Rule-Making Notices (Hearing Notices)

Wisconsin Administrative Register No. 685, 1/31/2013

Rule-Making Notices

Notice of Hearing

Agriculture, Trade and Consumer Protection

CR 13-002

(DATCP DOCKET # 12-R-07)

The Wisconsin Department of Agriculture, Trade and Consumer Protection (DATCP) announces that it will hold a public hearing on a proposed rule, chapter ATCP 134, relating to residential rental practices.

DATCP will hold one public hearing at the time and place shown below.

Hearing Information

Date:   Friday, February 22, 2013

Time:   9:00 a.m.

Location:   Board Room (1st Floor)
  Department of Agriculture, Trade and Consumer Protection
  2811 Agriculture Drive
  Madison, WI 53718-6777

Hearing impaired persons may request an interpreter for this hearing. Please make reservations for a hearing interpreter by February 8, 2013, by writing to Kevin LeRoy, Division of Trade and Consumer Protection, P.O. Box 8911, Madison, WI 53708-8911; or by emailing [e-mail]; or by telephone at [phone]. Alternatively, you may contact the DATCP TDD at [phone]. The hearing facility is handicap accessible.

Availability of Rules and Submitting Comments

DATCP invites the public to attend the hearing and comment on the proposed rule. Following the public hearing, the hearing record will remain open until March 8, 2013 for additional written comments. Comments may be sent to the Division of Trade and Consumer Protection at the address below, or to [e-mail], or to http://adminrules.wisconsin.gov.

You can obtain a free copy of this hearing draft rule and related documents including the economic 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 [phone] or by emailing [e-mail]. Copies will also be available at the hearing. To view the hearing draft rule online, go to: http://adminrules. wisconsin.gov.

Comments or concerns relating to small business may also be addressed to DATCP's small business regulatory coordinator Keeley Moll at the address above, or by email to [e-mail], or by telephone at [phone].

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

Statutes interpreted

Section 100.20 (1), Stats.

Statutory authority

Sections 93.07 (1), 100.20 (2) (a), and 704.95, Stats.

Explanation of statutory authority

DATCP has broad general authority, under s. 93.07 (1), Stats., to interpret laws under its jurisdiction. DATCP has authority under s. 100.20 (2) (a), Stats., to promulgate administrative rules forbidding trade practices which are determined by the department to be unfair and prescribing trade practices that are determined by the department to be fair.

Section 704.95, Stats. (created by 2011 Wisconsin Act 143) provides that practices in violation of Ch. 704, Stats., may also constitute unfair trade practices or unfair methods of competition under s. 100.20, Stats. This section also restricts DATCP from promulgating rules that change any right or duty arising under Ch. 704, Stats. However, there are a number of rights and duties in the existing rule, which predates 2011 Wisconsin Act 143 (Act 143), that are similar to the new statutory requirement.

Related statutes or rules

Chapter 704, Stats., regulates transactions between landlords and both residential and non-residential tenants. The department does not administer ch. 704, Stats.

Chapter ATCP 125, Wis. Adm. Code regulates rental transactions for sites upon which the tenant places a mobile home owned by the tenant.

Plain language analysis

Background

The department enacted ch. ATCP 134, Wis. Adm. Code, (“the existing rule") in 1980 and the rule was revised in 1998. The current rule regulates rental transactions between landlords and residential tenants as follows:

•   Requires disclosure of rental agreement and earnest money receipts to the tenant.

•   Requires disclosures to tenant prior to lease relating to the identity of the landlord, conditions affecting habitability, and utility charges.

•   Prescribes procedures for accepting and withholding earnest money fees and credit check fees.

•   Prescribes procedures for handling security deposits.

•   Prescribes procedures for promises to repair.

•   Prohibits a landlord from including in rental agreements provisions that do the following:

•   Authorize unlawful eviction.

•   Accelerate rent payments in event of tenant default.

•   Require the tenant to pay attorney's fees.

•   Authorize the landlord to confess judgment against the tenant.

•   Relieve the landlord from liability for property damage or personal injury caused by the landlord.

•   Impose liability on the tenant for property damage or personal injury not caused by the tenant.

•   Waive statutory or legal obligations of the landlord.

•   Prohibits a landlord from:

•   Advertising or renting condemned premises.

•   Unauthorized entries.

•   Automatically renewing a lease without notice.

•   Unlawfully confiscating personal property.

•   Engaging in retaliatory or self-help eviction.

•   Charging late rental fees and other penalties not set out in the lease.

•   Misrepresenting the dwelling units offered or the amount of all rent and non-rent charges.

•   Failing to disclose all non-rent charges in connection with the representation of any rent amount.

Rule Content

The Wisconsin legislature enacted Act 143 on March 21, 2012. Act 143 made changes to ch. 704, Stats., that affect some of the provisions of the current rule relating to:

•   Disclosures required before entering into a rental agreement.

•   Returning security deposits.

•   Withholding security deposits.

•   Prohibiting certain rental agreement provisions.

•   Confiscating personal property left behind by a tenant.

•   Violations of Landlord Tenant law may constitute a violation of Unfair Trade Practices Law.

As a result of Act 143, some provisions of the existing rule overlap and conflict with Ch. 704. This rule would modify the current rule to conform to the new statutory requirements.

Disclosures required before entering into a rental agreement

The current rule requires certain disclosures a landlord must make to the tenant before entering into a rental agreement with, or accepting any earnest money or security deposit from, a prospective tenant. These disclosures relate to conditions affecting habitability.

Act 143 creates s. 704.07 (2) (bm), Stats., which requires disclosures relating to habitability that are similar, but not identical, to the disclosures prescribed by the current rule.

This rule repeals and recreates the required disclosures to make them identical to the disclosures required by statute.

Returning security deposits

Under the current rule, if the tenant surrenders the property before the last day of the rental agreement, the landlord must return the security deposit within 21 days after the landlord receives a written notice from the tenant that the tenant has surrendered the premises.

Act 143 creates s. 704.28 (4) (b), Stats., which requires the landlord, if the tenant surrenders the property before the last day of the rental agreement, to return the security deposit within 21 days after the last day of the rental agreement.

This rule amends the requirement to return a security deposit to be identical to the provision of the Act.

Withholding security deposits

Under the current rule, a landlord may withhold a tenant's security deposit only for specific reasons listed in the rule such as damage to the premises; unpaid rent; unpaid utilities or assessments that the landlord is liable for unpaid amounts; or other reasons specifically listed in the rental agreement as “nonstandard rental provisions."

Act 143 creates s. 704.28 (1), Stats., which incorporates very similar (but not identical) provisions into the statute.

This rule makes minor changes to the wording of the provisions relating to withholding a tenant's security deposit to conform with Act 143, but does not substantially change the requirements from the current rule.

Prohibited rental agreement provisions

The current rule describes provisions that a landlord is prohibited from placing in a rental agreement, such as:

•   Authorizing eviction by other than judicial procedure.

•   Acceleration of rent payments if tenant breaches obligations.

•   Requiring the tenant to pay landlord's attorney's fees in the event of a dispute.

•   Relieving the landlord from liability for damage or injury caused by negligent acts or omissions of the landlord.

•   Imposing liability on the tenant for personal injury arising from causes clearly beyond the tenant's control.

Act 143 creates portions of s. 704.44, Stats., which describe prohibited rental agreement provisions that are similar, but not identical, to provisions in the current rule. Further, Act 143 states that the entire rental agreement is void and unenforceable if it contains any of the prohibited provisions. The current rule does not have such a provision, but instead relies on a test established by the courts to determine whether the entire rental agreement is void based on the inclusion of a prohibited provision.

This rule makes minor changes in wording related to prohibited rental agreement provisions so that the rule is identical to the new statute. This rule also incorporates the provision in s. 704.44, Stats., that declares the entire rental agreement is void and unenforceable if it contains any of the prohibited rental agreement provisions.

Confiscating personal property left behind by the tenant

The current rule prohibits the landlord from confiscating the tenant's personal property except as authorized by law or in accordance with a written lien agreement. The current rule also prescribes the form and manner in which the landlord and tenant may execute the lien agreement.

Act 143 allows a landlord to dispose of personal property left behind by the tenant at the landlord's discretion as long as certain conditions are met. For example, there must not be a written agreement to the contrary, and the landlord must provide notice to the tenant of his or her intent not to store the property before the tenant enters into or renews a rental agreement.

This rule amends the current rule so that provisions relating to abandoned personal property are identical to the statute.

Summary of, and comparison with, existing or proposed federal statutes and regulations

Federal law does not generally regulate landlord and tenant relationships or residential rental practices. The Federal Fair Housing Act of 1968 makes it illegal for a landlord to discriminate against a potential tenant because of a person's race, sex, national origin, or religion, and it prohibits certain discriminatory conduct.

Comparison with rules in adjacent states

Illinois, Iowa, Michigan, and Minnesota all have statutes or administrative rules governing residential rental practices. These statutes and rules address common topics such as rental agreements, security deposits and other duties of landlords and tenants.

Summary of factual data and analytical methodologies

This rule modifies the current rule to conform to policies dictated by a change in Wisconsin statutes.

Analysis and supporting documents used to determine effect on small business or in preparation of an economic impact analysis

DATCP anticipates that the economic impact of this rule will be minimal. This rule makes minor changes to conform to Ch. 704, Stats. This rule also makes changes to the current rule to replace requirements that are no longer enforceable because of changes in Ch. 704, Stats.

Effect on Small Business/Initial Regulatory Flexibility Analysis

Rule summary

The Wisconsin legislature enacted Act 143 on March 21, 2012. Act 143 made changes to ch. 704, Stats., that affect some of the provisions of the current rule relating to:

•   Disclosures required before entering into a rental agreement.

•   Returning security deposits.

•   Withholding security deposits.

•   Prohibiting certain rental agreement provisions.

•   Confiscating personal property left behind by a tenant.

•   Violations of Landlord Tenant law may constitute a violation of Unfair Trade Practices Law.

As a result of Act 143, some provisions of the existing rule overlap and conflict with Ch. 704. This rule would modify the current rule to conform to the new statutory requirements.

Disclosures required before entering into a rental agreement

The current rule requires certain disclosures a landlord must make to the tenant before entering into a rental agreement with, or accepting any earnest money or security deposit from, a prospective tenant. These disclosures relate to conditions affecting habitability.

Act 143 creates s. 704.07 (2) (bm), Stats., which requires disclosures relating to habitability that are similar, but not identical, to the disclosures prescribed by the current rule.

This rule repeals and recreates the required disclosures to make them identical to the disclosures required by statute.

Returning security deposits

Under the current rule, if the tenant surrenders the property before the last day of the rental agreement, the landlord must return the security deposit within 21 days after the landlord receives a written notice from the tenant that the tenant has surrendered the premises.

Act 143 creates s. 704.28 (4) (b), Stats., which requires the landlord, if the tenant surrenders the property before the last day of the rental agreement, to return the security deposit within 21 days after the last day of the rental agreement.

This rule amends the requirement to a return a security deposit to be identical to the provision Act.

Withholding security deposits

Under the current rule, a landlord may withhold a tenant's security deposit only for specific reasons listed in the rule such as damage to the premises; unpaid rent; unpaid utilities or assessments that the landlord is liable for unpaid amounts; or other reasons specifically listed in the rental agreement as “nonstandard rental provisions."

Act 143 creates s. 704.28 (1), Stats., which incorporates very similar (but not identical) provisions into the statute.

This rule makes minor changes to the wording of the provisions relating to withholding a tenant's security deposit to conform with Act 143, but does not substantially change the requirements from the current rule.

Prohibited rental agreement provisions

The current rule describes provisions that a landlord is prohibited from placing in a rental agreement, such as:

•   Authorizing eviction by other than judicial procedure.

•   Acceleration of rent payments if tenant breaches obligations.

•   Requiring the tenant to pay landlord's attorney's fees in the event of a dispute.

•   Relieving the landlord from liability for damage or injury caused by negligent acts or omissions of the landlord.

•   Imposing liability on the tenant for personal injury arising from causes clearly beyond the tenant's control.

Act 143 creates portions of s. 704.44, Stats., which describe prohibited rental agreement provisions that are similar, but not identical, to provisions in the current rule. Further, Act 143 states that the entire rental agreement is void and unenforceable if it contains any of the prohibited provisions. The current rule does not have such a provision, but instead relies on a test established by the courts to determine whether the entire rental agreement is void based on the inclusion of a prohibited provision.

This rule makes minor changes in wording related to prohibited rental agreement provisions so that the rule is identical to the new statute. This rule also incorporates the provision in s. 704.44, Stats., that declares the entire rental agreement is void and unenforceable if it contains any of the prohibited rental agreement provisions.

Confiscating personal property left behind by the tenant

The current rule prohibits the landlord from confiscating the tenant's personal property except as authorized by law or in accordance with a written lien agreement. The current rule also prescribes the form and manner in which the landlord and tenant may execute the lien agreement.

Act 143 allows a landlord to dispose of personal property left behind by the tenant at the landlord's discretion as long as certain conditions are met. For example, there must not be a written agreement to the contrary, and the landlord must provide notice to the tenant of his or her intent not to store the property before the tenant enters into or renews a rental agreement.

This rule amends the current rule so that provisions relating to abandoned personal property are identical to the statute.

Small Businesses Affected

The current rule and the proposed rule regulate transactions between landlords and tenants. Many landlords are small businesses. However, this proposed rule does not have any material effect on any small business. The proposed rule does not change the duties and responsibilities of landlords in relation to their tenants. Instead, the proposed rule states the duties and responsibilities of the landlord and eliminates inconsistencies between the Ch. 704, Stats., and Ch. ATCP 134, Wis. Admin. Code.

Reporting, Bookkeeping and other Procedures

The proposed rule does not create any new reporting, bookkeeping or other procedures for small businesses.

Professional Skills Required

The proposed rule does not require any new professional skills by small businesses.

Accommodation for Small Business

Many of the businesses affected by this rule are “small businesses." For the most part, this rule does not make special exceptions for “small businesses". The nature of the subject matter does not lend itself to differentiating between types of businesses.

Conclusion

This rule will not have a significant adverse effect on “small business," and is not subject to the delayed “small business" effective date provided in s. 227.22 (2) (e), Stats.

DATCP will, to the maximum extent feasible, seek voluntary compliance with this rule.

Agency contact

Kevin LeRoy, Division of Trade and Consumer Protection, P.O. Box 8911, Madison, WI 53708-8911; email [e-mail]; telephone [phone].

ADMINISTRATIVE RULES FISCAL ESTIMATE AND ECONOMIC IMPACT ANALYSIS
Type of Estimate and Analysis
X Original ⍽ Updated ⍽ Corrected
Administrative Rule Chapter, Title and Number
Ch. ATCP 134, Residential Rental Practices
Subject
Residential Rental Practices
Fund Sources Affected			Chapter 20 , Stats. Appropriations Affected
X GPR ⍽ FED ⍽ PRO ⍽ PRS ⍽ SEG ⍽ SEG-S			20.115(1)(a)
Fiscal Effect of Implementing the Rule
X No Fiscal Effect ⍽ Indeterminate	⍽ Increase Existing Revenues ⍽ Decrease Existing Revenues		⍽ Increase Costs ⍽ Could Absorb Within Agency's Budget ⍽ Decrease Costs
The Rule Will Impact the Following (Check All That Apply)
⍽ State's Economy ⍽ Local Government Units		X Specific Businesses/Sectors ⍽ Public Utility Rate Payers
Would Implementation and Compliance Costs Be Greater Than $20 million? ⍽ Yes X No
Policy Problem Addressed by the Rule
Ch. ATCP 134, Wis. Adm. Code, was enacted in 1980 and the rule was revised in 1998. The current rule regulates rental transactions between landlords and residential tenants as follows: •   Requires disclosure of rental agreement and earnest money receipts to the tenant. •   Requires disclosures to tenant prior to lease relating to the identity of the landlord, conditions affecting habitability, and utility charges. •   Prescribes procedures for accepting and withholding earnest money fees and credit check fees. •   Prescribes procedures for handling security deposits. •   Prescribes procedures for promises to repair. •   Prohibits a landlord from including in rental agreements provisions that do the following: •   Authorize unlawful eviction. •   Accelerate rent payments in event of tenant default. •   Require the tenant to pay attorney's fees. •   Authorize the landlord to confess judgment against the tenant. •   Relieve the landlord from liability for property damage or personal injury caused by the landlord. •   Impose liability on the tenant for property damage or personal injury not caused by the tenant. •   Waive statutory or legal obligations of the landlord. •   Prohibits a landlord from: •   Advertising or renting condemned premises. •   Unauthorized entries. •   Automatically renewing a lease without notice. •   Unlawfully confiscating personal property. •   Engaging in retaliatory or self-help eviction. •   Charging late rental fees and other penalties not set out in the lease. •   Misrepresenting the dwelling units offered or the amount of all rent and non-rent charges. •   Failing to disclose all non-rent charges in connection with the representation of any rent amount. Chapter 704, Stats., relating to Landlord Tenant, regulates transactions between landlords and both residential and non-residential tenants. The department does not administer ch. 704, Stats. The Wisconsin legislature enacted Act 143 on March 21, 2012 that made changes to ch. 704, Stats that also affect some provisions of current rule. This rule would modify the current rule to conform to the new statutory requirements.
Summary of Rule's Economic and Fiscal Impact on Specific Businesses, Business Sectors, Public Utility Rate Payers, Local Governmental Units and the State's Economy as a Whole (Include Implementation and Compliance Costs Expected to be Incurred)
This rule makes minor changes to the existing rule and does not represent any significant shift in policy. It does not pose any significant fiscal or economic impact on specific businesses, business sectors, public utility rate payers, local governments or the state's economy as a whole.
Benefits of Implementing the Rule and Alternative(s) to Implementing the Rule
Benefits This rule will benefit renters and landlords. Generally, it continues policies that have been in place for a number of years. Alternatives The passage of Act 143 leaves no real alternative. The newly created s. 704.95, Stats., prohibits DATCP from promulgating rules that change any right or duty described in ch. 704, Stats. There are a number of provisions where the existing rule is similar, but not identical to ch. 704, Stats. If this rule is not adopted, it is questionable that those rule provisions are enforceable. This is significant because DATCP, the Department of Justice, and district attorneys have the authority to enforce ch. ATCP 134 (as an Unfair Trade Practice under s. 100.20, Stats.) but do not have authority to enforce ch. 704, Stats.
Long Range Implications of Implementing the Rule
There are no long term implications of implementing this rule. This rule modifies the current rule to conform to policies dictated by a change in Wisconsin statutes.
Compare With Approaches Being Used by Federal Government
Federal law does not generally regulate landlord and tenant relationships or residential rental practices. The Federal Fair Housing Act of 1968 makes it illegal for a landlord to discriminate against a potential tenant because of a person's race, sex, national origin, or religion, and it prohibits certain discriminatory conduct.
Compare With Approaches Being Used by Neighboring States (Illinois, Iowa, Michigan and Minnesota)
Illinois, Iowa, Michigan, and Minnesota all have statutes or administrative rules governing residential rental practices. These statutes and rules address common topics such as rental agreements, security deposits and other duties of landlords and tenants. Comments Received in Response to Web Posting and DATCP Response No comments were received in response either to the posting on the DATCP external website or the statewide administrative rules website.

Notice of Hearing

Agriculture, Trade and Consumer Protection

CR 13-003

(DATCP DOCKET # 12-R-03)

The Wisconsin Department of Agriculture, Trade and Consumer Protection (DATCP) announces that it will hold public hearings on a proposed rule to create chapter ATCP 49, relating to the farmland preservation program.

DATCP will hold four public hearings at the time and place shown below.

Hearing Information

Date:   Thursday, February 14, 2013

Time:   2:30 p.m to 4:30 p.m. and 6:30 p.m. to 8:30 p.m.

Location:   Outagamie County Highway Department
  Conference Room
  1313 Holland Road
  Appleton, WI 54911

Date:   Thursday, February 21, 2013

Time:   2:30 p.m to 4:30 p.m. and 6:30 p.m. to 8:30 p.m.

Location:   DNR Service Center
  Conference Rooms 158/185
  1300 W. Clairemont Avenue
  Eau Claire, WI 54701

Date:   Tuesday, February 26, 2013

Time:   2:30 p.m to 4:30 p.m. and 6:30 p.m. to 8:30 p.m.

Location:   Marathon County UW-Extension Office
  Conference Room #5
  212 River Drive
  Wausau, WI 54403

Date:   Thursday, February 28, 2013

Time:   2:30 p.m to 4:30 p.m. and 6:30 p.m. to 8:30 p.m.

Location:   Board Room (1st Floor)
  Department of Agriculture, Trade and Consumer Protection
  2811 Agriculture Drive
  Madison, WI 53718-6777

Hearing impaired persons may request an interpreter for this hearing. Please make reservations for a hearing interpreter by February 5, 2013, by writing to Alison Volk, Division of Agricultural Resource Management, P.O. Box 8911, Madison, WI 53708-8911; or by emailing [e-mail]; or by telephone at [phone]. Alternatively, you may contact the DATCP TDD at [phone]. The hearing facility is handicap accessible.

Availability of Rules and Submitting Comments

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 March 15, 2013 for additional written comments. Comments may be sent to the Division of Agricultural Resource Management at the address below, or to [e-mail], or to http://adminrules.wisconsin.gov.

You can obtain a free copy of this hearing draft rule and related documents including the economic impact analysis 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 by emailing [e-mail]. Copies will also be available at the hearing. To view the hearing draft rule online, go to: http://adminrules. wisconsin.gov.

Comments or concerns relating to small business may also be addressed to DATCP's small business regulatory coordinator Keeley Moll at the address above, or by email to [e-mail], or by telephone at [phone].

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

Statutes interpreted

Chapter. 91, Stats.

Statutory authority

Sections 91.02 and 93.07 (1), Stats.

Explanation of statutory authority

DATCP has specific and general authority to establish rules interpreting and clarifying provisions of ch. 91, Stats., the farmland preservation program. DATCP has general authority for promulgating rules under s. 93.07 (1), Stats., for all of its program areas, and under s. 91.02 for the administration of ch. 91, Stats. Under s. 91.02 (1), DATCP has specific authority to set forth technical specifications for farmland preservation zoning maps under s. 91.38 (1) (d), Stats. DATCP has specific authority under s. 91.02 (2), Stats., to identify additional uses that would qualify as accessory uses, agricultural uses, agriculture-related uses, and base farm tracts. DATCP also has specific authority under s. 91.02 (2), Stats., to specify requirements for certifications of farmland preservation plans under s. 91.18 (1) (b), Stats., as well as farmland preservation zoning ordinances under s. 91.38 (1) (i), Stats. Section 91.02 (2), Stats., also gives DATCP specific authority to require information in an application for certification of a farmland preservation plan or amendment under s. 91.20 (4), Stats., or zoning ordinance under s. 91.40 (5), Stats., and to specify the types of ordinance amendments for which certification is required under s. 91.36 (8) (b) 3, Stats. DATCP has authority under s. 91.02 (2), Stats., to authorize additional uses in a farmland preservation zoning district under s. 91.42 (4), including additional uses allowed as permitted uses under s. 91.44 (1) (g), Stats., and as conditional uses under s. 91.46 (1) (j), Stats. Finally, DATCP has the authority under s. 91.02 (2), Stats., to require information in an application for a farmland preservation agreement under s. 91.64 (2) (h), Stats.

Related statutes and rules

Chapter 91, Stats., governs the state's farmland preservation program. Landowners who participate in the zoning or farmland preservation agreement provisions of the program are eligible for farmland preservation tax credits under s. 71.613, Stats. Under ss. 91.80 and 91.82, Stats., landowners claiming those tax credits are required to comply with soil and water conservation standards promulgated by the department under ss. 92.05 (3) (c) and (k), 92.14 (8), and 281.16 (3) (b) and (c), Stats. Those standards are found primarily in ch. ATCP 50, Wis. Adm. Code, as well as the Department of Natural Resources performance standards under ss. NR 151.02 to 151.08, Wis. Adm. Code.

Plain language analysis

Background

Wisconsin's Farmland Preservation Program (FPP), ch. 91, Stats., was repealed and recreated under 2009 Wis. Act 28. Chapter 91, Stats., was updated to acknowledge the growing pressures on farmland across the state and to curb the increasing conversion of farmland out of agricultural use.

The farmland preservation law requires all counties to update their farmland preservation plans before January 1, 2016. The farmland preservation planning process ensures that local governments evaluate the agricultural land within their boundaries and consider the role that agriculture plays in their local economy. Counties must submit farmland preservation plans to DATCP for certification. In order to be certified by DATCP, the plan must meet certain requirements under ch. 91, Stats. Once a plan is certified, land that is identified as part of a farmland preservation area is then eligible for other parts of the FPP.

One such part of the FPP is farmland preservation zoning. Local governments may choose to adopt farmland preservation zoning ordinances to protect farmland. Similar to farmland preservation plans, zoning ordinances must also be submitted to the department for certification. To be certified, the ordinance must meet certain requirements under ch. 91, Stats. The certification process ensures that only compatible uses are allowed in the farmland preservation district to limit pressures on active agriculture created by the presence of incompatible uses. Once certified, landowners are eligible to claim farmland preservation tax credits.

Another component of the FPP is the farmland preservation agreement. Under ch. 91., Stats., any new agreement must cover land located in a landowner-initiated and state-designated Agricultural Enterprise Area (AEA). Landowners with farmland preservation agreements are eligible to collect farmland preservation tax credits. By clustering agreements in areas that are primarily devoted to agricultural use, farmland can be better protected because a concentration of agriculture provides landowners with the confidence that the surrounding land will remain in agriculture. This confidence encourages landowners not only to continue farming, but to make additional investments in their agricultural operations.

Rule Content

GENERAL

This rule does all of the following:

•   Creates ch. ATCP 49.

•   Adds to definitions listed under s. 91.01, Stats., and further clarifies certain terms in ch. 91.

•   Provides guidance for applying for and receiving certification of farmland preservation plans and ordinances.

•   Specifies types of ordinance amendments for which certification is required under s. 91.36 (8) (b) 3, Stats.

•   Authorizes additional uses allowed in a farmland preservation zoning district.

•   Specifies information required in an application for a farmland preservation agreement under s. 91.64 (2) (h), Stats.

DEFINITIONS

This rule:

•   Clarifies types of uses that may be listed by a political subdivision as accessory uses and agriculture-related uses.

•   Defines crops and forest management.

•   Adds a definition of base farm tract to provide political subdivisions flexibility in administering this density restriction if they choose to utilize it.

Farmland Preservation Plans

This rule:

•   Clarifies that a county has one year after the expiration date to have its farmland preservation plan certified by the department.

•   Clarifies when counties may request an extension to the expiration of their farmland preservation plan to facilitate coordination with other planning and zoning efforts that may be occurring in the county.

•   Clarifies that any amendment to a certified farmland preservation plan must be submitted to the department for certification.

•   Clarifies that the rationale used for identifying the farmland preservation area must be based on objective criteria. Describes the relationship between the farmland preservation plan and any county's comprehensive plan.

•   Provides technical specifications for the farmland preservation plan map and states that the county must provide the department with the data used to create the map.

Farmland Preservation Zoning

This rule:

•   Clarifies that nonfarm residences existing at the time an ordinance is certified may be considered permitted uses rather than prior nonconforming uses.

•   Authorizes single-family nonfarm dwellings as conditional uses subject to density restrictions that are as restrictive, or more restrictive, than the density standards under ch. 91, Stats.

•   Describes the types of uses that would qualify as governmental, institutional, religious, or nonprofit community uses.

•   Clarifies that an ordinance expires according to the statutory schedule in s. 91.34, Stats., and a political subdivision has a year after the expiration date to have its ordinance certified by the department to prevent landowners from losing eligibility to collect farmland preservation tax credits.

•   Clarifies that local governments may request an extension to the expiration of their farmland preservation zoning ordinance to facilitate coordination with other planning and zoning efforts that may be occurring in the town or county.

•   Describes the relationship between a political subdivision's farmland preservation zoning ordinance and the county's farmland preservation plan.

•   Provides technical specifications for the farmland preservation zoning map and states that the political subdivision must provide the department with the data used to create the map.

•   Specifies that the department may withdraw certification of an ordinance if the county farmland preservation plan expires or if the political subdivision adopts an ordinance that fails to comply with ch. 91, Stats.

•   Specifies when an amendment to a farmland preservation zoning ordinance must be submitted to the department for certification.

Farmland Preservation Agreements

This rule:

•   Requires landowners to include in an application for a farmland preservation agreement those lands that the landowner owns yet intends to exclude from coverage under the agreement.

Summary of, and comparison with, existing or proposed federal statutes and regulations

There are no federal regulations or statutes related to this rule.

Comparison to rules in adjacent states

Michigan, Illinois, and Minnesota have statewide programs in which landowners may restrict the use of their land to agricultural or related uses in exchange for tax credits. These programs require local governments to engage in planning efforts prior to allowing landowners to enter into these agreements.

Michigan allows farmers voluntarily to enter into a Farmland Development Rights Agreement with the state. In exchange for income tax credits and exemptions from special assessments, landowners agree not to develop the land for a specified number of years.

In Illinois, any single landowner, or two or more contiguous landowners with over 350 acres of land, may form an Agricultural District. The county government is responsible for approving and implementing these areas, however the Illinois Department of Agriculture may advise those county governments interested in forming or expanding these areas. Once land is within an Agricultural District, the area remains protected for ten years. Landowners can request additions to, deletions from, or dissolution of the area. Land within the area is protected from local laws that might restrict farming practices and from special assessments.

In Minnesota, counties outside of the metropolitan area can participate in the Greater Minnesota Agricultural Preserves Program. Counties that want to participate must develop an agricultural land preservation plan for review and approval by the commissioner of the Minnesota Department of Agriculture. The plan must identify land for long-term agricultural use and anticipate expected growth around urbanized areas. The designated areas must be adopted as part of the county's comprehensive plan. Landowners that are located within these areas may then place a restrictive covenant on their land, agreeing to limit the land to agricultural or forestry use. The covenant is recorded on the title to the land. In exchange for agreeing to preserve land for long term agricultural use, the landowner receives property tax credits of $1.50 per acre, per year.

Summary of factual data and analytical methodologies

To develop this rule, DATCP consulted a group of stakeholders familiar with and potentially affected by the provisions of the rule. DATCP also collected feedback from local government officials who had experience working with, understanding, and implementing the farmland preservation law.

Analysis and supporting documents used to determine effect on small business or in preparation of an economic impact analysis

This rule will have a generally positive impact on agriculture-related businesses. As part of the farmland preservation planning process, counties are required to inventory and evaluate agriculture-related businesses and services, including agricultural production and enterprises related to agriculture. This process helps to ensure that the impact of agriculture-related business can be measured within the community. By clarifying this requirement in the planning process, the rule may aid communities in accurately capturing the breadth of agriculture-related businesses within the area.

This rule also clarifies farmland preservation zoning standards, encouraging local governments to include agriculture-related enterprises in the zoning district. Most agriculture-related businesses may be allowed in a farmland preservation zoning district either as an agriculture-related use or an accessory use. Though such businesses may or may not collect tax credits, their presence in the district may add additional economic certainty to farmers within the certified farmland preservation district.

There are currently over 15,000 farm owners on approximately 2.8 million acres of farmland claiming farmland preservation income tax credits. There is a statutory cap of $27 million for tax credits claimed for lands subject to farmland preservation zoning.

Effect on Small Business /Initial Regulatory Flexibility Analysis

Rule Summary

This rule interprets the Wisconsin Farmland Preservation Program administered by the Department of Agriculture, Trade and Consumer Protection (“DATCP"). Among other things, this rule does all of the following:

General

•   Creates ch. ATCP 49.

•   Adds to definitions listed under s. 91.01, Stats., and further clarifies certain terms in ch. 91.

•   Provides guidance for applying for and receiving certification of farmland preservation plans and ordinances.

•   Specifies types of ordinance amendments for which certification is required under s. 91.36 (8) (b) 3, Stats.

•   Authorizes additional uses allowed in a farmland preservation zoning district.

•   Specifies information required in an application for a farmland preservation agreement under s. 91.64 (2) (h), Stats.

Definitions

•   Clarifies types of uses that may be listed by a political subdivision as accessory uses and agriculture-related uses.

•   Defines crops and forest management.

•   Adds a definition of base farm tract to provide political subdivisions flexibility in administering this density restriction if they choose to utilize it.

Farmland Preservation Plans

•   Clarifies that a county has one year after the certification expiration date to have its farmland preservation plan certified by the department.

•   Clarifies when counties may request an extension to the expiration of their farmland preservation plan to facilitate coordination with other planning and zoning efforts that may be occurring in the county.

•   Clarifies that any amendment to a certified farmland preservation plan must be submitted to the department for certification.

•   Clarifies that the rationale used for identifying the farmland preservation area must be based on objective criteria. Describes the relationship between the farmland preservation plan and any county's comprehensive plan.

•   Provides technical specifications for the farmland preservation plan map and states that the county must provide the department with the data used to create the map.

Farmland Preservation Zoning

•   Clarifies that nonfarm residences existing at the time an ordinance is certified may be considered permitted uses rather than prior nonconforming uses.

•   Authorizes single-family nonfarm dwellings as conditional uses subject to density restrictions that are as restrictive, or more restrictive, than the density standards under ch. 91, Stats.

•   Describes the types of uses that would qualify as governmental, institutional, religious, or nonprofit community uses.

•   Clarifies that an ordinance certification expires according to the statutory schedule in s. 91.34, Stats., and a political subdivision has a year after the certification expiration date to have its ordinance certified by the department to prevent landowners from losing eligibility to collect farmland preservation tax credits.

•   Clarifies that local governments may request an extension to the expiration of their farmland preservation zoning ordinance to facilitate coordination with other planning and zoning efforts that may be occurring in the town or county.

•   Describes the relationship between a political subdivision's farmland preservation zoning ordinance and the county's farmland preservation plan.

•   Provides technical specifications for the farmland preservation zoning map and states that the political subdivision must provide the department with the data used to create the map.

•   Specifies that the department may withdraw certification of an ordinance if the county farmland preservation plan expires or if the political subdivision adopts an ordinance that fails to comply with ch. 91, Stats.

•   Specifies when an amendment to a farmland preservation zoning ordinance must be submitted to the department for certification.

Farmland Preservation Agreements

This rule:

•   Requires landowners to include in an application for a farmland preservation agreement those lands that the landowner owns yet intends to exclude from coverage under the agreement.

Small Business Affected

This rule will have a generally positive impact on agriculture-related businesses. This rule affects businesses in the following ways:

Farmland Preservation Plans

•   As part of the farmland preservation planning process, ch. 91, Stats., counties are required to describe the rationale used for determining the farmland preservation area. This rule clarifies that the rationale must be based on objective criteria related to characteristics of the land parcels themselves, including the proximity of parcels to agricultural infrastructure and the historical use of the land for agriculture-related purposes. As part of the farmland preservation planning process, counties are required to inventory and evaluate agriculture-related businesses and services, including agricultural production and enterprises related to agriculture. This process helps to ensure that agriculture-related businesses can be measured within the community and aid counties as they continue to plan for the presence of these businesses.

Farmland Preservation Zoning

•   Chapter 91, Stats., allows a political subdivision to locate accessory and agriculture-related uses within a certified farmland preservation district. This rule clarifies the types of uses that may be considered accessory and agriculture-related.

•   Accessory uses, under the rule, include facilities for storing, processing, selling, and housing agricultural products. Such uses primarily support agricultural activities occurring on the farm. These uses can make it possible for a farm to generate income through direct-to-consumer sales, such as a roadside farm, or can add value to a product produced on the farm, such as a cheese processing facility. The rule also clarifies that an accessory use can include those uses that may generate income yet do not conflict with (or may be enhanced by) the farm operation. Listed uses include crop mazes, agricultural tourism, and you-pick operations. The clarification of accessory use facilitates the inclusion of agricultural businesses, particularly small agricultural businesses, within the farmland preservation district.

•   The rule also clarifies that agriculture-related uses include facilities that support agriculture even though the use itself may not be located on a farm. Such uses include facilities that primarily provide agricultural supplies, agricultural equipment, fertilizers, pesticides or other agricultural inputs, or other agricultural services directly to farms. These uses also include manure digesters, facilities that slaughter livestock, and agricultural processing plants. The rule clarifies that political subdivisions may include within a farmland preservation zoning district businesses that support agriculture. Allowing such businesses to locate within a farmland preservation district helps provide these businesses with a potential customer base and may add additional economic certainty to farmers with land in the certified farmland preservation district.

Farmland Preservation Agreements

•   This rule requires landowners who submit an application to the department for a farmland preservation agreement to include in the application all lands owned within an Agricultural Enterprise Area that will not be covered by the agreement. This requirement ensures that landowners claiming tax credits under the agreement will not reserve land for purposes that conflict with the preservation of farmland. This in turn provides added certainty to neighboring farmers that conflicting uses will not threaten the continued agricultural production on their land.

Reporting, Bookkeeping and other Procedures

The proposed rule does not regulate any small businesses and thus there are no reporting, bookkeeping or other procedures in the proposed rule for small businesses.

Professional Skills Required

The proposed rule does not regulate any small businesses and thus there is no profession skill required for small businesses.

Accommodation for Small Business

Many of the businesses affected by this rule are “small businesses." This rule does not make special exceptions for small businesses because the farmland preservation program encompasses agricultural operations of all sizes.

This rule includes provisions that will benefit large and small businesses alike. For example, this rule:

•   Requires counties to consider agricultural businesses, regardless of size, when determining which lands to plan for farmland preservation.

•   Clarifies that certain activities that support and enhance agricultural uses may be located within a farmland preservation zoning district. These activities may include supplemental business ventures that can help support a small agricultural operation, such as agricultural tourism or seasonal activities.

Conclusion

This rule will generally benefit affected businesses, including “small businesses." Negative effects, if any, will be few and limited. This rule will not have a significant adverse effect on “small business," and is not subject to the delayed “small business" effective date provided in s. 227.22(2)(e), Stats.

Agency Contact

Alison Volk, Division of Agricultural Resource Management, P.O. Box 8911, Madison, WI 53708-8911; email [e-mail]; telephone [phone].

ADMINISTRATIVE RULES FISCAL ESTIMATE AND ECONOMIC IMPACT ANALYSIS
Type of Estimate and Analysis
X Original ⍽ Updated ⍽ Corrected
Administrative Rule Chapter, Title and Number
Ch. ATCP 49, Farmland Preservation
Subject
Wisconsin Farmland Preservation Program
Fund Sources Affected			Chapter 20 , Stats. Appropriations Affected
⍽ GPR ⍽ FED ⍽ PRO ⍽ PRS ⍽ SEG ⍽ SEG-S
Fiscal Effect of Implementing the Rule
X No Fiscal Effect ⍽ Indeterminate	⍽ Increase Existing Revenues ⍽ Decrease Existing Revenues		⍽ Increase Costs X Could Absorb Within Agency's Budget ⍽ Decrease Costs
The Rule Will Impact the Following (Check All That Apply)
⍽ State's Economy X Local Government Units		X Specific Businesses/Sectors ⍽ Public Utility Rate Payers
Would Implementation and Compliance Costs Be Greater Than $20 million? ⍽ Yes X No
Policy Problem Addressed by the Rule
Wisconsin's farmland preservation program, ch. 91, Stats., was repealed and recreated under 2009 Wis. Act 28. There are no rules in effect related to the farmland preservation program. This rule is necessary to provide clarity to counties updating their farmland preservation plans, local governments writing farmland preservation zoning ordinances, and landowners applying for farmland preservation agreements. The rule does all of the following: •   Creates ch. ATCP 49. •   Adds to definitions listed under s. 91.01, Stats., and further clarifies certain terms in ch. 91. •   Provides guidance for applying for and receiving certification of farmland preservation plans and ordinances. •   Specifies types of ordinance amendments for which certification is required under s. 91.36(8)(b)3, Stats. •   Authorizes additional uses allowed in a farmland preservation zoning district. •   Specifies information required in an application for a farmland preservation agreement under s. 91.64(2)(h).
Summary of Rule's Economic and Fiscal Impact on Specific Businesses, Business Sectors, Public Utility Rate Payers, Local Governmental Units and the State's Economy as a Whole (Include Implementation and Compliance Costs Expected to be Incurred)
This rule will not have any significant negative economic or fiscal impact on businesses, business sectors, public utility rate payers, local governmental units, or the state's economy as a whole and does not create additional requirements that local governments must follow. Chapter 91, Stats., requires all counties to update their farmland preservation plans before January 1, 2016. Implementing the plan through farmland preservation zoning is optional for local governments. This rule provides additional clarity to the requirements under ch. 91, Stats, for completing a farmland preservation plan and a zoning ordinance for those local governments that choose to adopt one. Added clarity will make the certification process of farmland preservation plans and zoning ordinances easier for local governments to understand and complete, and faster for the department to review. This will decrease the overall number of local government and state staff hours necessary to complete the planning and zoning process. This rule will have a generally positive impact on agriculture-related businesses. This rule clarifies farmland preservation zoning standards, encouraging local governments to include agriculture-related enterprises in the zoning district. Most agriculture-related businesses may be allowed in a farmland preservation zoning district either as an agriculture-related use or an accessory use. Though such businesses may or may not collect tax credits, their presence in the district may add additional economic certainty to farmers within the certified farmland preservation district.
Benefits of Implementing the Rule and Alternative(s) to Implementing the Rule
This rule will clarify statutory requirements, which will alleviate costs at both the state and local level. With added clarity in requirements for planning and zoning certification, local government staff will require less time to complete farmland preservation plans and ordinances while staff at the state level will require less time to review these plans and ordinances. Clarity in the farmland preservation zoning standards may also encourage additional agriculture-related businesses to be included within the farmland preservation zoning district, creating added stability for these businesses fostering agricultural economic development within the district. If DATCP does not adopt this rule, counties, towns, and municipalities will continue to update their farmland preservation plans and ordinances; however, these local governments would fail to benefit from the clarity and direction that this rule could provide. This lack of clarity may result in added staff time at both the local and state level.
Long Range Implications of Implementing the Rule
Long-term, implementing the rule will benefit local governments, agriculture-related businesses, and agricultural producers. Plans and ordinances are required to be updated at a minimum of every ten years. As a result, this rule will provide needed clarity to local governments both now and into the future. Further clarification of farmland preservation zoning standards will also build certainty for agriculture-related businesses and agricultural producers that activities supporting agricultural operations will be allowed within the certified district.
Compare With Approaches Being Used by the Federal Government
There are no federal regulations or statutes related to this rule.
Compare with Approaches Being Used by Neighboring States (Illinois, Iowa, Michigan and Minnesota)
Michigan, Illinois, and Minnesota have statewide programs in which landowners may restrict the use of their land to agricultural or related uses in exchange for tax credits. These programs require local governments to engage in planning efforts prior to allowing landowners to enter into these agreements. Michigan allows farmers to voluntarily enter in a Farmland Development Rights Agreement with the state. In exchange for income tax credits and exemptions from special assessments, landowners agree not to develop the land for a specified number of years. In Illinois, any single landowner, or two or more contiguous landowners with over 350 acres of land, may form an Agricultural District. The county government is responsible for approving and implementing these areas, however the Illinois Department of Agriculture may advise those county governments interested in forming or expanding these areas. Once land is within an Agricultural District, the area remains protected for ten years. Landowners can request additions to, deletions from, or dissolution of the area. Land within the area is protected from local laws that might restrict farming practices and from special assessments. In Minnesota, counties outside of the metropolitan area can participate in the Greater Minnesota Agricultural Preserves Program. Counties that want to participate must develop an agricultural land preservation plan for review and approval by the commissioner of the Minnesota Department of Agriculture. The plan must identify land for long-term agricultural use and anticipate expected growth around urbanized areas. The designated areas must be adopted as part of the county's comprehensive plan. Landowners who are located within these areas may then place a restrictive covenant on their land agreeing to limit the land to agricultural or forestry use. The covenant is recorded on the title to the land. In exchange for agreeing to preserve land for long-term agricultural use, the landowner receives property tax credits of $1.50 per acre, per year.
Comments Received in Response to Web Posting and DATCP Response The department received comments related to the economic impact of this rule from the Wisconsin REALTORS Association and the Wisconsin Builders Association. Each comment is listed below followed by DATCP's response. After reviewing the comments, DATCP has determined that they do not alter the economic impact analysis of ATCP 49. The comments either relate to the impact of ch. 91, Stats., regardless of the presence of an administrative rule or the comments address specific language within the rule itself. As a result, DATCP has encouraged both the Wisconsin REALTORS Association and the Wisconsin Builders Association to submit their comments either orally or in writing during the rulemaking hearing period.
1. Analysis of impact on small businesses is inadequate — The small business impact analysis on pp. 5-6 is inadequate given that it focuses exclusively on agriculture-related business. The analysis does not consider the impact on non-agriculture-related businesses, such as real estate development related businesses. Accordingly, the scope of the analysis should be expanded to include all small businesses. ATCP 49 will not impact other small businesses such as real estate development related businesses. The rule does not mandate that additional land should be unavailable for development. Instead, the rule clarifies that certain businesses may be included in a certified farmland preservation zoning district. These businesses are necessarily agricultural-related or are incidental to the agricultural use of the farm. As a result, the rule does not impact real estate development related businesses any further than ch. 91, Stats.

2. Housing impact statement requirement not met — Section 227.115 of the Wisconsin Statutes requires the Department of Administration to perform a housing impact report on any administrative rule that affects, among other things, the cost of housing or cost of constructing, rehabilitating, improving or maintaining single family or multifamily dwellings. Because ATCP 91 likely has an impact on the cost of housing by limiting the supply of developable land, a housing impact statement should be prepared as part of the administrative rulemaking process. ATCP 49 does not limit the supply of developable land any further than ch. 91, Stats. The rule clarifies that the rationale in the farmland preservation plan must be based on objective criteria related to characteristics of the land. One such characteristic is whether the land is under some development pressure even if the land is not located in an area the county plans for development in the next 15 years. Applying such objective criteria would not limit the supply of developable land because the county could use this determination as a reason for excluding this land from the farmland preservation area. Moreover, the farmland preservation plan itself does not limit whether land may be used for nonagricultural development. The farmland preservation plan is meant to guide future land use decisions, but it is not by itself a land use restriction. ATCP 49 also requires that a farmland preservation zoning ordinance zones at least 80% of the land that is planned for farmland preservation. The process of farmland preservation planning and then zoning means that the local government has first looked at the land and determined what areas are likely to remain in agricultural use. The 80% zoning requirement then ensures that the local government is treating all agricultural landowners within its jurisdiction equally. If the county has undergone the planning process, then the land that is planned for farmland preservation has already been determined to not be available for development. Thus the 80% rule would not be removing any lands from the pool of lands with the potential to be developed.

3. Application of the “under some development pressure" standard — With respect to ATCP § 49.12(1)(a)(5) on page 13, lines 9-10, we are not clear on how DATCP will apply the "under some development pressure" standard. If the land is "under some development pressure," should the land be included or excluded from the farmland preservation plan? If the land is under development pressure, the land arguably should be planned for nonagricultural development within the next 15 years and, thus, should not be included in the farmland preservation plan. Moreover, whether land is under some development pressure should not be relevant to the issue of whether it is good farmland. This comment addresses the clarity of suggested rule language, not the potential economic impact that the rule will have. Consequently, it would be more appropriate to comment on this rule provision during the public hearing period. It should perhaps be noted that leaving the language as it is in the rule would enable counties to treat development pressure either way it chooses. Perhaps a county feels that the presence of some development pressure means that the land is appropriate to be included in the farmland preservation area for now, because inclusion means that the county has some tools available to try to steer development away from this sensitive area. Perhaps another county feels that the presence of even some development pressure makes the likelihood of conversion out of agricultural use too great for the land to be included in the farmland preservation area. Either way, the rule language allows the county to make this determination. The criterion fundamentally emphasizes the need to pay attention to factors at work on the land itself and not primarily the wishes of individual landowners.

4. Failure to consider city and village comprehensive plans — With respect to ATCP § 49.12(1)(a)(6) on page 13, lines 11-12, this provision requires counties to consider future nonagricultural development and incompatible uses as determined by the county and town comprehensive plans. However, this provision does not require counties to consider nonagricultural development and incompatible uses identified by village and city comprehensive plans. Because comprehensive plans of cities and villages also contain projections for future nonagricultural development and possible uses that are incompatible with agricultural uses, the comprehensive plans of cities and villages should also be considered. This comment is also more appropriate for the public hearing period because it addresses the substance of the rule itself instead of any potential economic impact that this provision of the rule will have. A request could be made to change the provision to include the comprehensive plans of cities and villages. Whether the department can or should include such language would need to be evaluated after all of the public comments have been collected.

5. Areas to be included in farmland preservation zoning district — With respect to ATCP § 49.25(2) on page 18, lines 22-23, this provision requires at least 80% of the area planned for farmland preservation to be included in the farmland preservation district or a district that imposes land use regulations that are at least as restrictive as the farmland preservation zoning district. Is this requirement found in Chapter 91 of the Wisconsin Statutes or some other statute? If not, where does it come from? This question also does not relate to the economic impact of the rule. Any comment regarding the 80% threshold should be made during the public hearing period. We have historically used 80% as a guideline and it is a threshold to which many zoning authorities are already accustomed. Chapter 91 uses the term “substantially consistent." We know that this is much greater than 50%, but not quite 100%. To give local governments additional guidance, we have chosen to codify the already-recognized 80% guideline.

Notice of Hearing

Employee Trust Funds

CR 13-004

The Wisconsin Department of Employee Trust Funds (ETF) proposes an order pursuant to s. 227.14, Stats., to amend administrative rules s. ETF 10.01 (3i) and 10.65 and to create ss. ETF 10.65 (Note), 10.86, 20.0251, and 20.0251 (Note) to clarify how ETF complies with applicable provisions of the Internal Revenue Code (IRC).

A public hearing on the proposed rule will be held.

Hearing Information

Date:   Thursday, February 13, 2013

Time:   2:00 p.m.

Location:   Conference Room GB
  Offices of the Department of Employee Trust Funds
  801 West Badger Road
  Madison, WI 53713

Persons wishing to attend should come to the reception desk up the stairs (or by elevator) from the main entrance to the building.

Place Where Comments Are To Be Submitted and Deadline for Submissions

Comments may be submitted to the contact person no later than 4:30 p.m., Wednesday, February, 20, 2013. The public hearing will be held at 2:00pm on Wednesday, February 13, 2013 in conference room GB of the Wisconsin Employee Trust Fund building at 801 W. Badger Rd, Madison, WI 53713.

Free Copies of Proposed Rule

Copies of the proposed rule are available without cost from the Office of the Secretary, Department of Employee Trust Funds, P.O. Box 7931, Madison, WI 53707-7931. The telephone number is: [phone].

Analysis Prepared by the Department of Employee Trust Funds

Statutes interpreted

Sections 40.015, 40.03 (1), (1) (am), 40.31, 40.32, Stats., relating to compliance with the IRC.

Statutory authority

Sections 40.03 (1) (am), (2) (i) and (t), and 227.11 (2) (a) (intro), 1. to 3., Stats.

Explanation of agency authority

By statute, the ETF Secretary is expressly authorized, with appropriate board approval, to promulgate rules required for the efficient administration of any benefit plan established in ch. 40 of the Wisconsin statutes. Also, each state agency may promulgate rules interpreting the provisions of any statute enforced or administered by the agency if the agency considers it necessary to effectuate the purpose of the statute.

The ETF Secretary is also required by statute to ensure that the WRS maintains compliance with the Internal Revenue Code (IRC) as a qualified plan for tax purposes and each plan is administered in compliance with the code. Numerous provisions in Chapter 40 require ETF to comply with the internal revenue code.

This rule is subject to s. 227.135 (2), Stats., as affected by 2011 Wis. Act 21. The statement of scope for this rule was approved by the Governor on 10/2/12 and published in Register No. 682 on 11/01/2012.

Related statutes or rules

There are no other relevant statutes or rules that are related to WRS compliance with the IRC that are not addressed in this rule.

Plain language analysis

Clarify how ETF treats specific situations under the IRC to ensure WRS compliance.

These changes are consistent with current statutory requirements.

•   Amending the definition of “maximum voluntary contribution" to clarify that ETF will adjust the amounts according to the limits set by the Internal Revenue Service(IRS) and which are changed periodically.

•   Amending s. ETF 10.65 regarding the refund of excess contributions to clarify that refunds will be processed as required by the IRS.

•   Clarifies that ETF will not violate section 503(b) of the IRC regarding prohibited transactions.

•   Clarifies that ETF is maintained for the exclusive benefit of participants and their beneficiaries, as required by the IRC.

Summary of, and comparison with, existing or proposed federal statutes and regulations

This rule complies with the IRS, IRS regulations and other requirements. The rules are written to ensure continued compliance with these laws, regulations and requirements.

Comparison with rules in adjacent states

Please see attached Fiscal and Economic Impact Analysis.

Summary of factual data and analytical methodologies

The proposed rule is intended to clarify ETF's rules regarding compliance with the IRC. ETF worked closely with its outside tax counsel to develop the proposed rule.

Accuracy, integrity, objectivity and consistency of data

The present rule changes were a result of recommendations from ETF's outside tax counsel and as required to maintain compliance with the internal revenue code. ETF conducted analysis with integrity in an accurate, objective, and consistent manner in accordance with its fiduciary responsibilities to its members.

Analysis and supporting documents used to determine effect on small business or in preparation of an economic impact analysis

The rule does not have an effect on small businesses because private employers and their employees do not participate in, and are not covered by, the Wisconsin Retirement System.

Effect on Small Business

There is no effect on small business.

Proposed Effective Date

This rule shall take effect on the first day of the month following publication in the Wisconsin Administrative Register as provided by s. 227.22 (2) (intro.), Stats.

Fiscal Estimate

The rule will not have any fiscal effect on the administration of the Wisconsin Retirement System, nor will it have any fiscal effect on the private sector, the state or on any county, city, village, town, school district, technical college district, or sewerage districts.

Agency Contact Person

Mary Alice McGreevy, Compliance Officer, Department of Employee Trust Funds, P.O. Box 7931, Madison WI 53707. Phone: [phone]; E-mail: maryalice.mcgreevy@ etf.wi.gov.

ADMINISTRATIVE RULES FISCAL ESTIMATE AND ECONOMIC IMPACT ANALYSIS
Type of Estimate and Analysis
X Original ⍽ Updated ⍽ Corrected
Administrative Rule Chapter, Title and Number
Amend ETF 10.01(3i), 10.65 and create ETF 10.85 and 20.0251 regarding compliance with the Internal Revenue Code.
Subject
Internal Revenue Code compliance.
Fund Sources Affected			Chapter 20 , Stats. Appropriations Affected
⍽ GPR ⍽ FED ⍽ PRO ⍽ PRS ⍽ SEG ⍽ SEG-S
Fiscal Effect of Implementing the Rule
X No Fiscal Effect ⍽ Indeterminate	⍽ Increase Existing Revenues ⍽ Decrease Existing Revenues		⍽ Increase Costs ⍽ Could Absorb Within Agency's Budget ⍽ Decrease Costs
The Rule Will Impact the Following (Check All That Apply)
⍽ State's Economy ⍽ Local Government Units		⍽ Specific Businesses/Sectors ⍽ Public Utility Rate Payers
Would Implementation and Compliance Costs Be Greater Than $20 million? ⍽ Yes X No
Policy Problem Addressed by the Rule
This rule-making is needed to amend the existing rules and create new rules to clarify how the Wisconsin Retirement System complies with the Internal Revenue Code.
Summary of Rule's Economic and Fiscal Impact on Specific Businesses, Business Sectors, Public Utility Rate Payers, Local Governmental Units and the State's Economy as a Whole (Include Implementation and Compliance Costs Expected to be Incurred)
There is no economic and fiscal impact on small business, business sectors, public utility rate payers, local governmental units and the state's economy as a whole. The rule change addresses the need to clarify how the Wisconsin Retirement System complies with the Internal Revenue Code.
Benefits of Implementing the Rule and Alternative(s) to Implementing the Rule
The rule language more accurately reflects tax requirements under IRC §§ 401 (a) and 415. The agency does not see alternatives to achieving the policy goal of the rule amendments.
Long Range Implications of Implementing the Rule
There are no long range economic or fiscal impacts of the rule.
Compare With Approaches Being Used by Federal Government
The proposed rule amendments are required to maintain written plan document compliance with federal tax requirements under IRC §§401 (a) and 415. Therefore the goal of the rule amendment is to more accurately reflect current legal requirements under the federal government.
Compare With Approaches Being Used by Neighboring States (Illinois, Iowa, Michigan and Minnesota)
Illinois — The Illinois Pension Code provides comparable provisions regarding compliance of the public employee pension system with the Internal Revenue Code. Iowa — The Iowa Public Employees' Retirement System is governed by Iowa Code Chapter 97(B) and Chapter 495 of the Iowa Administrative Rules. These laws and rules provide comparable provisions regarding compliance of the public employee pension system with the Internal Revenue Code. Michigan — Chapter 38 of the Michigan Statutes contain some provisions that are comparable regarding the State Employees' Defined Benefit Pension Plan compliance with the Internal Revenue Code. Minnesota — Chapters 352 to 356A of the Minnesota Statutes contain some provisions that are comparable regarding compliance of the Public Employees' Retirement Association Defined Benefit Pension Plan with the Internal Revenue Code.

Notice of Hearing

Natural Resources

Fish, Game, etc., Chs. NR 1—

CR 13-005

(DNR # ER-19-10)

NOTICE IS HEREBY GIVEN THAT pursuant to ss. 227.16 and 227.17, Wisconsin Stats, the Department of Natural Resources will hold a public hearing to discuss revisions to Chapter NR 18, Wisconsin Administrative code on Wisconsin's falconry rules related to governing the sport of falconry, on the date and at the time and location listed below.

Hearing Information

Date:   Tuesday, February 12, 2013

Time:   6:00 p.m. until 8:00 p.m.

Location:   Fitchburg DNR Service Center
  3911 Fish Hatchery Road
  Fitchburg, WI 53711

A public hearing will be held to discuss revisions to Wisconsin's falconry administrative code, ch. NR 18. The hearing will be held in the Gathering Waters Room of the Fitchburg Service Center, and the presiding hearing officer will be DNR Attorney Michael Kowalkowski. There will be Live Meeting availability for those who are unable to attend in person.

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. Contact Sumner Matteson in writing at the Department of Natural Resources, Bureau of Endangered Resources (ER/6),101 S Webster, Madison, WI 53707; by E-mail to [e-mail] or by calling [phone].

For more information or to request a Live Meeting link, please contact Sumner Matteson at the addresses or numbers above.

Availability of the proposed rules and Submitting Comments

The proposed rule and supporting documents may be reviewed and comments can be electronically submitted at the following internet site: http://adminrules.wisconsin.gov. A copy of the proposed rule and supporting documents may also be obtained from Sumner Matteson, Department of Natural Resources, Bureau of Endangered Resources (ER/6), 101 S. Webster St, Madison, WI, 53703, by calling [phone]or by contacting Sumner.matteson@wisconsin. gov and at www.legis.state.wi.us/rsb/code.htm (Wisconsin Administrative Register).

Written comments on the proposed rule may be submitted via U.S. mail or email to Sumner Matteson at the addresses noted above. Written comments, whether submitted electronically or by U.S. main, will have the same weight and effect as oral statements presented at the public hearings. Comments may be submitted until February 12, 2013.

Analysis Prepared by the Department of Natural Resources

Chapter NR 18 is being revised to comply with federal regulations governing the sport of falconry. The US Fish and Wildlife Service will no longer issue a permit to individuals engaged in falconry; permits will be issued by states with oversight by the Service.

Statutes interpreted

Section 29.319, Wis. Stats., Falconry Regulation.

Statutory authority

Sections 29.319, Wis. Stats.

Explanation of agency authority

The department holds authority under Wis. Stat. s. 29.319 to regulate falconry and the taking of raptors for falconry. The department is also authorized to establish rules for falconry, which is administrative code ch. NR 18. The department may provide permits to both Wisconsin residents and non-residents. The department is also authorized to charge a fee for these permits and to deposit these fees in the Endangered Resources Fund, s. 20.370 (1) (fs) Wis. Stats.

Related statute or rule

Chapter NR 18, governing the sport of falconry.

Statutory section Title [or subject]

29.014(1)   Rule making for Ch. 29

29.039   Non game species

169.04   Possession of live wild animals.

169.05   Taking of wild animals.

169.06   Introduction, stocking, and release of wild animals.

169.07   Exhibition of live wild animals.

169.10   Sale and purchase of live wild animals.

227.11 (2)   Rule making authority.

Plain language analysis

The proposed rule defines and clarifies different falconry terms and conditions.

Summary of, and comparison with, existing or proposed federal regulations

The U.S. fish and wildlife service will no longer issue a permit to individuals engaged in the sport of falconry. Pursuant to 50 CFR 21.29(b), permits will be issued by states with oversight provided by the Service. The Service has formulated revisions as to how the sport of falconry is to be conducted and supervised by the states. The proposed rule makes the revisions to current code to ensure compliance with federal rules by January 1, 2014.

Comparison with rules in adjacent states

All states must comply with federal rules pertaining to the sport of falconry by January 1, 2014.

Summary of factual data and analytical methodologies

A total of 98 resident falconers and approximately 10 or fewer non-resident falconers will be affected by the proposed rule.

Analysis and supporting documents used to determine effect on small business or in preparation of economic impact report

This rule update applies only to falconers. The proposal does not impose any additional compliance or reporting requirements on small businesses nor are any design or operational standards contained in the rule. The department has determined that this rule will not adversely affect in a material way the economy, a sector of the economy, productivity, jobs, or overall economic competitiveness of the state. No fiscal impacts are expected for the public utility rate payers or local government units. This determination was made after conducting an economic impact analysis and soliciting comments beginning on March 6, 2012 for 14 days. The department requested comments from the Wisconsin Falconry Association (WFA). Comments from WFA, approving the economic impact analysis were received in a letter from WFA dated May 11, 2012.

Effect on Small Business, Including How the Rule Will Be Enforced

None.

Pursuant to ss. 227.114 and 227.137, Wis. Stats., it is not anticipated that the proposed rules will have an economic impact on small businesses. The department has determined that this rule would not adversely affect in a material way the economy, a sector of the economy, productivity, jobs, or the overall economic competitiveness of this state.

The Department's Small Business Regulatory Coordinator may be contacted at [e-mail] or by calling [phone].

Environmental Impact

The department has made a preliminary determination that this action does not involve a significant adverse environmental effect and does not need an environmental analysis under ch. NR 150, Wisconsin Administrative Code.

Agency Contact Person

Sumner Matteson, 101 S. Webster St., P.O. Box 7921, Madison, WI 53707-7921. [phone], email: [e-mail].

STATE OF WISCONSIN DEPARTMENT OF ADMINISTRATION DOA 2049 (R 07/2011) ADMINISTRATIVE RULES FISCAL ESTIMATE AND ECONOMIC IMPACT ANALYSIS
Type of Estimate and Analysis
X Original ⍽ Updated ⍽ Corrected
Administrative Rule Chapter, Title and Number
Admin Code Chapter NR 18, Falconry
Subject
Revisions to the Falconry Permitting Rules
Fund Sources Affected			Chapter 20 , Stats. Appropriations Affected
⍽ GPR ⍽ FED ⍽ PRO ⍽ PRS X SEG ⍽ SEG-S			20.370 1 (fs)
Fiscal Effect of Implementing the Rule
⍽ No Fiscal Effect X Indeterminate	⍽ Increase Existing Revenues ⍽ Decrease Existing Revenues		⍽ Increase Costs X Could Absorb Within Agency's Budget ⍽ Decrease Costs
The Rule Will Impact the Following (Check All That Apply)
⍽ State's Economy ⍽ Local Government Units		X Specific Businesses/Sectors ⍽ Public Utility Rate Payers
Would Implementation and Compliance Costs Be Greater Than $20 million? ⍽ Yes X No
Policy Problem Addressed by the Rule
The U.S. Fish and Wildlife Service will no longer issue a permit to individuals engaged in the sport of falconry. Permits will be issued by states with oversight provided by the Service. The Service has formulated revisions as to how the sport of falconry is to be conducted and supervised by the states. The proposed rule makes the revisions to current code to ensure compliance with federal rules by January 14, 2014.
Summary of Rule's Economic and Fiscal Impact on Specific Businesses, Business Sectors, Public Utility Rate Payers, Local Governmental Units and the State's Economy as a Whole (Include Implementation and Compliance Costs Expected to be Incurred)
The total impact of this rule is indeterminate. The proposed rule does not change existing code regarding permit fees for approximately 100 resident falconers and fewer than 10 nonresident falconers. The resident falconer pays $75 for a 3-year falconry permit, and a nonresident falconer pays $100 annually for a nonresident raptor trapping permit. The updated rule does specify that permit holders with hybrid raptors must have two telemetry radio transmitters attached to the hybrid raptors. Currently, there are seven hybrid permit holders in the state. The radio telemetry transmitter costs $185.00/unit (two needed per rule) and a radio telemetry receiver costs $670.00. It is estimated this provision could cost each of the seven permit holders $1,040 for the telemetry radio purchases. The updated rule also mentions an ISO-compliant microchip; this is mentioned as optional in the rule. It is estimated that a microchip and the related scanner could cost approximately $220.00. The number of falconers who may use this option is not known, but it is estimated to be no more than a dozen. It is estimated that there will be a slight increase in time spent by permit holders to meet reporting requirements, but it is not possible to estimate an exact cost related to the potential workload increase. This rule update applies only to falconers. The proposal does not impose any additional compliance or reporting requirements on small businesses nor are any design or operational standards contained in the rule. The department has determined that this rule will not adversely affect in a material way the economy, a sector of the economy, productivity, jobs, or overall economic competitiveness of the state. No fiscal impacts are expected for the public utility rate payers or local government units.
Benefits of Implementing the Rule and Alternative(s) to Implementing the Rule
Allows the State of Wisconsin to take over control of regulating the sport of falconry.
Long Range Implications of Implementing the Rule
Will provide a consistent framework for regulating the sport of falconry.
Compare With Approaches Being Used by Federal Government
The U.S. Fish and Wildlife Service formerly provided permits to individuals engaged in the sport of falconry. Permits now will be issued by states with oversight provided by USFWS.
Compare With Approaches Being Used by Neighboring States (Illinois, Iowa, Michigan and Minnesota)
All states need to comply with USFWS revisions to the sport of falconry.
Name and Phone Number of Contact Person
Sumner Matteson [phone]