Rule-Making Notices (Hearing Notices)

Buttermaker or

Cheesemaker $50 license fee (2-year license)   $60

  $25 Buttermaker or Cheesemaker   $30

  reinspection fee

Butter or Cheese

Grader   $50 license fee (2-year license)   $60

Annual Fee Adjustment

This rule provides for annual adjustment of the above fees (up or down), based on the prevailing cash balance in Wisconsin's food safety program revenue account on June 30 of each year. Fees are subject to the following adjustments (adjustments take effect on September 1 of each year):

• If the program revenue account balance on June 30 is less than $400,000, DATCP may increase the fees by the percent necessary to increase the account balance by an amount equal to the difference between $500,000 and the account balance. Before increasing any fee, DATCP must consult with an advisory council of food and dairy processors. The fee increase, if any, must be approved by the DATCP Board and published in the Wisconsin administrative register.

• If the program revenue account balance on June 30 is greater than $600,000, DATCP must reduce the fees by the percent necessary to reduce the account balance by an amount equal to the difference between $500,000 and the account balance.

• If the program revenue account balance on June 30 is between $400,000 and $600,000, the fees do not change.

Exemptions

This rule does not affect any of the following:

• Fees that DATCP charges for certain services, such as review of food processing equipment plans, or the testing, timing and sealing of pasteurizers. DATCP is authorized to charge fees for such services in order to cover its cost of providing the services. DATCP may adjust these service fees by written notice, in order to keep fees consistent with service costs.

• License fees for milk and cream testers. DATCP is not authorized to adjust these fees by rule. Milk and cream testers currently pay a license fee of $50 (for a 2-year license) and a reinspection fee of $25.

This rule exempts ungraded barrel cheese from current and proposed cheese grading fees (paid by dairy plants).

Technical Changes

This rule makes certain non-substantive editorial and drafting changes to current rules.

Fiscal Impact

State Fiscal Effect

This rule will increase food safety program revenues by $1.2 million in 2006. This is necessary to offset a projected deficit in DATCP's food safety program revenue account beginning in FY 2005-06. Fees have not been increased since 1998. DATCP proposes to increase license fees for all food and dairy license categories. A complete fiscal estimate is attached.

Wisconsin's food safety program is funded by a combination of general tax dollars (GPR) and program revenue from license fees (PR). In 1991, license fees funded about 40% of program costs. The 1995-97 biennial budget act reduced GPR funding, so that PR accounted for about 50% of food safety funding. Because of further GPR reductions in recent state budgets, the current PR funding share is about 60%.

Other developments have combined to deplete the food safety PR account balance. Recent state budgets have lapsed a substantial amount of license fee revenue to the state general fund (to help remedy state budget deficits). DATCP has delayed fee increases (none since 1998), but has experienced a modest increase in operating costs. DATCP also incurred a significant increase in PR costs when the legislature transferred the grade A milk certification program to DATCP (without any attached funding). DATCP currently projects a PR account deficit in FY 2005-06.

DATCP is working to deliver effective food safety protection as efficiently as possible. DATCP's bureau of food safety and inspection currently has 88 staff -- 12.75 fewer than in 1997 and 15.5 fewer than in 1991. Dairy farm inspection frequency is based on milk quality tests and past inspection performance (DATCP is exploring ways to expand this risk-based approach). DATCP is also working with other agencies to share resources and minimize duplication. For example:

• DATCP works with local government to license and inspect retail food establishments. Twenty-seven local entities license and inspect on behalf of DATCP, compared to 15 in 1997. Local entities now license and inspect 3,800 retail food establishments, and DATCP licenses and inspects the remaining 4,700 establishments.

• DATCP coordinates dairy plant inspection with the United States Department of Agriculture, Agricultural Marketing Service, to avoid duplicate inspection.

• Since 1997, DATCP has worked with the Wisconsin Department of Health and Family Services (DHFS) to eliminate duplicate licensing and inspection of grocery stores, restaurants, and combination grocery-restaurants. DATCP and DHFS have adopted uniform rules for grocery stores and restaurants, to avoid conflicting standards. Standards are based on the federal model food code.

Local Fiscal Effect

DATCP currently provides administrative support to local governments that license and inspect retail food establishments as agents of DATCP. Local governments establish their own license fees, and reimburse DATCP for administrative services costs. The reimbursement amount equals 10% of the license fee that DATCP would charge local license holders, if DATCP licensed them directly. An increase in DATCP license fees therefore increases local reimbursement payments.

In FY 2004, local governments made a total of $50,005 in reimbursement payments. If DATCP adopts the fee increases proposed in this rule, the reimbursement rate will remain at 10%, but the total reimbursement amount will increase to $61,505. This rule thus increases local costs by $11,500 (statewide total). Local governments can (and likely will) pass this increased cost on to retail food businesses. Local governments can set license fees to recover up to 100% of their reasonable operating costs.

Business Impact

This rule increases current license fees for milk producers, dairy plants, food processing plants, food warehouses, milk distributors, retail food stores, dairy, food or water testing laboratories, milk haulers, buttermakers, cheesemakers and butter or cheese graders licensed by DATCP. Many of these licensed entities are “small businesses."

The proposed fee increase is necessary to prevent a deficit in Wisconsin's food safety program revenue account. Fees have not been increased since 1998. The proposed fee increase will have an impact on the affected businesses, but not a dramatic impact. DATCP has worked to maintain a fair and equitable license fee schedule.

Fees are based on actual food safety costs related to each license sector. Fees are also based on business size, food product type, and type of food handling operations. Smaller businesses generally pay lower fees than large businesses, and lower-risk businesses generally pay lower fees than higher-risk businesses.

This rule increases food safety license fees, but does not change other license requirements. This rule requires no additional recordkeeping, and no added professional services to comply. A complete small business analysis (“initial regulatory flexibility analysis") is attached.

Under 2003 Wis. Act 145, DATCP and other agencies must adopt rules spelling out their rule enforcement policy for small businesses. DATCP has not incorporated a small business enforcement policy in this rule, but will propose a separate rule on that subject. Food and dairy businesses must pay required license fees in order to obtain a license from DATCP.

Federal Regulation

There are no existing or proposed federal regulations related to license fees for food and dairy businesses operating in Wisconsin.

Surrounding State Programs

All of the surrounding states charge license fees to food and dairy businesses. License structure and fees vary between states. Differences in license fees may partly reflect differences in general tax dollar support for food and dairy programs in different states.

Minnesota

Minnesota has a license and fee structure that is similar, but not identical to, Wisconsin's structure:

Dairy Fees – Minnesota
Grade A pasteurizing plant	$500
Grade A farm	$50
Grade A farm reinspection fee	$45
Manufacturing plant	$140 per pasteurizer unit
Manufactured farm	$25
Manufactured farm reinspection fee	$45
Processor assessment	$.07 per cwt for fluid milk products sold for retail sale in Minnesota
Farm bulk milk pick-up tanker	$25
Milk procurement fee	$.0071 per cwt of raw milk purchased

Food Fees – Minnesota
Retail food handler	$50-$2,001 based on sales volume
Wholesale food handler	$57-$1,502 based on sales volume
Food broker	$150
Wholesale food processor or manufacturer	$169-$2,571 based on sales volume

Michigan

Michigan has a license and fee structure that is similar, but not identical to, Wisconsin's structure“

Dairy fees – Michigan
Milk plant	$175
Farms sending milk to plant	$5-$10
Receiving or transfer station	$50
Milk tank truck cleaning facility	$50
Milk transportation company	$20
Milk tank truck	$10
Grade A milk distributor	$50
Single service container and closure plant	$50
Bulk milk hauler/sampler	$40 for 2 years

Food Fees – Michigan
Retail food establishment	$70
Limited wholesale food processor	$70
Food warehouse	$70
Extended retail food establishment	$175
Wholesale food processor	$175
Mobile food establishment	$175
Temporary food establishment	$28
Bottled water manufacturer	$25 for each product registered and $25 for each water dispensing machine

Iowa

Iowa has a license and fee structure that is similar, but not identical to, Wisconsin's structure:

Dairy Fees – Iowa
Milk plant	$2,000 for 2 years
Transfer station	$400 for 2 years
Receiving station	$400 for 2 years
Milk hauler	$20 for 2 years
Milk grader	$20 for 2 years
Bulk milk tanker permit	$50 for 2 years
Reinspection fee	$40
Resealing pasteurizer fee	$100 per reseal
Purchaser of milk fee - Grade A	$.015 per cwt of raw milk purchased
Purchaser of milk fee - Grade B	$.005 per cwt of raw milk purchased

Food Fees – Iowa
Mobile food unit or pushcart	$20
Temporary food establishment	$25
*Food establishment	$30-$225 based on sales volume
*Food service establishment	$50-$225 based on sales volume
Food processing plant	$50-$250 based on sales volume
Egg handler	$15-$250 based on cases sold

*If one establishment must hold both a food establishment and a food service establishment license, each license fee is 75% of the established fee.

Illinois

Illinois has a license and fee structure that is substantially different from the Wisconsin structure:

Dairy Fees – Illinois
Milk plant permit	$100
Receiving or transfer station	$50
Cleaning and sanitizing facility	$50
Milk hauler-sampler	$25
Milk tank truck	$25
Certified pasteurizer sealer	$100

Illinois does not license or charge a fee to most food establishments. The following are fees charged to Illinois food establishments:

Food Fees
Salvage Operator	$100 plus inspection fee based on size
Bottled water manufacturer or distributor	$150
Egg handlers, distributors and breakers	$15-$200 plus inspection fee per case of eggs sold

Notice of Hearing

Commerce

(Petition for Variance)

[CR 05-049]

NOTICE IS HEREBY GIVEN that pursuant to chapters 101 and 145, and sections 167.10 (6m), 168.16 (4) and 560.02 (4), Stats., the Department of Commerce will hold a public hearing on proposed rules under chapter Comm 3, relating to stop work, stop use and petition for variance procedures.

The public hearing will be held as follows:

Date and Time: Monday, June 27, 2005 at 10:00 a.m.

Location: Room 3C, Thompson Commerce Center, 201 West Washington Avenue, Madison

Interested persons are invited to appear at the hearing and present comments on the proposed rules. Persons making oral presentations are requested to submit their comments in writing. Persons submitting comments will not receive individual responses. The hearing record on this proposed rulemaking will remain open until July 8, 2005, to permit submittal of written comments from persons who are unable to attend the hearing or who wish to supplement testimony offered at the hearing. Written comments should be submitted to Ronald Acker, at the Department of Commerce, P.O. Box 2689, Madison, WI 53701-2689, or Email at:
[e-mail].

This hearing is held in accessible facility. If you have special needs or circumstances that may make communication or accessibility difficult at the hearing, please call [phone] or [phone] (TTY) at least 10 days prior to the hearing date. Accommodations such as interpreters, English translators, or materials in audio tape format will, to the fullest extent possible, be made available upon a request from a person with a disability.

Analysis of Proposed Rules

1. Statutes Interpreted. Chapters 101 and 145, and sections 167.10 (6m), 168.16 (4) and 560.02 (4), Stats.

2. Statutory Authority. Chapters 101 and 145, and sections 167.10 (6m), 168.16 (4) and 560.02 (4), Stats.

3. Related Statute or Rule. None.

4. Explanation of Agency Authority. Chapters 101 and 145 and section 167.10 (6m), Stats., grant the Department of Commerce the authority to protect public health, safety and welfare and the waters of the state by establishing reasonable and effective safety standards for the construction, repair and maintenance of public buildings and places of employment. Section 168.16 (4), Stats., grants the department authority to promulgate rules relating to the inspection of petroleum products. Section 560.02 (4), Stats., grants the department authority to promulgate rules to carry out the mandates in chapter 560, Stats, relating to the development of a state economic policy.

5. Summary of Proposed Rules. The department implements the protection of the public and the waters of the state through the promulgation, administration and enforcement of administrative rules. These rules regulate objects and activities, require specific approvals and/or permits, and require credentialed individuals to perform certain activities. The department typically employs a philosophy of education first and enforcement second in its regulatory responsibilities. However, there are times when there is an imminent risk to public safety and health, and immediate enforcement action is warranted.

The proposed rules consist of revisions in chapter Comm 3 that add procedures for the Safety and Buildings Division to issue orders to immediately cease any construction, installation, operation or activity or the use of a building, building component, structure or mechanical device. Specific reasons are listed for the issuance of the orders. The proposed rules also contain procedures for review of the order by the division administrator, and for a hearing on the order by the department secretary.

The proposed rules also include revisions in the current chapter Comm 3 rules relating to the petition for variance procedures. Those procedures currently apply only to the Safety and Buildings Division within the Department. The proposed revisions will allow the petition for variance procedures to be used by the entire Department, not just the Safety and Buildings Division.

6. Summary of, and Comparison with, Existing or Proposed Federal Regulations. There is no existing or proposed federal regulation that addresses the Safety and Buildings Division's issuance of stop work and stop use orders for the protection of public safety and health, or the department's processing of petitions for variance.

7. Comparison with Rules in Adjacent States. An Internet search of adjacent states' rules found the following information relating to the issuance of stop work and stop use orders for the protection of public safety and health, and to the issuance of petitions for variance.

• The Illinois Department of Public Health, Division of Environmental Health, can issue stop work orders under the department's asbestos licensing program. The Illinois Environmental Protection Agency can issue stop work orders for non-compliance with loan or grant conditions and procedures under the agency's Brownfields Redevelopment Program and Public Water Supply Program. The Illinois Environmental Protection Agency can issue petitions for variance for relief from environmental regulations under certain circumstances.

• Under the Iowa Comprehensive Petroleum Underground Storage Tank Fund Board regulations, an inspector has the right to stop installation work if standards for new tanks are not followed by the installer. Iowa's Administrative Code contains standards and a process for state departments to grant individual waivers from rules in response to a completed petition.

• Under Michigan's Food Law, Public Act 92, a stop work order can be issued against a proposed food establishment if applicable rules for the alteration or construction of the establishment are not met. The Michigan Department of Labor and Economic Growth Construction Code contains rules for the issuance of stop work orders, when work is being done contrary to the provisions of the code or in a dangerous or unsafe manner, under the Building Code, Plumbing Code, Mechanical Code and Existing Building Code. The Michigan Electrical Code allows for the placement of a red tag on any electrical equipment that is found imminently dangerous to human life or property. The Michigan Department of Consumer and Industry Services can issue variances to the department's occupational safety and health standards.

• The Minnesota Department of Administration State Building Code contains rules for the issuance of stop work orders when work is being done contrary to the provisions of the code or in a dangerous or unsafe manner. The Minnesota State Building Code includes rules for plumbing, mechanical, electrical, energy, fuel gas, and existing buildings. Minnesota's administrative rules contain requirements and a process for state agencies to grant waivers and variances to any rule, except for a rule that incorporates a statutory requirement.

8. Summary of Factual Data and Analytical Methodologies. There were no factual data or analytical methodologies used to develop the proposed rules.

9. Analysis and Supporting Documents used to Determine Effect on Small Business or in Preparation of Economic Impact Report.

The proposed rules should have a minimal effect on small business. There were no supporting documents used to determine the effect on small business, and an economic impact report was not prepared.

The proposed rules and an analysis of the proposed rules are available on the Internet at the Safety and Buildings Division Web site at www.commerce.wi.gov/SB/. Paper copies may be obtained without cost from Roberta Ward, at the Department of Commerce, Program Development Bureau, P.O. Box 2689, Madison, WI 53701-2689, or Email at [e-mail], or at telephone [phone] or [phone] (TTY). Copies will also be available at the public hearing.

Initial Regulatory Flexibility Analysis

1. Types of small businesses that will be affected by the rules.

Relative to the stop work and stop use procedures, the rules will affect any business that must comply with the administrative codes enforced by the Safety and Buildings Division. Relative to the petition for variance procedures, the rules will affect any business that must comply with the administrative codes enforced by any of the divisions within the department.

2. Reporting, bookkeeping and other procedures required for compliance with the rules.

There are no reporting, bookkeeping or other procedures required for compliance with the rules.

3. Types of professional skills necessary for compliance with the rules.

There are no types of professional skills necessary for compliance with the rules.

4. Rules have a significant economic impact on small businesses.

No. Rules not submitted to Small Business Regulatory Review Board

Environmental Analysis

Notice is hereby given that the Department has considered the environmental impact of the proposed rules. In accordance with chapter Comm 1, the proposed rules are a Type III action. A Type III action normally does not have the potential to cause significant environmental effects and normally does not involve unresolved conflicts in the use of available resources. The Department has reviewed these rules and finds no reason to believe that any unusual conditions exist. At this time, the Department has issued this notice to serve as a finding of no significant impact.