Rule-Making Notices (Hearing Notices)

Rule related to minor remedial drafting changes of department rules.

The state of Wisconsin Department of Agriculture, Trade and Consumer Protection (DATCP) announces that it will hold a public hearing on a proposed rule that make minor remedial drafting changes to a number of department rules.

DATCP will hold one public hearing at the time and place shown below. DATCP invites the public to attend the hearing and comment on the proposed rule. Following the public hearing, the hearing record will remain open until Friday, April 21, 2006 for additional written comments. Comments may be sent to the Office of Legal Counsel, at the address below, by email to [e-mail] or online at https://apps4.dhfs.state.wi.us/admrules/public/Home

You may obtain a free copy of this rule by contacting the Wisconsin Department of Agriculture, Trade and Consumer Protection, Office of Legal Counsel, 2811 Agriculture Drive, P.O. Box 8911, Madison, WI 53708. You can also obtain a copy by calling [phone] or emailing [e-mail]. Copies will also be available at the hearings. To view the proposed rule online, go to:

https://apps4.dhfs.state.wi.us/admrules/public/Home

To provide comments or concerns relating to small business, please contact DATCP's small business regulatory coordinator Keeley Moll at the address above, by emailing to [e-mail] or by telephone at [phone].

Hearing impaired persons may request an interpreter for these hearings. Please make reservations for a hearing interpreter by April 5, 2006, by writing to Karen Schultz, Office of Legal Counsel, P.O. Box 8911, Madison, WI 53708-8911, telephone [phone]. Alternatively, you may contact the DATCP TDD at [phone]. Handicap access is available at the hearings.

Hearing Dates and Locations

Thursday, April 13, 2006

1:00 p.m. to 3:00 p.m.

Department of Agriculture, Trade and Consumer Protection

2811 Agriculture Drive, Room 172

Madison, WI 53718

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

This rule makes technical changes to a number of current rules administered by the Department of Agriculture, Trade and Consumer Protection (“DATCP"), related to a variety of topics. This rule describes the discretion that DATCP may exercise in the enforcement of regulations against small business.

Statutory Authority

Statutory Authority:   ss. 93.07 (1), 92.05 (3) (c), 92.14 (8), 93.50 (2) (f), 94.72 (13) (a), 95.197 (2), 95.71 (8), 97.09 (4), 97.20 (4), 97.22 (8), 97.41 (2) and (5), 98.03 (2), 98.18 (2), and 895.59, Stats.

Statutes Interpreted: ss. 92.05, 92.14, 94.72, 95.197, 95.71, 97.20, 97.22, 97.41, 98.03, 98.18, 93.50, and 895.59, Stats.

DATCP has broad authority under 93.07(1) to adopt rules needed to implement laws under its jurisdiction. Under s. 895.59, Stats. (created by 2003 Wisconsin Act 145), DATCP is required to adopt rules describing the discretion that it may exercise in enforcement of its regulations against small businesses. DATCP has specific authority, under the provisions cited above, to adopt rules related to each of the topics addressed by this rule.

Rule Content

Small Business Enforcement Discretion

Under s. 895.59, Stats. (created by 2003 Wisconsin Act 145), state agencies are required to adopt rules describing the discretion they may exercise when enforcing regulations against small businesses. This rule describes the discretion that DATCP may exercise when enforcing regulations against small businesses. DATCP already exercises enforcement discretion, as described in this rule.

Technical Changes to Current Rules

This rule also makes minor technical changes to a number of rules administered by the DATCP. This rule does all of the following:

Conforms fertilizer tonnage fee (agricultural chemical cleanup surcharge) to current statute The department is currently charging the (lower) statutory fee, not the obsolete (higher) fee that appears in the current rule (ATCP 40).

• Updates technical standards that are incorporated by reference in current commercial feed rules (ATCP 42). The updates refer to the latest edition (2006) of the official publication of the Association of American Feed Control Officials.

Updates current standards for the professional certification of agricultural engineering practitioners. The revised standards address new agricultural engineering practices, and the planning phases of engineering projects. The revisions also make minor changes to job class criteria for some existing practices, reflecting changes in technology and scale of current projects. DATCP coordinated these revisions with the United States Department of Agriculture (NRCS) and county land conservation departments, including practitioners who serve federal, state and county conservation programs.

Clarifies DATCP's meat holding order and condemnation authority (ATCP 55).

Corrects inconsistent rules related to the legal “shelf life" of smoked fish (one rule says 17 days, the other says 21 days). This rule says 21 days.

• Changes current dairy plant rules (ATCP 80) to make them consistent with current federal standards. This includes minor technical changes related to pasteurization standards, thermometers and temperature readings, as well as updates to technical standards incorporated by reference (ATCP 80 Appendix). The updates refer to the latest editions of the 3-A Sanitary Standards and Accepted Practices published by the 3-A Sanitary Standards, Inc.

• Updates technical standards that are incorporated by reference in current weights and measures rules (ATCP 92). The updates refer to the latest editions (2006) of current weights and measures handbooks published by the National Institute of Standards and Technology.

Clarifies, per current statutes, that local weights and measures inspectors must be civil service employees (conforms rule to current statute).

Eliminates minor obsolete accounting provisions (in ATCP 105) related to the calculation of cigarette “cost" for purposes of the Unfair Sales Act (“minimum markup law").

Clarifies the relationship between DATCP's home improvement code (ATCP 110) and basement waterproofing code (ATCP 111), both of which apply to basement waterproofing services.

Clarifies prohibition against misleading charity claims in coupon book schemes (ATCP 131).

• Repeals current rules related to dairy cattle grades (ATCP 158), because the rules are obsolete and no longer used.

• Corrects typographical errors and cross-references, eliminates obsolete provisions, conforms rules to current statutes, creates clarifying notes, and makes other non-substantive drafting and organizational changes to current rules.

Pursuant to s. 227.21, Stats., DATCP will request permission from the Attorney General and the Revisor of Statutes to incorporate each updated technical standards by reference.

Fiscal Estimate

DATCP already exercises enforcement discretion, as described in this rule, so the effect will be minimal. Fines and forfeitures are paid to the state school fund, not DATCP. Other provisions of this rule will have no fiscal effect on DATCP or local units of government.

Business Impact

DATCP already exercises enforcement discretion, as described in this rule. The current exercise of discretion prevents unnecessary costs to small businesses. The codification of DATCP's current enforcement policy will not change that policy, or have a major additional impact on business. The other provisions of this rule will have no significant effect on business.

Federal Regulations

Several of the technical changes in this rule will make DATCP rules consistent with current federal standards. Otherwise, there are no existing or proposed federal regulations similar to this rule.

Surrounding State Programs

Surrounding states (Illinois, Indiana, Iowa, Michigan and Minnesota) do not have comparable rules, except that some use comparable technical standards.

Notice of Hearings

Health and Family Services

[CR 06-021]

NOTICE IS HEREBY GIVEN that pursuant to ss. 227.11 (2) (a), 254.34 (1) (a), 254.35 (3) (g), 254.365 (4) and 254.37 (3), Stats., and interpreting ss. 254.31 to 254.45, Stats., and 42 USC 2011 to 2114, the Department of Health and Family Services will hold public hearings to consider the proposed creation, repeal, repeal and recreation and amendment of portions of chapter HFS 157 Radiation Protection, relating to the regulation of radiation producing devices and radioactive materials and affecting small businesses.

Hearing Date(s) and Location(s)

Tuesday, April 18, 2006, 10:00 - 11:30 a.m.

Medical College of Wisconsin

8701 Watertown Plank Rd. (Rm. HRC 1210)

Milwaukee, WI

Thursday, April 20, 2006, 10:00 - 11:30 a.m.

1 W. Wilson St.

Rm. B139

Madison, WI

Thursday, April 27, 2006, 10:00 - 11:30 a.m.

Westwood Conference Center

1800 W. Bridge St. (Atrium Room)

Wausau, WI

The hearing site is fully accessible to people with disabilities. If you are hearing or visually impaired, do not speak English, or have circumstances that might make communication at a hearing difficult and if you, therefore, require an interpreter or a non-English, large print or taped version of the hearing document, contact the person at the address or phone number given above at least 10 days before the hearing. With less than 10 days notice, an interpreter may not be available.

Place Where Written Comments may be Submitted

Written comments may be submitted at the public hearing or submitted to the Department using the Wisconsin Administrative Rule Website at:
http://adminrules.wisconsin.gov or may be sent to:

Paul Schmidt, Chief

Radiation Protection Section

P.O. Box 2659

Madison, WI 53701-2659

608-267-4792

[e-mail]

Deadline for Comment Submission

The deadline for submitting comments to the Department is 4:30 p.m., May 12, 2006.

Analysis Prepared by the Department of Health and Family Services

Under s. 254.34 (1) (a) Stats., the Department is responsible for developing and enforcing rules, including registration and licensing of sources of ionizing radiation to prohibit and prevent unnecessary radiation exposure. The Department is also responsible for maintaining compliance with the Agreement signed by Governor Doyle in 2003 and the Nuclear Regulatory Commission (NRC) that transferred regulatory authority over certain radioactive materials from the NRC to the state. Under the Agreement, the Department is responsible for licensing and inspecting radioactive materials commonly used in medicine, industry, research and education. NRC staff periodically evaluates the state regulatory program.

One of the requirements of this Agreement is Wisconsin's assurance that it will revise the radioactive material portions of ch. HFS 157 within 3 years of any applicable changes in Title10 Code of Federal Regulations. Title 10 CFR has been revised since ch. HFS 157 was last revised in 2002. Therefore, the Department proposes to modify the radioactive material requirements in ch. HFS 157.

In addition, the Department proposes to revise the portions of ch. HFS 157 pertaining to x-rays to reflect new diagnostic and therapeutic technologies, experience with implementing the current rule, changes in comparable federal regulations in 21 CFR Part 1020, and input provided to the Department by an advisory group that included representatives of academic and medical facilities, radioactive materials users, x-ray users and large and small businesses.

Finally, the Department proposes to increase the annual site fee and the x-ray tube fee established under s. 254.35 (3), Stats., to address a projected operating deficit in the x-ray and registration and inspection program for state fiscal year (SFY) 2006 and beyond. To maintain program revenue sufficient to operate the x-ray registration and inspection program, the Department under s. 254.35 (3) (g), Stats., proposes to increase annual registration fees by increasing both the annual site fee and x-ray tube fee for installations required to be registered as follows:

Increase the annual site fee from $36 to $50 for all required registrants, including sites serving physicians and clinics, osteopaths and clinics, chiropractors, hospitals, podiatrists, veterinarian, industrial, educational facilities, research projects, and dental sites, and other sites required to be registered.

Increase the annual x-ray tube fee from $44 to $50 for all sites, except dental, serving physicians and clinics, osteopaths and clinics, chiropractors, hospitals, podiatrists, veterinarian, industrial sites, educational facilities, research projects, and other sites.

Increase the annual x-ray tube fee from $30 to $35 for dental sites.

The proposed revisions to chapter HFS 157 accomplish the following:

• Updates the radiation protection and regulatory requirements for radioactive materials to reflect changes in federal regulations in Title 10, Code of Federal Regulations Parts 19, 20, 31, 33-36, 39, 40, 70, 71 and 150 and applicable portions of Title 49 (transportation), Code of Federal Regulations.

• Updates the radiation safety requirements for x-ray producing devices to reflect new technologies, current federal regulation and the input of an ad hoc advisory group representing a cross-section of regulated users.

• Revises 7 of the 42 radioactive material license fee categories to reflect lessons learned after 1.5 years as an Agreement state. There is no fee increase associated with the materials fee category revision.