Rule-Making Notices (Hearing Notices)

rulemaking_notices Wisconsin Administrative Register No. 642, 6/14/2009

Rule-Making Notices

Notice of Hearing

Agriculture, Trade and Consumer Protection
(Reprinted from May 31, 2009 Register)

rulemaking_notices CR 09-037 CR 09-037

The Wisconsin Department of Agriculture, Trade and Consumer Protection (DATCP) announces that it will hold a public hearing on a proposed amendment to Chapter ATCP 91, Wis. Adm. Code, relating to selling commodities by weight, measure or count.

Hearing Information

June 23, 2009

Commencing at 9:30 AM

WI Dept. of Agriculture, Trade & Consumer Protection

2811 Agriculture Drive — Board Room, 1st Floor

Madison, WI 53718

Hearing impaired persons may request an interpreter for these hearings. Please make reservations for a hearing interpreter by Monday, June 15, 2009, by writing to Michelle Reinen, Division of Trade and Consumer Protection, P.O. Box 8911, Madison, WI 53708-8911, [e-mail], telephone [phone]. Alternatively, you may contact the DATCP TDD at [phone]. Handicap access is available at the hearings.

Copies of Proposed Rule

You may obtain a free copy of this proposed rule 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 may also obtain copies by calling [phone] or emailing [e-mail]. Copies will also be available at the hearing. To view the proposed rule online, go to: http://adminrules.wisconsin.gov.

Appearances at the Hearing and Submission of Written Comments

DATCP will hold the public hearing at the time and location shown above. DATCP invites the public to attend the hearing and comment on the rule. Following the hearing, the hearing record will remain open until Friday, July 3, 2009 for additional written comments. Comments may be sent to the Division of Trade and Consumer Protection at the address above, by email to [e-mail] 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 [e-mail] or by telephone at [phone].

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

The Department of Agriculture, Trade and Consumer Protection (DATCP) currently regulates methods of sale of commodities (including required methods of sale by weight, measure or count). The current rules are designed to ensure fair competition, to prevent unfair and deceptive sales practices, and to facilitate value comparisons by consumers. Current DATCP rules are contained in ch. ATCP 91, Wis. Adm. Code.

This rule changes current rules to make them consistent with standards published by the National Institute of Standards and Technology (“NIST") and adopted by 45 other states. This rule also updates and clarifies current rule coverage.

Statutes interpreted

Sections 98.06, 98.07 and 100.20, Stats.

Statutory authority

Sections 93.07 (1), 98.07 (3) and (4), and 100.20(2), Stats.

Explanation of agency authority

DATCP has authority to regulate methods of competition and trade practices in business under s. 100.20, Stats. DATCP also administers laws, including ss. 98.06 and 98.07, Stats., related to the pricing and sale of commodities by weight, measure or count.

DATCP has general authority, under s. 93.07 (1), Stats., to interpret laws under its jurisdiction. DATCP may adopt rules (general orders) under s. 100.20 (2), Stats., to regulate methods of competition and trade practices in business. DATCP may also adopt rules under s. 98.07(3) and (4), Stats., related to the pricing and sale of commodities by weight, measure or count.

Related statutes or rules

Statutes

Chapter 97, Stats., regulates the sale and labeling of food, and ch. 98, Stats., regulates commercial weights and measures. Various statutes specify methods of sale for specific commodities. See, for example, the following statutory sections:

•   97.177, Stats. (cheese).

•   97.176 and 97.18, Stats. (butter and margarine).

•   98.06, Stats. (berries and small fruits).

•   98.12, Stats. (frozen desserts).

•   98.21, Stats. (bread).

•   98.225, Stats. (deliveries of liquid fuel).

•   98.245, Stats. (LP gas).

•   98.246 and 100.18(6) and (8), Stats. (petroleum products and motor fuel).

Administrative Code

DATCP has adopted a number of rules affecting the method of sale of commodities. See, for example, the following chapters of the Wisconsin administrative code:

•   ATCP 55 (meat and meat food products).

•   ATCP 75 (retail food establishments).

•   ATCP 81 (cheese grading, packaging and labeling).

•   ATCP 85 (butter grading and labeling).

•   ATCP 88 (egg grading and labeling).

•   ATCP 90 (fair packaging and labeling).

•   ATCP 92 (weights and measures).

•   ATCP 109 (freezer meat and food service plans).

Rule background

Current DATCP rules (ATCP 91) regulate the sale of commodities by weight, measure or count. The current rules spell out general standards for all commodities, and more specific standards for some commodities. The current rules do all of the following:

•   Require liquid commodities to be sold by liquid measure and nonliquid commodities by weight, with certain exceptions.

•   Regulate price declarations by weight, to facilitate accurate price comparisons.

•   Specify methods of sale for various food commodities including fruits and vegetables, meat, poultry, cheese, frozen desserts, pizza and “ready to eat" foods.

•   Specify methods of sale for various non-food commodities including firewood, roofing material, polyethylene sheeting, potpourri and petroleum products.

NIST has published model method-of-sale standards, which are designed to promote reasonable and uniform standards between the states. However, the NIST standards do not have the force of law unless adopted by the states. At least 45 states have adopted some or all of the NIST standards.

Current DATCP rules are, in some respects, inconsistent with NIST. The Wisconsin statutes also include some requirements that differ from NIST. Within statutory limits, this rule modifies current DATCP rules (ATCP 91) to make them more consistent with NIST. This rule also makes non-substantive changes to reorganize and clarify current rules.

Rule content

Standards for Specific Commodities

NIST has published specific method-of-sale standards for certain commodities (these standards typically address consumer protection or fair competition issues that have arisen in connection with those particular commodities). This rule incorporates current NIST standards for the following commodities (subject, in some cases, to exceptions required by Wisconsin law):

Food products

•   Meat, poultry, fish and seafood.

•   Dairy products.

•   Fresh fruits and vegetables.