Register

Rule-making notices

Notice of Hearing

Agriculture, Trade and Consumer Protection

[CR 01-28]

(reprinted from 3/3/01 Wis. Adm. Register)

The State of Wisconsin Department of Agriculture, Trade and Consumer Protection announces that it will hold a public hearing on proposed rules relating to minor remedial drafting changes to department rules. The hearing will be held at the time and place shown below. The public is invited to attend the hearing and make comments on the proposed rules. Following the public hearing, the hearing record will remain open until April 30, 2001, for additional written comments.

A copy of this rule may be obtained free of charge, from the Wisconsin Department of Agriculture, Trade and Consumer Protection, Division of Legal Counsel, 2811 Agriculture Drive, P.O. Box 8911, Madison WI 53708, or by calling [phone]. Copies will also be available at the hearings.

An interpreter for the hearing impaired will be available on request for these hearings. Please make reservations for a hearing interpreter by April 18, 2001, by writing to Roxy Capelle, Division of Legal Counsel, P.O. Box 8911, Madison WI 53708-8911, telephone [phone]. Alternatively, you may contact the Department TDD at [phone]. Handicap access is available at the hearings.

One hearing is scheduled:

Wednesday, April 25, 2001
1:30 p.m. until 3:30 p.m.
Dept. of Agriculture, Trade and Consumer Protection
Board Room
2811 Agriculture Drive
Madison, WI 53704

Handicapped accessible

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

Statutory Authority: s. 93.07 (1)

Statutes Interpreted: s. 93.07(10), 95.20 and 95.25

This rule makes the following minor remedial drafting changes to current DATCP rules:

Modifies ch. ATCP 1 (administrative orders and contested cases) to be consistent with s. 227.485, Stats., and the Wisconsin Court of Appeals decision in Gordon v. State Medical Examining Board, 225 Wis. 2d 552 (Ct. App. 1999). This rule clarifies that a prevailing party filing a motion for costs and attorneys fees in an administrative contested case must file that motion within 30 days after the department issues its proposed (not final) decision in the case. If the department issues its final decision without first issuing a proposed decision, the prevailing party may file the motion within 30 days after the department issues its final decision. Under current law, the administrative law judge who hears the case must issue a proposed decision if the administrative law judge is not the final decisionmaker. This rule clarifies (per current law) that if the administrative law judge is the final decisionmaker, the administrative law judge may issue a final decision without first issuing a proposed decision.

Clarifies the license expiration dates for bulk milk weigher and sampler licenses. This rule clarifies (per current law) that the license is a 2-year, not a 3-year license. A license normally expires on September 30. But if the department issues an original license prior to September 30 of any year, based on an application received after August 15 of that year, the license expires on the 3rd September 30 after the department issues the license.

Clarifies current rules related to home improvement contracts. Under current rules (ch. ATCP 110), some home improvement contracts must be in writing. A home improvement contract must contain certain disclosures if (1) current rules require a written contract or (2) the contract is prepared on the seller's “pre-printed contract form." This rule clarifies the second condition, which has been somewhat difficult to interpret. Under this rule, a home improvement contract must contain certain disclosures if (1) current rules require a written contract or (2) the buyer signs a written contract. This rule makes parallel modifications to other rule provisions dealing with contract changes.

Repeals obsolete rule provisions related to motor fuel price posting, including provisions authorizing the temporary use of so-called “pennywheel conversion devices." These temporary provisions had a stated “sunset" date of December 31, 1998, and are no longer in effect.

Clarifies current prohibitions related to “referral selling plans" (ATCP 121). Under current rules, a “referral selling plan" means “any method of sale where the seller or lessor, as an inducement for a consumer sale, offers compensation to a prospective buyer or lessee either for (a) names of other prospective buyers or lessees, or (b) otherwise aiding the seller or lessor in making consumer sales." A referral selling plan operates like a pyramid scheme or lottery. Each buyer purchases in reliance upon promised future payments that may result if the buyer refers other sales prospects who purchase in turn. But the payments may never occur, and the “chain" of prospects inevitably breaks. In 1968, the department prohibited referral selling plans unless the seller compensates the buyer before making any sale to that buyer (thus eliminating the element of “chance"). This rule clarifies but does not change the current prohibition.

Eliminates obsolete references to statutes or rule provisions that no longer exist, and corrects obsolete references to statutes or rule provisions that have been changed. Amends several rule titles, to shorten or clarify those titles. Corrects a number of erroneous cross-references in current rules. Makes non-substantive drafting and organizational changes.

Fiscal Estimate

This rule will have no fiscal effect on the department or local units of government.

Initial Regulatory Flexibility Analysis

This rule makes minor remedial drafting changes to a variety of DATCP rules. This rule merely clarifies rule provisions, conforms current rule provisions to current law, or makes non-substantive organizational or drafting changes.

Notice of Hearings

Corrections

[CR 01-22]

NOTICE IS HEREBY GIVEN that pursuant to ss. 227.11 (2) (a), 227.17 and 227.24 (4), 301.02, and 301.03 (1) and (2) Stats., and interpreting ss. 46.07, and 302.32 (1), Stats., the department of corrections will hold public hearings in the following locations to consider the emergency rule published on February 23, 2001 and the proposed permanent rule amending and creating rules relating to resources for inmates.

Hearing Information:

Date & Time   Location

May 3, 2001   Room 120

Thursday   State Office Building

10:00 a.m.   141 N.W. Barstow Street

  Waukesha, Wisconsin

May 4, 2001   Room 136

Friday   State Office Building

11:00 a.m.   1681 2nd Avenue South

  Wisconsin Rapids, Wisconsin

May 9, 2001   Room 041

Wednesday   State Office Building, GEF III

11:00 a.m.   125 S. Webster

  Madison, Wisconsin

The public hearing sites are accessible to people with disabilities.

Proposed Order of the Department of Corrections Amending and Creating Rules

The Wisconsin department of corrections proposes an order to amend ss. DOC 309.02 (14) and 309.02 (16), and create DOC 309.02 (7m) and 309.02 (16) (b) and (c), relating to resources for inmates.

Statutory authority: ss. 301.02, 301.03 (1) and (2), and 227.11 (2).

Statutes interpreted: ss. 46.07, and 302.32 (1).

Analysis Prepared by the Department of Corrections

Effective December 1, 1998, the Department implemented rules restricting inmates' access to sexually explicit material. These rules were challenged in federal court in a class action suit brought by several inmates (Aiello v. Litscher, Case No. 98-C-791-C, Western District of Wisconsin). The defendants filed a motion for summary judgment, but it was denied by the court in language that suggested the rules were unconstitutional in their present form based on a number of federal appellate court decisions that were reported after the rules were implemented.

In light of these developments, the parties negotiated a settlement which includes an immediate revision of the present rules to conform to the latest decisional law regarding the extent to which inmates' access to sexually explicit material can be restricted for legitimate penological objectives. The emergency rule, adopted February 23, 2001, was necessary to avoid a lapse of the settlement agreement and lengthy trial with the attendant possibility of having to pay a considerable amount in attorneys' fees.

This order:

• Revises the present rules restricting inmates' access to sexually explicit material by prohibiting access to published material that depicts nudity on a routine or regular basis or promotes itself based on nudity in the case of individual one-time issues.

• Revises the present rules by prohibiting access to written material when it meets the legal definition of obscenity.

SECTION 1. DOC 309.02 (7m) is created to read:

DOC 309.02 (7m) “Features" means the publication contains depictions of nudity on a routine or regular basis or promotes itself based upon depictions of nudity in the case of individual one-time issues. The department will not prohibit a publication solely because it contains nudity that has a medical, educational or anthropological purpose.

SECTION 2. DOC 309.02 (14) is amended to read:

DOC 309.02 (14) “Nudity" for commercially published material means the showing of the human male or female genitals, or pubic area or buttocks with less than a fully opaque covering, or the showing of the female breast with less than a fully opaque covering of any portion below the top of the areola or nipple, or the depiction of covered male genitals in a discernibly turgid state. “Nudity" for purposes of a personal photograph means the showing of the human male or female genitals, pubic area or buttocks with less than a fully opaque covering, or the showing of the female breast with less than a fully opaque covering of the areola or nipple, or the depiction of covered male genitals in a discernibly turgid state.

SECTION 3. DOC 309.02 (16) is amended to read:

DOC 309.02 (16) "Pornography " means any of the following:

(a) Any material, whether written, visual, video, or audio representation or reproduction, other than written material, that depicts any of the following:

(a)1. Human sexual behavior.

(b) 2. Sadomasochistic abuse, including but not limited to flagellation, bondage, brutality to or mutilation or physical torture of a human being.

(c) 3. Unnatural preoccupation with human excretion.

(d) Nudity which appeals to the prurient interest in sex.

(e)4. Nudity which is not part of any published photograph or printed material, such as a personal nude photograph.

(f) 5. Nudity of any person who has not attained the age of 18.

SECTION 4. DOC 309.02 (16) (b) and (c) are created to read:

DOC 309.02(16) (b) A publication that features nudity.

(c) Written material which the average person, applying state contemporary community standards, would find, when taken as a whole does all of the following:

1. Appeals to the prurient interest.

2. Describes human sexual behavior in a patently offensive way.

3. Lacks serious literary, artistic, political, educational, or scientific value.

SECTION 5. DOC 309.04 (4) (c) 8. a. is amended to read:

a. Is, in whole or in part, pornography.

Initial Regulatory Flexibility Analysis

These rules are not expected to have an effect on small businesses.

Fiscal Estimate

Effective December 1, 1998, the Department of Corrections (DOC) implemented rules restricting inmates' access to sexually explicit material. These rules were challenged in federal court in a class action suit brought by several inmates (Aiello v. Litscher). The defendants filed a motion for summary judgment, but it was denied by the court in language that suggested the rules were unconstitutional in their present form based on a number of federal court decisions that were reported after the rules were implemented.

In light of these developments, the parties negotiated a settlement which includes an immediate revision off the present rules to conform to the latest case law regarding the extent to which inmates' access to sexually explicit material can be restricted for legitimate penological objectives. There is no fiscal impact expected as a result of these changes.

Contact Person:

Julie M. Kane [phone]

Office of Legal Counsel

149 East Wilson Street

P.O. Box 7925

Madison, Wisconsin 53707-7925

If you are hearing or visually impaired, do not speak English, or have circumstances which might make communication at the hearing difficult and if you, therefore, require an interpreter or a non-English, large print or taped version of the hearing document, contact the person at the address or phone number above. A person requesting a non-English or sign language interpreter should make that request at least 10 days before the hearing. With less than 10 days notice, an interpreter may not be available.