11:00 a.m. to 1:00 p.m.
Havenwoods State Forest
6141 North Hopkins Street
Milwaukee, Wisconsin 53209-3565
Analysis Prepared by the Department of Agriculture, Trade and Consumer Protection
This rule implements s.
100.54, Stats. (created by
2005 Wis. Act 140), related to credit report security freezes. This rule clarifies the information that credit reporting agencies may request in order to verify the identity of persons requesting credit report security freezes. Credit reporting agencies must adopt written procedures to comply with s.
100.54, Stats., and this rule.
The Wisconsin Department of Agriculture, Trade and Consumer Protection (“DATCP") has broad general authority, under s.
93.07 (1), Stats., to interpret laws under its jurisdiction. Section
100.54 (12), Stats., specifically requires DATCP to adopt rules related to identification required of consumers requesting credit report security freezes. Under s.
100.20 (2), Stats., DATCP may adopt rules (general orders) to prohibit unfair business practices and require fair practices.
Background
Section
100.54, Stats., created by
2005 Wisconsin Act 140, regulates access to consumer credit reports. The law permits a consumer to create a “security freeze" on his or her consumer credit report. A security freeze limits the release and distribution of the consumer credit report. At any time after creating a security freeze, the consumer may ask the credit reporting agency to release the consumer's credit report for a specified period of time, or to terminate the security freeze altogether.
A consumer who asks a credit reporting agency to create or release a security freeze must provide information to verify the consumer's identity. Under s.
100.54(12), Stats., DATCP must adopt rules to define what constitutes proper identification. Under s.
100.20(2), Stats., DATCP may prohibit unfair business practices (including unfair credit reporting practices) and require fair practices.
Rule Contents
This rule defines what constitutes proper identification for a consumer who wishes to place a security freeze on his or her credit report. The rule is consistent with federal law related to proper identification. The rule does all of the following:
• Spells out the information that a credit reporting agency may require of a consumer who asks the agency to create a security freeze, in order to verify the consumer's identity.
• Spells out the information that a credit reporting agency may require of a consumer who asks the agency to release or terminate a security freeze, in order to verify the consumer's identity. The agency may require the same information that it required to create the security freeze and may, in addition, require a password assigned to the consumer when the security freeze was created.
• Requires credit reporting agencies to spell out written procedures for complying with this rule and s.
100.54, Stats.
Fiscal Impact
This rule will have no significant fiscal impact on DATCP or local units of government.
Business Impact
This rule only affects credit reporting agencies by regulating how the agency may identify consumers who request security freezes or changes to their security freeze status. The rule has no effect on a business that is not a credit reporting agency. Currently, there are only 3 credit reporting agencies operating in the United States. None of these are small businesses.
Federal Regulations
The federal Fair Credit Reporting Act of 2003 allows consumers who are victims of identity theft to freeze their credit reports. If a consumer is not a victim of identity theft, they have no option under federal law to place a freeze on their credit report. For victims of identity theft, federal rules under
16 CFR § 614.1 spell out the information that a credit reporting agency may use to verify the identity of consumers who ask the agency to create or release a security freeze. Federal standards are consistent with the standards in s.
100.54, Stats., and this rule.
Regulation in Surrounding States
Approximately 17 states have enacted laws that require consumer credit reporting agencies to freeze consumer credit reports upon request. Under all of those laws, credit reporting agencies may require requesting consumers to submit information to verify their identity. Most states allow credit reporting agencies to demand “information generally deemed sufficient to identify a person." If that information is insufficient, some states allow the consumer reporting agency to request “additional information concerning the consumer's employment and personal or family history in order to verify his or her identity."
Of the states surrounding Wisconsin, Illinois and Minnesota have enacted security freeze legislation. Security freeze legislation has been introduced, but not yet enacted, in Iowa and Michigan.
The Minnesota law took effect on August 1, 2006 and the Illinois law will take effect on January 1, 2006. The Minnesota and Illinois laws, like most other state laws on the subject, allow credit reporting agencies to demand “information generally deemed sufficient to identify a person." If that information is insufficient, Illinois law allows the consumer reporting agency to request “additional information concerning the consumer's employment and personal or family history in order to verify his or her identity."
Notice of Hearing
Commerce
NOTICE IS HEREBY GIVEN that pursuant to sections
101.09 (3),
101.143 (2) (g), and
227.11 (2) (a) of the Statutes, the Department of Commerce will hold a public hearing on proposed rules under chapter Comm 5, relating to credentials for storage of flammable, combustible, and hazardous liquids
and for cleanup of properties contaminated by petroleum-product discharges.
The public hearing will be held as follows: credentials for storage of flammable, combustible, and hazardous liquids and for cleanup of properties contaminated by petroleum-product discharges.
Date and Time: Friday, January 5, 2007, at 10:00 a.m.
Location: Thompson Commerce Center
Third Floor, Room 3B
201 West Washington Avenue
Madison, Wisconsin
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, via e-mail. Persons submitting comments will not receive individual responses. The hearing record on this proposed rulemaking will remain open until January 10, 2007, 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. All written comments should be submitted by e-mail to
srockweiler@commerce.state.wi.us. If e-mail submittal is not possible, written comments may be mailed to Sam Rockweiler, Department of Commerce, Division of Environmental and Regulatory Services, P.O. Box 14427, Madison, WI 53708-0427.
This hearing will be held in an accessible facility. If you have special needs or circumstances that may make communication or accessibility difficult at the hearing, please call (608) 266-8741 or (608) 264-8777 (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
1. Statutes Interpreted.
2. Statutory Authority.
3. Explanation of Agency Authority.
Section
101.02 (1) of the Statutes requires the Department to adopt reasonable rules relative to the exercise of the Department's powers and authorities. Section
101.02 (15) (j) requires the Department to protect public safety by promulgating reasonable rules for construction, repair and maintenance of places of employment and public buildings, Section
101.09 (3) (a) requires the Department to promulgate rules for protecting the waters of the State from improper storage, handling and use of flammable or combustible liquids or federally regulated hazardous substances; and requires those rules to include construction and maintenance requirements related to the prevention of leaks. Section
101.09 (3) (c) authorizes the Department to promulgate rules that require certification of persons who install or inspect tanks which are used for storing these liquids or substances. Section
101.143 (2) (g) authorizes the Department to promulgate requirements for the registration of persons who provide consulting services relating to cleanup of properties contaminated by petroleum-product discharges. Section
101.19 (1) requires the Department to fix and collect fees for offsetting the cost of determining and certifying the competency of inspectors. Section
227.11 (2) (a) authorizes the Department to promulgate rules interpreting the provisions of the statutes that the Department enforces or administers.
4. Related Statute or Rule.
Chapter
Comm 10 of the
Wisconsin Administrative Code provides fire and life safety, and environmental protection, by regulating the storage, display, installation, operation, use, maintenance and transportation of flammable, combustible and hazardous liquids; and by regulating the equipment, facilities and buildings that are used to store, transfer and dispense those liquids. Chapter
Comm 47 contains requirements for reimbursing eligible costs that are incurred because of a petroleum-product discharge from a storage system.
5. Plain Language Analysis.
Chapter
Comm 5 contains the Department's rules for issuing numerous credentials that businesses and individuals are either mandated or permitted to obtain. These credentials include certifications and registrations that relate to safe storage of flammable, combustible, and hazardous liquids, and to cleanup of properties contaminated by petroleum-product discharges.
The proposed rules would primarily modify chapter Comm 5 by creating (1) a certification category for individuals who conduct cathodic protection testing of any tank system that will hold flammable, combustible, or hazardous liquids which are regulated by chapter Comm 10; and (2) a certification category for individuals who design or install cathodic protection systems for those tank systems. The proposed rules would also limit this testing, design, and installation to individuals who are certified under these rules.
Other substantive changes relating to chapter Comm 10 in the proposed rules would (1) modify several specialty credential responsibilities by deleting outdated activities, and adding activities that have proven to better reflect the nature of the work; (2) remove references to past dates that have no relationship to current-day credential qualifications or administration; (3) eliminate continuing-education requirements from three specialties because the corresponding technical aspects do not change appreciably, and continuing-education opportunities within the industry are limited; (4) shorten the approval duration for continuing-education courses, from five years to three, unless otherwise specified in an approval letter; (5) require departmental notification if an approved, continuing education course is discontinued or modified; (6) no longer allow renewal of credentials after they expire, except by complying with all of the requirements for new applicants; (7) expand the reasons for denial, suspension or revocation of a credential to include failure to maintain required records, denial of Departmental access to requested records, failure to submit a required notice or report to the Department within a required time period, and submittal of false reports to the Department; (8) directly link all credentials for storage of flammable, combustible, and hazardous liquids to the corresponding requirements in chapter Comm 10; (9) modify the site assessor specialty credential terminology to better reflect the scope of the credential; and (10) require contractor liability insurance coverage for firms that install, remove, test, line, clean, or perform assessment, for tank systems.
The only proposed change that relates to chapter Comm 47 is expanding the reasons for denial, suspension or revocation of a credential to include (1) submittal of false reports to the Department, and (2) performance of activities that result in both exceeding a cost cap established by the department, and submittal of a claim to the department for the cost in excess of that cost cap.
6. Summary of, and Comparison With, Existing or Proposed Federal Regulations.
In Title 40 of the Code of Federal Regulations, under Section 20 of Part 280, a corrosion expert must design and oversee installation of field-installed cathodic protection systems for underground steel storage tanks and piping for flammable, combustible, and federally regulated hazardous liquids. Section 31 of
40 CFR 280 requires that a qualified Note: Complaint forms are available from the Department of Regulation and Licensing, Division of Enforcement, 1400 East Washington Avenue, P.O. Box 8935, Madison, Wisconsin 53708, or from the department's website at:
http://drl.wi.gov.
7. Comparison With Rules in Adjacent States.
In Michigan, corresponding cathodic protection professionals are required to be so certified by the National Association of Corrosion Engineers (NACE). Illinois requires the contractor to be State-certified to perform cathodic protection testing activities, and a NACE-certified individual must perform any design activity. Minnesota requires either Steel Tank Institute (STI) or NACE certification for cathodic protection testing activities, and a NACE-certified individual must perform any design activity. Iowa is revising their code to require certification from a recognized program, such as NACE or STI.
8. Summary of Factual Data and Analytical Methodologies.
Cathodic protection has proven to be highly effective for protecting underground metal tanks and piping from corrosion, provided the protection system is properly designed, installed, operated, maintained, and tested. Over the past several years, the Department has become aware of a significant number of cathodic protection systems that have not provided adequate protection or have caused interference with adjacent protection systems or structures.
Factory-installed, galvanic, cathodic protection systems are relatively simple in construction and operation. They include anodes that are sacrificed or consumed in the process of generating a protective current which is required to prevent corrosion. However, for older, existing underground storage tank systems, impressed current is often needed, because any dielectric coating provided on the tank is usually deteriorated or nonexistent, and a bare-metal or poorly coated tank system needs significantly more protective current than can be generated by a reasonable number of sacrificial anodes. An effective cathodic protection system must be engineered to provide the correct amount of protection – too little or too much protection can potentially be as defective as no protection.
Testing of cathodic protection systems is an important part of assuring the integrity of an underground storage tank system. However, soil and seasonal conditions affect the accuracy of cathodic protection testing methods, and site-specific factors can result in false and otherwise misleading indicators that a tank system is or is not adequately protected against corrosion. Improper interpretation of the test measurements has led to many false conclusions about whether a tank system is adequately protected or unprotected. Also, because no standard currently accounts for every situation and site-specific environmental and soil conditions, experience and training in corrosion control is warranted.
Requiring Wisconsin-based certification of cathodic protection professionals would enable Wisconsin to directly enforce the associated requirements, rather than depend on federal enforcement. This direct enforcement would provide further assurance that cathodic protection activities are performed at a minimum level of competency, following nationally established and accepted standards. In addition, Wisconsin certification would establish a database of certified individuals that could be used to communicate to the general public those individuals who are qualified to perform the work. The Department could also use this database for communicating new or proposed requirements or informational announcements to certified individuals.
The proposed changes for ch.
Comm 5 were developed with assistance from the Department's advisory committee for flammable, combustible and hazardous liquids. The members of that advisory committee are as follows:
Name Representing
Randy Sharvey Wisconsin Fire Inspectors Association
Erin Roth Wisconsin Petroleum Council
Tim Clay Wisconsin Federation of Cooperatives
Paul Knower WI Petroleum Equip. Contractors Assn.
Steve Danner Wisconsin Aviation Trades Association
Elizabeth Hellman Wisconsin Utilities Association
Gary Pate Wisconsin Insurance Alliance
Bill Noel Wisconsin Paper Council
Dale Safer Wisconsin Innkeepers
Bob Bartlett WI Petroleum Marketers & Convenience
Store Association
9. Analysis and Supporting Documents Used to Determine Effect on Small Business or in Preparation of an Economic Impact Report.
The primary document that was used to determine the effect of the proposed rules on small business was Part 280 of Title 40 of the Code of Federal Regulations. As noted in the above summary of federal regulations, the proposed Wisconsin credential requirements for corrosion experts and cathodic protection testers are essentially the same as the federal credential requirements in 40 CRF 280. Federal guidelines produced by the Small Business Administration's Office of Advocacy were also used in considering the potential effects on small business. The analysis for the expected effect of the new requirement for contractor liability insurance coverage was particularly based on outreach to current contractors.
10. Effect on Small Business.
The proposed rules are not expected to impose significant costs or other impacts on small businesses because the included requirements for performing cathodic protection activities, and the corresponding certifications, would not be significantly more restrictive than current, applicable federal requirements. Although the deletion of continuing-education requirements for three certification categories would reduce costs and impacts for individuals in those categories, that reduction may be offset by codifying a common practice of tank specialty firms, to have contractor liability insurance coverage. Outreach efforts to firms currently performing these activities indicate that this insurance is readily available, beneficial, and reasonably priced.
11. Agency Contact Person.
Sheldon Schall, Wisconsin Department of Commerce, Bureau of Petroleum Products and Tanks, P.O. Box 7837, Madison, WI, 53707-7837; telephone (608) 266-0956; e-mail
sheldon.schall@commerce.state.wi.us.
12. Place Where Comments Are to Be Submitted, and Deadline for Submission.
Comments on the proposed rules may be submitted by e-mail to
srockweiler@commerce.state.wi.us, no later than January 10, 2007. If e-mail submittal is not possible, written comments may be mailed, by the same date, to Sam Rockweiler, Department of Commerce, Division of Environmental and Regulatory Services, P.O. Box 14427, Madison, WI 53708-0427.
The proposed rules and an analysis of the rules are available on the Internet, by entering “Comm 5" in the search engine at the following Web site:
http://adminrules.wisconsin.gov. Paper copies may be obtained without cost from Linda Hahn at the Department of Commerce, Bureau of Petroleum Products and Tanks, P.O. Box 7837, Madison, WI, 53707-7837; telephone (608) 266-0762; e-mail
lhahn@commerce.state.wi.us or (608) 264-8777 (TTY). Copies will also be available at the public hearing.
Environmental Assessment
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.
Initial Regulatory Flexibility Analysis
1. Types of small businesses that will be affected by the rules.
Businesses that design, install, or test cathodic protection systems for underground steel storage tank systems; or businesses which currently do not have contractor liability insurance coverage and which install, remove, test, line, clean, or perform closure assessment, for tank systems regulated by chapter Comm 10. The proposed rules may also affect some individuals and firms during renewal of credentials related to storage of flammable, combustible and hazardous liquids; and may affect some providers of the continuing education courses that are utilized in conjunction with those renewals.
2. Reporting, bookkeeping and other procedures required for compliance with the rules.
