Rule-making notices
Notice of Hearings
Agriculture, Trade and Consumer Protection
The state of Wisconsin Department of Agriculture, Trade and Consumer Protection announces that it will hold public hearings on a proposed rule to amend s.
ATCP 3.02 (1), to repeal and recreate ch.
ATCP 50, and to create s.
ATCP 40.11 Wis. Adm. Code, relating to the soil and water resource management program. The department will hold five hearings at the times and places shown below. The department invites the public to attend the hearings and comment on the proposed rule. Following the public hearing, the hearing record will remain open until September 14, 2001, for additional written comments.
You may obtain a free copy of this rule by contacting Bonnie Shebelski at the Wisconsin Department of Agriculture, Trade and Consumer Protection, Bureau of Land and Water Resources, 2811 Agricultural Drive, P.O. Box 8911, Madison, Wisconsin 53708-8911, telephone: 608/224-4620. Copies will also be available at the hearings.
Hearing impaired persons may request an interpreter for these hearings. Please make reservations for a hearing interpreter by August 20, 2001, by writing Bonnie Shebelski, DATCP, P.O. Box 8911, Madison, WI 53708-8911, telephone 608/224-4620. Alternatively, you may contact the department TDD at 608/224-5058. Handicap access is available at the hearings.
Hearings are scheduled at:
Tuesday, August 28, 2001, 1:00 - 4:30 p.m.
Jefferson County Courthouse, Room 202
320 S. Main Street
Jefferson, Wisconsin
Tuesday, August 28, 2001, 1:00 - 4:30 p.m.
Multipurpose Room
Dunn County Judicial Center
615 Parkway Drive
Menomonie, Wisconsin
Wednesday, August 29, 2001, 1:00-4:30 p.m.
Richland Center Community Center
600 W. Seminary Street
Richland Center, Wisconsin
Wednesday, August 29, 2001, 1:00 - 4:30 p.m.
UWEX Meeting Rooms A and B
County Normal Building
104 S. Eyder Avenue
Phillips, Wisconsin
Thursday, August 30, 2001, 1:00 to 4:30 p.m.
Brown County Agriculture & Extension Center, Room 114
1150 Bellevue Street
Green Bay, Wisconsin
Analysis Prepared by the Department of Agriculture, Trade and Consumer Protection
This rule repeals and recreates current rules related to Wisconsin's soil and water resource management program. The department of agriculture, trade and consumer protection (“DATCP") administers this program under ch.
92, Stats. Among other things, this rule:
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Requires farm conservation practices.
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Creates a farm nutrient management program.
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Updates standards for county soil and water conservation programs, including county land and water resource management plans.
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Updates standards and procedures for DATCP grants to counties.
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Updates standards and procedures for county cost-share grants to landowners.
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Establishes technical standards for cost-shared conservation practices.
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Transfers some nonpoint source pollution abatement grant programs from DNR to DATCP, as directed by the Legislature.
Background
General
DATCP administers Wisconsin's soil and water resource management program under ch.
92, Stats. The program is designed to conserve the state's soil and water resources, reduce soil erosion, prevent nonpoint source pollution and enhance water quality. This rule spells out program standards and procedures.
DATCP administers this program in cooperation with county land conservation committees, the state land and water conservation board (“LWCB"), the department of natural resources (“DNR"), the natural resource conservation service of the U.S. department of agriculture (“NRCS") and other agencies. DATCP coordinates soil and water management efforts by these agencies. DATCP funds county soil and water conservation programs, and finances county cost-share grants to landowners to implement conservation practices. DNR administers a related cost-share program aimed at preventing nonpoint source pollution.
In
1997 Wis. Act 27 and
1999 Wis. Act 9, the Legislature mandated a comprehensive redesign of state programs related to nonpoint source pollution. Among other things, the Legislature directed DATCP and DNR to establish conservation standards and practices for farms. The Legislature also directed DATCP to adopt rules related to nutrient management on farms. This rule implements the redesigned nonpoint program.
County Programs
DATCP administers soil and water conservation programs in cooperation with county land conservation committees. Counties adopt land and water resource management plans, administer county ordinances, adopt conservation compliance standards for farmers claiming farmland preservation tax credits, provide information and technical assistance, and make cost-share grants to landowners installing conservation practices.
DATCP awards soil and water grants to counties. Grants reimburse county staff and support costs, and finance county cost-share grants to landowners. DATCP reviews county grant applications and awards grants according to an annual grant allocation plan reviewed by the LWCB. Counties must ensure that cost-shared practices are installed according to state standards, and must account for all grant funds received.
Soil and Water Conservation on Farms
Farm Conservation Practices
DNR is primarily responsible for adopting farm performance standards to prevent nonpoint source pollution. DATCP must prescribe conservation practices to implement the DNR standards. DATCP must also establish soil conservation and farm nutrient management requirements. Counties will take the lead role in implementing conservation practices on farms. Counties will receive staff funding from DATCP. Counties will receive cost-share funding from DATCP and DNR.
Under this rule, every farm must implement conservation practices that achieve compliance with DNR performance standards. This rule cross-references, but does not restate or duplicate, DNR performance standards. Conservation requirements are contingent on cost sharing (see below).
DATCP (not DNR) is primarily responsible for establishing conservation requirements related to cropland soil erosion and nutrient management. This rule establishes the following soil erosion and nutrient management requirements, which are contingent on cost sharing (see below):
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Soil erosion. A farmer must manage croplands and cropping practices so that soil erosion rates on cropped soils do not exceed a tolerable rate (“T"). For most soils, the tolerable rate (“T") is equivalent to 3 to 5 tons of soil loss per acre per year. DNR rules will establish more specific runoff standards for riparian areas and waterways.
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Annual nutrient management plan. A farmer applying manure or commercial fertilizer must have an annual nutrient management plan, and must follow that plan.
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Nutrient management plan; preparation. A qualified nutrient management planner (see below) must prepare each nutrient management plan required under this rule. A farmer may prepare his or her own nutrient management plan if the farmer has, within the previous 4 years, completed a department-approved training course.
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A person selling bulk fertilizer to a farmer must record the name and address of the nutrient management planner who prepared the farmer's nutrient management plan (if the farmer has a plan).
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Nutrient management plan; contents. A nutrient management plan must be based on soil tests, and must comply with standards under this rule. Nutrient applications may not exceed the amounts required to achieve applicable crop fertility levels recommended by the university of Wisconsin in UWEX publication A-2809, Soil Test Recommendations for Field, Vegetable and Fruit Crops (copyright 1998), unless the nutrient management planner documents a special agronomic need for the deviation. Appendix B contains a convenient summary of the UW recommendations for selected crops.
County Implementation
Counties will take the lead role in implementing farm conservation practices under this rule (see below). Counties must adopt land and water resource management plans to implement the conservation practices on farms. DATCP must approve county plans, as provided in ch.
92, Stats. Counties must update conservation standards for farmers claiming farmland preservation tax credits, and may adopt ordinances requiring other farmers to implement conservation practices. With DATCP financial help, counties may also provide cost-share grants, technical assistance and information to farmers.
Installing Conservation Practices; Technical Standards
A farmer may implement the conservation practices under this rule in a variety of different ways. DATCP, UW-extension, NRCS and the counties will provide information and recommendations.
If a landowner receives cost-share funding to install a conservation practice, the practice must comply with technical standards under this rule. The county must also determine that the funded practice is cost-effective. This rule specifies technical standards (including required maintenance periods) for the following cost-shared practices:
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Manure storage systems
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Manure storage system closure
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Barnyard runoff control systems
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Access roads and cattle crossings
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Animal trails and walkways
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Contour farming
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Cover and green manure crop
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Critical area stabilization
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Diversions
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Field windbreaks
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Filter strips
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Grade stabilization structures
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Heavy use area protection
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Livestock fencing
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Livestock watering facilities
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Milking center waste control systems
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Nutrient management
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Pesticide management
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Prescribed grazing
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Relocating or abandoning animal feeding operations
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Residue management
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Riparian buffers
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Roofs
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Roof runoff systems
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Sediment basins
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Sinkhole treatment
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Streambank and shoreline protection
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Strip-cropping
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Subsurface drains
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Terrace systems
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Underground outlets
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Waste transfer systems
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Water and sediment control basins
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Waterway systems
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Well decommissioning
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Wetland development or restoration
This rule does not change or eliminate any current technical standards, or add any new technical standards, except that this rule:
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Adds a standard for cover and green manure crops.
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Adds a standard for riparian buffers (the new standard is similar to the existing standard for filter strips).
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Adds a standard for sinkhole treatments.
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Splits the nutrient and pesticide management standard into 2 separate standards.
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Eliminates the standard for cattle mounds.
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Renames several standards.
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Eliminates restrictions on the length of cost-share contracts for the following practices:
* Residue management
* Contour farming
* Cover and green manure crops (new standard)
* Prescribed grazing
* Nutrient management
* Pesticide management
This rule spells out a procedure by which DATCP may change technical standards in the future. DATCP will adopt future changes, if any, by rule (as it has in the past). The rulemaking process provides opportunity for public review and input. DATCP will make available complete copies of any technical standards that it incorporates by reference in a rule. DATCP will prepare a fiscal estimate and small business analysis on each proposed rule change, and may seek input from a DATCP advisory council.
DATCP will cooperate with the current Standards Oversight Council (SOC) in the development of technical standards. DATCP will consider SOC technical recommendations, but is not bound to adopt SOC recommendations as rules. SOC is a voluntary, multi-agency committee that works to share technical information and coordinate state and federal technical standards. SOC has no rulemaking authority. This rule does not change SOC's current role or operations. DATCP will encourage SOC to seek public input and cost information as SOC develops technical recommendations.
Cost Sharing Required
Many landowners will need to install new conservation practices in order to comply with this rule. This rule clarifies that a landowner is not required to do any of the following unless the landowner receives at least 70% cost sharing (90% if the county finds that there is an “economic hardship"):
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Discontinue or modify that part of a facility or practice that exists on the effective date of the rule.
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Obtain or implement an annual nutrient management plan.
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Change annual cropping or tillage practices.
This rule clarifies that the 70% (90% hardship) cost-sharing requirement applies to all of the following:
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The landowner's reasonable and necessary out-of-pocket expenditures to install and maintain the conservation practice.
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Reasonable compensation for necessary labor, equipment and supplies provided by the landowner.
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The value of the landowner's cost to take land out of agricultural production. The rule provides a formula for determining value, authorizing payment for the greater of:
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The prevailing agricultural land rental rates in the county (as determined by USDA).
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The payment that would be offered under the state-federal conservation reserve enhancement program (CREP), whether or not the land is eligible for the program.
This rule clarifies that the 70% (90% hardship) cost-sharing requirement does not apply to any of the following:
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A conservation practice for which DATCP “technical standards" specify a minimum cost-share contract period (typically 10 years) if the landowner has already received a cost-share grant (at the rate required in this rule) for that period. But a county must continue to provide cost sharing in subsequent years if the county requires the landowner to keep land out of agricultural production.
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A conservation practice (such as conservation tillage or nutrient management) for which DATCP rules specify no minimum maintenance period if the landowner has already received a cost-share grant (at the rate required in this rule) for at least 3 years. For example, if a county has already paid a landowner to implement nutrient management for at least 3 years, the county may require the landowner to comply with state nutrient management standards in subsequent years without further cost-sharing.
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Conservation practices or costs for which this rule prohibits cost sharing.
This rule clarifies that:
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Cost-share grants from any public or private source, or combination of sources, may be counted toward the 70% (90% hardship) cost-share payment.
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A loan is not a grant.
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The 70% (90% hardship) cost-sharing requirement also applies to conservation practices required by county and local ordinances.
Cost-Share Funding for Conservation Practices
Under this rule, DATCP will finance county cost-share grants to farmers and rural landowners who install conservation practices – including practices designed to abate nonpoint source pollution. But DATCP will no longer finance cost-share grants to landowners who receive specific pollution discharge notices from DNR. Funding for that purpose is transferred to DNR. DNR will also continue to fund cost-share grants to urban landowners.
DATCP and DNR will jointly review county funding requests to determine the appropriate source of cost-share funding. Each county will determine its cost-share priorities based on the county land and water resource management plan. DATCP will allocate available cost-share dollars among the counties, based on state and county priorities.
DATCP will enter into an annual funding contract with each county receiving cost-share funds. The county, in turn, must enter into cost-share contracts with individual landowners. DATCP must be a party to a landowner cost-share contract if the contract is for more than $50,000. This rule spells out requirements for county cost-share contracts with landowners (see below).
DATCP reimburses cost-share payments after the county certifies that the cost-shared practice has been properly installed and paid for. Some conservation practices must be designed and certified by a professional engineer, a certified agricultural engineering practitioner or a qualified nutrient planner (see below).
County Cost-Share Grants to Landowners
This rule spells out standards for county cost-share grants to landowners. The county must enter into a cost-share contract with the landowner. The county may cost-share conservation practices identified in this rule (or other practices specifically approved by DATCP). The cost-shared practice must comply with “technical standards" specified in this rule.
This rule clarifies that a cost-share grant may include a landowner's cost to maintain (not just install) a cost-shared practice for the period specified in the cost-share contract. The county and landowner may negotiate the contract maintenance period, but DATCP “technical standards" require a minimum maintenance period (typically 10 years) for many practices.
Cost-Share Payments for Land Taken Out of Production
If a cost-share contract requires a landowner to take land out of agricultural production, the landowner's cost is calculated as the sum of the annual costs that the landowner will incur over the contract maintenance period.
The landowner's projected annual cost, for each year of the maintenance period, equals the greater of the following:
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The number of affected acres multiplied by the per-acre weighted average soil rental rate in the county (as determined by the United States department of agriculture) on the date of the cost-share contract. (That annual cost is then multiplied by the number of years in the maintenance period.)
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The annual value of payments that would be offered under the combined state-federal conservation reserve enhancement program (CREP) if the affected lands were enrolled in that program. (That annual value is then multiplied by the number of years in the maintenance period.)
If a county pays a landowner to take land out of production, the county may require the landowner to grant the county an easement on the land taken out of production. The county must record the easement with the county register of deeds.
Maximum Cost-Share Rates
A cost-share contract reimburses a portion of the landowner's cost to install the cost-shared practice. The county must implement cost-containment procedures (such as competitive bidding or other procedures described in this rule) to ensure that costs are reasonable.
This rule limits cost-share rates as follows:
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Generally speaking, a county may not use DATCP funds to pay more than 70% of the cost of a conservation practice (see s.
92.14 (6) (gm), Stats.).
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A county may pay 90% if the county makes an “economic hardship" finding. A county may do so if it finds that the landowner has inadequate cash flow to make the normal 30% cost-share contribution. This must be verified by a CPA or an accredited financial institution.
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A county land conservation committee may combine DATCP and DNR funds, up to the above limits.
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The cost-share limits in this rule do not apply to cost-share funds provided by non-state sources. A county may combine state funds with funds from other sources.
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A county may provide additional cost-share funds to replace a cost-shared practice that is damaged or destroyed by natural causes. The same cost-share limits apply to the replacement funding.
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For installation of the following practices, the county may pay the maximum percentage or the following maximum amount, whichever is higher:
* For contour farming, $9 per acre.
* For cover and green manure crop, $25 per acre.
* For strip-cropping, $13.50 per acre.
* For field strip-cropping, $7.50 per acre.
* For high residue management systems, no-till systems, ridge till systems or mulch till systems, $18.50 per acre.
* For riparian buffers, $100 per acre.
* For nutrient management or pesticide management, $7.00 per acre.
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No cost-share grant to relocate an animal feeding operation may exceed 70% of the estimated cost to install a manure management system or 70% of eligible relocation costs, whichever is less.
If a county cost-share grant to a landowner exceeds $50,000, DATCP must be a party to the contract (with the county and the landowner). If the cost-share contract exceeds $25,000, the county or landowner must record the contract with the county register of deeds.
Cost-Share Contracts with Landowners
A county land conservation committee must enter into a written contract with every landowner to whom the committee awards a cost-share grant financed by DATCP. The contract must include the following terms, among others:
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The location where the cost-shared practice will be installed, and a specific legal description if the cost-share grant exceeds $25,000.
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Design specifications for the cost-shared practice. Cost-shared practices must be designed and installed according to this rule.
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The estimated cost of the practice.
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The rate and maximum amount of the cost-share grant.
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A construction timetable.
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A required maintenance period. The maintenance requirement runs with the land, and is binding on subsequent owners, if the cost-share grant is for more than $25,000.
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A procedure for pre-approving material construction changes.
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A requirement that the landowner must properly install the cost-shared practice and make all payments for which the landowner is responsible before the county makes any cost-share payment to the landowner. The county may make partial payments for partial installations that have independent conservation benefits. Some cost-shared practices must be reviewed by a professional engineer, a certified agricultural engineering practitioner or a qualified nutrient management planner (see below).
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County remedies for breach of contract.
Nutrient Management Program
General
This rule creates a nutrient management program, as required by
1997 Wis. Act 27. The program is designed to reduce excessive nutrient applications and nutrient runoff that may pollute surface water and groundwater. This program includes the following elements:
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Annual nutrient management plan. A farmer applying commercial fertilizer or manure must have an annual nutrient management plan (see above), and must follow that plan. The requirement is contingent on cost-sharing for at least 3 years.
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Nutrient management plan; preparation and contents. A qualified nutrient management planner (see below) must prepare each nutrient management plan. A farmer may prepare his or her own plan if, within the preceding 4 years, the farmer has completed a DATCP-approved training course.
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Nutrient applications may not exceed crop fertility levels recommended by the university of Wisconsin, unless the nutrient management planner documents that the deviation is justified by special agronomic needs (see above).
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Cost-share grants for animal waste and nutrient management. A county may award cost-share grants for animal waste and nutrient management practices installed by farmers. Cost-shared practices must comply with technical standards under this rule.
Soil Testing Laboratories
Soil tests required by this rule must be performed by the university of Wisconsin or another soil testing laboratory certified by DATCP. To be certified, a laboratory must show that it is qualified and equipped to perform accurate soil tests. If a certified laboratory recommends nutrient applications that exceed the amounts needed to achieve applicable crop fertility levels recommended by the university of Wisconsin, the laboratory must make the following disclosure:
IMPORTANT NOTICE
Our recommended nutrient applications exceed the amounts required to achieve applicable crop fertility levels recommended by the University of Wisconsin. The amounts required to achieve the UW's recommended crop fertility levels are shown for comparison. Excessive nutrient applications may increase your costs, and may cause surface water and groundwater pollution. If you apply nutrients at the rates we recommend, you will not comply with state soil and water conservation standards. You may contact your county land conservation committee for more information.
A certified laboratory must keep, for at least 4 years, copies of all its soil tests and nutrient recommendations. DATCP may deny, suspend or revoke a laboratory certification for cause. The affected laboratory may request a formal hearing under ch.
227, Stats.
Nutrient Management Planners
A qualified nutrient management planner must prepare each nutrient management plan required under this rule. A farmer may prepare his or her own nutrient management plan if the farmer has completed a DATCP-approved training course within the preceding 4 years. A qualified nutrient management planner must prepare plans according to this rule.
A qualified nutrient management planner must be knowledgeable and competent in all of the following areas:
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Using soil tests.
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Calculating nutrient needs.
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Crediting manure and other nutrient sources.
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State and federal standards related to nutrient management.
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Preparing nutrient management plans according to this rule.
A nutrient management planner is presumed to be qualified if at least one of the following applies:
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The planner is recognized as a certified professional crop consultant by the national alliance of independent crop consultants.
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The planner is recognized as a certified crop advisor by the American society of agronomy, Wisconsin certified crop advisors board.
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The planner is registered as a crop scientist, crop specialist, soil scientist, soil specialist or professional agronomist in the American registry of certified professionals in agronomy, crops and soils.
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The planner holds equivalent credentials recognized by DATCP. A farmer is presumptively qualified to prepare a nutrient management plan for his or her farm (but not for others) if all of the following apply:
- The farmer has completed a DATCP-approved training course within the preceding 4 years.
- The course instructor or another qualified nutrient management planner approves the farmer's initial plan.
No person may misrepresent that he or she is a qualified nutrient management planner. A nutrient management planner must keep, for at least 4 years, a record of all nutrient management plans that he or she prepares under this rule.
DATCP may issue a written notice disqualifying a nutrient management planner if the planner fails to prepare nutrient management plans according to this rule, or lacks other qualifications required under this rule. A nutrient management planner who receives a disqualification notice may request a formal hearing under ch.
227, Stats.
County Soil and Water Conservation Programs
General
This rule establishes standards for county soil and water resource management programs. Under this rule, a county program must include all of the following:
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A county land and water resource management plan, and a program to implement that plan.
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County conservation standards that implement state soil and water conservation requirements on farms.
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A program to apply for, receive, distribute and account for state soil and water resource management grants.
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A program for distributing cost-share grants to landowners. A county must ensure that cost-shared conservation practices are designed and installed according to this rule.
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A recordkeeping and reporting system. A county must file an annual report with DATCP.
Land and Water Resource Management Plans
Under s.
92.10, Stats., every county must prepare a land and water resource management plan. DATCP must approve the county plan, for up to 5 years, after consulting with the LWCB. DATCP may not award soil and water conservation grants to a county that lacks an approved plan.
A county land and water resource management plan must, at a minimum, describe all of the following in reasonable detail:
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Water quality and soil erosion conditions throughout the county.
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State and local regulations that are relevant to the county plan. The plan must disclose whether local regulations will require farm conservation practices that differ materially from the practices required under this rule.
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Water quality objectives for each water basin, priority watershed and priority lake. The county must consult with DNR when determining water quality objectives.
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Key water quality and soil erosion problem areas. The county must consult with DNR when determining key water quality problem areas.
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Conservation practices needed to address key water quality and soil erosion problems.
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A plan to identify priority farms in the county.
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Compliance procedures, including notice, enforcement and appeal procedures, that may apply if a farmer fails to comply with applicable requirements.
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The county's multi-year workplan to achieve compliance with water quality objectives and implement farm conservation practices. The plan must identify priorities and expected costs.
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How the county will monitor and measure its progress.
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How the county will provide information and education to farmers, including information related to conservation practices and cost-share funding.
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How the county will coordinate its program with other agencies.
When preparing a land and water resource management plan, a county must do all of the following:
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Appoint and consult with a local advisory committee of interested persons.
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Assemble relevant data, including relevant data on land use, natural resources, water quality and soils.
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Consult with DNR.
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Assess resource conditions and identify problem areas.
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Establish and document priorities and objectives.
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Project available funding and resources.
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Establish and document a plan of action.
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Identify roles and responsibilities.
Before a county submits a land and water resource management plan for DATCP approval, the county must hold at least one public hearing on the plan. The county must also make a reasonable effort to notify farmers affected by county findings, and give them an opportunity to contest the findings.
DATCP may review a county's ongoing implementation of a DATCP-approved county plan. DATCP may consider information obtained in its review when it makes its annual grant allocations to counties.
County Ordinances
A county may require farm conservation practices by ordinance. DATCP must review, and may comment on, proposed ordinances that establish farm conservation requirements. DATCP will review agricultural shoreland management ordinances and other ordinances that regulate farm conservation practices. DATCP will assist DNR in reviewing general shoreland management ordinances adopted under s.
59.692, Stats., if those ordinances regulate farm conservation practices.
A county need not obtain DATCP approval to adopt an ordinance, except in certain cases prescribed by statute. This rule, like current rules, establishes specific standards for county and local ordinances related to manure storage and agricultural shoreland management (see below). Conservation practices required under a county ordinance are subject to the cost-sharing requirements in this rule (see above).
Farmland Preservation; Conservation Standards
Farmers who claim farmland preservation tax credits must currently meet county farm conservation standards. This rule requires every county to incorporate in its standards the farm conservation practices required under this rule (see above). In a county that fails to comply, farmers may be disqualified from claiming tax credits. DATCP may also deny soil and water conservation funding to a noncomplying county.
This rule spells out the procedure by which a county must adopt conservation standards for farms receiving tax credits under the farmland preservation program. The county must hold a public hearing on the proposed standards. The county must also submit the proposed standards for LWCB approval, as required under s.
92.105, Stats.
A farmer must comply with the county conservation standards in order to claim farmland preservation tax credits. A county may ask a farmer to certify compliance on an annual or other periodic basis, and must inspect a farmer's compliance at least once every 6 years. The county must issue a notice of noncompliance if the county finds that a farmer is not complying with the standards. If the farmer fails to comply by a deadline specified in the notice, the farmer may no longer claim farmland preservation tax credits. The farmer may meet with the county land conservation committee to discuss or contest a notice.
A farmer who fails to meet farmland preservation conservation standards may continue to claim tax credits if the farmer complies with a farm conservation plan that will achieve full compliance within 5 years. A farm conservation plan is a written agreement between the farmer and county, in which the farmer agrees to install specified conservation practices by a specified date.
Annual Grant Application
By April 15 of each calendar year, a county must file its funding application with DATCP for the next calendar year. The county may request any of the following:
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An annual staffing grant. A staffing grant is used to finance county staff engaged in soil and water conservation programs (see below). Staff may include county employees and independent contractors who work for the county land conservation committee. A grant may include training and support for county employees. The grant application must identify the activities that the staff will perform, and the amount of funding requested. DATCP will reimburse county staff and employee support costs at the rate specified in s.
92.14, Stats., up to the amount of the annual staffing grant award.
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Cost-share funding for farm conservation practices. The county must identify the amount of cost-share funding requested, and the purposes for which the county will use that funding. DATCP distributes cost-share funding on a reimbursement basis, after the county certifies that the cost-shared practices are properly installed and paid for.
Annual Report
By April 15 of each year, a county must file with DATCP a year-end report for the preceding calendar year. The report must describe the county's activities and accomplishments, including progress toward the objectives identified in the county land and water resource management plan (see above).
Accounting and Recordkeeping
Every county land conservation committee, in consultation with the county's chief financial officer, must establish and maintain an accounting and recordkeeping system that fully and clearly accounts for all soil and water conservation funds. The records must document compliance with applicable rules and contracts.
DATCP Review
DATCP may review county activities under this rule, and may require the county to provide relevant records and information.
Training for County Staff
DATCP may provide training, distribute training funds to counties (see below), make training recommendations, and take other action to ensure adequate training of county staff. Under this rule, DATCP must appoint a training advisory committee to advise DATCP on county staff training activities. The committee must include representatives of all of the following:
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DNR.
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NRCS.
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The university of Wisconsin-extension.
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The statewide association of land conservation committees.
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The statewide association of land conservation committee staff.
Grants to Counties
DATCP awards soil and water conservation grants to counties. These grants finance county staff and support, as well as county cost-share grants to landowners. DATCP does not provide grants to local government. In certain limited cases, DATCP may authorize a county to reallocate county staffing grant funds to local governments or tribes.
DATCP may award grants (service contracts) to governmental or non-governmental entities for information, education, training and other services related to DATCP's administration of the soil and water conservation program. Under this rule, DATCP will no longer award cost-share grants directly to individual landowners.
Annual Grant Allocation Plan
This rule requires DATCP to allocate soil and water conservation grants according to an annual grant allocation plan. The DATCP secretary signs the allocation plan after consulting with the LWCB. The plan must specify, for the next calendar year, all of the following:
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The total amount appropriated to DATCP for possible allocation under the plan, including the amounts derived from general purpose revenue (GPR), segregated revenue (SEG) and bond revenue sources.
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The total amount allocated under the plan, including the amounts allocated from GPR, SEG and bond revenue sources.
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The total amount allocated for annual staffing grants to counties, the total and subtotal amounts allocated to each county, and an explanation for any material difference in allocations between counties.
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The total amount allocated to counties for cost-share grants to landowners, the total and subtotal amounts allocated to each county, and an explanation for those allocations.
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The amounts allocated to non-county grant recipients, and an explanation for those allocations.
DATCP must prepare the annual grant allocation plan after reviewing county grant applications. DATCP will normally provide a draft plan to DNR, the LWCB and every county land conservation committee by August 1 of the year preceding the calendar year to which the plan applies.
DATCP must adopt an annual allocation plan by December 31 of the year preceding the calendar year to which the plan applies. The final draft plan may include changes recommended by the LWCB, as well as updated estimates of project costs. DATCP must provide copies of the plan to DNR, the LWCB and every county land conservation committee.
Revising the Allocation Plan
DATCP may make certain revisions to an annual grant allocation plan after it adopts that plan. The DATCP secretary must sign each plan revision. A revision may do any of the following:
•
Extend funding for landowner cost-share contracts that were signed by December 1 of the preceding year, but not completed during that year. Counties must apply by December 31 for contract funding extensions.
•
Increase the total grant to any county. DATCP must give all counties notice and an equal opportunity to compete for funding increases (other than funding extensions for existing cost-share contracts).
•
Reduce a grant award to any county.
•
Reallocate a county's annual grant between grant categories, to the extent authorized by law and with the agreement of the county.
Before DATCP revises an annual grant allocation plan, it must do all of the following:
•
Provide notice and a draft revision to DNR, the LWCB and every county land conservation committee. The notice must clearly identify and explain the proposed revision.
•
Obtain LWCB recommendations on the proposed revision.
Grant Priorities
Under this rule, DATCP must consider all of the following when preparing an annual grant allocation plan:
•
County staff and project continuity. DATCP must give high priority to maintaining county staff and project continuity. DATCP must also consider priorities identified in the county grant application and in the county's approved land and water resource management plan.
•
Statewide priorities. DATCP may give priority to county projects that address the following statewide priorities:
*
Farms discharging pollutants to waters that DNR has listed as “impaired waters" under
33 USC 1313 (d) (1) (A).
* Farms whose cropland erosion is more than twice T-value.
* Farms discharging substantial pollution to waters of the state.
* Farms claiming tax credits under the farmland preservation program.
•
Other factors. DATCP may also consider the following factors, among others, when determining grant allocation priorities:
* The strength of the county's plan and documentation.
* A county's demonstrated commitment to adopt and implement the farm conservation practices required under this rule.
* The likelihood that funded activities will address and resolve high priority problems identified in approved county land and water resource management plans.
* The relative severity and priority of the water quality and soil erosion problems addressed.
* The relative cost-effectiveness of funded activities in addressing and resolving high priority problems.
* The extent to which funded activities are part of a systematic and comprehensive approach to soil erosion and water quality problems.
* The timeliness of county grant applications and annual reports.
* The completeness of county grant applications and supporting data.
* The county's demonstrated ability, cooperation and commitment, including its commitment of staff and financial resources.
* The degree to which funded projects contribute to a coordinated soil and water resource management program and avoid duplication of effort.
* The degree to which funded projects meet county needs and state requirements.
* The degree to which county activities are consistent with the county's approved land and water resource management plan.
Annual Staffing Grants to Counties
DATCP must award an annual staffing grant to each eligible county that makes a required commitment of county funds. DATCP may not use bond revenue funds for county staffing grants. DATCP must distribute an annual staffing grant according to an annual grant contract with the county. With DATCP permission, the county may reallocate staffing grant funds to a local government or tribe.
A county must use an annual staffing grant in the year for which it is made. The county may use the grant for any of the following purposes, subject to the grant contract:
•
Employee salaries, employee fringe benefits and contractor fees for county employees and independent contractors engaged in soil and water resource management activities on behalf of the county land conservation committee.
•
Training for county employees and county land conservation committee members.
•
Any of the following employee support costs identified in the grant application:
* Mileage expenses at the state rate. A staffing grant may not be used to lease or purchase a vehicle.
* Personal computers, software, printers and related devices.
* A proportionate share of costs for required financial and compliance audits.
* Other staff support costs that DATCP identifies, in the grant application form, as being reimbursable for all counties.
DATCP may award different staffing grant amounts to different counties, based on statutory requirements and DATCP's assessment of funding needs and priorities. Subject to the availability of funds, DATCP will award at least $50,000 to each county.
A county may redirect unused staffing grant funds for landowner cost-share grants if DATCP approves in writing. The county must use the redirected funds in the year for which they are allocated. (See cost-share reimbursement procedures below.)
To qualify for a staffing grant, a county must maintain its soil and water resource management effort at or above the amounts that the county expended in each of the years 1985 and 1986 (see s.
92.14(7), Stats.) A county may count, as part of its “maintenance of effort" contribution, expenditures for any county staff (employees and independent contractors) engaged in soil or water resource management work for the county land conservation committee. A county may not count capital improvement expenditures, expenditures for county staff not working for the land conservation committee, or the expenditure of grant revenues received from other government sources.
A county land conservation committee must keep records related to annual staffing grants. The records must document that the county used grant funds according to this rule and the grant contract. The county must retain the records for at least 3 years.
Paying Staffing Grants
DATCP will make staffing grant payments on a reimbursement basis. DATCP will pay reimbursement, at the prescribed statutory rate, on costs identified in a valid county reimbursement request. Total payments may not exceed the total annual grant award to the county. DATCP will reimburse costs that the county incurs during the grant year (and pays by January 31 of the following year). Unspent grant funds remain with DATCP, for allocation in future years.
A county may file 2 reimbursement requests for each grant year. A county may file its first reimbursement request on or after July 1 for costs incurred before July 1 of the grant year. A county may file a second reimbursement request for costs incurred on or after July 1 of the grant year. A county must file all of its requests by April 15 of the following year. DATCP will pay reimbursement within 30 days after a county submits a valid request.
The county must file its reimbursement request on a form provided by DATCP. In its reimbursement request, the county must identify the costs for which it seeks reimbursement. The reimbursement rate is based on a statutory formula. The rate depends on the number of staff in the county, and whether those staff are working on the DNR priority watershed program. The county must provide information needed to determine the reimbursement rate.
If a county reallocates part of its staffing grant to a local government or tribe, the county must submit reimbursement requests on behalf of that local government or tribe. DATCP may then pay reimbursement directly to the local government or tribe.
Grants for Conservation Practices
DATCP may award grants to eligible counties to finance cost-share grants to landowners. DATCP must enter into an annual contract with each county receiving cost-share funds. DATCP will pay the county on a reimbursement basis, after the landowner installs the cost-shared practice and the county does all of the following:
•
Files with DATCP a copy of the county's cost-share contract with the landowner. The cost-share contract must comply with this rule (see above).
•
Certifies the reimbursement amount due.
•
Certifies, based on documentation filed in the county, that the cost-shared practice is properly designed, installed and paid for (see above).
Cost-share funds may be used to finance conservation practices identified in this rule (see above), except that bond revenues may not be used to finance any of the following practices:
•
Conservation tillage.
•
Contour farming.
•
Cropland cover (green manure).
•
Intensive grazing management.
•
Nutrient or pesticide management.
•
Strip-cropping.
DATCP may not use cost-share grant funds to reimburse a county for costs incurred after December 31 of the grant year (or paid after January 31 of the following year). Unspent funds remain with DATCP, for distribution under a future year's allocation plan. If a landowner signs a funded cost-share contract by December 1 of the initial grant year, but does not complete that contract in that grant year (e.g., because of bona fide construction delays), DATCP may extend funding to the next year. DATCP will normally extend funding if the county requests the extension by December 31. DATCP will not extend funding for more than one year.
A county land conservation committee must keep all of the following records related to cost-share grant funds received from DATCP:
•
Copies of all county cost-share contracts with landowners.
•
Documentation to support each county reimbursement request to DATCP (see above).
•
Documentation showing all county receipts and disbursements of grant funds.
•
Other records needed to document county compliance with this rule and the grant contract.
A county land conservation committee must retain cost-share records for at least 3 years after the committee makes its last cost-share payment to the landowner, or for the duration of the required maintenance period, whichever is longer. The committee must make the records available to DATCP and grant auditors upon request.
Priority Watershed Program; County Staffing Grants
As part of the legislative restructuring of the state's nonpoint source pollution abatement program, DNR is phasing out its priority watershed program under ch.
NR 120. DNR will continue to provide cost-share funding for priority watershed projects established prior to July 1, 1998. But DNR will establish no new priority watershed projects, and has established no new projects since July 1, 1998. DNR will no longer provide funding for county and local government staff engaged in the priority watershed program.
DATCP currently provides grants to pay for county soil and water conservation staff (see above). Under the redesigned nonpoint source pollution abatement program, DATCP will also fund county and local staff who are still engaged in DNR's priority watershed program. Funding for these county staff will be added to, and included in, DATCP's annual staffing grants to counties.
Agricultural Engineering Practitioners; Certification
Under s.
92.18, Stats., DATCP must certify persons who design, review or approve cost-shared agricultural engineering practices. This rule identifies the agricultural engineering practices for which certification is required. This rule continues, without change, the certification program established under current rules. No certification is required for a professional engineer certified under ch.
443, Stats.
Applying for Certification
Under this rule, a person who wishes to be certified as an agricultural engineering practitioner must apply to DATCP or a county land conservation committee. A person may apply orally or in writing. DATCP or the committee must promptly refer the application to a DATCP field engineer. Within 30 days, the DATCP field engineer must rate the applicant and issue a decision granting or denying the application.
Certification Rating
The DATCP field engineer must rate an applicant using the rating form shown in Appendix E to this rule. The field engineer must rate the applicant based on the applicant's demonstrated knowledge, training, experience, and record of appropriately seeking assistance. For the purpose of rating an applicant, a field engineer may conduct interviews, perform inspections, and require answers and documentation from the applicant.
For each type of agricultural engineering practice, the rating form identifies 5 job classes requiring progressively more complex planning, design and construction. Under this rule, the field engineer must identify the most complex of the 5 job classes for which the applicant is authorized to certify that the practice is properly designed and installed. A certified practitioner may not certify any agricultural engineering practice in a job class more complex than that for which the practitioner is certified.
Appealing a Certification Decision
A field engineer must issue a certification decision in writing, and must include a complete rating form. An applicant may appeal a certification decision or rating by filing a written appeal with the field engineer. The field engineer must meet with the appellant in person or by telephone to discuss the matters at issue.
If the appeal is not resolved, DATCP must schedule an informal hearing before a qualified DATCP employee other than the field engineer. After the informal hearing, the presiding officer must issue a written decision that affirms, modifies or reverses the field engineer's action. If the applicant disputes the presiding officer's decision, the applicant may request a formal hearing under ch.
227, Stats.
Reviewing Certification Ratings
Under this rule, a DATCP field engineer must review the certification rating of every agricultural engineering practitioner at least once every 3 years. A field engineer must also review a certification rating at the request of the person certified. A field engineer may not reduce a rating without good cause, and all reductions must be in writing.
Suspending or Revoking Certification
Under this rule, DATCP may suspend or revoke a certification for cause. DATCP may summarily suspend a certification, without prior notice or hearing, if DATCP makes a written finding that the summary suspension is necessary to prevent an imminent threat to the public health, safety or welfare. The practitioner may request a formal hearing under ch.
227, Stats.
County and Local Ordinances
General
Farm conservation requirements adopted by a county, city, village, town or local governmental unit must be reasonably consistent with this rule. DATCP must review, and may comment on, proposed county ordinances requiring farm conservation practices. DATCP will review agricultural shoreland management ordinances and other ordinances that regulate farm conservation practices. DATCP will assist DNR in reviewing general shoreland management ordinances adopted under s.
59.692, if those ordinances regulate farm conservation practices.
Counties must submit relevant ordinances for review. They need not obtain DATCP approval of their proposed ordinances, except in specific cases provided by statute. This rule, like current rules, establishes specific standards for county and local ordinances related to manure storage and agricultural shoreland management (see below).
Manure Storage Ordinances
A county, city, village or town may enact a manure storage ordinance under s.
92.16, Stats. Current rules spell out standards for manure storage ordinances. This rule incorporates those standards without change.
Under this rule, a county or local manure storage ordinance adopted under s.
92.16, Stats., must require persons constructing manure storage systems to obtain a county or local permit. A person constructing a manure storage system must have a nutrient management plan that complies with this rule, and must comply with applicable design and construction standards.
A manure storage ordinance may prohibit any person from abandoning a manure storage system unless that person submits an abandonment plan and obtains an abandonment permit. The rule spells out suggested abandonment requirements for those ordinances that regulate abandonment.
Agricultural Shoreland Management Ordinances
A county, city, village or town may enact an agricultural shoreland management ordinance under s.
92.17, Stats., with DATCP approval. Current rules spell out standards for agricultural shoreland management ordinances. This rule adopts the current rules without change. DATCP must seek DNR and LWCB recommendations before it approves an ordinance or amendment, except that DATCP may summarily approve an ordinance amendment that presents no significant legal or policy issues.
Local Regulation of Livestock Operations
A local governmental unit may regulate livestock operations under s.
92.15, Stats., and other statutes. Local regulations must comply with s.
92.15, Stats., as applicable.
Waivers
DATCP may grant a waiver from any standard or requirement under this rule if DATCP finds that the waiver is necessary to achieve the objectives of this rule. The DATCP secretary must sign the waiver. DATCP may not waive a statutory requirement.
Standards Incorporated by Reference
Pursuant to s.
227.21, Stats., DATCP has received permission from the attorney general and the revisor of statutes to incorporate by reference in this rule NRCS technical guide standards, ASAE engineering practice standards, DNR construction site erosion control standards, the UW- extension pollution control guide for milking center waste water management, and the UW-extension guide on rotational grazing. Copies of these standards are on file with the department, the secretary of state and the revisor of statutes, but are not reproduced in this rule. Where technical standards have changed, DATCP is seeking permission from the attorney general and the revisor of statutes to incorporate by reference the modified standards.
NRCS technical guide nutrient management standard 590 is attached as Appendix D to this rule. Appendix B contains a summary of UWEX publication A-2809, Soil Test Recommendations for Field, Vegetable and Fruit Crops (copyright 1998), for selected crops. The department is seeking permission from the attorney general and revisor of statutes to incorporate the complete UWEX publication by reference in this rule. The complete publication and the summary are available from UW-extension, and will be on file with the department, the secretary of state and the revisor of statutes.
Fiscal Estimate
The proposed rule establishes procedures and requirements for counties that prepare land and water resource management plans under s.
92.10, Stats. The initial plans were approved for two to three year periods. The next round of plans is expected primarily in 2002 and 2003. The department allocated an average of $2 million per year in 1999, 2000 and 2001 to counties to implement their land and water resource management plans. The department also allocates about $10.2 million annually (final allocation plan for 2001) to counties for annual staffing grants. The county's staff costs for preparing the county plans are eligible activities under these annual staffing grants.
The proposed rule establishes the procedures and standards that counties and other local governments must use to adopt local ordinances for manure storage systems (under s.
92.16, Stats.), shoreland management (under s.
92.17, Stats.), and for local regulation of livestock operations (s.
92.15, Stats.). The authority to adopt local regulations on livestock operations was established in
1997 Wisconsin Act 27. Local governments may adopt local ordinances, at their discretion. The department is required, under s.
92.05(3)(L), Stats., to review and comment on these ordinances and other ordinances adopted by local governments that regulate implementation of conservation practices.
As a result of the proposed rule, the department may be asked to increase the allocation of state funds to some county land conservation committees and some farmers.
1999 Wisconsin Act 9, the budget bill, included $3.575 million in new bond revenue, funding for cost-share grants; and transferred about $6.2 million from the Wisconsin DNR priority watershed program to the department in the second year of the biennium, fiscal year 2000-2001. The budget also directed the department to establish a goal of providing an average of three staff funded 100% for the first, 70% for the second, and 50% for the third staff person. The department is also directed to provide an average of $100,000 grant per year per county for cost-share assistance to implement county land and water resource management plans. The department is revising its allocation process to begin to phase in the new funding strategy for 2002. The proposed rule does not otherwise increase funding for the program; therefore any increases in grants to some counties must result in decreases in grants to other counties.
The department has estimated the cost to counties as a result of implementing the proposed performance standards and prohibitions included in the Department of Natural Resources' NR 151, and ATCP 50. The total staff costs to implement the agricultural performance standards and prohibitions are based on assumptions from the attached fiscal estimate worksheet. The total cost for staff to implement the performance standards and prohibitions are estimated at between about $80 million and $190 million over a ten year implementation period for low cost and high cost alternatives, respectively. Currently, there are about 400 county land conservation department staff, statewide. The department estimates that the average salary and fringe benefit for county staff is about $45,000 per year. For this fiscal estimate, the department assumes that about 75% of the needed staff resources to complete the technical and administrative work related to implementing the performance standards and prohibitions could come from redirecting current staff. Counties currently implement a number of local, state and federal programs that support implementation of the performance standards and prohibitions. Using the 75% assumption, implementing the rule over an assumed ten-year implementation period would result in an unmet need of about 450 staff (45 staff per year), or about $2 million per year for the low cost alternative. Assuming the high cost alternative, the department estimates that about 1,050 staff years would be needed over ten years, or about 105 staff per year, or about $4.7 million per year. The table below illustrates the assumptions used for the fiscal estimate. Please refer to the totals at the bottom of Appendix B for the total staff needs over ten years to implement the agricultural performance standards and prohibitions.
Low Cost
High Cost
Total Staff Needed Over Ten-year Implementation
1,786 4,218
Annual Staff Needs For Implementation 179 422
75% of Need From Redirecting Current Staff 134 317
Difference Which Estimates Annual
Additional Staff Needs 45 105
Estimated Annual Cost
(Assuming $45,000 per staff per year) $ 2.0 million $ 4.7 million
A workload analysis prepared by the USDA Natural Resources Conservation Service, (with assistance from counties), shows an unmet staff need to implement current programs. If less than 75% of the needed staff to implement the performance standards and prohibitions were available from redirecting current staff, the staff costs would increase proportionately. The result of redirecting these current staff would result in fewer staff available to implement current programs. The programs affected under this scenario include those that do not directly or indirectly implement the agricultural performance standards and prohibitions. However, the department believes the low cost estimate for this fiscal estimate is more accurate, because these estimates do not include the staffing contributions made by the federal government.
Impact of the Rule Revision to State Government
1999 Wisconsin Act 9, the biennial budget bill transferred $170,000 in fiscal year 1999-2000 and $190,000 in 2000-2001 from the Department of Natural Resources (DNR) to the department for three staff positions. These staff work on the new responsibilities resulting from the budget and the redesign of the state's nonpoint source programs. The department is assuming responsibilities to implement the agricultural component of DNR's nonpoint source program.
The department will have increased work associated with implementing a statewide nutrient management program. The proposed rule includes a process to certify soil-testing laboratories. The increased cost and work to administer the statewide nutrient management program and certify soil test laboratories will be done as a result of the new staff mentioned above and otherwise absorbed by the department.
The department will have increased work associated with reviewing ordinances proposed by local governments. Again, this activity will be included with the responsibilities of the new staff or otherwise absorbed by the department.
The department will have increased work associated with reviewing and approving county land and water resource management plans. The department previously had staff that assisted the Department of Natural Resources by developing portions of the priority watershed plans under DNR's nonpoint source pollution abatement program. The priority watershed program is being phased out and the department's staff that worked on the watershed plans will now be assigned to review and work with counties on land and water resource management plans.
The department also has new responsibility, under s.
281.16, Stats., to develop conservation practices and develop and disseminate technical standards to implement agricultural performance standards and prohibitions. The proposed rule establishes the procedures the department will use to accomplish this task. The department will utilize the new staff, or otherwise absorb this work activity.
Finally, the department will have increased work related to the grants issued to counties to implement land and water resource management plans and the agricultural performance standards and prohibitions in Department of Natural Resources NR 151 and ATCP 50. The department will utilize the new staff, or otherwise absorb this work activity into the current operating budget.
Initial Regulatory Flexibility Analysis
The proposed rule for the soil and water resource management program establishes the standards and requirements for soil erosion control, animal waste management, nonpoint source water pollution abatement, and nutrient management for the soil and water resource management program in Wisconsin. Among other things, the proposed rule: requires farm conservation practices, creates a nutrient management program, sets guidelines for county land and water resource management plans, updates procedures for the allocation of grants, and establishes technical standards for conservation practices.
The proposed rule is closely tied to DNR's proposed rule, NR 151, which establishes seven agricultural performance standards that farmers are required to meet. Existing farming operations will be required to meet the performance standards if at least 70% cost sharing is made available to them. This proposed rule spells out the implementation strategy the department will follow to meet those performance standards. That strategy consists of having the department provide funds to implement county land and water resource management plans. By statute, the department must work toward funding an average of three staff positions in each county and an average of $100,000 per year in cost-share funds.
The small businesses primarily affected by this rule are farmers. Other businesses affected to a lesser degree are private crop consultants, farm cooperatives and farm supply organizations that perform nutrient management planning and that sell fertilizers to farmers. A third type of business affected by the rule are contractors who install conservation practices.
Farmers
The proposed rule and DNR's proposed rule, NR 151, require farmers to meet seven agricultural performance standards. The department has conducted a fiscal estimate of the costs farmers might have to implement practices to come into compliance with the standards. The worksheet for that fiscal estimate is attached to the environmental analysis for this proposed rule.
The proposed rule will affect small to moderate sized livestock operations in Wisconsin. Large livestock operations, those with more than 1000 animal units, are regulated by the Department of Natural Resources and treated as potential point sources of pollution. This proposed rule will also affect all farmers who apply manure, sludge or commercial fertilizers to their fields. This proposed rule will also affect all farmers with cropland eroding at more than tolerable levels.
A summary of the fiscal impact of this rule on farmers is as follows for each proposed performance standard. These costs represent out-of-pocket costs to farmers and associated costs for maintaining practices, and lost opportunity costs. The estimates do not include anticipated financial benefits from the practices.
Proposed performance standard: All farmland must be cropped to achieve a soil erosion rate equal to, or less than, the 'tolerable' (T) rate established for that soil.
Ten-Year Ten-Year
Low Cost High Cost
Farmers' costs $ 49,500,000 $ 76,500,000
State's costs $115,500,000 $178,500,000
Total $165,000,000 $255,000,000
Proposed performance standard: Grass vegetation shall be established and maintained in concentrated flow channels within cropland areas where runoff would otherwise cause erosion or sediment delivery to navigable surface waters.
Ten-Year Ten-Year
Low Cost High Cost
Farmers' costs $2,700,00 $ 4,050,000
State's costs $6,300,000 $ 9,450,000
Total $9,000,000 $13,500,000
Proposed performance standard: All cropped fields, pastures or woodlots located within water quality management areas, not including sites defined under s.
NR 151.01518) (a) to (f), shall have a minimum water quality corridor that conforms to one of the following options: (1) a ten foot permanent vegetation cover corridor with 90 feet of cropland with at least 50% residual cover; (2) a 20 foot permanent vegetation cover corridor with 30 feet of cropland with 30% residual cover; (3) a 20 foot permanent vegetation cover corridor with 100 feet of cropland with no residual cover if the slope is less than 2%; and (4) a 35 foot permanent vegetation cover corridor with no residual cover on adjoining cropland.
Ten-Year Ten-Year
Low Cost High Cost
Farmers' costs $ 42,000,000 $63,900,000
State's costs $ 98,000,000 $149,100,000
Total $140,000,000 $213,000,000
Proposed performance standard: New or substantially altered existing manure storage facilities must be constructed to meet NRCS standard 313. Abandonment of manure storage facilities shall be completed according to NRCS standard 313 requirements.
This proposed standard does not require any farmer to construct or abandon facilities. It merely states that if they are going to construct or abandon manure storage facilities, they must do it safely and according to standards. Those farmers with unexpected costs associated with this standard are those livestock operations with manure storage facilities that are going out of business. Their estimated costs are as follows.
Ten-Year Ten-Year
Low Cost
High Cost
Farmers' costs $ 300,000 $ 600,000
State's costs $ 700,000 $1,400,000
Total $1,000,000 $2,000,000
Proposed performance standard: Runoff shall be diverted away from contacting feedlot and barnyard areas within water quality management areas.
The cost estimates for diverting runoff from barnyards and feedlots are included in the cost estimates for performance standard number seven, the performance standard for the four Animal Waste Advisory Committee prohibitions.
Proposed performance standard: Any application of manure, sludge or commercial nitrogen and phosphorus fertilizer shall be done in conformance with a plan developed in accordance with NRCS standard 590.
Nutrient Management Planning
Ten-Year Ten-Year
Low Cost
High Cost
Farmers' costs $42,000,000 $ 78,000,000
State's costs at $98,000,000 $182,000,000
Total $140,000,000 $260,000,000
Required Manure Storage
Ten-Year Ten-Year
Low Cost
High Cost
Farmers' costs $ 8,700,000 $13,200,000
State's costs $20,300,000 $30,800,000
Total $29,000,000 $44,000,000
Proposed performance standard: A livestock operation shall have no overflow of manure storage facilities." "A livestock operation shall have no unconfined manure pile in a water quality management area." "A livestock operation shall have no direct runoff from a feedlot or stored manure into the waters of the state." A livestock operation shall not allow unlimited access by livestock to waters of the state in a location where high concentrations of animals prevent the maintenance of adequate sod cover.
Ten-Year Ten-Year
Low Cost
High Cost
Farmers' costs $24,000,000 $ 31,800,000
State's costs $56,000,000 $ 74,200,000
Total $80,000,000 $106,000,000
Because the estimated costs are so large, much of the required work may not get done, or at least it may not get done in the immediate future. The law requires that at least 70% cost sharing must be provided before a farmer may be required to do work to meet a performance standard. Therefore, the governing factor determining what a farmer must do is the amount of cost-share dollars the state has available each year. DATCP currently has approximately $3,000,000 to $3,500,000 a year in cost-share funds. Added to the farmers' share, this will install about $4,300,000 to $5,000,000 worth of conservation practices each year. The average grant amount for a contract issued by the department is between $15,000 and $20,000. If the department's cost-share funding stays at approximately $3 to $3.5 million, the total number of farmers that we will be able to work with will be between 150 and 250 each year. In their land and water resource management plans, counties may find different ways to reach more people with the available cost-share dollars. In addition, counties could use money from other programs to help meet the performance standards, where applicable.
This proposed rule does require additional reporting and record-keeping activities from farmers. For farmers who have not been doing conservation or nutrient management work, these reporting and record-keeping activities will be new. It is anticipated that more cost-share dollars will be made available under this new program and, therefore, more farmers will have to do the reporting, record keeping and other requirements associated with receiving grants. The procedures required of these farmers includes preparing and following conservation or erosion control plans for cropland fields, preparing and following nutrient management plans for fields on which nutrients are applied, and agreeing to and following contracts as a condition for receiving cost-share funds. Farmers will have to keep track of plans and be able to document activities to demonstrate compliance with them. These rule requirements will mean that farmers must understand and keep records of soil types, nutrient requirements of various crops, nutrient content of various kinds and amounts of manure and planned schedules for applying nutrients and conservation practices.
Most farmers are aware of conservation and nutrient management plans and the factors that go into determining erosion rates and amounts of nutrients to be applied. County-based conservation professionals are available to assist farmers with making calculations, interpreting plans and reading designs and specifications. The requirement for all farmers to prepare and follow nutrient management plans may require some farmers to become more familiar with crop needs, soil types and nutrient levels in livestock manure. We can assume that most farmers have this knowledge and these skills, but they may have to be increased or refined to meet the nutrient management requirements, depending on the skill of the individual farmer involved.
Crop consultants, farm cooperatives, farm supply organizations, and manure-haulers
Those providing nutrient management planning services to farmers and those selling fertilizers to farmers will be affected by this rule. Nutrient management planners will have to be recognized by the department as being qualified to prepare plans. Their work will be reviewed periodically by the department.
More state and landowner funds will likely be spent on preparing nutrient management plans, thereby increasing business opportunities for this industry. All cropland acres to which nutrients are applied will be required to be following nutrient management plans. As many as nine to ten million cropland acres could require nutrient management plans at an average cost of between six and ten dollars an acre.
On the other hand, the sale of commercial fertilizers will probably be reduced. In addition, those who sell fertilizers to farmers will have to keep records of who prepared nutrient management plans for those farmers purchasing the fertilizers. Those selling fertilizers will not be required to refuse sales if no nutrient management plan has been prepared, but they must make records available to department inspectors upon request.
Nutrient management planners will have to become familiar with the University of Wisconsin nutrient recommendations in the UW Extension publication number A2809. They will have to become familiar with, and follow, department guidelines and requirements for approvable nutrient management plans.
This proposed rule will result in an increased demand for manure-haulers throughout the state. As part of implementing their nutrient management plans, many farmers will have to rely on commercial manure-haulers to apply their manure on appropriate fields. This industry should see increased revenue and business from many farmers.
Construction contractors
Statewide, the impact of this proposed rule on construction contractors will differ from what it has been in the past. There will be no different professional skills required and no increase in reporting and record-keeping requirements. The main impact of this proposed rule on contractors will be the redistribution of projects across the state. This may not affect large contractors who are more mobile and can set up branch offices, but smaller, less mobile operations may see a negative impact.
Instead of having project concentrated in a relatively few priority areas in the state, under the new program each county will receive some funds for projects. This will result in projects being more evenly distributed across the state. This will benefit those contractors which are more mobile than those which are not. After about a one or two year period of adjustment, this change on the industry will likely stabilize.
Environmental Assessment
The department has prepared a preliminary environmental assessment for this administrative rule. The assessment finds that the proposed repeal and recreation of chapter ATCP 50 would have no significant adverse environmental impact and is not a major state action significantly affecting the quality of the human environment. It is expected that the proposed rule will have a positive impact on protecting soil resources and improving and protecting water quality. Alternatives to this proposed rule, discussed in the assessment, will not reach program goals as effectively as the proposed rule. No environmental impact statement is necessary under S.
1.11 (2), Stats.
You may obtain a free copy of the environmental assessment by contacting Bonnie Shebelski at the Wisconsin Department of Agriculture, Trade and Consumer Protection, Bureau of Land and Water Resources, 2811 Agricultural Drive, P.O. Box 8911, Madison, Wisconsin 53708-8911, telephone: 608/224-4620. Copies will also be available at the hearings.
Notice of Hearing
Pharmacy Examining Board
NOTICE IS HEREBY GIVEN that pursuant to authority vested in the Pharmacy Examining Board in ss.
15.08 (5) (b),
227.11 (2) and
450.02 (2) and
(3), Stats., and interpreting ss.
450.01 (7) and
(16),
450.02 (2) and
(3) and
450.09, Stats., the Pharmacy Examining Board will hold a public hearing at the time and place indicated below to consider an order to create s.
Phar 7.12, relating to the requirements for an approved central fill system.
Hearing Date, Time and Location
Date: September 11, 2001
Time: 9:15 A.M.
Location: 1400 East Washington Avenue
Room 179A
Madison, Wisconsin
Appearances at the Hearing
Interested persons are invited to present information at the hearing. Persons appearing may make an oral presentation but are urged to submit facts, opinions and argument in writing as well. Facts, opinions and argument may also be submitted in writing without a personal appearance by mail addressed to the Department of Regulation and Licensing, Office of Administrative Rules, P.O. Box 8935, Madison, Wisconsin 53708. Written comments must be received by September 25, 2001 to be included in the record of rule-making proceedings.
Analysis prepared by the Department of Regulation and Licensing
The objective of this proposed rule is to specify the requirements for an approved central fill system. Integrated health systems, business entities comprising common ownership of multiple pharmacies and pharmacies desiring to enter contractual relationships with outside vendors have an interest in increasing patient convenience and lowering cost of service based upon the central filling of prescription orders for dispensing. The intent of such rules is to preserve the integrity of the dispensing process by addressing the issues of ownership of inventory, patient confidentiality, consultation, security, accuracy and accountability which must be maintained in any approved central fill system.
A “central fill pharmacy" is defined as a pharmacy licensed in this state acting as an agent of an originating pharmacy to fill or refill a prescription order. The “originating pharmacy" is a pharmacy licensed in this state that uses a central fill pharmacy to fill or refill a prescription order for purposes of dispensing by the originating pharmacy.
The central fill pharmacy and originating pharmacy may only process a request for the filling or refilling of a prescription received by an originating pharmacy when the requirements of this section are met. The central fill pharmacy must either have the same owner as the originating pharmacy or a contract with the originating pharmacy outlining the services, responsibilities and accountabilities of each pharmacy. Also, both pharmacies must maintain a written protocol delineating each pharmacy's assumption of responsibility for compliance with the prescription drug compounding and dispensing requirements of chs.
Phar 7 and
8. The proposed rule provides that the originating pharmacy shall still remain responsible for compliance with the prescription drug compounding and dispensing requirements of chs.
Phar 7 and
8 which are not assumed in writing by the central fill pharmacy pursuant to a filling protocol. The originating pharmacy will always remain solely responsible for the patient consultation and transfer requirements of s.
Phar 7.01 (1) (e) and
(em) where the prescription drug is not delivered by an agent of the pharmacist to a patient's residence. Certain functions in the dispensing process may not be performed by the central fill pharmacy unless it shares a common central processing unit with the originating pharmacy. These functions are the medication profile record review of the patient, drug utilization review, claims adjudication, refill authorizations, interventions, drug interactions and selection of drug product equivalents. The originating pharmacy remains responsible for original recordkeeping of all prescription orders as required by state and federal law. All original and refill requests received by the central fill pharmacy are required to be treated as prescription orders for purposes of filing and recordkeeping as required by state and federal law. Each pharmacy is required to maintain duplicate records to identify each pharmacist responsible for receiving and reviewing prescription orders and compounding and dispensing pursuant to a prescription order and to track the prescription order during each step in the dispensing process. Both pharmacies are required to adopt a joint written quality assurance program to monitor and evaluate the quality and appropriateness of patient care, pursue opportunities to improve patient care, resolve identified problems and insure compliance with this section. The label of any prescription drug container dispensed is also required to contain an additional label encoding either electronically or in printed form the name and address of the central fill pharmacy, the name of the pharmacist who filled the prescription order, and the date of filling.
Text of Rule
SECTION 1. Phar 7.12 is created to read:
Phar 7.12 Central fill pharmacy. (1) As used in this section, “central fill pharmacy" means a pharmacy licensed in this state acting as an agent of an originating pharmacy to fill or refill a prescription.
(2) As used in this section, “originating pharmacy" means a pharmacy licensed in this state that uses a central fill pharmacy to fill or refill a prescription order.
(3) A central fill pharmacy and originating pharmacy may process a request for the filling or refilling of a prescription received by an originating pharmacy only pursuant to the following requirements:
(a) The central fill pharmacy either has the same owner as the originating pharmacy or has a contract with the originating pharmacy outlining the services to be provided and the responsibilities and accountabilities of each pharmacy in fulfilling the terms of the contract in compliance with federal and state law.
(b) The central fill pharmacy and originating pharmacy maintain a written filling protocol delineating each pharmacy's assumption of responsibility for compliance with the prescription drug compounding and dispensing requirements of chs.
Phar 7 and
8.
(c) The originating pharmacy shall remain responsible for compliance with the prescription drug compounding and dispensing requirements of ch.
Phar 7 and which are not assumed in writing by the central fill pharmacy pursuant to such protocol.
(d) The central fill pharmacy shall not assume and the originating pharmacy shall at all times remain solely responsible to perform and comply with the requirements of s.
Phar 7.01 (1) (e) and
(em) in instances where the prescription is not delivered by an agent of the pharmacist to a patient's residence.
(e) Unless the central fill pharmacy shares a common central processing unit with the originating pharmacy it may not perform processing functions such as, the medication profile record review of the patient, drug utilization review, claims adjudication, refill authorizations, interventions, drug interactions and selection of drug product equivalents.
(f) The originating pharmacy shall maintain the original of all prescription orders received for purposes of filing and recordkeeping as required by state and federal law.
(g) The central fill pharmacy shall maintain all original fill and refill requests received from the originating pharmacy and shall treat them as original and refill prescription orders for purposes of filing and recordkeeping as required by state and federal law.
(h) In addition to meeting the other recordkeeping requirements required by state and federal law, the central fill pharmacy and originating pharmacy shall maintain duplicate records to identify each pharmacist responsible for receiving and reviewing prescription orders and compounding and dispensing pursuant to a prescription order and track the prescription order during each step in the dispensing process.
(i) The central fill pharmacy and originating pharmacy shall adopt a written quality assurance program for pharmacy services designed to objectively and systematically monitor and evaluate the quality and appropriateness of patient care, pursue opportunities to improve patient care, resolve identified problems and insure compliance with this section.
(j) In addition to meeting the requirements of s.
450.11 (4), Stats., every container of a prescription drug dispensed pursuant to this section shall contain an additional label encoding either electronically or in printed form the name and address of the central fill pharmacy, the name of the pharmacist who filled the prescription order, and the date of filling.
Fiscal Estimate
1. The anticipated fiscal effect on the fiscal liability and revenues of any local unit of government of the proposed rule is: $0.00.
2. The projected anticipated state fiscal effect during the current biennium of the proposed rule is: $0.00.
3. The projected net annualized fiscal impact on state funds of the proposed rule is: $0.00.
Initial Regulatory Flexibility Analysis
These proposed rules will be reviewed by the department through its Small Business Review Advisory Committee to determine whether there will be an economic impact on a substantial number of small businesses, as defined in s.
227.114 (1) (a), Stats.
Copies of Rule and Contact Person
Copies of this proposed rule are available without cost upon request to: Pamela Haack, Department of Regulation and Licensing, Office of Administrative Rules, 1400 East Washington Avenue, Room 171, P.O. Box 8935, Madison, Wisconsin 53708 (608) 266-0495.
Notice of Hearing
Pharmacy Examining Board
NOTICE IS HEREBY GIVEN that pursuant to authority vested in the Pharmacy Examining Board in ss.
15.08 (5) (b),
227.11 (2),
450.02 (3) (e),
450.03 (2) and
450.04 (1), Stats and interpreting ss.
450.04 and
450.05, Stats., the Pharmacy Examining Board will hold a public hearing at the time and place indicated below to consider an order to amend s.
Phar 2.01 (1) and
2.04 (1), relating to examinations for original licensure and for persons licensed in another state.
Hearing Date, Time and Location
Date: September 11, 2001
Time: 9:15 A.M.
Location: 1400 East Washington Avenue
Room 179A
Madison, Wisconsin
Appearances at the Hearing:
Interested persons are invited to present information at the hearing. Persons appearing may make an oral presentation but are urged to submit facts, opinions and argument in writing as well. Facts, opinions and argument may also be submitted in writing without a personal appearance by mail addressed to the Department of Regulation and Licensing, Office of Administrative Rules, P.O. Box 8935, Madison, Wisconsin 53708. Written comments must be received by September 25, 2001 to be included in the record of rule-making proceedings.
Analysis prepared by the Department of Regulation and Licensing
The objective of this proposed rule-making order is to create consistent licensure requirements with other states that require applicants in certain instances to take and pass the Foreign Pharmacy Graduate Equivalency Examination (FPGEE), the Test of English as a Foreign Language (TOEFL), and the Test of Spoken English (TSE).
Currently, Wisconsin law only requires that an applicant who is a foreign graduate of a school of pharmacy to take and pass the Foreign Pharmacy Graduate Equivalency Examination (FPGEE), offered by the National Association of Boards of Pharmacy, Foreign Pharmacy Graduate Examination Committee (FPGEC). Other states require a foreign graduate of a school of pharmacy to take and pass three examinations, the Foreign Pharmacy Graduate Equivalency Examination (FPGEE), the Test of English as a Foreign Language (TOEFL), and the Test of Spoken English (TSE). Upon successfully taking and passing all three examinations the foreign graduate earns FPGEC Certification. Requiring foreign graduate applicants in Wisconsin to earn FPGEC Certification as a precondition for licensure will allow Wisconsin licensure requirements in this instance to be considered “substantially equivalent" with other states, thus allowing greater mobility for pharmacists with Wisconsin licensure who thereafter seek licensure in other states.
Text of Rule
SECTION 1. Phar 2.01 (1) is amended to read:
Phar 2.01 (1) Has been graduated from a school or college of pharmacy approved by the board or has taken and passed the foreign pharmacy graduate equivalency examination given obtained certification by the foreign pharmacy graduate examination commission committee.
SECTION 2. Phar 2.04 (1) is amended to read:
Phar 2.04 (1) Has been graduated from a school or college of pharmacy approved by the board, or has taken and passed the foreign pharmacy graduate equivalency examination given obtained certification by the foreign pharmacy graduate examination commission committee.
Fiscal Estimate
1. The anticipated fiscal effect on the fiscal liability and revenues of any local unit of government of the proposed rule is: $0.00.
2. The projected anticipated state fiscal effect during the current biennium of the proposed rule is: $0.00.
3. The projected net annualized fiscal impact on state funds of the proposed rule is: $0.00.
Initial Regulatory Flexibility Analysis
These proposed rules will be reviewed by the department through its Small Business Review Advisory Committee to determine whether there will be an economic impact on a substantial number of small businesses, as defined in s.
227.114 (1) (a), Stats.
Copies of Rule and Contact Person
Copies of this proposed rule are available without cost upon request to: Pamela Haack, Department of Regulation and Licensing, Office of Administrative Rules, 1400 East Washington Avenue, Room 171, P.O. Box 8935, Madison, Wisconsin 53708 (608) 266-0495.
Notice of Proposed Rule-Making
Revenue
NOTICE IS HEREBY GIVEN that pursuant to ss.
227.11 (2),
565.01 (4) to
(4g) and
565.10, Stats., and interpreting ss.
565.01 (4),
565.10,
565.12,
565.25 and
565.30, Stats., and according to the procedure set forth in s.
227.16 (2) (e), Stats., the Department of Revenue will adopt the following rule as proposed in this notice, without public hearing unless, within 30 days after publication of this notice,
August 15, 2001, the Department of Revenue is petitioned for a public hearing by 25 natural persons who will be affected by the rule; a municipality who will be affected by the rule; or an association which is representative of a farm, labor, business or professional group which will be affected by the rule:
Analysis prepared by the Department of Revenue
The proposed order is intended to improve chs.
Tax 61,
62 and
63 by updating various definitions and terminology, clarifying various provisions, reflecting proper format and providing statutory references throughout the chapters. Additionally, the Wisconsin Lottery is proposing a change in the way in which nonprofit retailer contracts are administered. This change results in a potential for savings to taxpayers in administrative labor and data management activities, as well as allowing for the improvement of Lottery customer service to nonprofit retailers.
SECTIONS 1, 2, 6, 7, 8, 9, 11, 12, 15, AND 25. Tax 61.01, 61.02 (2), 61.04 (1) (intro.), (a) and (e), (3) and (4), 61.05 (1), 61.06(2) and (4), 61.07, 61.09, 61.10, 62.01, 63.01, 63.07 and 63.08 are revised, to update terminology and to reflect proper language and punctuation per Legislative Council Rules Clearinghouse (Clearinghouse) standards.
SECTION 3. Tax 61.02 (3) is repealed, because the term “executive director" is obsolete.
SECTION 4. As a result of the repeal of Tax 61.02 (3), Tax 61.02 (4) to (10) are renumbered Tax 61.02 (3) to (9). As renumbered, subs. (6), (7) and (9) are revised, to update terminology and to reflect proper language and punctuation per Clearinghouse standards.
SECTION 5. Tax 61.03 (1) is revised, to place a mailing address and location in a note rather than in the text of the rule, per Clearinghouse standards.
Tax 61.03 (2) is revised, to update terminology and to provide further clarification of the subsection.
SECTION 10. Tax 61.08 (1), (3), (5), (7), (8), (10), (11) (b) and (e), (13), (14) (b), (bm), (c) and (d), (15), (16), (19), (20) and (21) (intro.) and (a) to (h) are revised, to update terminology and to reflect proper language and punctuation per Clearinghouse standards.
Tax 61.08 (11) (h) is revised, to reflect that it is no longer necessary, but it is permissible, to stamp lottery tickets. Tax 61.08 (15) (c) and (d) are repealed, to remove code that is outdated due to changes in computer-monitored pack return procedures. Tax 61.08 (15) (d) is revised, to eliminate the authority to accept returned packs of tickets for credit after the last date on which it is permitted to sell those tickets.
SECTION 13. Tax 62.02 is repealed and recreated, to add additional definitions relevant to ch. Tax 62.
SECTION 14. Tax 62.20 is revised, to update terminology, to reflect proper punctuation per Clearinghouse standards and to provide further clarification of the subsection.
SECTION 16. Tax 63.02 is repealed and recreated, to add an introduction, to delete obsolete definitions, to add a new definition, to update language and punctuation per Clearinghouse standards, and to revise the definition of “Wisconsin lottery" to reference Tax 61.02 (9).
SECTION 17. Tax 63.03 (1) is revised, to update terminology and to place a mailing address and location in a note rather than in the text of the rule, per Clearinghouse standards.
Tax 63.03 (2) is revised, to update terminology and to provide further clarification of the subsection.
SECTIONS 18, 19 AND 20. Tax 63.04 (1) is revised, Tax 63.04 (2) (intro.) is renumbered Tax 63.04 (2) and revised, and Tax 63.04 (2) (a) and (b) are repealed, to more properly reflect the scope of a certificate of authority, in compliance with s. 565.10 (12), Stats. This significantly improves the method for administering non-profit retailer contracts while generating savings in cost and time for both the lottery and non-profit organizations. The limits of 26 events and 1 special event or of 2 special events per retailer are repealed, and replaced by administrative control on the locations at which a non-profit may conduct events for the 3-year duration of a contract. This proposed change results in operational efficiency for the lottery. It also allows non-profit retailers the opportunity to utilize pre-approved alternative locations in a case where unforeseen circumstances such as weather cause a scheduled event or special event to be canceled or relocated.
SECTION 21. Tax 63.04 (3) is revised, to remove an outdated policy relating to charging a fee for obtaining a duplicate certificate of authority.
Tax 63.04 (4) is revised, to update terminology.
Tax 63.04 (5) is revised, to remove fee statements that are no longer applicable and to update procedures relating to amending a retailer contract.
SECTION 22. Tax 63.06 (1), (3), (5), (7), (8) (b), (c) and (d), (9), (10) and (11) (a) are revised, to update terminology and to reflect proper language and punctuation per Clearinghouse standards.
Tax 63.06 (2) is revised, to provide procedures for amending a list of contract locations.
Tax 63.06 (6) is revised, to update language per Clearinghouse standards and to reflect that a certificate is to be displayed at every event or location, not just at every event.
Tax 63.06 (8) (g) is revised, to reflect that it is no longer necessary, but it is permissible, to stamp lottery tickets.
SECTION 23. Tax 63.06 (11) (c) is repealed and recreated, to reflect a change in position that certain lottery tickets may be returned by a retailer, and to indicate the circumstances under which they may be returned.
SECTION 24. Tax 63.06 (11) (d), (12), (13), (14) and (15) (intro.), (a), (e), (f), (g) and (h) are revised, to update language per Clearinghouse standards and to clarify the manner in which retailers are responsible for redeeming break-open tickets for players.
ALL APPLICABLE SECTIONS. In addition to the revisions described above, notes are added at the end of each section in chs.
Tax 61,
62 and
63, to cite the statutes that each section interprets.
SECTION 1. Tax 61.01 is amended to read:
Tax 61.01 Purpose. The purpose of this chapter is to provide the executive director administrator with the procedure and criteria for selecting retailers to sell lottery tickets, to establish the retailer's duties and obligations under the contract, to provide the executive director
administrator with the procedure and criteria to terminate or suspend the retailer's contract , and to provide the applicant and retailer an appeal procedure if a contract is denied or a contract is terminated or suspended
Note to Revisor: Insert the following note at the end of Tax 61.01:
SECTION 2. Tax 61.02 (2) is amended to read:
Tax 61.02 (2) "Commencement of a game" means the date, designated by the executive director administrator, on which lottery tickets for a particular instant scratch lottery game shall go on sale to the general public.
SECTION 3. Tax 61.02 (3) is repealed.
SECTION 4. Tax 61.02 (4) to (10) are renumbered Tax 61.02 (3) to (9). As renumbered, Tax 61.02 (6), (7) and (9) are amended to read:
Tax 61.02 (6) “Selling location" means each cash register at a Wisconsin lottery retail outlet where a lottery ticket is sold.
(7) "Settlement date" means the date, designated by the executive director administrator, by which the retailer is to return unsold instant scratch tickets for a particular game.
(9) "Wisconsin lottery" means the commission, appointees, staff , and employees who administer the state lottery the department of revenue Wisconsin lottery division, the executive assistant, the secretary or the deputy secretary of revenue.
Note to Revisor: Insert the following note at the end of Tax 61.02:
SECTION 5. Tax 61.03 is amended to read:
Tax 61.03 Procedure for selecting and renewing contracting retailers. (1) Any person may apply for a contract to sell lottery tickets by submitting to the Wisconsin lottery a completed application for a lottery retail sales contract. Applications are available upon request by writingcontacting the Wisconsin Lottery, 1802 West Beltline Highway, P.O. Box 8941, Madison, WI 53708-8941 lottery. A nonrefundable check for $75.00 made payable to the Wisconsin lottery shall accompany each application for a contract. A nonrefundable electronic fund transfer or check for $25.00 made payable to the Wisconsin lottery shall accompany each application for a contract renewal.
Note to Revisor: Insert the following note at the end of sub. (1):
Note: Applications and application fees should be mailed or delivered to Wisconsin Lottery, 2135 Rimrock Road, PO Box 8941, Madison WI 53708-8941.
(2) The
executive director administrator shall examine the completed application, and based on criteria under s.
565.10 (2) to
(5), Stats., and s.
Tax 61.04 (1), shall either grant
a contract or deny the application. The
executive director administrator shall
either grant
the contract or deny the
applicant a contract application within 35 business days after
receipt by the Wisconsin lottery
of receives the completed application and application fee under sub. (1) or
within 35 business days after the
completion of administrator completes a credit check under s.
Tax 61.04 (1) (a), whichever is later.
Note to Revisor: Insert the following note at the end of Tax 61.03:
SECTION 6. Tax 61.04 (1) (intro.), (a) and (e), (3) and (4) are amended to read:
Tax 61.04 (1) (intro.) In addition to the criteria under s.
565.10 (1) to
(5), Stats., the
executive director
administrator shall determine if the applicant meets all of the following
conditions:
(a) The applicant or the applicant's business shall satisfactorily pass a credit check by the executive director administrator.
(e) The applicant may not be an employee or member of the commission or reside in the same household with a member or employee of the commission of the department of revenue Wisconsin lottery division, or the executive assistant, the secretary or the deputy secretary of revenue, per s.565.05 (1) (b).
(3) If the executive director administrator finds that there are so many qualified applicants in a given geographic area of the state that, if all those applicants would be granted contracts to sell lottery tickets, there would be an undue concentration of such retailers selling lottery tickets in that area, the executive director will administrator shall perform market evaluations on the retail establishments seeking a contract. Contracts shall only be granted to those retailers achieving the highest marketing evaluation score until the undue concentration is eliminated. The executive director administrator shall, however, grant a sufficient number of contracts in a given area to serve public convenience.
(4) (intro.) Any applicant or group of applicants, who has a physical or mental disability which that constitutes or results in a substantial handicap to the applicant's employment , may be awarded a contract exclusively to sell lottery tickets if each such applicant or group of applicants each meet the applicant meets all of the following conditions:
(a) Each applicant shall include includes with the retailer application a letter from the Wisconsin division of vocational rehabilitation verifying that the applicant's disability is a substantial handicap to employment ; .
(b) Each applicant meets all other criteria under subs. (1) through (3); and to (3).
(c) The commission approves the Each applicant's or the group's contract is approved by the Wisconsin lottery.
Note to Revisor: Insert the following note at the end of Tax 61.04:
SECTION 7. Tax 61.05 (1) is amended to read:
Tax 61.05 (1) The commission Wisconsin lottery may require from each retailer a fidelity bond in the amount determined by the executive director administrator and based upon the applicant's projected lottery ticket sales.
Note to Revisor: Insert the following note at the end of Tax 61.05:
SECTION 8. Tax 61.06 (2) and (4) are amended to read:
Tax 61.06 (2) The retailer will shall be issued a year-round certificate of authority if the retailer intends to sell lottery tickets all 12 months of the year. If the retailer intends to sell lottery tickets less than 12 months a year, the retailer may be issued a seasonal certificate of authority. If the retailer intends to sell lottery tickets throughout the year but only at selected times and places, such as at weekly events or at fairs and festivals, the retailer may be issued a temporary certificate of authority.
(4) A mutilated certificate shall be surrendered to the executive director administrator upon issuance of a duplicate. A lost certificate, when found, shall be surrendered to the executive director administrator within 15 calendar days of its recovery.
Note to Revisor: Insert the following note at the end of Tax 61.06:
SECTION 9. Tax 61.07 is amended to read:
Tax 61.07 Contract denial appeal procedure. (1) If the applicant was denied a contract, the executive director administrator shall notify the applicant, in writing, of the denial along with a brief statement why the applicant was denied a contract. The applicant shall also be notified that a request for a reconsideration must be made by the applicant within 30 calendar days and that the request must
shall contain the information in sub. (2).
(2) Within 30 calendar days of the mailing of the denial, the applicant may request a reconsideration by filing with the executive director, administrator a written statement setting forth the applicant's legal, factual, or equitable arguments and submitting any supporting documents. The request for reconsideration shall be deemed filed on the date it is received by the executive director administrator.
(3) Within 20 calendar days of receipt of the filing
request for reconsideration, the executive director administrator may, in writing, request the applicant to submit any additional facts, legal and equitable arguments , or documents
which the executive director that the administrator deems necessary to make a determination.
(4) The Wisconsin lottery's legal counsel shall compile a file containing all the material submitted by the applicant and any relevant material the executive director
administrator may have, including but not limited to, the completed application and credit check report. Legal counsel shall then review the file, research , if necessary, the applicable laws and rules , and prepare an analysis and recommendation for the executive director's administrator's consideration.
(5) The
executive director administrator, after considering all the facts and arguments submitted by the applicant, and legal counsel's recommendation, shall independently evaluate whether to grant or deny the applicant a contract. Within 45 calendar days of the
executive director's administrator's receipt of the
filing request for reconsideration or any supplemental information and documentation requested, the
executive director administrator shall notify the applicant, in writing, of the determination. If the applicant is denied a contract, the notice shall include a written statement setting forth the reasons for the denial and notifying the applicant of the right to a hearing on the denial under s.
227.42, Stats. The applicant shall be notified that a request for a hearing must be made by the applicant within 20 calendar days and that the request
must contain the information in sub. (6).
(6) (intro.) Within 20 calendar days of the
administrator's mailing of the final determination
by executive director, the applicant may
in writing request
, in writing, a hearing under s.
227.42, Stats. A request for a hearing shall be deemed filed on the date it is received by the
executive director administrator. A request shall contain all of the following:
(a) The applicant's name and address ; .
(b) The reasons why the applicant requests a hearing ; .
(c) The facts which that the applicant intends to prove at the hearing ; .
(d) A description of the mistake the applicant believes was made, if the applicant claims that the denial of contract is based on a mistake in fact or in law ; and .
(e) Any supporting documents not previously submitted to the executive director administrator.
(7) Within 20 calendar days of receipt of a request for hearing, the
executive director administrator shall
in writing grant or deny the request for a hearing
, in writing. A hearing shall be granted if the criteria in s.
227.42 (1), Stats., are met, and the
executive director administrator shall reasonably notify the applicant of the time and place of the hearing. A hearing shall be denied if criteria
in under s.
227.42 (1), Stats., are not met, and the
executive director administrator shall
in writing inform the applicant
, in writing, of the reason for denial.
(8) In the event that neither the applicant nor the applicant's representative appears at the time and place designated for the hearing, the executive director administrator may take action based upon the record as submitted. By failing to appear, an applicant waives any further right to appeal before the Wisconsin lottery.
Note to Revisor: Insert the following note at the end of Tax 61.07:
SECTION 10. Tax 61.08 (1), (3), (5), (7), (8), (10), (11) (b), (e) and (h), (13), (14) (b), (bm), (c) and (d), (15), (16), (19), (20) and (21) (intro.) and (a) to (h) are amended to read:
Tax 61.08 (1) CONTRACT PERIOD AND SALES AUTHORIZATION. The retailer's contract shall remain in effect for at least one year and shall expire on the date shown on the certificate of authority. The executive director administrator may renew the contract. However, the retailer does not have a substantial interest in, or a vested legal or equitable right to ,a contract renewal.
(3) RETAILER IS NOT AN EMPLOYEE OR AGENT OF THE STATE. The retailer is not an employee or agent of the state of Wisconsin , and is not entitled to any right, privilege , or benefit which that would accrue to an employee or agent of the state of Wisconsin.
(5) COMPLIANCE WITH STATE LAW AND RULES. During the term of the retailer contract, the retailer shall comply with ch.
565, Stats., the
commission's
Wisconsin lottery's administrative rules
, and any other applicable state law and administrative rules.
(7) CERTIFICATE OF AUTHORITY. The certificate of authority is not assignable and not or transferable and must shall be conspicuously displayed at the point of sale.
(8) NOTIFICATION OF CHANGES IN THE RETAILER'S APPLICATION. (a) The retailer shall in writing notify the executive director administrator, in writing, within 15 calendar days of every change of its organizational structure, including but not limited to changes from a sole proprietorship to a partnership or to a corporation.
(b) The retailer shall in writing notify the
executive director administrator, in writing, at least 30 calendar days in advance of any change of the retailer's business address.
(c) The retailer shall
in writing notify the
executive director administrator, in writing, within 15 calendar days if the retailer, or any of the retailer's partners, officers, directors
, or owners, as described under s.
565.10(3), Stats., have been convicted
of or pleaded guilty or no contest to a felony, a gambling related offense, or fraud or misrepresentation in any connection.
(10) INSURANCE REQUIREMENT. (a)(intro.) During the term of the retailer's contract , the retailer shall do all of the following:
1. Maintain worker's compensation insurance, if required to do so under ch.
102, Stats.
; and
2. Maintain public liability and property damage insurance against any claim which might that may occur in carrying out the retailer's contract. Minimum coverages are $300,000 single limit liability or $100,000 bodily injury per person and $300,000 per occurrence and $100,000 property damage.
(b) The insurance requirement requirements under par. (a) 1. and 2. do not apply to a state agency or a local unit of government.
(c) The retailer, by signing and executing the contract, warrants and represents to the Wisconsin lottery that the retailer has in place and will maintain during the contract period the insurance set forth under par. (a) 1. and 2. and at the minimum levels set forth under par. (a) 2.
(d) During the term of the retailer's contract, the executive director administrator reserves the right to request from the retailer verification that the retailer has complied with the insurance requirement requirements under par. (a) 1. and 2.
(11) (b) The retailer may not intentionally sell a lottery ticket to persons a person under 18 years of age.
(e) The retailer may not sell any lottery tickets at a price different from the price authorized by the Wisconsin lottery, condition the sale of a lottery ticket upon purchase of any other item or service , or impose any restriction upon the sale of a lottery ticket unless specifically authorized by the executive director administrator.
(h) The retailer shall may stamp each ticket with the retailer's identification number assigned by the Wisconsin lottery.
(13) RETAILER RESPONSIBILITY FOR TICKETS. (a) The retailer shall be responsible for the condition and security of lottery tickets received. If the retailer's lottery tickets are lost, stolen, mutilated, damaged, unaccountable or otherwise unsalable, the retailer shall be solely responsible for those tickets. The executive director administrator may not reimburse the retailer for such those losses or for instant scratch tickets not returned by the retailer in the proper sequentially numbered order.
(b) The retailer shall report by telephone within 24 hours any stolen tickets to the director of security Wisconsin lottery in Madison, Wisconsin, consistent with the instructions for reporting stolen tickets as idicated in the retailer contract.
(14) (b) The retailer's accounting records and correspondence under par. (a) shall be available to the executive director administrator for examination and copying during the retailer's regular business hours. All such of those records and correspondence are subject to seizure and audit without prior notice.
(bm) The retailer's electronic fund transfer account shall be debited once a week by the Wisconsin lottery for tickets received the previous week.
(c) If the retailer failed to place sufficient funds in the electronic fund transfer account for the tickets received the previous week, the retailer shall may not receive more tickets until the Wisconsin lottery is paid in full.
(d) The executive director administrator may assess the retailer a $20.00 surcharge for each dishonored retailer's check or electronic fund transfer.
(15) UNSOLD INSTANT SCRATCH TICKETS RETURNED FOR CREDIT. (a) On or before the settlement date, the retailer may return to the lottery unsold instant scratch tickets to the Wisconsin lottery and receive credit. Credit shall be the retailer's purchase price.
(b) The Wisconsin lottery shall credit the retailer's electronic fund transfer account for all returned unopened packs of tickets , and for one opened, partial pack of tickets per selling location.
(c) For tickets returned up to 90 calendar days after the settlement date, the lottery shall credit the retailer's account with what the credit would have been if timely returned , minus a 20% late penalty.
(d) The executive director administrator may not accept unsold tickets which for credit that are returned more than 90 calendar days after the settlement date.
(16) INSTANT SCRATCH TICKET REDEMPTION. (a) The retailer shall redeem low tier prizes for tickets sold at the retailer's outlet and presented to the retailer by the customer. If the customer elects to redeem the low tier prize from the Wisconsin lottery's office, the Wisconsin lottery shall debit the retailer's account in that amount.
(b) The retailer may not redeem winning lottery tickets for prizes in amounts different from the amounts authorized by the executive director administrator or condition redemption of a lottery prize upon the purchase of any other item or service, or impose any restriction upon the redemption of a lottery prize unless specifically authorized in writing by the executive director administrator.
(19) RIGHT TO APPEAL SUSPENSION OR TERMINATION. In the event the
executive director administrator suspends or terminates the retailer's contract, the retailer is entitled to an appeal in accordance with the provisions set forth under s.
Tax 61.10.
(20) SUSPENSION OR TERMINATION PROCEDURE. The retailer , upon notice of the suspension or termination, shall immediately stop selling lottery tickets. Within 2 weeks of the suspension or termination, the retailer shall make payment on any money owed for tickets for unsold tickets to the Wisconsin lottery and surrender all unsold tickets and all state owned lottery property.
(21) (intro.) GROUNDS FOR SUSPENSION OR TERMINATION. The retailer's contract may be suspended or terminated without prior notice by the Wisconsin lottery for any one of the following reasons:
(a) The retailer failed to meet
any one or more of the qualifications for being a retailer under s.
565.10, Stats., or under the
commission's Wisconsin lottery's administrative rules
; .
(b) The retailer violated a provision under ch.
565, Stats., or
any rule promulgated under of this chapter
; .
(c) The retailer failed to sell a monthly minimum of $400 worth of instant scratch tickets each month, under s.
Tax 61.04 (1) (d) ; .
(d) The retailer intentionally sold a lottery ticket to a person under 18 ; years of age.
(e) The retailer endangered the security of the Wisconsin lottery ; .
(f) The retailer engaged in fraud, deceit, misrepresentation or other conduct prejudicial to public confidence in the Wisconsin lottery ; .
(g) The retailer failed to remit money owed to the Wisconsin lottery or failed at least 3 times to make payment on or before the settlement date ; .
(h) The retailer engaged in telecommunication or printed advertising of lottery products or services, or both, that in the executive director's administrator's determination was false, deceptive , or misleading ; or
.
Note to Revisor: Insert the following note at the end of Tax 61.08:
SECTION 11. Tax 61.09 and 61.10 are amended to read:
Tax 61.09 Limitation on length of suspension. A suspension shall be limited to a maximum of 45 calendar days, during which time the executive director administrator shall consider the appropriate permanent action to be taken, including, but not limited to, termination of the retailer contract.
Note to Revisor: Insert the following note at the end of Tax 61.09:
61.10 Appeal procedure for a contract termination. (1) The executive director administrator shall give the retailer written notice of the retailer's terminated contract and state the grounds for the termination. The retailer shall also be notified that a request for a reconsideration must be made by the retailer within 30 calendar days and that the request must contain the information in sub. (2).
(2) Within 30 calendar days of the mailing of the notice of the termination, the retailer may request a reconsideration by filing with the executive director administrator a written statement setting forth the retailer's legal, factual , or equitable arguments and submitting any supporting documents. The request for reconsideration shall be deemed filed on the date it is received by the executive director administrator.
(3) Within 20 calendar days of receipt of the filing
request for reconsideration, the executive director may
administrator may, in writing, request the retailer to submit any additional facts, legal and equitable arguments , or documents
which the executive director that the administrator deems necessary to make a determination.
(4) The Wisconsin lottery's legal counsel shall compile all relevant correspondence, lottery accounting records , and all materials submitted to the executive director
administrator by the retailer for reconsideration. Legal counsel shall then review the file, research, if necessary, the applicable laws and rules , and prepare an analysis and recommendation for the executive director's administrator's consideration.
(5) The
executive director administrator, after considering all the facts and arguments submitted by the retailer, and legal counsel's recommendation, shall independently evaluate whether to either reinstate or terminate the contract. Within 45 calendar days of the
executive director's administrator's receipt of the
filing request for reconsideration or any supplemental information and documentation requested, the
executive director administrator shall notify the retailer, in writing, of the determination. If the contract is terminated, the notification shall include a statement setting forth the reasons for the termination and notifying the retailer of the right to a hearing under s.
227.42, Stats. The retailer shall also be notified that a request for a hearing must be made by the retailer within 20
calendar days and that the request
must contain the information in sub. (6).
Note to Revisor: Remove the note at the end of sub. (5).
(6) (intro.) Within 20 calendar days of the
administrator's mailing of the final determination
by the executive director, the retailer may
in writing request
, in writing, a hearing under s.
227.42, Stats. A request shall be deemed filed on the date
it is received by the
executive director administrator. A request for a hearing under s.
227.42 Stats., shall contain all of the following:
(a) The retailer's name and address ; .
(b) The reasons why a retailer requests a hearing ;
.
(c) The facts which that the retailer intends to prove at the hearing ; .
(d) A description of the mistake the retailer believes was made, if the retailer claims that the termination of contract is based on a mistake in fact or in law ; and .
(e) Any supporting documents not previously submitted to the executive director administrator.
(7) Within 20 calendar days of receipt of a request for hearing, the
executive director administrator shall
in writing grant or deny the request for a hearing
, in writing, under s.
227.42, Stats. A hearing shall be granted if the criteria under s.
227.42 (1), Stats., are met. The
executive director administrator shall reasonably notify the retailer of the time and place of the hearing. The
executive director
administrator shall inform the retailer
, in writing
, of the reason for denying a hearing.
(8) In the event that neither the retailer nor the retailer's representative appears at the time and place designated for the hearing, the executive director administrator may take action based upon the record as submitted. By failing to appear, the retailer waives any further right to appeal before the Wisconsin lottery.
Note to Revisor: Insert the following note at the end of Tax 61.10:
SECTION 12. Tax 62.01 is amended to read:
Tax 62.01 Purpose. The purpose of this chapter is to provide the executive director administrator with procedures regarding the Wisconsin lottery's major procurements.
Note to Revisor: Insert the following note at the end of Tax 62.01:
SECTION 13. Tax 62.02 is repealed and recreated to read:
Tax 62.02 Definitions. In this chapter:
(1) “Administrator" has the meaning specified in s.
Tax 61.02 (1).
(2)
“Major procurement" has the meaning specified in s.
565.01 (4), Stats.
(3)
“Wisconsin lottery" has the meaning specified in s.
Tax 61.02 (9).
SECTION 14. Tax 62.20 is amended to read:
Tax 62.20 Appeal. (1) RIGHT TO APPEAL. (a) Any vendor , who submitted a competitive bid in response to a request for proposal or request for bid for a major procurement, and who is aggrieved by the executive director's administrator's notice of intent to contract with another vendor, may appeal the executive director's administrator's decision.
(b) The vendor shall file a written notice of the intent to appeal with the executive director administrator no later than 5 working days after the issuance of the executive director's administrator's notice of intent to contract
with another vendor. The notice of appeal shall be deemed to be filed on the day it is received by the executive director
administrator.
(c) The vendor shall file the written appeal, fully identifying the contested issues , with the executive director administrator no later than 10 working days after the issuance of the executive director's administrator's intent to contract with another vendor. The appeal shall allege a violation of a state statute or the Wisconsin administrative code. The written appeal shall be deemed to be filed on the day it is received by the executive director administrator.
(2) AUTHORITY TO RESOLVE AN APPEAL. The executive director administrator may settle and resolve an appeal. A settlement or resolution under this subsection may include the issuance of a new request for proposal or request for bid.
(3) DECISION. Unless more time is required to conduct an investigation, the executive director administrator shall issue a written decision on the appeal to the vendor within 10 working days of receipt of the appeal. The executive director's administrator's decision may include the issuance of a new request for proposal or request for bid.
(4) STATE OF PROCUREMENTS DURING AN APPEAL. During the appeal process, the executive director administrator may not proceed further with the award of the contested contract until a decision is rendered on the appeal, unless the executive director administrator determines that the award of the contract without delay is necessary to protect substantial interests of the state.
Note to Revisor: Insert the following note at the end of Tax 62.20:
SECTION 15. Tax 63.01 is amended to read:
Tax 63.01 Purpose. The purpose of this chapter is to provide the executive director administrator with the procedures and criteria for contracting with nonprofit organizations to sell break-open lottery tickets for a higher rate of compensation, to establish the nonprofit organization retailer's duties and obligations under the contract, to provide the executive director administrator with the procedures and criteria to terminate or suspend the retailer's contract , and to provide the applicant and nonprofit organization retailer an appeal procedure if a contract is denied or a contract is terminated or suspended.
Note to Revisor: Insert the following note at the end of Tax 63.01:
SECTION 16. Tax 63.02 is repealed and recreated to read:
Tax 63.02 Definitions. In this chapter:
(1) “Administrator" has the meaning specified in s.
Tax 61.02 (1).
(2) “Break-open ticket" means a ticket issued by the Wisconsin lottery that is made of laminated paper, partially perforated to permit strips to be torn from one side to reveal play symbols beneath, from which it can be immediately determined whether the ticket is a winner.
(3) “Location" means the place at which the nonprofit organization has been granted the authority to sell lottery tickets or shares by the administrator.
(4) “Nonprofit organization" has the meaning specified in s.
565.10 (14), Stats.
(5) “Wisconsin lottery" has the meaning specified in s.
Tax 61.02 (9).
Note to Revisor: Insert the following note at the end of Tax 63.02:
SECTION 17. Tax 63.03 is amended to read:
Tax 63.03 Application to become a nonprofit organization retailer. (1) Any nonprofit organization may apply for a contract to sell break-open tickets by completing the application for a nonprofit organization retailer sales contract prescribed by the director administrator and submitting it to the Wisconsin lottery. Applications are available upon request by writingcontacting the Wisconsin Lottery, 1802 West Beltline Highway, P.O. Box 8941, Madison, WI 53708-8941 lottery. A nonrefundable check for $25.00 made payable to the Wisconsin lottery shall accompany each application for a contract.
Note to Revisor: Insert the following note at the end of sub. (1):
Note: Applications and application fees should be mailed or delivered to Wisconsin Lottery, 2135 Rimrock Road, PO Box 8941, Madison WI 53708-8941.
(2) The
executive director administrator shall examine the completed application, and based on criteria under s.
565.10 (2) to
(5) and
(14), Stats., shall either grant
a contract or deny the application. The
executive director administrator shall
either grant
the contract or deny the
applicant a contract application within 35 business days after
receipt by the Wisconsin lottery
of receives the completed application and application fee under sub. (1).
Note to Revisor: Insert the following note at the end of Tax 63.03:
SECTION 18. Tax 63.04 (1) is amended to read:
Tax 63.04 (1) When a nonprofit organization is awarded a contract or a contract renewal under this chapter, the organization shall pay $10.00 to the Wisconsin lottery for a nonassignable and nontransferable certificate of authority. Included as an addendum to the certificate shall be a list from the contract document, specifying the date, times , and location for each eventlocations at which the nonprofit organization retailer is authorized to sell break-open tickets. Except as otherwise provided in this section, a certificate of authority may authorize sales at more than one event
location.
SECTION 19. Tax 63.04 (2) (intro.) is renumbered Tax 63.04 (2) and amended to read:
Tax 63.04 (2) The certificate of authority shall be temporary, limiting nonprofit organization retailer sales to specified
events locations. A certificate of authority and any amendment of it may authorize a nonprofit organization retailer to sell Wisconsin lottery break-open tickets at
either: more than one location, provided the contract document and certificate indicate a single permanent primary location from which the contract and certificate may not be transferred, in accordance with s. 565.10(10) and (12), Stats. Any other locations that are subsequently amended to the contract and certificate may not be considered as permanent primary locations.
SECTION 20. Tax 63.04 (2) (a) and (b) are repealed.
SECTION 21. Tax 63.04 (3), (4) and (5) are amended to read:
Tax 63.04 (3) If the certificate is lost, mutilated or destroyed, the nonprofit organization retailer shall within 15 calendar days request in writing and submit a completed application for a duplicate certificate. The retailer shall pay $10.00 by check to the Wisconsin lottery for a duplicate certificate of authority.
(4) A mutilated certificate shall be surrendered to the executive director administrator upon issuance of a duplicate. A lost certificate, when found, shall be surrendered to the executive director administrator within 15 calendar days of its recovery.
(5) If an organization wishes to sell Wisconsin lottery break-open tickets at an event a location not specified in its retailer contract, it shall apply to the Wisconsin lottery for an amendment to its retailer contract and to its certificate of authority and pay a fee of $10.00. The application for an amendment and a check for $10.00 must be received approved by the Wisconsin lottery at least 15
calendar days before the subject event nonprofit organization begins selling break-open tickets at the new location.
Note to Revisor: 1) Insert the following note at the end of Tax 63.04:
2) Insert the following note at the end of Tax 63.05:
SECTION 22. Tax 63.06 (1), (2), (3), (5), (6), (7), (8) (b), (c), (d) and (g), (9), (10) and (11) (a) are amended to read:
Tax 63.06 (1) CONTRACT PERIOD AND SALES AUTHORIZATION. The contract shall remain in effect for at least no less than one year and shall expire on the date shown on the certificate of authority. The retailer does not have a substantial interest in, or a vested or equitable right to , a contract renewal.
(2) CONTRACT NOT ASSIGNABLE OR TRANSFERABLE. The contract may not be assigned or transferred from one organization or
permanent primary location to another.
The list of contract locations may be amended by the administrator using the amendment process under s. Tax 63.04(5), provided that any amendment is consistent specifically with s. Tax 63.04(2) and all other applicable administrative rules.
(3) NONPROFIT ORGANIZATION RETAILER IS NOT AN EMPLOYEE OR AGENT OF THE STATE. The nonprofit organization retailer is not an employee or agent of the state of Wisconsin , and is not entitled to any right, privilege , or benefit which
that would accrue to an employee or agent of the state of Wisconsin.
(5) COMPLIANCE WITH STATE LAW AND RULES. During the term of the nonprofit organization retailer contract, the retailer shall comply with ch.
565, Stats., the
commission's Wisconsin lottery's administrative rules
, and any other applicable state law and administrative rules.
(6) CERTIFICATE OF AUTHORITY. The certificate of authority is not assignable and not or transferable and must shall be conspicuously displayed at every event location where there are sales authorized by the certificate.
(7) NOTIFICATION OF CHANGES IN THE NONPROFIT ORGANIZATION RETAILER'S APPLICATION. (a) The nonprofit organization retailer shall in writing notify the executive director administrator, in writing, within 15 calendar days of every change of its organization organizational structure, including but not limited to changes from unincorporated to incorporated status.
(b) The nonprofit organization retailer shall in writing notify the executive director administrator, in writing, at least 30 calendar days in advance of any change in the nonprofit organization retailer's official mailing address.
(c) The nonprofit organization retailer shall
in writing notify the
executive director administrator, in writing, within 15 calendar days if the retailer, or any of the retailer's officers or directors, as described under s.
565.10 (3), Stats., has been convicted of or pleaded guilty or no contest to a felony, a gambling related offense , or fraud or misrepresentation in any connection.
(8) (b) May not intentionally sell a break-open ticket to persons a person under 18 years of age.
(c) May not exchange break-open tickets with any other person or organization, including other Wisconsin lottery retailers.
(d) May not sell any break-open ticket at a price different than the price authorized by the Wisconsin lottery, condition the sale of a ticket upon the purchase of any other item or service , or impose any restriction upon the sale of a ticket unless specifically authorized by the executive director administrator.
(g) Shall May stamp each ticket with the retailer's identification number assigned by the Wisconsin lottery.
(9) (title) SALES AT UNAUTHORIZED LOCATIONS, OR BEFORE COMMENCEMENT OR AFTER CONCLUSION OF EVENT. The nonprofit organization retailer may not sell any break-open tickets purchased from the lottery under this chapter before the commencement or after the conclusion of any event specified in its retailer contract and certificate of authority. The retailer may not sell tickets purchased from the Wisconsin lottery under this chapter at locations which that are not specified in its contract and certificate of authority, consistent with s. Tax 63.04 (1).
(10) RESPONSIBILITY FOR TICKETS. (a) The nonprofit organization retailer shall be responsible for the condition and security of lottery tickets received. If the retailer's lottery tickets are lost, stolen, mutilated, damaged, unaccountable or otherwise unsalable, the retailer shall be solely responsible for those tickets. The executive director administrator may not reimburse the retailer for
such those losses.
(b) The nonprofit organization retailer shall report by telephone within 24 hours any stolen tickets to the director administrator of security in Madison, Wisconsin.
(11) (a) (intro.) The nonprofit organization retailer shall elect one of either of the following 2 payment options in its contract:
1. payment Payment by check or money order upon delivery of tickets to the retailer ; or .
2. payment Payment through an electronic funds fund transfer account which that shall be debited once a week by the Wisconsin lottery for tickets received the previous week.
SECTION 23. Tax 63.06 (11) (c) is repealed and recreated to read:
Tax 63.06 (11) (c) The administrator may accept returned tickets for credit only under the following circumstances:
1. If the tickets are defective, the administrator may allow the nonprofit organization retailer to make a return. The retailer shall return as many of the suspected defective tickets as is possible, using the original packaging materials if possible.
2. If the order was filled incorrectly by the Wisconsin lottery, the administrator may allow the nonprofit organization retailer to make a return. The retailer shall return any incorrectly shipped break-open tickets, using the original packaging materials if possible.
3. If the shipment of tickets is unopened by the nonprofit organization retailer, the administrator may allow the retailer to make a return. To be considered unopened, the package shall contain all the tickets that it contained when delivered to the retailer and have the original packaging and shipping seals intact and unopened.
SECTION 24. Tax 63.06 (11) (d), (12), (13), (14) and (15) (intro.), (a), (e), (f), (g) and (h) are amended to read:
Tax 63.06 (11) (d) The executive director administrator may assess the retailer a $20.00 surcharge for each dishonored check or electronic fund transfer.
(12) PRIZE REDEMPTION. The nonprofit organization retailer shall redeem all prizes from break-open tickets purchased at the eventfrom that retailer, on the day of sale and at the placelocation of sale.
(13) RIGHT TO APPEAL SUSPENSION OR TERMINATION. In the event the
executive director administrator suspends or terminates the nonprofit organization retailer's contract, the retailer is entitled to an appeal in
accord accordance with the provisions
in set forth under s.
Tax 61.10.
(14) SUSPENSION OR TERMINATION PROCEDURE. The nonprofit organization retailer, upon notice of suspension or termination, shall immediately stop selling lottery tickets. Within 2 weeks of the suspension or termination, the retailer shall make payment on any money owed to the Wisconsin lottery and surrender all unsold tickets and all state owned lottery property.
(15) (intro.) GROUNDS FOR SUSPENSION OR TERMINATION. The nonprofit organization retailer's contract may be suspended or terminated without prior notice by the Wisconsin lottery for any of the following reasons:
(a) The retailer fails to meet
any one or more of the qualifications for being a retailer under s.
565.10, Stats., or under the
commission Wisconsin lottery's administrative rules.
(e) The retailer endangers the security of the Wisconsin lottery.
(f) The retailer engages in fraud, deceit, misrepresentation , or other conduct prejudicial to public confidence in the Wisconsin lottery.
(g) The retailer fails to remit money owed to the Wisconsin lottery or fails at least 3 times to have sufficient funds available resulting in the electronic funds fund transfer, check or money order not clearing the bank.
(h) The retailer engages in telecommunication or printed advertising that in the executive director's
administrator's determination is false, deceptive or misleading ; or
.
Note to Revisor: Insert the following note at the end of Tax 63.06:
SECTION 25. Tax 63.07 and 63.08 are amended to read:
Tax 63.07 Limitation on length of suspension. A suspension shall be limited to a maximum of 45 calendar days, during which time the executive director administrator shall consider the appropriate permanent action to be taken, including, but not limited to, termination of the nonprofit organization retailer contract.
Note to Revisor: Insert the following note at the end of Tax 63.07:
Tax 63.08 Prize structure of nonprofit organization retailer break-open ticket games. The executive director administrator shall offer nonprofit organization retailers under this chapter a selection of at least 2 break-open ticket games with prize structures ranging from not less than 50% of sales to not more than 80% of sales.
Note to Revisor: 1) Insert the following note at the end of Tax 63.08:
2) Insert the following note at the end of Tax 63.09:
-
See PDF for diagram 
The rules contained in this order shall take effect on the first day of the month following publication in the Wisconsin administrative register as provided in s.
227.22 (2) (intro.), Stats.
Initial Regulatory Flexibility Analysis
This proposed order does not have a significant economic impact on a substantial number of small businesses.
Fiscal Effect
The proposed rule revises the administration of nonprofit retailer contracts, and updates definitions and terminology and makes other changes to reflect current policies and to conform with Legislative Council Rules Clearinghouse standards. It has no effect on lottery sales or operating costs.
Notice of Hearings
Transportation
NOTICE IS HEREBY GIVEN that pursuant to ss.
85.16 (1),
227.11 (2) (a), and
348.25 (3), Stats., and interpreting ss.
348.26 (4) and
348.27 (7), Stats., the Department of Transportation will hold a public hearing at the following locations to consider the amendment of chs.
Trans 260 and
261, Wis. Adm. Code, relating to single and multiple trip permits for mobile homes and modular building sections:
Thursday, September 6, 2001
Hill Farms State Transportation Building
4802 Sheboygan Avenue, Room 144-B
Madison, Wisconsin
9:00 a.m.
Friday, September 7, 2001
City Council Chambers
City Hall Plaza
Marshfield, Wisconsin
10:00 a.m.
NOTE: This hearing is being conducted at two locations in order to give the public greater opportunity to present its facts, arguments and opinions. The records from both locations will be combined into a single Hearing Record on which the Department will base its decisions. Individuals need only attend one of the public hearings for their testimony to be fully considered.
An interpreter for the hearing impaired will be available on request for this hearing. Please make reservations for a hearing interpreter at least 10 days prior to the hearing.
The public record on this proposed rule making will be held open until close of business on Monday, September 17, 2001, to permit the submission of written comments from persons unable to attend the public hearing or who wish to supplement testimony offered at the hearing. Any such comments should be submitted to Kathleen Nichols, Department of Transportation, Motor Carrier Services Section, Room 151, P. O. Box 7981, Madison, WI 53707-7981.
Parking for persons with disabilities and an accessible entrance are available on the north and south sides of the Hill Farms State Transportation Building.
Analysis Prepared by the Wisconsin Department of Transportation
General Summary of Proposed Rule
This proposed rule amends ss.
Trans 260.09 and
261.09, which establish the dimensions for single and multiple trip permits for oversize mobile homes or modular building sections. The proposed rule will allow a maximum width of 15 feet, and a maximum height of 15 feet for multiple trip permits. The proposed rule will also provide a uniform method for measuring the dimensions of single and multiple trip oversize mobile home or modular building sections. This proposed change was requested by the Wisconsin Manufactured Housing Association.
Fiscal Effect
The Department estimates that there will be no fiscal impact from the promulgation of this proposed rule on the liabilities or revenues of any county, city, village, town, school district, technical college district, or sewerage district.
Initial Regulatory Flexibility Analysis
This proposed rule will have no adverse impact on small businesses.
Copies of Proposed Rule
Copies of this proposed rule may be obtained upon request, without cost, by writing to Kathleen Nichols, Wisconsin Department of Transportation, Division of Motor Vehicles, Motor Carrier Services Section, Room 151, P. O. Box 7981, Madison, WI 53707-7981, or by calling (608) 266-6648. Hearing-impaired individuals may contact the Department using TDD (608) 266-0396. Alternate formats of the proposed rule will be provided to individuals at their request.
