2003 Wisconsin Act 151, which eliminates the ability of the department to exempt peace officers from the fingerprinting requirement for credentialing as a private detective or private security person.

Comparisons of similar rules in adjacent states. For the purposes of this analysis, the statutes and regulations of Illinois, Indiana, Iowa, Michigan and Minnesota were examined to compare regarding criminal background checks requirements associated with licensing for the representative professions of physicians, nurses, real estate appraisers and accountants. In addition, licensing agencies (or boards) in each state were contacted by phone and asked whether their state had any background check requirements.

Generally, requirements for criminal background checks in adjacent states are not codified in statutes or administrative code. In most states, however, applicants do have to respond to questions regarding conviction history on the relevant application form. In Minnesota and Michigan, application forms for real estate appraisers require the applicants to authorize criminal background checks. Illinois has a law [225 ILCS 54/5-23] requiring criminal background checks for nurses with the state police and FBI. If a name check reveals a criminal history, a fingerprint check is required. Via rulemaking, Illinois [Section 1300.20] all initial nurse applicants are subject to fingerprint processing. Illinois also has a statute [Section 225 ILCS 60/9.7] requiring criminal background checks for physicians. The rule [1285.80(e)] implementing this section requires that the Illinois Department of Professional Regulation check criminal backgrounds of endorsement candidates through the Federation of State Medical Boards or Chiropractic Information Network – Board Action Database.

Comparison of federal law. Generally, the federal government does not involve itself in licensure of professions. However, criminal background checks are required pursuant to federal law in related areas. See, for example: P.L. 108-173, Background checks on prospective direct patient access employees for long term care facilities or providers; 42 USCS § 13041 Child care worker employee background checks; and 42 USCS § 5119, Child abuse crime information reporting; See also: 15 USCS § 5902, which requires a criminal record background check for states issuing an initial weapons license to an armored car crew member [referenced by Wis. Stat. § 440.26 (3m) Rules concerning dangerous weapons for private detectives and security personnel.]

Fiscal Estimate

The Department of Regulation and Licensing will incur $500 in costs for staff to print and distribute the rule change.

Private Sector Fiscal Effect

The department has determined that this rule has no significant fiscal effect on the private sector.

Final Regulatory Flexibility Analysis

These proposed rules will have no significant economic impact on a substantial number of small businesses, as defined in s. 227.114 (1) (a), Stats.

Copies of Rule and Contact Person

Copies of this proposed rule are available without cost upon request to: Pamela Haack, Department of Regulation and Licensing, Office of Administrative Rules, 1400 East Washington Avenue, Room 171, P.O. Box 8935, Madison, Wisconsin 53708 [phone]