Rule-Making Notices
Notice of Hearings
Agriculture, Trade and Consumer Protection
The Wisconsin Department of Agriculture, Trade and Consumer Protection (DATCP) announces that it will hold public hearings on a proposed rule to revise Chapter
ATCP 92, Wis. Adm. Code, relating to weights and measures licensing and fees.
Hearing Information
DATCP will hold the public hearings at the times and locations shown below.
Monday, January 11, 2010
10:00 a.m. to 12:00 p.m.
Dept. of Agriculture, Trade and Consumer Protection
2811 Agriculture Drive, Board Room (CR-106)
Madison, Wisconsin 53718-6777
Tuesday, January 12, 2010
10:30 a.m. to 12:30 p.m.
Marathon County Public Library – Wausau Library
300 North First Street
Wausau, Wisconsin 54403
Friday, January 15, 2010
11:00 a.m. to 1:00 p.m.
Havenwoods State Forest
6141 North Hopkins Street
Milwaukee, Wisconsin 53209-3565
Hearing impaired persons may request an interpreter for these hearings. Please make reservations for a hearing interpreter by January 8, 2010, by writing to Michelle Reinen, Division of Trade and Consumer Protection, P.O. Box 8911, Madison, WI 53708-8911,
Michelle.reinen@wi.gov, telephone (608) 224-5160. Alternatively, you may contact the DATCP TDD at (608) 224-5058. Handicap access is available at the hearings.
Submission of Written Comments
DATCP invites the public to attend the hearing and comment on the rule. Following the hearing, the hearing record will remain open until Friday, January 29, 2010 for additional written comments. Comments may be sent to the division of Trade and Consumer Protection at the address below, by email to
michelle.reinen@wi.gov, or online at
https://apps4.dhfs.state.wi.us/admrules/public/Home.
To provide comments or concerns relating to small business, you may also contact DATCP's small business regulatory coordinator Keeley Moll at the address above, or by emailing to
Keeley.Moll@datcp.state.wi.us or by telephone at (608) 224-5039.
Copies of Proposed Rules
You may obtain a free copy of this rule, fiscal estimate, and business impact analysis by contacting the Wisconsin Department of Agriculture, Trade and Consumer Protection, Division of Trade and Consumer Protection, 2811 Agriculture Drive, P.O. Box 8911, Madison, WI 53708. You can also obtain a copy by calling (608) 224-5160 or emailing
michelle.reinen@wi.gov. Copies will also be available at the hearings. To view the proposed rule online, go to
http://adminrules.wisconsin.gov.
Analysis Prepared by the Department of Agriculture, Trade and Consumer Protection
The Department of Agriculture, Trade and Consumer Protection (DATCP) administers state laws to ensure the accuracy of commercial weights and measures. DATCP adopts weights and measures rules, and licenses persons who operate or service weighing and measuring devices. DATCP may establish certain license fees and other fees by rule.
This rule modifies current DATCP weights and measures rules. Among other things, this rule implements
2009 Wis. Act 28 (biennial budget act). Act 28 changed state weights and measures laws, including laws related to vehicle scales, weights and measures service companies, vehicle tank meters and liquefied petroleum (LP) gas meters. Act 28 created new license requirements, and authorized DATCP to establish certain license fees and surcharges by rule. Act 28 also authorized DATCP to charge reinspection fees to help pay for reinspections made necessary by weights and measures law violations.
Statutes interpreted
Statutory authority
Explanation of agency authority
General
DATCP has general authority, under s.
93.07 (1), Stats., to interpret laws under its jurisdiction. Under s.
93.06 (1p), Stats., DATCP may charge for certain services (including analytical services) provided in response to a voluntary request (in this case, fees to analyze and process voluntary requests for livestock scale construction variances).
Weights and Measures; General
DATCP administers ch.
98, Stats., related to commercial weights and measures. Under s.
98.03 (2), Stats., DATCP has broad authority to adopt rules governing the construction, installation and use of commercial weights and measures (including scales and other weighing and measuring devices).
Retail Food Establishments
DATCP licenses and inspects retail food establishments for food safety purposes under s.
97.30, Stats. However, DATCP also conducts weights and measures inspections of retail food establishments. Licensed establishments must pay an annual weights and measures fee under s.
97.30 (3m) (c) 3., Stats. DATCP may establish that fee by rule (s.
97.30 (5), Stats.).
Vehicle Scales
Vehicle scales are regulated by s.
98.16, Stats. Under s.
98.16 (as modified by Act 28), a vehicle scale operator must:
•
Be annually licensed by DATCP and pay an annual license fee for each vehicle scale (DATCP may adjust license fees by rule).
•
Pay a license fee surcharge for each vehicle scale if the operator is found operating that scale without a license (Act 28 authorizes DATCP to adjust that surcharge by rule).
•
Obtain a permit from DATCP before installing or relocating a vehicle scale (Act 28 authorizes DATCP to charge a permit fee).
•
Comply with scale construction standards, unless DATCP grants a variance (Act 28 authorizes DATCP to charge a fee for processing variance requests).
•
Pay reinspection fees for reinspections made necessary by law violations (DATCP may adopt reinspection fees by rule under s.
98.255, Stats.).
DATCP may adopt rules to establish and adjust fees, and regulate the construction and operation of vehicle scales (s.
98.16 (3), Stats.).
Weights and Measures Service Companies and Technicians
Section
98.18, Stats., regulates persons engaged in the business of installing, servicing, testing or calibrating scales and other weighing and measuring devices (weights and measures service companies). Under that section:
•
Weights and measures service companies must:
□ Be annually licensed by DATCP and pay an annual license fee (DATCP may adjust license fees by rule).
□ Pay a license fee surcharge if the weights and measures service company is found operating without a license (DATCP is not authorized to adjust that surcharge by rule).
•
DATCP may adopt rules to regulate weights and measures service companies and establish license fees (s.
98.18(2), Stats.).
DATCP rules currently exempt individual weights and measures technicians from licensing if they are employed by a licensed weights and measures service company. However, individual technicians must be certified for competence (there is a certification examination fee of $25). A certification is good for 5 years.
Vehicle tank meters
Vehicle tank meters are regulated by s.
98.224, Stats., as created by Act 28. Under that section, a vehicle tank meter operator must:
•
Be annually licensed by DATCP and pay an annual license fee for each vehicle tank meter (DATCP must establish license fees by rule). An operator must pay a license fee surcharge if the operator is found operating a vehicle tank meter without a license (DATCP may establish the surcharge by rule).
•
Comply with testing and reporting requirements. An operator who fails to do so must pay a license fee surcharge that DATCP must establish by rule.
•
Pay reinspection fees for reinspections made necessary by law violations (DATCP may adopt reinspection fees by rule under s.
98.255, Stats.).
DATCP may adopt rules to establish and license fees and surcharges; testing, reporting and recordkeeping requirements; and standards for the construction, operation and maintenance of vehicle tank meters (s.
98.16 (4), Stats.).
LP Gas Meters
LP gas meters are regulated by s.
98.245, Stats., as modified by Act 28. Under that section, LP gas meter operators must:
•
Be annually licensed by DATCP and pay an annual license fee for each LP gas meter (DATCP must establish license fees by rule). An operator must pay a license fee surcharge if the operator is found operating an LP gas meter without a license (DATCP must establish the surcharge by rule).
•
Comply with testing and reporting requirements. An operator who fails to do so must pay a license fee surcharge that DATCP must establish by rule.
•
Pay reinspection fees for reinspections made necessary by law violations (DATCP may adopt reinspection fees by rule under s.
98.255, Stats.).
DATCP may adopt rules to establish and license fees and surcharges; testing, reporting and recordkeeping requirements; and standards for the construction, operation and maintenance of vehicle tank meters (s.
98.245 (9), Stats.).
Reinspection Fees
Under s.
98.255, Stats. (as created by Act 8), DATCP may charge a reinspection fee to cover DATCP reinspection costs incurred because of a law violation found on an initial inspection of a weight or measure (including a scale or other weighing or measuring device). DATCP may establish reinspection fee amounts by rule (s.
98.255 (2), Stats.). DATCP may specify different reinspection fees for different types of weighing or measuring devices. The fee for each type of device may not exceed DATCP's average cost to reinspect that type of device.
Related statutes and rules
Among other things, this rule establishes annual weights and measures fees for retail food establishments, which are licensed and regulated (for food safety purposes) under s.
97.30, Stats., and ch.
ATCP 75, Wis. Adm. Code.
Content of rule
The Department of Agriculture, Trade and Consumer Protection (DATCP) administers Wisconsin's weights and measures program which ensures the accuracy of commercial weights and measures. DATCP inspects commodities, scales and measuring devices to ensure that businesses and consumers get what they pay for. The weights and measures program is partially funded by weights and measures license fees. The biennial budget act expanded licensing of weights and measures devices, and authorized certain fee adjustments by rule, in order to improve weights and measures regulation and help remedy a sever budget shortfall. The budget act affects vehicle scales, vehicle tank meters and LP gas meters, among other things. It also authorizes DATCP to charge fees for reinspections made necessary by weights and measures law violations.
This rule is designed to implement the budget act. However, this rule also updates and clarifies other weights and measures rule provisions under ch.
ATCP 92, Wis. Adm. Code. This rule establishes different fees for different weights and measures program and license categories, based upon an analysis of program costs associated with each category. Fees are generally proportionate to program costs in each category. Specifically, this rule does all of the following:
Retail Food Establishments
This rule increases the annual weights and measures inspection fees paid by licensed retail food establishments (it does not change food safety inspection fees). This rule does all of the following:
•
Increases, from $100 to $420, the annual fee for a retail food establishment that has annual food sales of at least $1 million and processes potentially hazardous food.
•
Increases, from $45 to $55, the annual fee for a retail food establishment that has annual food sales of at least $25,000 but less than $1 million and processes potentially hazardous food.
•
Increases, from $25 to $45, the annual fee for a retail food establishment that has annual food sales of at least $25,000 and is engaged in food processing, but does not process potentially hazardous food.
•
Establishes a fee of $30 for a retail food establishment that is not engaged in food processing.
Vehicle and Livestock Scales
This rule does all of the following:
•
Increases, from $100 to $140, the annual fee for a vehicle scale operator license (does not apply to livestock scales other than vehicle scales).
•
Increases, from $200 to $350, the license fee surcharge for a person found operating a vehicle scale without a license (does not apply to operators of livestock scales other than vehicle scales, because those operators are not licensed).
•
Establishes a license fee surcharge of $350 for an operator who, during the previous year, failed to comply with vehicle scale testing and reporting requirements (does not apply to operators of livestock scales other than vehicle scales, because those operators are not licensed).
•
Establishes a fee of $160 for a permit to install or relocate a vehicle scale. This fee does not apply to livestock scale permits (other than vehicle scales) because the statutes do not authorize DATCP to charge fees for livestock scale permits mandated by DATCP.
•
Establishes a fee of $360 to process a request, by a vehicle scale operator
or livestock scale operator, for a variance from an applicable scale construction standards (this rule does not change current construction standards). See ss.
93.06 (1p) and
98.16 (2m) (b) and
(4), Stats.
•
Updates and clarifies current requirements for annual testing of vehicle scales and livestock scales, and reporting test results to DATCP.
•
Establishes a vehicle scale operator license surcharge of $350 for an operator who fails to comply with annual scale testing and reporting requirements (does not apply to operators of livestock scales other than vehicle scales, because those operators are not licensed).
Weights and Measures Service Companies and Technicians
This rule increases current annual license fees for weights and measures service companies, as follows:
•
Increases the basic license fee from $250 to $325.
•
Increases the supplementary license fee for companies operating more than one business location. The fee for each additional business location is increased from $75 to $100.
This rule increases, from $25 to $35, the current examination fee for certification of an individual weights and measures technician (5-year certification). The examination fee may be paid by the weights and measures service company that employs the technician.
LP Gas Meters
This rule does all of the following:
•
Implements statutory licensing requirements for operators of LP gas meters.
•
Establishes an annual license fee of $140.
•
Establishes a license fee surcharge of $350 for an applicant who was found operating an LP gas meter without a required license during the previous year.
•
Establishes basic annual testing and test reporting requirements related to LP gas meters, and establishes a license fee surcharge of $350 for an applicant who failed to comply with those basic requirements in the previous year.
Vehicle Tank Meters
This rule does all of the following:
•
Implements statutory licensing requirements for vehicle tank meter operators.
•
Establishes an annual license fee of $140.
•
Establishes a license fee surcharge of $350 for an applicant who was found operating a vehicle tank meter without a required license during the previous year.
•
Establishes basic annual testing and test reporting requirements related to vehicle tank meters, and establishes a license fee surcharge of $350 for an applicant who failed to comply with those basic requirements in the previous year.
Reinspection Fees
This rule establishes reinspection fees to cover DATCP reinspection costs incurred because of law violations found on an initial inspection of a weight or measure (including a scale or other weighing or measuring device). This rule establishes the following reinspection fees for the following types of weights and measures, based on DATCP's average cost to reinspect that type of weight or measure:
•
Large capacity scale (over 5,000 lbs), $300.
•
Medium capacity scale ( 300-5,000lbs), $185.
•
Small capacity scale (up to 300 lbs), $150.
•
Vehicle tank meter, $230.
•
Liquified petroleum gas meter, $360.
•
Loading rack meter, $300.
•
Retail motor fuel device (or similar liquid measuring device), $150.
•
Timing device, $150.
•
Grain moisture meter, $200.
•
Package labeling accuracy, $185.
•
Price accuracy, $255.
•
Other reinspections, $175.
Comparison with federal regulations
States have the primary responsibility for regulating weights and measures. The National Institute of Standards and Technology (NIST) provides model regulations and standards which may be adopted and enforced by the states. This rule is not mandated by federal law.
Comparison of rules in adjacent states
Wisconsin has a well-developed weights and measures program. Wisconsin statutes authorize DATCP to license persons who operate or service weights and measures in the state and also authorize DATCP to adopt rules prescribing standards for the construction, operation and maintenance of weights and measures and to establish the fees for inspections and licenses.
Some surrounding states have less comprehensive weights and measures programs, and fewer administrative options for standardizing and regulating weights and measures. Surrounding states tend to regulate weights and measures on a more ad hoc basis. However, several surrounding states have established weights and measures fees to help fund their state programs.
Retail Food Establishments
Illinois and Minnesota charge retail food establishment scale fees, and Minnesota charges fees for package checking. Comparable Illinois scale fees range from $20-$900 annually per establishment, depending upon number of scales. Minnesota scale fees range from $35-$1125 annually per establishment, depending upon number of scales (the fee is $25 per scale). Minnesota package checking fees range from $35-$330 depending on lot size.
Weights and Measures Service Companies and Technicians
Illinois and Michigan license weights and measures service companies. Illinois has an annual license fee of $50. Michigan has a $300 biennial license fee. Minnesota does not have a licensing program (funding comes from general program revenue).
Illinois and Michigan both license service company technicians. Illinois has an annual technician license fee of $25. Michigan has a $100 technician license fee every 2 years. Minnesota does not have a licensing program (funding comes from general program revenue).
Vehicle Scales
Illinois and Minnesota both license vehicle scales. Illinois has an annual license fee of $200. Minnesota charges a range of $170-$250 per license with a Place in Service fee of $110. Michigan does not have a licensing program (funding comes from general program revenue).
LP Gas Meters
Illinois and Minnesota both license LP gas meters. Illinois has an annual license fee of $165. Minnesota has a $150 license fee with a “place-in-service" fee of $110. Michigan does not have a licensing program (funding comes from general program revenue).
Vehicle Tank Meters
Illinois and Minnesota both license vehicle tank meters. Illinois charges a range of $100 to $200 for an annual license. Minnesota's program funding comes from other sources, but does have a “place-in-service" fee of $110. Michigan does not have a licensing program (funding comes from general program revenue).
Reinspection Fees
Device
|
Illinois fees
|
Michigan fees
|
Minnesota fees
|
Vehicle Scale
(large capacity)
|
$200
|
GPR
(no fee)
|
Avg $388
|
Medium Capacity Scale
|
$75-200
|
GPR
|
$145-270
|
Small Capacity Scale
|
$20-50
|
GPR
|
$125-$250
|
Vehicle Tank Meter
|
$100-200
|
GPR
|
SEG
|
LPG Meter
|
$165
|
GPR
|
$250
|
Loading Rack Meter
|
$200
|
GPR
|
SEG
|
Retail Motor Fuel
|
$50
|
GPR
|
SEG
|
Timing Device
|
N/A
|
GPR
|
$175/hr
|
Grain Moisture Meter
|
$100
|
GPR
|
N/A
|
Package Labeling
|
N/A
|
GPR
|
$235-$530
|
Price Accuracy
|
N/A
|
GPR
|
$175-$190/hour
|
Other
|
N/A
|
GPR
|
$175-190/hour
|
Small Business Impact
This rule will affect businesses that operate or service weights and measures in Wisconsin. Many affected business will pay higher fees, or will pay fees for the first time. However, the fee increases are not expected to have a major impact on overall business costs. Fees for each business category are proportionate to weights and measures program costs for that business category, and cover only a portion of program costs. A complete business impact analysis is available from DATCP.
Fiscal Estimate
This rule will increase annual DATCP revenues by an estimated $400,000 and will allow DATCP to cover a larger share of its costs to administer Wisconsin's weights and measures program. This rule will have no significant impact on local units of government. A complete fiscal estimate is available from DATCP.
Agency Contact Person
Questions and comments related to this rule may be directed to:
Michelle Reinen, Program & Policy Analyst
Dept. of Agriculture, Trade and Consumer Protection
P.O. Box 8911
Madison, WI 53708-8911
Telephone: (608) 224-5160
