Rule-Making Notices (Hearing Notices)

Wisconsin Administrative Register No. 617, 5/14/2007

Rule-making notices

Notice of Hearings

Agriculture, Trade and Consumer Protection

[CR 07-037]
[Reprinted from 4/30/07 Register]

The state of Wisconsin Department of Agriculture, Trade and Consumer Protection (DATCP) announces that it will hold public hearings on proposed amendments to chapters ATCP 60, 69, 70, 71, 75, 77, 80, 81, 82 and 85, Wis. Adm. Code, relating to food and dairy license and reinspection fees.

DATCP will hold three public hearings at the times and places shown below. DATCP invites the public to attend the hearings and comment on the proposed rule. Following the public hearings, the hearing record will remain open until Monday, June 11, 2007, for additional written comments. Comments may be sent to the Division of Food Safety at the address below, by email to [e-mail], or online by using the State of Wisconsin's Administrative Rules website at: https://apps4.dhfs.state.wi.us/admrules/public/Home.

You may obtain a free copy of this rule by contacting the Wisconsin Department of Agriculture, Trade and Consumer Protection, Division of Food Safety, 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 the State of Wisconsin's Administrative Rules website at:

https://apps4.dhfs.state.wi.us/admrules/public/Home.

To provide comments or concerns relating to small business, please contact DATCP's small business regulatory coordinator Keeley Moll at the address above, by emailing to [e-mail] or by telephone at [phone].

Hearing impaired persons may request an interpreter for these hearings. Please make reservations for a hearing interpreter by May 9, 2007, by writing to Deb Mazanec, Division of Food Safety, P.O. Box 8911, Madison, WI 53708-8911, telephone [phone]. Alternatively, you may contact the DATCP TDD at [phone]. Handicap access is available at the hearings.

Hearing Dates and Locations:

Tuesday, May 15, 2007

10:00 a.m. to 1:00 p.m.

State of Wisconsin Office Building, Room 105

718 W. Clairemont Avenue

Eau Claire, WI 54701

Wednesday, May 16, 2007

10:00 a.m. to 1:00 p.m.

Appleton Public Library, Room C

225 N. Oneida Street

Appleton, WI 54911

Tuesday, May 22, 2007

10:00 a.m. to 1:00 p.m.

Dept. of Agriculture, Trade and Consumer Protection

2811 Agriculture Drive, Board Room (CR-106)

Madison, Wisconsin, 53718-6777

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

The Department of Agriculture, Trade and Consumer Protection (“DATCP") administers Wisconsin's dairy and food safety program. The program is funded, in major part, by dairy and food license fees. This rule increases current license fees in order to address an imminent deficit in the food safety program revenue account.

Statutory Authority

Statutory authority: 93.07 (1), 93.09 (10), 93.12 (7), 97.17 (4), 97.175 (2), 97.20 (2c) (b), (2g) (b), (2n) (b), (2w) and (4), 97.21 (4m) and (6), 97.22 (2) (b), (4) (am) and (8), 97.27 (3m) and (5), 97.29 (3) (am), (cm) and (5), 97.30 (3m) and (5), and 98.146 (4), Stats.

Statutes interpreted: 93.09, 93.12, 97.17, 97.175, 97.20, 97.21, 97.22, 97.27, 97.29, 97.30 and 98.146 (4), Stats.

DATCP has broad authority, under s. 93.07(1), Stats., to adopt rules needed to implement laws under its jurisdiction. DATCP also has specific authority, under the provisions cited above, to establish dairy and food license and reinspection fees.

Rule Content

This rule increases current license and reinspection fees for dairy and food businesses, as shown below. DATCP plans to adopt and publish this rule before May 1, 2008, but fee increases will first apply to fees that are due on July 1, 2008.

Entity	Current Fee(s)	Proposed Fee(s)
Dairy Farm	$24 annual license fee (paid by dairy plant operator)	$32
	$24 or $48 reinspection fee (paid by dairy plant operator if reinspection is required)	$32 or $64
Dairy Plant	Annual license fee (calculations include an increase in the basic license fee from $96 to $129) $699 or $879 for grade A processing plant (based on size)	$937 or $1,178
	$397 for grade A receiving station	$532
	$96 for grade A transfer station	$129
Entity	Current Fee(s)	Proposed Fee(s)
	$96 to $421 for grade B processing plant (based on size)	$129 or $565
	$96 for grade B receiving station or transfer station	$129
	Grade A milk procurement fee: 0.96 cent per 100 lbs.	1.081 cent per 100 lbs. (for payments due beginning July 1, 2008)
	Grade B milk procurement fee: 0.2 cent per 100 lbs.	No change
	Reinspection fee: $203 or $246 for grade A processing plant	$336 or $394
	$221 for grade B processing plant	$360
	$122 for grade A receiving station	$229
	$48 for grade B receiving station or transfer station	$64
	Butter and cheese grading fee: 1.09 cents per 100 lbs. of product	1.5 cents per 100 lbs. of product
Food Processing Plant	$78-$685 annual license fee (based on size and type)	$105 - $918
	$261 canning surcharge for canning plants with annual production of 25,000 or more	$350
	$49-$431 reinspection fee (based on size and type)	$66 - $578
Food Warehouse	$65-$261 annual license fee (based on size and type)	$87-$350
	$92-$246 reinspection fee (based on size and type)	$123 - $330
Milk Distributor	$60 annual license fee per facility	$80
	$25 reinspection fee per facility	$34
Entity	Current Fee(s)	Proposed Fee(s)
Retail Food Store	$37-$562 annual license fee (based on size and type)	$50-$753
	$74-$369 reinspection fee (based on size and type)	$99 - $494
Dairy, Food or Water Testing Lab	$336 annual lab certification fee for each dairy or food test (other than milk drug residue screening)	$450
	$276 annual lab certification fee for each water test	$370
	$25 annual certification fee for each dairy or food analyst (other than milk drug residue screening analyst)	$34
	$50-$500 initial fee and $25-$50 annual renewal fee for lab performing milk drug residue screening	$67-$670 initial fee $34-$67 annual renewal fee
	$25 initial evaluation fee for milk drug residue screening analysts (if more than 3 per lab)	$34
Bulk Milk Tanker	$36 annual bulk milk tanker license fee	$48
	$36 bulk milk tanker reinspection fee	$48
	$48 bulk milk weigher & sampler license fee (2-year license)	$64
	$48 bulk milk weigher and sampler reinspection fee	$64
Buttermaker or Cheesemaker	$60 license fee (2-year license)	$80
Butter or Cheese Grader	$60 license fee (2-year license)	$80

This rule does not affect any of the following:

• Fees that DATCP charges for certain services, such as review of food processing equipment plans, or the testing, timing and sealing of pasteurizers. DATCP is authorized to charge fees for such services in order to cover its cost of providing the services. DATCP may adjust these service fees by written notice, in order to keep fees consistent with service costs.

• License fees for milk and cream testers. DATCP is not authorized to adjust these fees by rule. Milk and cream testers currently pay a license fee of $50 (for a 2-year license) and a reinspection fee of $25.

• License fees for meat establishments. Meat inspection programs are funded by a combination of federal dollars and matching state GPR dollars. Under federal law, states must match federal dollars with state GPR dollars, not license fees.

Fiscal Estimate

State Fiscal Effect

This rule will increase food safety program revenues by approximately $994,000 per year, beginning in FY 2008. The increase is needed to offset a projected deficit in DATCP's food safety program revenue account beginning in FY 2007. A complete fiscal estimate is attached.

Wisconsin's food safety program is funded by a combination of general tax dollars (GPR) and program revenue from license fees (PR). In 1991, license fees funded about 40% of program costs. The 1995-97 biennial budget act reduced the GPR funding share, so that PR funded about 50% of program costs. Subsequent state budgets further reduced the GPR funding share, so that PR now funds about 60% of the food safety budget.

Recent state budgets have lapsed a substantial amount of food safety license fee revenue to the state general fund (to help remedy state budget deficits). At the same time, DATCP has experienced a modest increase in operating costs. DATCP proposed a license fee increase in 2005, but was forced to withdraw a large share of that fee increase proposal. As a result, DATCP projects a substantial food safety budget deficit beginning in FY 2007.

DATCP is working to deliver effective food safety protection as efficiently as possible. For example:

DATCP has reduced its food and dairy staff by approximately 17% since 1990 (from 118 to 98 staff). Staffing trends fairly reflect changes in the food and dairy industry, including a reduction in dairy farm numbers and increased delegation of retail food regulation to cooperating local governments. While food safety staffing needs have declined in some traditional areas, they are growing in other areas.

DATCP works with local governments to license and inspect retail food establishments. Thirty-four local entities license and inspect on behalf of DATCP, compared to 15 in 1997 (local participation is voluntary). Local entities now license and inspect 4,600 retail food establishments. DATCP licenses and inspects the remaining 4,200 establishments.

DATCP is working to reform national dairy regulations, which impose rigid Grade A inspection frequency requirements. DATCP is pursuing a more flexible, risk-based inspection system that could reduce inspection costs. In the meantime, Wisconsin must comply with current inspection mandates in order to ship milk and fluid milk products in interstate commerce.

DATCP and the Wisconsin Department of Health and Family Services (DHFS) have eliminated duplicate licensing and inspection of grocery stores, restaurants, and combination grocery-restaurants. DATCP and DHFS have adopted uniform rules for grocery stores and restaurants, based on the federal Model Food Code.

Local Fiscal Effect

DATCP currently provides administrative support to local governments that license and inspect retail food establishments as agents of DATCP. Local governments establish their own license fees, and reimburse DATCP for administrative services costs. The reimbursement amount equals 10% of the license fees that DATCP would charge local license holders, if DATCP licensed them directly. An increase in DATCP license fees therefore increases local reimbursement payments (current payments do not fully compensate DATCP for its costs).

In FY 2006, local governments made a total of $58,000 in reimbursement payments. If DATCP adopts the fee increases proposed in this rule, the reimbursement rate will remain at 10%, but the total reimbursement amount will increase to approximately $76,500. This rule thus increases local costs by approximately $18,500 (statewide total). Local governments can (and likely will) pass this increased cost on to retail food businesses. Local governments can set license fees to recover up to 100% of their reasonable operating costs.

Business Impact

This rule affects all milk producers, dairy plants, food processing plants, food warehouses, milk distributors, retail food stores, dairy and food testing laboratories, milk haulers, buttermakers, cheesemakers, and butter and cheese graders licensed by the department. Many of these businesses are “small businesses" as defined in s. 227.114 (1) (a), Stats.

This rule increases annual license fees, reinspection fees and milk procurement fees, beginning with fees that are due in July, 2008. This will increase overall dairy and food industry costs by a combined total of approximately $994,000 per year. Costs for individual businesses will depend on business size and type. Because of competitive market conditions, it may be difficult for affected businesses to increase prices to recover these costs.

The proposed fee increases will have a significant but not dramatic impact on affected businesses. In the multi-billion dollar dairy and food industries, license fees comprise a relatively small overall share of industry costs. DATCP has worked to maintain a fair and equitable license fee schedule.

Fees are based on actual food safety costs related to each license sector. Fees are also based on business size, food product type, and type of food handling operations. Smaller businesses generally pay lower fees than large businesses, and lower-risk businesses generally pay lower fees than higher-risk businesses.

This rule increases food safety license fees, but does not change other license requirements. This rule requires no additional recordkeeping, and no added professional services to comply. A Business Impact Analysis is attached.

DATCP has not incorporated a small business enforcement policy in this rule, but has adopted a separate rule on that subject (see subch. VII of ch. ATCP 1). DATCP will seek voluntary compliance. However, food and dairy businesses must pay required license fees in order to obtain a license from DATCP.

Federal Regulation

There are no existing or proposed federal regulations related to license fees for food and dairy businesses operating in Wisconsin. However, national regulations such as the Interstate Pasteurized Milk Ordinance (“PMO") have a significant impact on state program costs. The PMO includes rigid inspection frequency requirements for grade A dairy farms and other grade A dairy operations. Wisconsin must comply with the PMO in order to ship milk and fluid milk products in interstate commerce.

Surrounding State Programs

All of the surrounding states charge license fees to food and dairy businesses. License structure and fees vary between states. Differences in license fees are partly related to differences in general tax dollar support for food and dairy programs in different states.

Minnesota

Minnesota has a license and fee structure that is similar to, but not identical to, Wisconsin's structure:

Dairy Fees – Minnesota
Grade A pasteurizing plant	$500
Grade A farm	$50
Grade A farm reinspection fee	$45
Manufacturing plant	$140 per pasteurizer unit
Manufactured farm	$25
Manufactured farm reinspection fee	$45
Processor assessment	$.07 per cwt for fluid milk products sold for retail sale in Minnesota
Farm bulk milk pick-up tanker	$25
Milk procurement fee	$.0071 per cwt of raw milk purchased

Food Fees – Minnesota
Retail food handler	$50-$2,001 based on sales volume
Wholesale food handler	$57-$1,502 based on sales volume
Food broker	$150
Wholesale food processor or manufacturer	$169-$2,571 based on sales volume

Michigan

Michigan has a license and fee structure that is similar to, but not identical to, Wisconsin's structure:

Dairy fees – Michigan
Milk plant	$175
Farms sending milk to plant	$5-$10
Receiving or transfer station	$50
Milk tank truck cleaning facility	$50
Milk transportation company	$20
Milk tank truck	$10
Grade A milk distributor	$50
Single service container and closure plant	$50
Bulk milk hauler/sampler	$40 for 2 years

Food Fees – Michigan
Retail food establishment	$70
Limited wholesale food processor	$70
Food warehouse	$70
Extended retail food establishment	$175
Wholesale food processor	$175
Mobile food establishment	$175
Temporary food establishment	$28
Bottled water manufacturer	$25 for each product registered and $25 for each water dispensing machine

Iowa

Iowa has a license and fee structure that is similar to, but not identical to, Wisconsin's structure:

Dairy Fees – Iowa
Milk plant	$2,000 for 2 years
Transfer station	$400 for 2 years
Receiving station	$400 for 2 years
Milk hauler	$20 for 2 years
Milk grader	$20 for 2 years
Bulk milk tanker permit	$50 for 2 years
Reinspection fee	$40
Resealing pasteurizer fee	$100 per reseal
Purchaser of milk fee - Grade A	$.015 per cwt of raw milk purchased
Purchaser of milk fee - Grade B	$.005 per cwt of raw milk purchased

Food Fees – Iowa
Mobile food unit or pushcart	$20
Temporary food establishment	$25
Food establishment	$30-$225 based on sales volume*
Food service establishment	$50-$225 based on sales volume*
Food processing plant	$50-$250 based on sales volume
Egg handler	$15-$250 based on cases sold

*If one establishment must hold both a food establishment and a food service establishment license, each license fee is 75% of the established fee.

Illinois

Illinois has a license and fee structure that is substantially different from the Wisconsin structure:

Dairy Fees – Illinois
Milk plant permit	$100
Receiving or transfer station	$50
Cleaning and sanitizing facility	$50
Milk hauler-sampler	$25
Milk tank truck	$25
Certified pasteurizer sealer	$100

Illinois does not license or charge fees to non-dairy food establishments, except that Illinois charges the following fees to the following establishments:

Food Fees
Salvage Operator	$100 plus inspection fee based on size
Bottled water manufacturer or distributor	$150
Egg handlers, distributors and breakers	$15-$200 plus inspection fee per case of eggs sold

Notice of Hearing

Elections Board

NOTICE IS HEREBY GIVEN that pursuant to ss. 5.05 (1) (f) and 227.11 (2) (a), Stats., and interpreting ss. 5.02 (14) and (17), 6.27, 6.275, 6.29, 6.33, 6.34, 6.35, 6.36, 6.40, 6.45, 6.46, 6.48, 6.50, 6.54, 6.55, 6.56, and 6.57, Stats., the State Elections Board will hold a public hearing at the offices of the State Elections Board, located at 17 W. Main Street, in the City of Madison, Wisconsin, on the 11th of June, 2007, at 9:30 a.m., to consider adoption of emergency rule s. ElBd 3.50, relating to charges for voter registration data.

Analysis Prepared by the State Elections Board

Statute(s) interpreted: ss. 5.02 (14) and (17), 6.27, 6.275, 6.29, 6.33, 6.34, 6.35, 6.36, 6.40, 6.45, 6.46, 6.48, 6.50, 6.54, 6.55, 6.56, and 6.57, Stats.

Statutory authority: ss. 5.05 (1) (f) and 227.11 (2) (a)

Related statute(s) or rule(s): s. 19.35, Stats.

Explanation of agency authority: This amended rule interprets ss. 5.02 (14) and (17), 6.27, 6.275, 6.29, 6.33, 6.34, 6.35, 6.36, 6.40, 6.45, 6.46, 6.48, 6.50, 6.54, 6.55, 6.56, and 6.57, Stats. The rule requires that persons who request copies of information or data from the Statewide Voter registration System must pay, for each such copy, a charge calculated under the provisions of the rule according to the schedule established by the rule.

At the present time, the Elections Board is limited, in the fee that it can charge for information provided by the Statewide Voter registration System, to the fee set by s. 19.35 (3), Stats.: “the actual, necessary and direct cost of reproduction and transcription of the record." In order to recover both the cost of reproduction and the cost of maintaining the list at the state and local level, rather than having its charge be limited to the amount currently provided under the public records law, the Board needs an immediate rule reflecting both cost components required by the new statute.

The Elections Board finds that under Section 180 of the non-statutory provisions of 2005 Wisconsin Act 451, in subsection (4), the Elections Board may promulgate emergency rules under s. 227.24, Stats., implementing s. 6.36 (6), Stats., as created by Wisconsin Act 451. Notwithstanding s. 227.24 (1) (c) and (2), Stats., emergency rules promulgated under sub. (4) remain in effect until the date on which permanent rules take effect. Notwithstanding s. 227.24 (1) (a) and (3), Stats., the elections board is not required to provide evidence that promulgating a rule under sub. (4) as an emergency rule is necessary for the preservation of public peace, health, safety, or welfare and is not required to provide a finding of emergency for a rule promulgated under sub. (4).

Plain language analysis: The rule provides the methods by which the Elections Board staff will calculate the pricing to fulfill requests for voter registration data that are contained within the Statewide Voter Registration System.

Summary of, and comparison with, existing or proposed federal regulations: The federal government does not have a voter registration system and does not provide voter registration data for which it could exact a charge.

Comparison with rules in adjacent states: Illinois, Iowa, Michigan and Minnesota all have voter registration data systems which collect a charge for data comparable to Wisconsin's.

Summary of factual data and analytical methodologies: The legislature has directed the board to calculate a cost of data and record reproduction and a cost of list maintenance and build those costs into its charges for copies of voter registration data and records. Those are the only data or methodology that affects the rule.

Effect on small business: The rule will have no effect on small business or economic impact.

Contact Person

George A. Dunst

Legal Counsel, State Elections Board

17 West Main Street, P.O. Box 2973

Madison, Wisconsin 53701-2973

Phone [phone]

([e-mail])

Submission of Comments and Deadline for Submission

Comments should be submitted to:

State Elections Board

17 West Main Street, P.O. Box 2973

Madison, Wisconsin 53701-2973

Phone [phone] (elections.state.wi.us)

Deadline for submission: June 4, 2007.

Text of Rule

Pursuant to the authority vested in the State of Wisconsin Elections Board by ss. 5.05 (1) (f) and 227.11 (2) (a), Stats., the Elections Board hereby creates s. ElBd 3.50, interprets ss. 5.02 (14) and (17), 6.27, 6.275, 6.29, 6.33, 6.34, 6.35, 6.36, 6.40, 6.45, 6.46, 6.48, 6.50, 6.54, 6.55, 6.56, and 6.57, Stats.:

SECTION 1. ElBd 3.50 is created to read:

ElBd 3.50 Charges for voter registration data.

(1) Definitions. As used in this rule:

(a) “Custom report" means a report that is not programmed to run in the Statewide Voter Registration System at the time a request for the report is made.

(b) “Election official" has the same meaning as provided in s. 5.02 (4e), Stats.

(c) “Official registration list" has the same meaning as provided in s. 6.36, Stats.

(d) “Protected information" means any information that is protected from general public disclosure by ss.6.36(1)(b)1.a., and 6.47, Stats.

(e) “Report" means a defined list of related voter registration data records generated from the Statewide Voter Registration System.

(g) “Voter registration data" means data contained in the official registration list.

(h) “Voter registration data record" means a set of related information requested from the official registration list which consists of a core data element and related attributes. A core data element is the basic unit of data that is being requested, including, but not limited to, a voter name, candidate, election official, or address. The related attributes consist of pieces of data associated with that core data element.

(2) The official registration list shall be open to public inspection consistent with the requirements of ss. 6.36, 6.45 through 6.47, and ss. 19.31 through 19.36, Stats.

(3) Any person may obtain, from the official registration list, voter registration data that is not protected information, upon payment of the applicable charges.

(4) The charge for reports in electronic format is a $25 base fee per report plus $5 for the first 1,000 voter registration data records in the report, plus $5 for each additional 1,000 voter registration data records, rounded to the nearest thousand. The maximum charge for an electronic report is $12,500.

(5) The charge for a paper copy of a report is $.25 per page, plus the cost of postage and shipping.

(6) Any request for a report or custom report submitted to the State Elections Board shall either be made in writing by the requester or shall be reduced to writing by the board's staff. Any request by the board for payment in advance for the report requested shall include a copy of the report request in writing as submitted by the requester or as memorialized by the board's staff.

(7) Any person may request a copy of the poll list used at an election from the municipal or county clerk who has custody of the list. The cost of a copy of a poll list provided by a municipal or county clerk shall be a fee determined by that clerk not to exceed the cost of reproduction.

(8) The state elections board, its staff, and each municipal or county election official shall take steps to ensure that any protected information contained in the Statewide Voter Registration System, or on a poll list, is not made available for public inspection.

(9) If a request for voter registration data requires a custom report, and the elections board staff determines that it can produce the report, the cost of producing the custom report charged to the requester shall be calculated by the board's staff on a case-by-case basis and shall include, in addition to the costs articulated in subs. (4) or (5), including any applicable costs of handling and mailing, costs of reproduction, including programming costs; and the costs of maintenance of the SVRS as authorized by s. 6.36 (6), Stats. Requests fulfilled under this subsection are not subject to the maximum charge limitations in sub. (4).

(10) The fees received from requests for voter registration data will remain with the municipality, county, or the State Election Board, whoever produces and provides the report.

Initial Regulatory Flexibility Analysis

The creation of this rule does not affect business.

Fiscal Estimate

The creation of this rule has no fiscal effect.

Notice of Hearing

Health and Family Services

(Medical Assistance, Chs. HFS 101-109)

[CR 07-041]

NOTICE IS HEREBY GIVEN that pursuant to ss. 49.45 (10) and 227.11 (2), Stats., and interpreting s. 49.46 (2) (b) 1., Stats., the Wisconsin Department of Health and Family Services proposes to repeal ss. HFS 107.07 (1) (k) and (2) (a) 5. and 107.22 (4) (a) and (b), and to amend ss. HFS 107.07 (2) (a) (intro.), (3) (intro.) and (a) 3., (4) (intro.) and (j) and (4m), and 107.22 (4) (intro.), relating to benefits covered by the Wisconsin Medical Assistance program, and affecting small businesses.

Hearing Date(s) and Location(s)

Date and Time	Location
June 12, 2007 10:00 a.m. to 12:00 noon	1 West Wilson Street Room B-370 Madison, WI

The hearing site is fully accessible to people with disabilities. If you are hearing impaired, do not speak English or have circumstances that might make communication at a hearing difficult; you require an interpreter or a non-English large print or taped version of the proposed rules, contact the person at the address or telephone number given below at least 10 days before the hearing. With less than 10 days notice, an interpreter may not be available.

Submission of Comments and Deadline for Submission

Written comments may be submitted at the public hearing or submitted to the contact person listed below. Comments may also be made using the Wisconsin Administrative Rule Website at http://adminrules.wisconsin.gov. The deadline for submitting comments to the Department is 4:30 p.m. on June 19, 2007.

Analysis Prepared by the Department of Health and Family Services

The Department is revising rules to clarify circumstances under which the Wisconsin Medicaid program will reimburse providers for orthodontia and certain other services provided to recipients under age 21. In Clearinghouse Rule 05-033, the prior authorization requirement was removed for most procedures that had high rates of approval (greater than 75%). The change was intended to reduce the staff time required for dental offices to process prior authorization requests. The Department did not intend to remove the requirement for prior authorization for orthodontia and other services. In Clearinghouse Rule 05-033, the Department specifically stated that “Procedures where appropriate pricing requires a high degree of clinical knowledge (e.g., orthodontics and TMJ surgery), and procedures with strict time limitations (e.g., dentures) are also proposed to retain prior authorization." The adopted language, however, has been interpreted by at least one dentist to mean that prior authorization is no longer required to provide orthodontia to recipients. This interpretation was upheld by an administrative law judge in an administrative hearing. Because the intent of the Department and the language adopted, as recently interpreted, had opposite effects, the Department intends to revise rules to clarify the Department's intent to require prior authorization for orthodontia and other services provided under early and periodic screening, diagnosis and treatment (EPSDT) services.

A basic concept of the Medicaid program is that services must be medically necessary to be reimbursable. The medical necessity of these services is determined by the Department based on information submitted by the provider. Thus, it is necessary to require prior authorization to determine the appropriateness of providing these services to an individual recipient. Allowing the existing rule language to remain in its present form could require reimbursement for orthodontia that is not medically justified.

The department will first implement these changes in emergency rule that is followed by a substantially identical permanent rule.

Effect on Small Business

The rule changes are being made to correct an error made in Clearinghouse Rule 05-033. The error made in Clearinghouse Rule 05-033 could require reimbursement of orthodontia that is not medically justified. The Department does not expect that the rules will increase costs to dentists.

Small Business Regulatory Coordinator

Rosie Greer
[e-mail]
608-266-1279

Fiscal Estimate

The Department is revising rules to clarify circumstances under which the Wisconsin Medicaid program will reimburse providers for orthodontia and certain other services provided to recipients under age 21. In Clearinghouse Rule 05-033, the prior authorization requirement was removed for most procedures that had high rates of approval (greater than 75%). The change was intended to reduce the staff time required for dental offices to process prior authorization requests. The Department did not intend to remove the requirement for prior authorization for orthodontia and other services. In Clearinghouse Rule 05-033, the Department specifically stated that “Procedures where appropriate pricing requires a high degree of clinical knowledge (e.g., orthodontics and TMJ surgery), and procedures with strict time limitations (e.g., dentures) are also proposed to retain prior authorization." The adopted language, however, has been interpreted by at least one dentist to mean that prior authorization is no longer required to provide orthodontia to recipients. This interpretation was upheld by an administrative law judge in an administrative hearing. Because the intent of the Department and the language adopted, as recently interpreted, had opposite effects, the Department is promulgating rules to revise section s. HFS 107.07 to clarify the Department's intent to require prior authorization for orthodontia and other services provided under early and periodic screening, diagnosis and treatment (EPSDT) services.

A basic concept of the Medicaid program is that services must be medically necessary to be reimbursable. The medical necessity of these services is determined by the Department based on information submitted by the provider. Thus, it is necessary to require prior authorization to determine the appropriateness of providing these services to an individual recipient. Allowing the existing rule language to remain in its present form could require reimbursement for orthodontia that is not medically justified.

The rule will not have a fiscal effect on local government or the private sector. Restoration of prior approval provisions in the dental services section of the Medicaid regulations should result in continued savings to the Medicaid program.

Copies of Rules and Fiscal Estimate

A copy of the full text of the rules and the fiscal estimate can be obtained at no charge from the Wisconsin Administrative Rules Website at http://adminrules. wisconsin.gov or by contacting the person listed below.

Contact Person

Al Matano
Division of Health Care Financing
P.O. Box 309
Madison, WI 53702
608-267-6848 or [e-mail]

Notice of Hearing

Natural Resources

(Environmental Protection—Air Pollution Control, Chs. NR 400—)

[CR 07-040]

NOTICE IS HEREBY GIVEN that pursuant to ss. 227.11 (2) (a), 285.11 (1), (6) and (16), 285.60 (6), 285.67 and 285.69, Stats., interpreting ss. 227.11 (2) (a) and 285.11 (1) and (6), Stats., the Department of Natural Resources will hold a public hearing on revisions to chs. NR 400, 406, 407, 410 and 439, Wis. Adm. Code, relating to construction permits and stack test requirements. The State Implementation Plan developed under s. 285.11 (6), Stats., is also being revised. The Department is proposing to incorporate changes in federal regulations.

Some changes in chs. NR 400 and 407 are updating definitions and other revisions to the federal standards regarding fugitive emissions and permitting standards. Additional changes in chs. NR 406 and 407 clarify when a construction permit is needed for sources covered under general operation permits. Portable source relocation limitations found in ch. NR 406 will be amended by changing the numerical emission limitations to language limiting the relocation limitations to less than major source thresholds.

Section NR 410.03 will be amended so construction permits can be issued concurrently with operation permits, streamlining the process for minor revisions to those permits. The revision is being made so that the collection of permit fees and the issuance of an operation permit are independent of each other. If fees are not paid, the Department has the ability to revoke a permit or to refer the source to the Department of Justice to collect the fees.

Chapters NR 439 and 462 have different and conflicting stack test requirements for boilers that are subject to national emission standards for hazardous air pollutants, maximum achievable control technology (MACT). The proposed amendment to ch. NR 439 allows boilers subject to that MACT standard to use the testing schedule in ch. NR 462 rather than the current requirements in ch. NR 439.

NOTICE IS HEREBY FURTHER GIVEN that pursuant to s. 227.114, Stats., the proposed rule may have an impact on small businesses. The initial regulatory flexibility analysis is as follows:

a. Types of small businesses affected: Sources of fugitive emissions may become subject to the federal operation permit program as a result of this rule change. Low emitting dry cleaners, metal cleaners and chrome electroplaters may be excluded from major source permitting requirements as a result of this rule.

b. Description of reporting and bookkeeping procedures required: Facilities subject to federal operation permit requirements must report their compliance status to the Department every six months. Facilities that are not subject to federal operation permit requirements must report their compliance annually.

c. Description of professional skills required: The proposed rule changes does not create any additional need for professional skills than those that are required under current regulations.

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 hearing will be held on:

June 12, 2007     Room 511, GEF #2 Building
(Tuesday)     101 South Webster Street
at 1:00 p.m.     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 Robert Eckdale at [phone] or by e-mail at [e-mail] with specific information on your request at least 10 days before the date of the scheduled hearing.

Fiscal Estimate

No governmental economic impacts are anticipated.

Copies of Rule and Submission of Comments

The proposed rule and supporting documents, including the fiscal estimate may be viewed and downloaded and comments electronically submitted at the following Internet site: http://adminrules.wisconsin.gov. (Search this Web site using the Natural Resources Board Order No. AM-12-07. Written comments on the proposed rule may be submitted via U.S. mail to Joe Brehm, Bureau of Air Management, P.O. Box 7921, Madison, WI 53707 or by e-mail to Joseph.Brehm@ wisconsin.gov. Comments may be submitted until June 19, 2007. 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. If you do not have Internet access, a personal copy of the proposed rule and supporting documents, including the fiscal estimate may be obtained from Robert Eckdale, Bureau of Air Management, P.O. Box 7921, Madison, WI 53707 or by calling [phone].

Notice of Hearing

Revenue

[CR 07-027]

NOTICE IS HEREBY GIVEN that, pursuant to and interpreting s. 73.029, Stats., the Department of Revenue will hold a public hearing at the time and place indicated below, to consider the amendment and creation of rules relating to electronic funds transfer.

Hearing Information

The hearing will be held at 9:00 A.M. on Wednesday, May 30, 2007, in the Events Room (1st floor) of the State Revenue Building, located at 2135 Rimrock Road, Madison, Wisconsin.

Handicap access is available at the hearing location.

Analysis Prepared by the Department of Revenue

Statute interpreted:   s. 73.029, Stats.

Statutory authority:   s. 73.029, Stats.

Explanation of agency authority: Section 73.029, Stats., provides that the department may require electronic funds transfer only by promulgating rules.

Related statute or rule: s. 71.91 (7), Stats.

Plain language analysis: This proposed rule order creates a provision specifying that withholding payments by an employer of the delinquent tax of an employee (also known as wage certification payments) are required to be made by electronic funds transfer (EFT). It also updates notes to provide current contact information for the department's EFT Unit.

Summary of, and comparison with, existing or proposed federal regulation: There is no existing or proposed federal regulation that is intended to address the activities to be regulated by the rule.

Comparison with rules in adjacent states: The department is not aware of a similar rule in an adjacent state.

Summary of factual data and analytical methodologies: Wage certifications are authorized under s. 71.91(7), Stats. The number of wage certification payments received each year number in the tens of thousands. The department has determined that in order to administer this program in the most cost effective manner, it is necessary to require employers to make wage certification payments electronically.

Analysis and supporting documents used to determine effect on small business: The department provides methods to pay taxes using EFT that occur at no or minimal cost to the payer. In addition, an exception to the requirement to pay electronically for situations where an undue hardship is caused is provided in the rule. Based on this, the department has concluded that this proposed rule order does not have a significant effect on small business.

Anticipated costs incurred by private sector: This proposed rule order does not have a significant fiscal effect on the private sector.

Effect on small business: This proposed rule order does not have a significant effect on small business.

Agency contact person: Please contact Dale Kleven at [phone] or [e-mail], if you have any questions regarding this proposed rule order.

Submission of comments: Comments may be submitted to the contact person shown below no later than one week after the public hearing on this proposed rule order is conducted. Information as to the place, date, and time of the public hearing will be published in the Wisconsin Administrative Register.

Dale Kleven
Department of Revenue
Mail Stop 6-40
2135 Rimrock Road
P.O. Box 8933
Madison, WI 53708-8933

Text of Rule

SECTION 1. Tax 1.12 (1), (2), (3) (g), and (4) (a) (intro.) are amended to read:

Tax 1.12 (1). SCOPE. This section applies to any person who is required to or elects to pay or deposit taxes or , fees, or other amounts by electronic funds transfer, or “EFT."

Tax 1.12 (2). PURPOSE. The purpose of this section is to specify which taxes and, fees, and other amounts are required to be paid or deposited using the EFT payment method, to provide that certain persons not required to use the EFT payment method may elect to do so and to explain the procedures for using EFT.

Tax 1.12 (3) (g). “Payer" means any person who is required to or elects to pay or deposit taxes or, fees, or other amounts by electronic funds transfer.

Tax 1.12 (4) (a) (intro.). Except as provided in sub. (11), the department requires a person who owes taxes and, fees and other amounts as described in subds. 1. to 13. 14. to pay or deposit the taxes and, fees, and other amounts using the EFT payment method. The following taxes and, fees, and other amounts are included in the EFT payment requirement:

SECTION 2. Tax 1.12 (4) (a) 14. is created to read:

Withholding by an employer of the delinquent tax of an employee under s. 71.91 (7), Stats.

SECTION 3. Tax 1.12 (4) (b) is amended to read:

Tax 1.12 (4) (b). Any person not required to use the EFT payment method under par. (a) may elect to use the EFT payment method to pay or deposit the taxes or, fees, or other amounts specified in par. (a).

Note to revisor: Replace the note at the end of Tax 1.12 (6) (a) with the following:

Note: A request for an EFT registration packet may be made by calling the department's EFT unit at [phone]; by writing to EFT Unit, Wisconsin Department of Revenue, P.O. Box 8949, Madison WI 53708-8949; or by submitting an online form via the department's website at www.revenue.wi.gov.

SECTION 4. Tax 1.12 (7) (intro.) is amended to read:

Tax 1.12 (7) (intro.). EFT PAYMENT PROCEDURES. EFT payments or deposits shall be credited by the department directly to the payer's tax account or, for amounts described in sub. (4)(a)14., to the employee's delinquent tax account. The payer may use the ACH debit or ACH credit transfer option, or both, as follows:

Note to revisor: Replace the note at the end of Tax 1.12 (7) (a) with the following:

Note: Written requests for department approval of another ACH debit transfer method should be addressed to EFT Unit, Wisconsin Department of Revenue, P.O. Box 8949, Madison WI 53708-8949.

Note to revisor: Replace the note at the end of Tax 1.12 (11) (a) 1. with the following:

Note: Written waiver requests should be addressed to EFT Unit, Wisconsin Department of Revenue, P.O. Box 8949, Madison WI 53708-8949.

Initial Regulatory Flexibility Analysis

This proposed rule order does not have a significant economic impact on a substantial number of small businesses.

Fiscal Estimate

The proposed rule requires that withholding payments by an employer of the delinquent tax of an employee be made using electronic funds transfer. No change is made to filing thresholds or amounts remitted. The rule should have a minimal fiscal impact on taxpayers. It is expected that administrative cost savings will be $34,000 per year beginning in fiscal year 2009.

Comments on the Rule

Interested persons are invited to appear at the hearing and may make an oral presentation. It is requested that written comments reflecting the oral presentation be given to the department at the hearing. Written comments may also be submitted to the contact person shown below no later than June 6, 2007, and will be given the same consideration as testimony presented at the hearing.

Contact Person

Small Businesses:	Others:
Tom Ourada	Dale Kleven
Department of Revenue	Department of Revenue
Mail Stop 624-A	Mail Stop 6-40
2135 Rimrock Road	2135 Rimrock Road
P.O. Box 8933	P.O. Box 8933
Madison, WI 53708-8933	Madison, WI 53708-8933
Telephone [phone] E-mail: [e-mail]	Telephone [phone] E-mail: [e-mail]