Rule-Making Notices (Hearing Notices)

Wisconsin Administrative Register No. 613, 1/31/2007

Rule-making notices

Notice of Hearings

Agriculture, Trade and Consumer Protection

[CR 07-004]

The state of Wisconsin Department of Agriculture, Trade and Consumer Protection (DATCP) announces that it will hold public hearings on a proposed new rule, Chapter ATCP 106, Wis. Adm. Code, relating to Price Gouging During and Emergency.

DATCP will hold three public hearings at the times and places shown below. DATCP invites the public to attend the hearings and comment on the proposed rule. Following the public hearings, the hearing record will remain open until Friday, March 16, 2007 for additional written comments. Comments may be sent to the Division of Trade and Consumer Protection 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, Division of Trade and Consumer Protection, 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 February 13, 2007, by writing to Kevin LeRoy, Division of Trade and Consumer Protection, 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:

Tuesday, February 20, 2007

2:00 p.m. to 4:00 p.m.

DATCP Northwest Regional Office

3610 Oakwood Hills Pkwy

Eau Claire, WI 54701-7754

Wednesday, February 21, 2007

9:30 a.m.. to 11:30 a.m.

DATCP Northeast Regional Office

Room 152A

200 N Jefferson Street

Green Bay WI 54301

Tuesday, February 27, 2007

9:30 a.m. to 11:30 a.m.

Department of Agriculture, Trade and Consumer Protection

2811 Agriculture Drive, Board Room (CR-106)

Madison, Wisconsin, 53718-6777

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

This rule implements s. 100.305, Stats. (created by 2005 Wis. Act 450), which prohibits price gouging in sales of consumer goods or services during an emergency declared by the Governor. This rule includes standards for determining what constitutes illegal price gouging.

Statutory Authority

Statutory Authority:   ss. 93.07 (1), 93.15 and 100.305 (3), Stats.

Statutes Interpreted:   ss. 93.06 (1) and (9), 93.15, 93.16 and 100.305, Stats.

The Wisconsin department of agriculture, trade and consumer protection (“DATCP") is responsible for administering the price gouging prohibition under s. 100.305, Stats. Section 100.305, Stats., prohibits sellers from selling “consumer goods or services" at wholesale or retail at “unreasonably excessive prices" if the Governor, by executive order, has certified that the state or a part of the state is in a “period of abnormal economic disruption" due to an emergency. An emergency may include, for example, a destructive act of nature, a disruption of energy supplies that poses a serious risk to the public health or welfare, a hostile action, or a strike or civil disorder.

DATCP has broad general authority, under s. 93.07 (1), Stats., to adopt rules to implement laws under its jurisdiction. Under s. 100.305 (3), Stats., DATCP is specifically required to adopt rules defining what constitutes an “unreasonably excessive price" for purposes of the price gouging prohibition under s. 100.305, Stats.

Under ss. 93.06 (1) and (9) and 93.14 to 93.16, Stats., DATCP may investigate possible rule violations, and may require persons to provide documents, testimony and other evidence related to its investigation. Under s. 93.15, Stats., DATCP may by general order (rule) require persons to answer DATCP questions and submit documents for inspection.

Rule Content

Under this rule, a seller may not sell a consumer good or service in a declared emergency area during a declared emergency period at a price that is more than 10% above the highest price at which the seller sold like consumer goods or services to like customers in the relevant trade area during the 60-day period immediately preceding the emergency declaration. A seller may charge a higher price if the seller can prove, based on evidence in the seller's possession at the time of sale, that any of the following apply:

The higher price does not exceed the seller's cost plus normal markup. “Normal markup" means the percentage markup, over the seller's cost, which the seller regularly used in sales of like goods or services to like customers in the relevant trade area during the 60-day period immediately preceding the emergency declaration. This allows sellers to pass on bona fide cost increases.

The higher price is required by law. For example, a seller may prove that the higher price is required to comply with Wisconsin's Unfair Sales Act (“minimum markup law"), s. 100.30, Stats.

The Governor's emergency declaration directly or impliedly exempts the sale from coverage under the emergency declaration.

Under this rule, DATCP may require a seller to submit written, documented answers to DATCP questions related to the seller's compliance with this rule, including information related to any of the following:

The highest price at which the seller sold a consumer good or service to like customers in the relevant trade area during the 60-day period immediately preceding the emergency declaration.

The scope of the relevant trade area.

Any defenses claimed by the seller under this rule.

Other information relevant to DATCP's investigation.

Federal and Surrounding State Regulations

Federal Law

At various times in United States history, the federal government has imposed price controls. There are no federal “price gouging" prohibitions currently in effect. However, there are federal laws that set or limit prices for certain products or services in certain sectors. Some of these laws may preempt state “price gouging" provisions related to the federally-regulated products or services. For example, state law may not regulate interest rates charged by federally chartered banks, or certain prices charged by certain federally regulated common carriers. The scope and effect of federal regulation varies by industry sector, and is highly specific to individual federal programs.

Other States

Many states have prohibited price gouging during declared periods of emergency. Most of those states prohibit prices above pre-emergency prices, except that most states allow sellers to pass on increased costs. Four states prohibit increased markups over cost, and 6 states cap price increases at some percentage such as 10% or 25%.

Nineteen states prohibit prices that are “unconscionably excessive," “exorbitant," “unjustified," or “grossly excessive" without defining those terms or establishing more specific standards. However, the New York attorney general found that New York's broad prohibition against “unconscionably excessive" prices was unworkable without more specific standards.

The states surrounding Wisconsin have the following regulations:

Illinois, on September 2, 2005, adopted an emergency rule (now expired) which prohibited “unconscionably high prices for petroleum products."

Indiana prohibits price gouging in the sale of fuel. Price gouging occurs if a retailer charges a price that grossly exceeds the average price at which the fuel was readily available during the 7 days immediately preceding the declared emergency and the increase is not attributable to cost factors to the retailer.

Iowa regulates prices on “merchandise needed by disaster victims." The Iowa regulation prohibits “unjustified prices" during times of disaster and recovery (60 day maximum) in a declared disaster zone.

Michigan's consumer act prohibits, among other things, a price that is “grossly in excess" of the price at which similar property or services are sold.

Minnesota does not regulate price gouging.

Ohio prohibits, during a state of emergency, prices that are substantially higher than “the price at which the goods or services were readily obtainable during the 30 days immediately preceding the state of emergency" or “the average price of the goods or services during the 30 days immediately preceding the state of emergency."

Business Impact Analysis

Depending on the scope of a declared emergency, this rule could conceivably affect nearly every business that sells consumer goods in the state (whether at wholesale or retail). A declared emergency may be statewide or localized in scope, and may be broad-based or confined to certain economic sectors. The impact of this rule will vary accordingly.

This rule could have a substantial impact on a wide array of businesses. But it is not possible to predict the impact on individual businesses or on business generally.

Whenever it applies in an emergency, this rule will limit the prices that may be charged by affected businesses. This rule prohibits prices that are more than 10% higher than pre-emergency prices, unless sellers can document that their higher prices do not exceed their cost plus normal markup. Sellers are thus free to pass on relevant cost increases, if they can document those increases.

This rule applies only when the Governor, by executive order, issues an emergency declaration. The emergency declaration determines the scope of coverage, and may exempt certain business sectors from coverage. This rule applies only for the period of time that the emergency declaration remains in effect.

This rule provides some latitude for price adjustments in response to supply and demand, and allows sellers to pass on bona fide cost increases. However, this rule does ultimately set limits on the prices that manufacturers, wholesaler distributors and retailers may charge. Some sellers may withhold goods or services from the market rather than sell at those limited prices. Retailers may benefit from wholesale price limitations, but may suffer from wholesaler decisions to withhold goods or services from distribution.

Under 2003 Wis. Act 145, DATCP and other agencies must adopt rules spelling out their rule enforcement policy for small businesses. DATCP has adopted a separate rule outlining its small business enforcement policy (see ATCP 1, subch. VII). DATCP will follow that rule in the administration of this price gouging rule. DATCP will, to the maximum extent feasible, seek voluntary compliance with this price gouging rule.

This rule first applies to small businesses 2 months after it first applies to other businesses, as required by s. 227.22 (2) (e), Stats. This rule will not apply to small businesses during declared emergencies that fall within that 2-month period, but will apply to small businesses during subsequent declared emergencies. If a declared emergency period starts before the small business effective date, but extends beyond the small business effective date, this rule will apply to small businesses for that portion of the emergency period that occurs after the small business effective date.

Notice of Hearing

Agriculture, Trade and Consumer Protection

The Department of Agriculture, Trade and Consumer Protection announces that it will hold a public hearing on an emergency rule relating to Credit Report Security Freezes. This emergency rule would create a definition for what constitutes proper identification for a consumer who asks a credit reporting agency to create, release, or terminate a security freeze.

DATCP will hold one hearing at the time and place shown below. DATCP invites the public to attend the hearing and comment on the emergency rule. Following the public hearing, the hearing record will remain open until Monday, February 26, 2007, for additional written comments. Comments may be sent to the Division of Trade and Consumer Protection at the address below or by e-mail to [e-mail].

You may obtain a free copy of this rule by contacting the Wisconsin Department of Agriculture, Trade and Consumer Protection, Division of Trade and Consumer Protection, 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 hearing. 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 the hearing. Please make reservations for a hearing interpreter by February 2, 2007, by writing to Michelle Reinen, Division of Trade and Consumer Protection, P.O. Box 8911, Madison, WI 53708-8911, telephone [phone]. Alternatively, you may contact the Department TDD at [phone]. Handicap access is available at the hearing.

Hearing Date and Location

Monday, February 12, 2007

1:30 p.m. to 3:30 p.m.

Department of Agriculture, Trade and Consumer Protection

2811 Agriculture Drive, Board Room (CR-106)

Madison, Wisconsin, 53718-6777

Handicapped accessible

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

This emergency 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.\

Statutory Authority

Statutory Authority:   ss. 93.07 (1) and 100.54 (12), Stats.

Statutes Interpreted:   s. 100.54, Stats.

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.

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.

Emergency Rule

The department is adopting this emergency rule pursuant to s. 100.54 (12), Stats. Section 100.54, Stats., becomes effective on January 1, 2006. At that time, the credit reporting agencies must honor a consumer's request for a security freeze. Since a permanent rule will not be in place at the time the law takes effect, credit reporting agencies will not know what information they may use to identify consumers who request the security freeze unless this emergency rule is adopted. Adopting this emergency rule will enable credit reporting agencies to comply with the statute by defining the types of information they may use to identify consumers who request the security freeze.

This emergency 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.

Fiscal Impact

This emergency rule will have no significant fiscal impact on DATCP or local units of government.

Business Impact

This emergency 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.

Regulations 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 took 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."

DATCP Contact

Questions and comments related to this rule may be directed to:

Michelle Reinen

Department of Agriculture, Trade and Consumer Protection

P.O. Box 8911

Madison, WI 53708-8911

Telephone [phone]

E-Mail: [e-mail]

Notice of Hearings

Agriculture, Trade and Consumer Protection

[CR 07-006]

The state of Wisconsin Department of Agriculture, Trade and Consumer Protection (DATCP) announces that it will hold public hearings on proposed amendments to chapters ATCP 60, 69, 77, 80 and 82, Wis. Adm. Code, relating to safe production, processing, distribution and sale of milk and dairy products.

DATCP will hold four public hearings at the times and places shown below. DATCP invites the public to attend the hearings and comment on the proposed rule. Following the public hearings, the hearing record will remain open until Monday, March 19, 2007, for additional written comments. Comments may be sent to the Division of Food Safety 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, Division of Food Safety, 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 February 12, 2007, by writing to Deb Mazanec, Division of Food Safety, 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

Tuesday, February 20, 2007

10:00 a.m. to 1:00 p.m.

Appleton Public Library, Room C

225 N. Oneida Street

Appleton, WI 54911

Wednesday, February 21, 2007

10:00 a.m. to 1:00 p.m.

State of Wisconsin Office Building, Room 105

718 W. Clairemont Avenue

Eau Claire, WI 54701

Friday, February 23, 2007

10:00 a.m. to 1:00 p.m.

Green County Agriculture Building Auditorium

2841 6th Street

Monroe, WI 53566

Monday, February 26, 2007

1:00 p.m. to 4:00 p.m.

Department of Agriculture, Trade and Consumer Protection

2811 Agriculture Drive, Board Room (CR-106)

Madison, Wisconsin, 53718-6777

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

This rule updates current rules related to safe production, processing, distribution and sale of milk and dairy products. This rule affects dairy farms, dairy plants, milk haulers, milk testing laboratories, buttermakers, cheesemakers and others. Among other things, this rule:

Brings Wisconsin rules into conformity with the Interstate Pasteurized Milk Ordinance (“PMO"). Milk and fluid milk products must be produced in compliance with the PMO, in order for Wisconsin to be able to ship those products in interstate commerce.

Updates current rules to accommodate new dairy industry technology and practices.

Clarifies current statutory prohibitions against the sale of raw milk to consumers, consistent with administrative law judge decisions.

Clarifies some rule provisions, so they will be easier to read and understand.

Statutory Authority

Statutory authority:   ss. 93.07(1) and (2), 93.09 (1), 93.12 (3) and (5), 97.09 (1) and (4), 97.20 (4), 97.21 (6), 97.22 (8), 97.24 (3), and 97.52.

Statutes interpreted: ss. 93.09, 93.12, 97.02, 97.03, 97.09, 97.12, 97.17, 97.175, 97.20, 97.21, 97.22, 97.24, 97.50, 97.52, 98.145 and 98.146.

The Department of Agriculture, Trade and Consumer Protection (“DATCP") is responsible for administering Wisconsin food safety and labeling laws, including laws related to the safety of milk and dairy products. DATCP licenses and regulates dairy farms, dairy plants, milk haulers, milk testing laboratories and analysts, bulk milk weighers and samplers, and others. DATCP has broad authority to regulate these entities, to ensure safe and wholesome dairy products and fair business practices.

Milk and fluid milk products must be produced and distributed in compliance with “Grade A" standards under the Interstate Pasteurized Milk Ordinance (“PMO"). If Wisconsin fails to comply with the PMO, Wisconsin may be precluded from shipping milk and fluid milk products in interstate commerce. Under s. 97.24, Stats., DATCP must adopt “Grade A" rules that are in substantial accord with the PMO.

DATCP has broad authority, under s. 93.07(1), Stats., to adopt rules needed to interpret and implement laws under its jurisdiction. In addition, DATCP has the following rulemaking authority:

Under s. 93.07 (2), Stats., to prescribe forms used in connection with DATCP programs.

Under s. 93.09 (1), Stats., to adopt grading, packaging and labeling standards for food.

Under ss. 93.12 (3) and (5), Stats., to adopt rules for laboratories testing milk and dairy products.

Under s. 97.09 (1), Stats., to adopt food standards of identity, composition and quality.

Under s. 97.09 (4), Stats., to regulate the production, processing, packaging, labeling, transportation, storage, handling, display, sale, and distribution of food to protect the public from adulterated or misbranded foods.

Under s. 97.20 (4), 97.21 (6) and 97.22 (8), Stats., to regulate dairy plants, bulk milk tankers and dairy farms.

Under s. 97.24 (3), to adopt rules for the production, processing, pasteurization, distribution and testing of milk and dairy products. Rules for milk and fluid milk products must be in substantial accord with “Grade A" standards under the PMO.

Under s. 97.52, Stats., to establish sanitary standards for the production, handling and transportation, inspection and testing of milk and dairy products.

Background

The United States Food and Drug Administration (“FDA") recently completed an audit of Wisconsin's dairy regulatory program. FDA requested a number of changes in current DATCP rules, to make the rules more fully consistent with the current (2005) version of the PMO. This rule makes changes requested by FDA. This rule also makes other changes to update and clarify current rules, and to accommodate changing dairy industry technology, organization and practices. The changes in this rule are, for the most part, technical in nature. However, some rule changes may require significant changes by some dairy businesses (see Business Impact Analysis below).

DATCP and others have proposed major reforms to modernize and streamline the PMO. However, those reforms will require action at the national level and by other states. In the meantime, Wisconsin must comply with existing PMO requirements.

Rule Content

Dairy Farms

This rule updates and modifies current rules related to dairy farms. Among other things, this rule does all of the following:

• Incorporates PMO requirements related to gravity flow manure handling systems and liquid manure storage.

• Clarifies milk hauler responsibilities relating to mixing, sampling, and testing milk shipments.

• Spells out standards and procedures related to Wisconsin's performance-based dairy farm inspection system.

• Updates drug residue action levels and safe levels, consistent with the PMO.

• Clarifies dairy plant and DATCP responsibilities relating to testing milk from dairy farms, and reporting test results.

•Spells out new requirements related to the safety of water used in milking and processing operations.

• Clarifies milk temperature monitoring and recording requirements, and requires dairy farms to keep milk temperature records for at least 6 months (extended from 90 days under current rules).

Clarifies drug residue testing procedures, including requirements confirmation of positive screening tests and rejection of milk shipments pending follow-up testing to show that drug contamination has been eliminated.

• Clarifies producer and installer responsibilities for obtaining DATCP review of dairy farm remodeling plans.

•Expands rule coverage to include all “milking animals," not just cows, sheep and goats.

•Expands current requirements related to dairy farm and dairy plant cooling systems.

•Clarifies the current statutory prohibition related to the sale of unpasteurized “raw milk" to consumers, consistent with administrative law judge decisions. Raw milk sales have been implicated in a number of serious food-borne disease outbreaks in Wisconsin and elsewhere.

•Eliminates current requirement related to dairy plant testing for coarse sediment in milk.

Dairy Plants

This rule updates and modifies current rules related to dairy plants. Among other things, this rule does all of the following:

Strengthens water safety requirements and clarifies that DATCP, rather than the dairy plant operator, must perform certain water safety tests.

Clarifies cleaning and sanitizing requirements.

Clarifies milk testing requirements, including drug residue testing requirements. Among other things, this rule clarifies testing requirements for farms that milk directly to bulk milk tankers.

This rule eliminates coarse sediment testing requirements.

Updates and clarifies pasteurization standards, procedures and testing requirements.

Requires regular DATCP review of pasteurization records and “cleaned-in-place" equipment cleaning records.

Updates requirements related to calibration of automated milk component testing devices.

Updates dairy plant recordkeeping requirements. Dairy plants must retain certain cleaning and sanitizing records for at least 6 months. Dairy plants must keep for at least 3 years certain documents related to bulk milk shipments.

Milk Testing Laboratories

DATCP currently certifies laboratories that test milk, food or water for compliance with public health standards. This rule updates and clarifies current rules related to the certification of laboratories and lab analysts. Among other things, this rule:

Updates the list of tests for which certification is required.

Clarifies current certification and testing requirements related to drug residue testing in milk, including requirements for timely confirmation of positive screening test results.

Clarifies that test results reported by a certified laboratory are presumptively valid.

Milk Haulers and Bulk Milk Tankers

This rule updates and modifies current requirements related to milk haulers and bulk milk tankers. Among other things, this rule does all of the following:

Establishes standards for bulk milk tanker cleaning facilities at dairy plants.

Requires dairy plants to keep bulk milk tanker cleaning and sanitizing records for 15 days, rather than 90 days. When a dairy plant operator cleans a bulk milk tanker, the operator must remove the cleaning tag from the last cleaning and keep the removed tag for at least 15 days.

Clarifies that out-of-state bulk milk tankers with grade A permits from other jurisdictions are not required to hold Wisconsin grade A permits.

Requires grade A permit numbers to be clearly displayed on bulk milk tankers.

Clarifies the responsibilities of milk haulers (bulk milk weighers and samplers) related to weighing, measuring, and sampling milk shipments.

Buttermakers and Cheesemakers

This rule clarifies current professional licensing requirements for individuals engaged as buttermakers and cheesemakers. This rule gives license applicants more options for meeting training and experience qualifications.

Standards Incorporated by Reference

Pursuant to s. 227.21, Stats., DATCP will request permission from the attorney general and revisor of statutes to incorporate the following standards by reference in this rule without reproducing the publications in full. This rule updates titles, publication dates, and supporting information for the following publications:

• “Grade A Pasteurized Milk Ordinance," published by the Food and Drug Administration, Public Health Service, U.S. Department of Health and Human Services (2005 Revision).

•“3-A Accepted Practices for the Design, Fabrication and Installation of Milking and Milk Handling Equipment," document #3A606-05, published by “3-A Sanitary Standards, Inc. (November 2002).

•“3-A Sanitary Standards for Farm Milk Cooling and Holding Tanks," document #3A13-10, published by 3-A Sanitary Standards, Inc. (November 2003).

• “3-A Accepted Practices for the Sanitary Construction, Installation, Testing, and Operation of High-Temperature Short-Time and Higher-Heat Shorter-Time Pasteurizer Systems," document #3A603-07, published by 3-A Sanitary Standards, Inc. (November 2005).

• “3-A Sanitary Standards for Stainless Steel Automotive Transportation Tanks for Bulk Delivery and Farm Pick-Up Service," document #3A05-15, published by 3-A Sanitary Standards, Inc. (November 2002).

•“Official Methods of Analysis of AOAC International," published by AOAC International (18th Edition, 2005).

•“Milk and Dairy Beef Residue Prevention Protocol, 2005 Producer Manual of Best Management Practices," published by Agri-Education, Inc.

•“Standard Methods for the Examination of Dairy Products, published by the American Public Health Association (17th Edition, 2004).

•“Compendium of Methods for the Microbiological Examination of Foods, published by the American Public Health Association (4th Edition, 2001).

•“Bacteriological Analytical Manual," published by the Food and Drug Administration, Public Health Service, United States Department of Health and Human Services (8th Edition, Revision A, 1998).

•“Manual for the Certification of Laboratories Analyzing Drinking Water," published by the U. S. Environmental Protection Agency (5th Edition, 2005).

•“Standard Methods for the Examination of Water and Wastewater, published by the American Public Health Association, the American Water Works Association and the Water Environment Federation (20th Edition, 1998).

•“Methods of Making Sanitation Ratings of Milk Supplies," published by the Food and Drug Administration, Public Health Service, United States Department of Health and Human Services (2005 Revision).

•FDA 2400 Series Laboratory Evaluation Forms, published by the United States Department of Health and Human Services, Public Health Service, Food and Drug Administration (forms that are effective as of the effective date of this rule).

Copies of these publications will be on file with DATCP and the revisor of statutes. Rule notes explain how readers may obtain copies.

Fiscal Estimate

DATCP currently regulates dairy farms, dairy plants, bulk milk weighers and samplers, bulk milk tankers, milk testing laboratories, laboratory analysts, buttermakers and cheesemakers to protect consumers and facilitate the interstate shipment of Wisconsin grade A milk and dairy products.

This rule will not have a significant fiscal impact on state government. This rule updates current rules, but does not make major changes that will increase state government costs. This rule does not change current license fees, and does not have any impact on current state revenues.

Business Impact

DATCP currently regulates dairy farms, dairy plants, bulk milk weighers and samplers, bulk milk tankers, milk testing laboratories, laboratory analysts, buttermakers and cheesemakers to protect consumers and facilitate the interstate shipment of Wisconsin grade A milk and dairy products. Current regulations have an important impact on dairy industry operations, including small business operations. Most dairy farms, and some dairy processing operations, qualify as “small businesses" under s. 227.114, Stats.

This rule makes a large number of technical changes to existing regulations. For the most part, however, this rule will not have a significant impact on affected businesses.

Some rule changes may have a significant impact on some affected businesses. For example, this rule mandates certain pasteurization and cooling requirements that may require some dairy plants to install new or remodeled equipment. DATCP estimates that no more than 5 dairy plants will be affected by this particular requirement. The actual impact will depend on variable factors related to processing operations, current equipment and plant size. This rule delays the effective date of the requirement by one year, so that affected dairy plants will have time to make the necessary changes.

This rule changes current recordkeeping requirements, but the changes should not impose a significant burden on affected businesses. This rule will not require affected businesses to obtain any new professional skills or services.

Federal Regulations

FDA administers the PMO in cooperation with the National Conference on Interstate Milk Shipments (NCIMS). NCIMS, a cooperative organization of states, develops and adopts PMO provisions subject to approval by FDA. FDA audits state compliance, and may “de-list" individual milk shippers or entire states that fail to comply. Other states may refuse to accept milk shipments from “de-listed" states or shippers.

Wisconsin rules must be consistent with the PMO, in order for Wisconsin to ship milk and fluid milk products in interstate commerce. FDA has requested changes in the Wisconsin rules, to make them consistent with the current version of the PMO. This rule updates Wisconsin rules, so they will be consistent with the PMO.

The United States Department of Agriculture (USDA) recommends standards for non-fluid dairy products (such as cheese), and for “Grade B" milk used in the manufacture of those products. USDA evaluates state programs for consistency with its recommended standards. Unlike PMO standards for “Grade A" milk and fluid milk products, the USDA “Grade B" standards are not mandatory. However, Wisconsin and surrounding state rules are consistent with those standards.

USDA and the United States Environmental Protection Agency administer other programs (such as milk marketing orders, pesticide registration and water pollution regulations) that affect the operation of dairy businesses, but the PMO is the primary federal or interstate regulation relevant to this rule. Federal regulations in 21 CFR 1240 mandate pasteurization of milk and prohibit interstate sale of unpasteurized milk and fluid milk products.

Surrounding State Programs

Illinois, Iowa, Michigan and Minnesota are all members of the NCIMS. All 4 states have dairy regulations that are in substantial compliance with the PMO. They also have regulations for “Grade B" milk and non-fluid dairy products (such as cheese) that are substantially equivalent to USDA recommended standards.

Notice of Hearing

Commerce

[CR 07-005]

NOTICE IS HEREBY GIVEN that pursuant to section 895.59 (2) of the Statutes, the Department of Commerce will hold a public hearing on proposed rules in chapter Comm 200 relating to small business enforcement discretion.

The public hearing will be held as follows:

Date and Time:

Wednesday, February 14, 2007

Commencing 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 February 20, 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 [e-mail]. 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 [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

1. Statutes Interpreted. Section 895.59 of the Statutes

2. Statutory Authority. Section 895.59 (2) of the Statutes

3. Explanation of Agency Authority. Section 895.59 (2) of the Statutes directs the Department to promulgate a rule that discloses the discretion the Department may exercise in the enforcement of rules and guidelines against a small business. The rule must also specify when the Department will not allow this discretion.

4. Related Statute or Rule. None known.

5. Plain Language Analysis. The proposed rule discloses the discretion the Department may exercise in enforcement actions that are undertaken to obtain a small business's compliance with the Department's rules and guidelines. The proposed rule also specifies when such discretion is not allowed.

An informational Note is included under section Comm 200.01, for alerting readers that the Department has additional discretion – beyond what is specified in this chapter – for enforcing rules to gain compliance by any business, regardless of size. The Department exercises this additional discretion for determining such things as where or when Department staff should perform enforcement inspections.

Similarly, a subsequent informational Note under section Comm 200.10 (1) explains that the Department also has additional, specific discretion to extend a compliance deadline for any entity, regardless of size – after the decision to perform an inspection is made.

Under section Comm 200.10 (3), the Department's responsibility for exercising the discretion in this chapter will not begin until after the corresponding small business entity informs the Department that the entity meets the definition of small business under section Comm 200.03 (2), and that the violation circumstances in section Comm 200.10 (2) have not occurred.

6. Summary of, and Comparison With, Existing or Proposed Federal Regulations. The Department is not aware of any existing or proposed federal regulation that addresses the activities to be regulated by this rule.

7. Comparison With Rules in Adjacent States. The Department is not aware of any similar rule in an adjacent State.

8. Summary of Factual Data and Analytical Methodologies. The data and methodology that was used to develop the proposed rules consisted of reviewing (1) the requirements in section 895.59 of the Statutes, (2) the Department's current practices for exercising enforcement discretion, and (3) the corresponding rules that other State agencies have developed in response to section 895.59 of the Statutes.

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 2003 Wisconsin Act 145. This Act addressed numerous aspects of administrative rule making that relate to small business, and required the Department and other State agencies to each promulgate a rule which discloses the discretion that may be exercised when enforcing rules and guidelines against a small business. Neither the Act nor the proposed rule imposes constraints on small business. An economic impact report was not required.

10. Effect on Small Business. The proposed rule should have a positive effect on small business.

11. Agency Contact Information. Jim Quast, Wisconsin Department of Commerce, Bureau of Program Development, P.O. Box 2689, Madison, WI, 53707-2689; telephone [phone]; e-mail [e-mail].

12. Place Where Comments Are to Be Submitted, and Deadline for Submission. Comments on the proposed rules may be submitted by e-mail to [e-mail], no later than February 20, 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 200" in the search engine at the following Web site: http://adminrules.wisconsin.gov. Paper copies may be obtained without cost from Roberta Ward at the Department of Commerce, Bureau of Program Development, P.O. Box 2689, Madison, WI, 53701-2689; telephone [phone]; e-mail [e-mail]; or [phone] (TTY). Copies will also be available at the public hearing.

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.

Fiscal Estimate

The proposed rules will not create any significant additional workload costs for the Department or its local agents, and will not result in any significant changes to the revenues collected by the Department or its local agents.

The enforcement discretion that is the subject of the proposed rules will not have a direct, substantive fiscal effect on the private sector.

Initial Regulatory Flexibility Analysis

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

The rules may 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

The small business regulatory coordinator for the Department of Commerce is Carol Dunn, who may be contacted at telephone [phone], or by e-mail at [e-mail].

Notice of Hearing

Insurance

[CR 07-001]

Notice is hereby given that pursuant to the authority granted under s. 601.41 (3), Stats., and the procedures set forth in under s. 227.18, Stats., OCI will hold a public hearing to consider the adoption of the attached proposed rulemaking order affecting section Ins 17.25 (12m) and 17.28 (6s), Wis. Adm. Code, relating to Peer Review Surcharge Rates.

Hearing Information

Date: February 19, 2007

Time: 9:30 a.m., or as soon thereafter as the matter may be reached

Place: OCI, Room 227, 125 South Webster St 2nd Floor, Madison, WI

Written comments can be mailed to:

Theresa Wedekind

OCI Rule Comment for Rule Ins 1725

Office of the Commissioner of Insurance

PO Box 7873

Madison WI 53707-7873

Written comments can be hand delivered to:

Theresa Wedekind

OCI Rule Comment for Rule Ins 1725

Office of the Commissioner of Insurance

125 South Webster St – 2nd Floor

Madison WI 53702

Comments can be emailed to:

Theresa Wedekind

[e-mail]

Comments submitted through the Wisconsin Administrative Rule website at:
http://adminrules.wisconsin.gov on the proposed rule will be considered.

The deadline for submitting comments is 4:00 p.m. on the 8th day after the date for the hearing stated in this Notice of Hearing.

Analysis Prepared by the Office of the Commissioner of Insurance (OCI)

1. Statutes interpreted: ss. 655.27 (3), and 619.04 (5m), Wis Stats.

2. Statutory authority: ss. 601.41 (3), 619.04 (5m) and 655.27 (3) (bg), Wis Stats.

3. Explanation of the OCI's authority to promulgate the proposed rule under these statutes:The commissioner of insurance, with the approval of the board of governors (board) of the injured patients and families compensation fund (fund) and the Wisconsin health care liability insurance plan (plan), is required to establish by administrative rule the surcharge rates which may be applied to a health care provider's annual fund fee, and provider annual premium if participating in the plan, based upon recommendations from the fund's peer review council.

4. Related Statutes or rules:None.

5. The plain language analysis and summary of the proposed rule:This rule establishes the surcharge rates which a health care provider may be required to pay to the fund or the plan. These surcharge rates are based upon the number of claims paid on behalf of a health care provider in addition to the dollar amount of those claims. Paid claim reports are reviewed by the fund's peer review council and if deemed appropriate the council makes a recommendation to the board of governors to assess a surcharge to the health care provider for their coverage under the fund. The board approved these surcharge rates at its meeting on December 14, 2005, based on the recommendation of the board's actuarial and underwriting committee and reports of the fund's actuaries.

6. Summary of and preliminary comparison with any existing or proposed federal regulation that is intended to address the activities to be regulated by the proposed rule: To the fund board's and OCI's knowledge there is no existing or proposed federal regulation that is intended to address patient compensation fund rates, administration or peer review activities.

7. Comparison of similar rules in adjacent states as found by OCI: To the fund board's and OCI's knowledge there are no similar rules in the adjacent states to compare this rule to as none of these states have a patients compensation fund peer review council created by statute where rates are directed to be established yearly by rule as is true in Wisconsin.

8. A summary of the factual data and analytical methodologies that OCI used in support of the proposed rule and how any related findings support the regulatory approach chosen for the proposed rule: None. This rule establishes peer review surcharge rates pursuant to the requirements of the above-noted Wisconsin statutes.

9. Any analysis and supporting documentation that OCI used in support of OCI's determination of the rule's effect on small businesses under s. 227.114: The effect to small business would be minimal. The surcharge is applied only to individual health care providers. The only effect to small business would be if a surcharged was imposed upon a health care provider who was employed by a small business which paid medical malpractice insurance premium on the provider's behalf.

10. If these changes may have a significant fiscal effect on the private sector, the anticipated costs that will be incurred by private sector in complying with the rule: The effect to small business would be minimal as stated in number 9 above.

11. A description of the Effect on Small Business: This rule will have very little effect on small businesses.

12. Agency contact person: A copy of the full text of the proposed rule changes, analysis and fiscal estimate may be obtained from the WEB sites at:
http://oci.wi.gov/ocirules.htm or by contacting Inger Williams, OCI Services Section, at:

Phone: [phone]

Email: [e-mail]

Address: 125 South Webster St – 2nd Floor Madison WI 53702

Mail: PO Box 7873, Madison WI 53707-787313.

Place where comments are to be submitted and deadline for submission: The deadline for submitting comments is 4:30 p.m. on February 27, 2006.

Mailing address:

Theresa Wedekind

OCI Rule Comment for Rule Ins 17287 PCF fee rule

Office of the Commissioner of Insurance

PO Box 7873

Madison WI 53707-7873

Street address:

Theresa Wedekind

OCI Rule Comment for Rule Ins 17287 PCF fee rule

Office of the Commissioner of Insurance

125 South Webster St – 2nd Floor

Madison WI 53702

WEB Site: http://oci.wi.gov/ocirules.htm

Private Sector Fiscal Analysis

Rule Ins 17.25 (12m) and 17.28 (6s) peer review surcharge rates relating to annual injured patients and families compensation fund fees and Wisconsin health care liability insurance plan premium rates.

The changes in the surcharge rates promulgated by this rule do not result in a significant fiscal effect on the private sector. The cost of fund coverage is a very small portion of the expenses incurred by health care providers. The plan insures a relatively small number of health care provider, approximately 300, and therefore the potential for any significant impact is very minimal.

These surcharge rates have not been revised since the implementation of the peer review surcharge in 1980. Although a health care provider may pass any increase resulting from a surcharge on to its patients, there will not be a significant fiscal effect on the private sector as a result of this proposed rule.

Fiscal Estimate

The Injured Patients and Families Compensation Fund (IPFCF or Fund) is a segregated fund. Annual Fund fees are established to become effective each July 1 based on actuarial estimates of the Fund's needs for payment of medical malpractice claims. Health care providers may have a surcharge levied on their fund fees based upon claims experience, pursuant to a recommendation by the Fund's Peer Review Council. The proposed revisions to the surcharge tables were approved by the Fund's Board of Governors at its December 14, 2005 meeting.

The Fund is a unique fund; there are no other funds like it in the country. The WI Fund provides unlimited liability coverage and participation is mandatory. These two features make this Fund unique compared to funds in other states. The only persons who will be affected by this rule change are the Fund participants themselves as the IPFCF is fully funded through assessments paid by Fund participants.

The Wisconsin Health Care Liability Insurance Plan was created by statute and is a licensed insurance company. The insurance operations are funded by premiums paid by insured health care providers.

There is no effect on GPR.

Initial Regulatory Flexibility Analysis

Notice is hereby further given that pursuant to s. 227.114, Stats., the proposed rule may have an effect on small businesses. The initial regulatory flexibility analysis is as follows:

a. Types of small businesses affected: Insurance agents, LSHO, Town Mutuals, Small Insurers, etc.

b. Description of reporting and bookkeeping procedures required: None beyond those currently required.

c. Description of professional skills required: None beyond those currently required.

OCI Small Business Regulatory Coordinator

The OCI small business coordinator is Eileen Mallow and may be reached at phone number (608) 266- 7843 or at email address [e-mail]

Contact Person

A copy of the full text of the proposed rule changes, analysis and fiscal estimate may be obtained from the OCI internet WEB site at
http://oci.wi.gov/ocirules.htm

or by contacting

Inger Williams, Services Section, OCI

at: [e-mail]

[phone]

125 South Webster Street – 2nd Floor

Madison WI

or PO Box 7873, Madison WI 53707-7873.

Notice of Hearing

Insurance

[CR 07-002]

Notice is hereby given that pursuant to the authority granted under s. 601.41 (3), Stats., and the procedures set forth in under s. 227.18, Stats., OCI will hold a public hearing to consider the adoption of the attached proposed rulemaking order affecting section Ins 17.01 (3) and 17.28 (6), Wis. Adm. Code, relating to Fiscal year 2008 Fund fees.

Hearing Information

Date: February 19, 2007

Time: 10:30 a.m., or as soon thereafter as the matter may be reached

Place: OCI, Room 227, 125 South Webster St 2nd Floor, Madison, WI

Written comments can be mailed to:

Theresa Wedekind

OCI Rule Comment for Rule Ins 1728

Office of the Commissioner of Insurance

PO Box 7873

Madison WI 53707-7873

Written comments can be hand delivered to:

Theresa Wedekind

OCI Rule Comment for Rule Ins 1728

Office of the Commissioner of Insurance

125 South Webster St – 2nd Floor

Madison WI 53702

Comments can be emailed to:

Theresa Wedekind

[e-mail]

Comments submitted through the Wisconsin Administrative Rule website at:
http://adminrules.wisconsin.gov on the proposed rule will be considered.

The deadline for submitting comments is 4:00 p.m. on the 8th day after the date for the hearing stated in this Notice of Hearing.

Analysis Prepared by the Office of the Commissioner of Insurance (OCI)

1. Statutes interpreted: ss. 655.27 (3), and 655.61, Wis Stats.

2. Statutory authority: ss. 601.41 (3), 655.004, 655.27 (3) (b), and 655.61, Wis Stats.

3. Explanation of the OCI's authority to promulgate the proposed rule under these statutes:

The commissioner of insurance, with the approval of the board of governors (board) of the injured patients and families compensation fund (fund), is required to establish by administrative rule the annual fees which participating health care providers must pay to the fund and the annual fee due for the operation of the medical mediation panel.

4. Related Statutes or rules:

None.

5. The plain language analysis and summary of the proposed rule:

This rule establishes the fees which participating health care providers must pay to the fund for the fiscal year beginning July 1, 2007. These fees represent a 5 % increase compared with fees paid for the 2006-07 fiscal year. The board approved these fees at its meeting on December 20, 2006, based on the recommendation of the board's actuarial and underwriting committee and reports of the fund's actuaries.

The board is also required to promulgate by rule the annual fees for the operation of the injured patients and families compensation mediation system, based on the recommendation of the director of state courts. The recommendation of the director of state courts was reviewed by the board's actuarial and underwriting committee which recommended to the board an amount slightly less than what was requested based in part upon the ending balance in the mediation system projected financials. This rule implements the funding level approved by the board by establishing mediation panel fees for the next fiscal year at $17.00 for physicians and $1.00 per occupied bed for hospitals, representing a decrease of $8.00 per physician and $1.00 per occupied bed for hospitals from 2006-07 fiscal year mediation panel fees.

6. Summary of and preliminary comparison with any existing or proposed federal regulation that is intended to address the activities to be regulated by the proposed rule:

To the fund board's and OCI's knowledge there is no existing or proposed federal regulation that is intended to address patient compensation fund rates, administration or activities.

7. Comparison of similar rules in adjacent states as found by OCI:

To the fund board's and OCI's knowledge there are no similar rules in the adjacent states to compare this rule to as none of these states have a patients compensation fund created by statute where rates are directed to be established yearly by rule as is true in Wisconsin.

8. A summary of the factual data and analytical methodologies that OCI used in support of the proposed rule and how any related findings support the regulatory approach chosen for the proposed rule:

None. This rule establishes annual fund fees pursuant to the requirements of the above-noted Wisconsin statutes.

9. Any analysis and supporting documentation that OCI used in support of OCI's determination of the rule's effect on small businesses under s. 227.114:

This increase in fund fees will have an effect on some small businesses in Wisconsin. However, the vast majority of fund participants that meet the definition of a small business are single shareholder corporations owned by a physician. These entities do not pay an additional fee separate from the fund fee physicians pay for their individual fund coverage and, therefore, will not be affected by the proposed rule. The fund identified a few small businesses which meet the definition of small business and that may pay an additional fee separate from the physician fee. These small businesses include some small multi-shareholder corporations that pay an additional fee to the fund based upon the number of shareholder physicians and employed physicians. However, even for these few entities, although there is an effect it is not significant nor should it negatively effect the small business's ability to compete with other providers not subject to potential additional fee.

10. If these changes may have a significant fiscal effect on the private sector, the anticipated costs that will be incurred by private sector in complying with the rule:

The increase in fees promulgated by this rule does not result in a significant fiscal effect on the private sector. The cost of fund coverage is a very small portion of the expenses incurred by health care providers. Fund fees prior to this increase are 26% less then they were 5 years ago and after this increase will still be 23% less then 5 years ago. Although a health care provider may pass this increase on to its patients, there will not be a significant fiscal effect on the private sector as a result of this proposed rule.

11. A description of the Effect on Small Business:

This rule will have little or no effect on small businesses. The increase contained in the proposed rule will require providers to pay an increased assessment which will increase the operational expenses for the providers. However, as stated in response to #10, above, while this proposed rule increases fund fees, the fees that will be assessed are still 26% lower than fees paid 5 years ago and the fee is proportional to all size businesses. As such, small businesses will not be disproportionately affected and the proposed rule will have no effect on the provider's competitive abilities.

12. Agency contact person:

A copy of the full text of the proposed rule changes, analysis and fiscal estimate may be obtained from the WEB sites at: http://oci.wi.gov/ocirules.htm

or by contacting Inger Williams, OCI Services Section, at:

Phone: [phone]

Email: [e-mail]

Address: 125 South Webster St – 2nd Floor Madison WI 53702

Mail: PO Box 7873, Madison WI 53707-7873

13. Place where comments are to be submitted and deadline for submission:

The deadline for submitting comments is 4:30p.m. on February 27, 2006.

Mailing address:

Theresa Wedekind

OCI Rule Comment for Rule Ins 17288 PCF fee rule

Office of the Commissioner of Insurance

PO Box 7873

Madison WI 53707-7873

Street address:

Theresa Wedekind

OCI Rule Comment for Rule Ins 17288 PCF fee rule

Office of the Commissioner of Insurance

125 South Webster St – 2nd Floor

Madison WI 53702

WEB Site: http://oci.wi.gov/ocirules.htm

Private Sector Fiscal Analysis

Rule Ins 17.25 (12m) and 17.28 (6s) peer review surcharge rates relating to annual injured patients and families compensation fund fees and Wisconsin health care liability insurance plan premium rates.

The changes in the surcharge rates promulgated by this rule do not result in a significant fiscal effect on the private sector. The cost of fund coverage is a very small portion of the expenses incurred by health care providers. The plan insures a relatively small number of health care provider, approximately 300, and therefore the potential for any significant impact is very minimal.

These surcharge rates have not been revised since the implementation of the peer review surcharge in 1980. Although a health care provider may pass any increase resulting from a surcharge on to its patients, there will not be a significant fiscal effect on the private sector as a result of this proposed rule.

Fiscal Estimate

The Injured Patients and Families Compensation Fund (IPFCF or Fund) is a segregated fund. Annual Fund fees are established to become effective each July 1 based on actuarial estimates of the Fund's needs for payment of medical malpractice claims. Health care providers may have a surcharge levied on their fund fees based upon claims experience, pursuant to a recommendation by the Fund's Peer Review Council. The proposed revisions to the surcharge tables were approved by the Fund's Board of Governors at its December 14, 2005 meeting.

The Fund is a unique fund; there are no other funds like it in the country. The WI Fund provides unlimited liability coverage and participation is mandatory. These two features make this Fund unique compared to funds in other states. The only persons who will be affected by this rule change are the Fund participants themselves as the IPFCF is fully funded through assessments paid by Fund participants.

The Wisconsin Health Care Liability Insurance Plan was created by statute and is a licensed insurance company. The insurance operations are funded by premiums paid by insured health care providers.

There is no effect on GPR.

Initial Regulatory Flexibility Analysis

Notice is hereby further given that pursuant to s. 227.114, Stats., the proposed rule may have an effect on small businesses. The initial regulatory flexibility analysis is as follows:

a. Types of small businesses affected: Insurance agents, LSHO, Town Mutuals, Small Insurers, etc.

b. Description of reporting and bookkeeping procedures required: None beyond those currently required.

c. Description of professional skills required: None beyond those currently required.

OCI Small Business Regulatory Coordinator

The OCI small business coordinator is Eileen Mallow and may be reached at phone number (608) 266- 7843 or at email address [e-mail]

Contact Person

A copy of the full text of the proposed rule changes, analysis and fiscal estimate may be obtained from the OCI internet WEB site at http://oci.wi.gov/ocirules.htm or by contacting Inger Williams, Services Section, OCI, at: [e-mail], [phone], 125 South Webster Street – 2nd Floor, Madison WI or PO Box 7873, Madison WI 53707-7873.

Notice of Hearing

Regulation and Licensing

NOTICE IS HEREBY GIVEN that pursuant to authority vested in the Department of Regulation and Licensing in s. 227.11 (2), Stats., and subchapter VII of ch. 440, Stats., as created by 2005 Wisconsin Act 25, renumbered by 2005 Wisconsin Act 254, and amended by 2005 Wisconsin Act 407, and interpreting s. 440.88, Stats., the Department of Regulation and Licensing will hold a public hearing at the time and place indicated below to consider an order adopting emergency rules to create chs. RL 164, 161, 162, 163, 166, 167 and 168, relating to substance abuse professionals.

Hearing Date, Time and Location

Date:   February 13, 2007

Time:   9:15 A.M.

Location:   1400 East Washington Avenue

  (Enter at 55 North Dickinson Street)

  Room 121A         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 Legal Counsel, P.O. Box 8935, Madison, Wisconsin 53708. Written comments must be received by February 16, 2007, to be included in the record of rule-making proceedings.

Analysis prepared by the Department of Regulation and Licensing

Statutes interpreted: Section 440.88, Stats.

Statutory authority: Section 227.11 (2), Stats., and Subchapter VII of ch. 440, Stats., as created by 2005 Wisconsin Act 25, renumbered by 2005 Wisconsin Act 254, and amended by 2005 Wisconsin Act 407.

Explanation of agency authority: Subchapter VII of ch 440, Stats., was enacted on July 25, 2005. It was amended by Act 407 which was enacted on May 10, 2006. Under subch. VII of ch. 440, Stats., the Department of Regulation and Licensing is required to promulgate rules relating to the issuance and renewal of credentials, requirements for certification, supervised practice, scope of practice, education approval, grounds for discipline and professional liability insurance.

Related statute or rule: Wisconsin Administrative Code s. MPSW 1.09 which relates to certification of social workers, professional counselors and marriage and family therapists to treat substance use disorder patients as a specialty.

Wisconsin Administrative Code ch. HFS 75 which relates to the certification of substance use disorder treatment clinics and programs.

Plain language analysis: 2005 Wisconsin Act 25 created Subchapter VII of chapter 440, Stats., Substance Abuse Counselors, Clinical Supervisors, and Prevention Specialists. This Act transferred the certification and regulation of Alcohol and Other Drug Abuse (AODA) counselors from the Department of Health and Family Services to the Department of Regulation and Licensing, effective 2006. This proposed rule-making order creates rules relating to definitions, requirements for certification, supervised practice, scope of practice, education approval, and professional liability insurance for substance abuse professionals.

Clearinghouse Rule 06-060 relates to a code of conduct and renewal requirements for substance abuse professionals. That rule-making was done separate to this rule-making, and there is also an Emergency Rule relating to a code of conduct and renewal requirements.

Chapter RL 160 is being created to include definitions of terms that are used in subch. VII of ch. 440, Stats., and in chs. RL 160 to 167. The proposed rules include definitions for “accredited," “assessment," “CEH," “clinical substance abuse counselor," “clinical supervision," “clinical supervisor,." “clinical supervisor-in-training," “comprehensive program," “core functions," “credential," “department," “DSM," “hour," “independent clinical supervisor," “intermediate clinical supervisor," “patient," “practice dimensions," “prevention," “prevention domains," “prevention specialist," “prevention specialist-in-training," “substance," “substance abuse counselor," “substance abuse counselor-in-training," “substance use disorder" and “transdisciplinary foundations."

Chapter RL 161 is being created to identify the requirements and procedures for submitting applications for licenses.

Chapter RL 162 is being created to identify the restrictions and minimum requirements for supervision of counselors by clinical supervisors.

Chapter 163 is being created to identify the scope and restrictions on the practice of the credential holders.

Chapter RL 166 is being created to identify the approval process and educational requirements for educational coursework and continuing education opportunities.

Chapter RL 167 is being relating to professional liability insurance.

Chapter RL 168 is being created to identify the requirements for continuing education.

Summary of, and comparison with, existing or proposed federal regulation:

There is no existing or proposed federal regulation that is intended to address the activities to be regulated by this rule.

Summary of factual data and analytical methodologies:

The professions had previously been regulated by the Department of Health and Family Services who delegated that function to the Wisconsin Certification Board. The Legislative Audit Bureau performed a limited review of the Wisconsin Certification Board and issued a report on May 11, 2005.

The rules proposed represent a re-codification of existing standards for certification developed by the Wisconsin Certification Board. The legislature, under 2005 Wisconsin Act 25 and later amended by 2005 Wisconsin Act 407, set the statutory requirements for the new levels of licensure and mandated that the Department of Regulation and Licensing draft language for certification and regulation of substance abuse professionals.

To assist in promulgation of the rules, the department has held monthly meetings with the Substance Abuse Counselors Advisory Committee for recommendations and development of the draft rules.

Analysis and supporting documents used to determine effect on small business or in preparation of economic impact report: The Department of Regulation and Licensing, based upon the advice of the advisory committee is proposing changes to the existing standards of certification and regulation of substance abuse professionals. The department, to minimize impact on the profession, and preserve the experiential pathway into the profession, has attempted to minimize drastic changes, and make changes only where the advice of the committee and the protection of the public are preserved.

These rules will affect the existing 2,495 active certificate holders (from active database count provided to the department by the Wisconsin Certification Board, July, 2006) who may transfer to the department as of December 15, 2006. The certificate holders may operate at state departmental locations (e.g. Department of Corrections) as well as state certified AODA treatment clinics under ch. HFS 75. An unknown number of certificate holders are likely to be operating in public, not-for-profit private treatment centers and for-profit treatment centers.

There are significant “grandparenting" provisions within the statutes that will ensure that existing (active and renewal) certificate holders will not lose their certification upon transfer if they do not meet the requirements for the new certificate (e.g. higher educational requirements). The grandparenting provisions do not apply for new applicants after December 15, 2006. Additionally, the department has instituted 12 month grace periods for supervision of substance abuse counselors which would allow clinics one year's time for the supervisors to attain appropriate credentials required for supervision in their clinics.

The department is proposing changes as follows:

Educational Standards:

The proposed rules require a minimum of an associate's degree in a behavior science to qualify for the clinical level counselor, and by requirement, qualification for supervisory certification. This is an increase in educational requirements; however, an underlying degree is often a standard for professional requirements. This may prevent existing non-clinical substance abuse counselors from accessing higher levels of credentials until they achieve the underlying degree; however, the advisory committee has recommended that for protection of the public, a minimum of an associate's degree in a related behavioral science should be instituted.

The proposed rules reduce the required level of continuing education from 48 hours in the biennium to 40 for both substance abuse counselors and clinical substance abuse counselors. This is a reduction for applicable credential holders.

The proposed rules eliminate the existing system of pre-certification education and training from multiple and separate sources, including Wisconsin Certification Board accredited programs, endorsed trainings, seminars and home study, and require that the core training for the effective treatment of substance abuse and substance use disorder treatment be obtained from comprehensive and cohesive programs. The seminar, training and home study providers will still have access to the certificate holders through offering of continuing education programs required for recertification.

Practice Restrictions. The proposed rules contain scope of practice and restrictions which include:

Restrictions on the practice of substance abuse counselors-in-training: This credential does not assure competency; therefore, a clinical supervisor will be required to authorize the in-training counselor to provide functions when adequately trained.

The supervision of in-training counselors may not be done by clinical supervisors-in-training.

Clinical supervisors will be legally and ethically responsible for the practice of their supervisees, shall have the authority and responsibility to provide emergency consultation, interrupt/stop unsafe practice and to terminate the supervised relationship if necessary.

New definitions of who may provide supervision or qualify as a clinical supervisor: Supervision may only be provided by those with exemptions under the statutes (psychologists, psychiatrists, clinical substance abuse supervisors, or ch. 457, Stats., credential holders who have obtained a clinical supervision certification via their specialty AODA certification under s. MPSW 1.09).

These changes may affect small business; however, where standards were increased, the department is proposing grace periods for these requirements. Additionally, these changes were seen as necessary to achieve the minimal competency required for safe practice and protection of the public.

Section 227.137, Stats., requires an “agency" to prepare an economic impact report before submitting the proposed rule-making order to the Wisconsin Legislative Council. The Department of Regulation and Licensing is not included as an “agency" in this section.

Anticipated costs incurred by private sector:

The department finds that this rule has no significant fiscal effect on the private sector.

Fiscal Estimate

The Department estimates that this rule will require staff time in the Divisions of Management Services, Professional Credentialing, Office of Legal Counsel and Office of Examinations. The one-time salary and fringe costs in the Divisions of Professional Credentialing, Office of Legal Counsel and Office of Examinations are estimated at $22,900. The on-going salary, fringe, supplies and services costs in the Divisions of Professional Credentialing, Division of Board Services and the Office of Examinations are estimated at $77,300.

Effect on small business: These proposed rules will have no significant economic impact on small businesses, as defined in s. 227.114 (1), Stats. The Department's Regulatory Review Coordinator may be contacted by email at [e-mail], or by calling [phone].

Agency Contact

Pamela Haack, Paralegal, Department of Regulation and Licensing, Office of Legal Counsel, 1400 East Washington Avenue, Room 152, P.O. Box 8935, Madison, Wisconsin 53708-8935. Telephone: [phone]. Email: [e-mail].

Place where comments are to be submitted:

Comments may be submitted to Pamela Haack, Paralegal, Department of Regulation and Licensing, 1400 East Washington Avenue, Room 152, P.O. Box 8935, Madison, Wisconsin 53708-8935, or by email at [e-mail].

Notice of Hearing

Workforce Development
(Public Works Construction)

[CR 07-003]

NOTICE IS HEREBY GIVEN that pursuant to ss. 66.0903 (5) and 103.49 (3g), Stats., the Department of Workforce Development proposes to hold a public hearing to consider the amendment of s. DWD 290.155 (1), relating to the adjustment of thresholds for application of prevailing wage rates.

Hearing Information

Monday, February 19, 2007 at 1:30 p.m.

G.E.F. 1 building, B103

201 E. Washington Avenue

Madison

Interested persons are invited to appear at the hearings and will be afforded the opportunity to make an oral presentation of their positions. Persons making oral presentations are requested to submit their facts, views, and suggested rewording in writing.

Visitors to the GEF 1 building are requested to enter through the left East Washington Avenue door and register with the customer service desk. The entrance is accessible via a ramp from the corner of Webster Street and East Washington Avenue. If you have special needs or circumstances regarding communication or accessibility at the hearing, please call [phone] at least 10 days prior to the hearing date. Accommodations such as ASL interpreters, English translators, or materials in audiotape format will be made available on request to the fullest extent possible.

Analysis Prepared by the Department of Workforce Development

Statutory authority: Sections 66.0903 (5), 103.49 (3g), and 227.11, Stats.

Statutes interpreted: Sections 66.0903 (5) and 103.49 (3g), Stats.

Explanation of agency authority. The prevailing wage laws require that when a state agency or local governmental unit contracts for the erection, construction, remodeling, repairing, or demolition of a public works project it must obtain a prevailing wage rate determination from the Department of Workforce Development and require that the contractors and subcontractors on the project pay their employees in accordance with those wage rates. Sections 66.0903 (5) and 103.49 (3g), Stats., set initial estimated project cost thresholds for application of the prevailing wage rate requirements and direct the Department to adjust the thresholds each year in proportion to any change in construction costs since the thresholds were last determined. Pursuant to s. DWD 290.15, the Department adjusts the thresholds based on changes in the construction cost index published in the Engineering News-Record, a national construction trade publication.

Summary of the proposed rule. Section DWD 290.155 (1) currently provides that the prevailing wage rate requirements do not apply to any single-trade public works project for which the estimated cost of completion is below $43,000 and do not apply to any multi-trade public works project for which the estimated cost of completion is below $209,000. This rule adjusts the thresholds from $43,000 to $44,000 for a single-trade project and from $209,000 to $216,000 for a multi-trade project based on a 3.452% increase in the construction cost index between December 2005 and December 2006.

Summary of related federal law. The federal prevailing wage law applies to a federal public works project for which the contract is greater than $2,000. This threshold is in statute and is rarely adjusted.

Comparison with laws in adjacent states. Minnesota has a statutory threshold of $2,500 for a single-trade project and $25,000 for a multi-trade project. Illinois does not have a threshold in its prevailing wage law. The law covers public works projects and defines public works projects as projects financed under various other specified laws. Michigan does not have a threshold in its prevailing wage law. The law covers projects that must be bid and relies on other agencies to determine the thresholds for what projects must be bid. Iowa does not have a prevailing wage law.

Summary of factual data and analytical methodologies. The thresholds are increased based on the national inflation rate in the construction industry. The Department uses the construction cost index in the Engineering News-Record, a national construction trade publication, to determine the inflation rate.

Effect on small business. The proposed rule does not affect small businesses. The department's small business regulatory coordinator is Jennifer Jirschele, [phone], [e-mail].

Fiscal Impact

Under the proposed and emergency rules, a state agency or local governmental unit contracting for the construction of a single-trade public works project that costs more than $43,000 but less than $44,000 or a multi-trade project that costs more than $209,000 but less than $216,000 will not be covered by the prevailing wage requirement.

Contact Information

The proposed rules are available at the web site http://adminrules.wisconsin.gov by typing “prevailing wage" in the search engine. This site allows you to view documents associated with this rule's promulgation, register to receive email notification whenever the Department posts new information about this rulemaking order, and submit comments and view comments by others during the public comment period. You may receive a paper copy of the rule by contacting:

Elaine Pridgen

Office of Legal Counsel

Dept. of Workforce Development

P.O. Box 7946

Madison, WI 53707-7946

[phone]

[e-mail]

Written comments. Written comments on the proposed rules received at the above address, email, or through the http://adminrules.wisconsin.gov web site no later than February 19, 2007, will be given the same consideration as testimony presented at the hearing.