Scope statements
Agriculture, Trade and Consumer Protection
The Department of Agriculture, Trade and Consumer Protection (DATCP) gives notice, pursuant to s.
227.135, Stats., that it proposes to promulgate an administrative rule as follows:
Subject
Agricultural Producer Security.
NOTE: This scope statement expands a scope statement published on December 1, 2006, related to agricultural producer security.
Administrative Code Reference: Chapters
ATCP 99,
100 and
101, Wis. Adm. Code.
Statutory Authority
Sections
93.07 (1),
126.11 (4),
126.15 (1),
126.26 (3),
126.30 (1),
126.41 (3),
126.42 (6),
126.46 (1),
126.56 (4),
126.56 (4) (f),
126.60 (1),
126.81, and
126.88, Stats.
Policy Analysis
Preliminary Objectives
Modify producer security fund assessments and license fees for grain dealers, grain warehouse keepers, milk contractors and vegetable contractors.
Modify required contractor disclosures to producers.
Make technical modifications to current rules governing the agricultural producer security program, as necessary.
Security Shortfall
DATCP administers the Agricultural Producer Security program under Chapter
126, Stats. The program helps protect agricultural producers against catastrophic financial defaults by grain dealers, grain warehouse keepers, milk contractors and vegetable contractors (collectively referred to as “contractors"). Contractors must be licensed by DATCP. Most contractors pay assessments to the agricultural producer security fund (“fund") administered by DATCP. If a contractor defaults, DATCP may reimburse producers from the fund.
The fund currently has a balance of approximately $7 million. DATCP may pay up to 60% of that amount to reimburse producers for losses in any individual contractor default. That amount is adequate to handle most potential defaults. But several large contractors have unsecured “default exposure" far in excess of fund capacity. If one of those contractors were to default, reimbursement might cover only a small fraction of producer losses.
DATCP has proposed legislation to remedy the security shortfall, but that legislation has not advanced. DATCP therefore proposes to modify current rules to do the following:
Increase fund assessments to provide greater default coverage for contractors who are not adequately secured. Without a change in fund assessments, most assessments are actually scheduled to decline over the next several years.
Adjustments may affect some contractors more than others, depending on default risks.
Strengthen contractor disclosures to producers, so that producers will be more fully aware of the security shortfall that exists for certain contractors.
DATCP must adjust fund assessments whenever the overall fund balance, or the fund balance for any contractor group (grain dealers, grain warehouse keepers, milk contractors or vegetable contractors) falls outside a specified statutory range. At this time, the fund balance for grain warehouse keepers falls below the specified range, so DATCP must increase fund assessments for grain warehouse keepers.
Administrative Costs and License Fees
Effective program administration is critical for managing potentially large financial risks under the producer security program. DATCP performs the following functions, among others:
Reviews and processes annual contractor license applications, and monitors compliance with license requirements.
Reviews confidential annual financial statements, to determine contractor compliance with financial standards.
Audits accounts, records and inventories, to verify contractor claims and ensure compliance with financial standards. Grain facility audits account for a substantial share of overall administrative costs.
Administers the fund.
In the event of a financial default, conducts default proceedings to determine the amounts owed to producers and to reimburse producer claims as appropriate.
Attempts to recover, from defaulting contractors, reimbursement of fund payments to affected producers.
Adopts and amends rules to regulate contractor practices, and establish trust fund contribution amounts.
Investigates law violations, and takes compliance action as necessary.
Prior to 2003, administrative costs were paid by a combination of general tax revenue (“GPR") funding and contractor license fees. However, the 2003-2004 Biennial Budget Act eliminated virtually all general tax revenue (“GPR") funding for program administration. That made it necessary to transfer 2.9 FTE staff (grain auditors and general support staff) from GPR funding to license fee funding. As a result, current license fee funding is no longer adequate to cover administrative costs.
Funding shortfalls are especially severe in the grain and vegetable programs, so administration of those programs is currently being subsidized by dairy contractor license fees. DATCP proposes to increase license fees by rule, to provide minimally adequate funding for all program sectors and to correct current inequities between sectors.
Grain dealer and grain warehouse keeper license fees have not changed since 1997. Milk contractor license fees have not changed since 1994. Vegetable contractor license fees have not changed since 1998 (except that
2005 Wisconsin Act 80 modified license fees for certain potato buyers who opt out of the security program). Without a change in license fees, most fees are actually scheduled to decline over the next several years.
Other Rule Changes
DATCP may make a number of technical changes to current rules, including changes to current definitions and changes to reflect
2005 Wisconsin Act 80 (related to potato contractors).
Comparison with Federal Regulations
Related Federal Programs
There is no federal program to secure milk contractor payments to producers. However, there are federal programs relating to grain warehouses and vegetable contractors. Federal program coverage differs from Wisconsin program coverage, so there is little if any duplication.
Grain Warehouses
The United States Department of Agriculture (“USDA") administers a producer security program for federally licensed grain warehouses. Federally licensed warehouses are exempt from state grain warehouse licensing and security requirements. State-licensed warehouses are likewise exempt from federal licensing and security requirements.
The federal program focuses on grain storage. Unlike the Wisconsin program, the federal program provides little or no protection related to grain dealing (the buying of grain from producers, also known as grain “merchandising"). However, USDA is proposing to regulate grain merchandising by federally licensed grain warehouse keepers. If that proposal becomes law, federally licensed warehouse keepers who engage in merchandising would likely be exempt from state grain dealer licensing.
Vegetable Contractors
The Perishable Agricultural Commodities Act (“PACA") regulates contractors who buy unprocessed, fresh market vegetables from producers. Wisconsin's vegetable security program applies mainly to processing vegetables, so there is little overlap with PACA (which applies to fresh market
vegetables).
2005 Wisconsin Act 80, which allowed potato buyers covered by PACA to opt out of participation in the trust fund, further limited potential overlap between state and federal programs.
Entities Affected by the Rule
This rule may affect grain, milk and vegetable contractors who are licensed under Wisconsin's agricultural producer security program. This rule may increase producer security fund assessments and license fees paid by contractors, and may require contractors to provide additional disclosures to producers. Fund assessments, license fees and disclosure requirements may vary by contractor type, size, financial condition, and risk practices.
Policy Alternatives
Security Shortfall
DATCP has proposed legislation to remedy the current security shortfall under the agricultural producer security program. The legislation would authorize DATCP to demand individual security from a contractor whose “default exposure" exceeds the capacity of the producer security fund, if that contractor fails to meet minimum financial standards. That legislation, if enacted, would reduce the need for increased fund assessments from other contractors. The legislation would currently affect no more than 5-6 (very large) contractors, and would cost those contractors an approximate combined total of only $150,000 per year. However, the affected contractors would need to tie up a significant amount of working capital as pledged security, at a time when their financial condition is weak.
DATCP will also be proposing legislation to eliminate the current statutory mandate for DATCP to obtain “contingent financial backing" for the producer security fund. DATCP has tried repeatedly, and without success, to obtain bonds or other “contingent financial backing" from bonding companies and other private sources. Those sources are simply unwilling to provide “contingent financial backing" at a price that is remotely manageable. DATCP has also evaluated potential alternatives for public financial backing, and has found no workable alternatives. The current statutory mandate provides an illusion of security protection that does not, in fact, exist.
Administrative Costs and License Fees
DATCP cannot continue to operate the agricultural producer security program, in its current form, without a restoration of funding for program administration. DATCP projects a rapidly growing operating deficit, beginning in the current fiscal year. Policy alternatives include the following:
Increase contractor license fees (as proposed in this scope statement).
Enact legislation to restore GPR funding eliminated in the 2003-05 biennial budget.
Reduce critical administrative functions, such as financial statement reviews and grain warehouse audits. That would put agricultural producers at great financial risk and threaten the solvency of the agricultural producer security fund. It could also have an adverse impact on competing grain, milk and vegetable contractors.
Statutory Alternatives
See discussion above. The Legislature could also repeal the agricultural producer security program, or drastically reduce security coverage for agricultural producers.
Staff Time Required
DATCP estimates that it will use approximately 1.0 FTE staff to develop this rule. This includes time required for investigation and analysis, rule drafting, preparing related documents, coordinating advisory committee meetings, holding public hearings and communicating with affected persons and groups. DATCP will use existing staff to develop this rule.
DATCP Board Authorization
DATCP may not begin drafting this rule until the Board of Agriculture, Trade and Consumer Protection (Board) approves this scope statement. The Board may not approve this scope statement sooner than 10 days after this scope statement is published in the Wisconsin Administrative Register. If the Board takes no action on the scope statement within 30 days after the scope statement is presented to the Board, the scope statement is considered approved. Before DATCP holds public hearings on this rule, the Board must approve the hearing draft. The Board must also approve the final draft rule before DATCP adopts the rule.
Health and Family Services
Subject
The Department proposes to revise ch.
HFS 117, rules relating to fees for copies of patient health care records.
Policy Analysis
1. Amended s.
146.83 (1) (b) and
(c), Stats., pertaining to a patient's access to his or her health care records. These amendments extend the applicability of the fee limits the Department specifies in ch.
HFS 117 to all requests for health care record copies in all settings (not just requests from attorneys, nor just with respect to cases in litigation.)
2. Created s.
146.83 (3m), Stats., which directs the Department to prescribe copying fees that are based on an approximation of actual costs incurred by entities producing the copies, and to revise the rules every three years to account for increases or decreases in actual costs.
In 2003, the Department proposed rules consistent with
2001 Act 109, and adopted the rules on February 2, 2007, for an April 1, 2007 effective date. The rules adopted by the Department are based on data collected in 2003. Hence, it would be consistent with legislative intent to revise the rule at present to account for any potential increases or decreases in actual costs.
Statutory Authority
Staff Time Required
The Department estimates it will take 100 hours of staff time to develop the proposed rules, including the time required to staff an advisory committee. The Department will establish an advisory committee composed of representatives of health care records providers and requestors.
Comparison with Federal Regulations
45 CFR 160 and
164 commonly known as the “Health Insurance Portability and Accountability Act" or “HIPAA" relating to billing statements as a type of health care records; personal representatives; and two group fee system structure are regulations that may be comparable to the proposed rules.
Entities Affected by the Rule
The entities that may be affected by the proposed rules are health care records providers and requestors of health care records.
Natural Resources
Subject
Non-substantive (housekeeping) changes to sections of the Wis. Adm. Code relating to regulation of sport fishing seasons, bag limits, length limits and approved gear.
Policy Analysis
The Department is beginning the process of identifying errors and inconsistencies in sections of the Wis. Adm. Code relating to regulation of sport fishing. The Department anticipates requesting approval to hold hearings on these changes in March, 2007, and holding such hearings, if approved, in May 2007.
Comparison with Federal Regulations
Authority to promulgate fishing regulations is granted to States. No federal regulations apply to the proposed changes in regulating recreational fishing activity.
Statutory Authority
Staff Time Required
The Department anticipates spending approximately 75 hours in the rule development process.
Natural Resources
Subject
Chapter
NR 146, relating to well driller and pump installer registration; Chapter
NR 812, relating to well construction and pump installation; and Chapter
NR 845, relating to county administration of the private well code.
Policy Analysis
Objectives of the rule. Earlier this year, Act 360 was passed with the support of the Wisconsin Water Well Association, resulting in the following major changes to ch.
280, Wis. Stats, that will improve protection to public health and groundwater:
1. Well abandonment must in most cases be performed by a licensed well driller or pump installer or someone working under the supervision of a licensed person.
2. Well and pressure system inspections conducted as part of real estate transactions must be performed by an individually-licensed well driller or pump installer.
3. Drilling rig operators must be registered with the department and complete additional training to qualify for an individual well driller license. A registered rig operator or licensed well driller must be onsite during all potable well drilling activities.
4. Some violations of ch.
280, Wis. Stats. and chs.
NR 146 and
NR 812, Wis. Adm. Code, will be subject to forfeitures through the citation process.
Policy analysis. Rule revisions will be needed to make the rules reflect the statutory changes and also to:
1. Specify what is included in a well and pressure system inspection, including water tests and searching for wells that must be abandoned (filled and sealed).
2. Specify minimum training standards for drilling rig operators to qualify for a well driller license.
3. Specify the violations that will be subject to forfeitures.
Comparison with Federal Regulations
There are no comparable federal regulations pertaining to rig operator registration, water system inspections at time of property transfer, or searching for wells that need to be abandoned.
Statutory Authority
Chapter
280, Stats., provides DNR with the authority to set and enforce uniform minimum standards for private well location and construction, well abandonment, pump installation, and water testing; and to require licensing of well drillers and pump installers. The last major revision in 1984 added county implementation of the private water program.
Entities Affected by the Rule
The proposed rule will be of the greatest interest to licensed well drillers and pump installers and their employees as well as those persons and firms who currently perform well and pressure system inspections and well abandonment. The rule may also be of interest to those in the real estate business and water testing laboratories. A few counties that perform real estate transfer inspections will be affected slightly.
Staff Time Required
Approximately 370 hours of staff time will be required to complete the rule revisions.
Revenue
Subject
Section
Tax 8.24, relating to reciprocal interstate shipments of wine.
Entities Affected by the Rule
Wineries located in California, Missouri, and Oregon that ship wine into Wisconsin and individuals in Wisconsin that receive such shipments. Also, wineries located in Wisconsin that ship wine into California, Missouri, and Oregon and individuals in California, Missouri, and Oregon that receive such shipments.
Comparison with Federal Regulations
The department is not aware of any existing or proposed federal regulation that is intended to address the activities to be regulated by the rule.
Policy Analysis
Objective of the rule. The objective of the proposed rule is to reflect a law change relating to shipments of wine between Wisconsin and states with which Wisconsin has a reciprocal agreement described in s.
139.035, Stats. (currently California, Missouri, and Oregon). The law change increased the amount of wine an individual may receive per year from a winery in a reciprocal state from 9 liters to 27 liters.
Existing policies are as set forth in the rules. No new policies are being proposed, other than to reflect the law change indicated above. If the rules are not changed, they will be incorrect in that they will not reflect current law or current Department policy.
Statutory Authority
Staff Time Required
The department estimates it will take approximately 60 hours to develop this rule order.
Transportation
Subject
Objective of the rule. This rule making will amend ch.
Trans 28, relating to the Wisconsin Harbor Assistance Program (HAP), by amending the definition of “commercial transportation facility," which will expand eligibility for HAP grants to owners of harbor facilities that had been used for maritime commerce.
Policy Analysis
2003 Wisconsin Act 208 amended s.
85.095, Stats., to open the HAP to private owners of harbor facilities. When such facilities are taken out of commercial use, there remains a need that the wharf along such a property be maintained to ensure the integrity of the commercial navigation channel in that harbor. Allowing HAP grants to be used to rehabilitate such facilities would help protect the navigation channels and allow public access to such privately-owned facilities for at least ten years.
Comparison with Federal Regulations
None
Statutory Authority
Entities Affected by the Rule
Private owners of harbor facilities, ports of Wisconsin, WI Harbor Towns Assoc., WI Commercial Ports Assoc., US Coast Guard, US Army Corp of Engineers, the WI Coastal Management Council.
Staff Time Required
Approximately 160 hours.
Transportation
Subject
Objective of the rule. This rule making will amend ch.
Trans 129, relating to motorcycle courses, by changing the maximum number of motorcycles allowed on the range as prescribed in the Basic Rider Course and Experienced Rider Course curriculums developed by the Motorcycle Safety Foundation (MSF). It will also require a 10-day reporting time frame for site inspection reports. Finally, it will make changes necessary as a result of removing private motorcycle training schools from ch.
Trans 105.
Policy Analysis
Currently the rule requires that there be a maximum of 15 motorcycles on the range. The MSF curriculum only allows a maximum of 12 motorcycle on the range at a time. Site inspection reports are currently being sent in weeks after the inspection. This rule making would require that they be submitted within 10 days of the inspection. Ch.
Trans 105 was recently revised and removed the private motorcycle rider education sites from its requirements. This rule making will remove those sections that are no longer valid and retain those that are still deemed appropriate.
Comparison with Federal Regulations
None
Statutory Authority
Entities Affected by the Rule
All rider education providers, both technical college sponsored and private, chief instructors and instructors may be affected.
Staff Time Required
Approximately 40 hours.
Transportation
Subject
Objective of the rule. 2005 Wis. Act 455 establishes new provisions regarding disabled parking card issuance, intended to reduce fraudulently obtaining disabled parking cards, as well as improper use. The law requires DOT to provide by rule for the issuance of replacement disabled parking identification cards, for cards that have been lost or destroyed. This rule making will amend ch.
Trans 130, relating to special identification cards and special registration plates for physically disabled, by addressing issuance of replacement cards, and updating the rule to include other appropriate references from the new law. In addition, DMV proposes to distinguish, by card design, disabled parking cards for organizations as distinct from parking cards for individuals.
Policy Analysis
Under current policy, a request for replacement disabled parking cards must include a reason for the request: lost/destroyed, stolen, or mutilated/illegible. There is no limit to the number of replacement cards that a person may obtain over time. However, very frequent replacement typically triggers customer contact to verify that a replacement card is warranted.
In this rule making, DOT will consider possible alternative policies and procedures, with the objective of aiding DMV in determining whether a request is fraudulent and possibly implementing procedures that will deter or reduce fraud. DOT may wish to consider policies that differ among replacement cards for lost cards, replacement cards for stolen cards, and replacement cards for mutilated cards. However, DOT's analysis will balance the need to minimize fraud against the difficulty, inconvenience, and cost to legitimate customers who have a legitimate need to obtain a replacement card.
For example, a possible alternative might be a period of time after a replacement card is issued, that a person is ineligible for another replacement card; however, such a policy might be subject to challenge of discrimination under the Americans with Disabilities Act. Another example is having a replacement card be a different color than an original card; however, this alternative would be costly, since Wisconsin would require special purchasing of card stock. A third example is informing local law enforcement whenever a person is issued a replacement card; however, this alternative would be extremely costly to DMV and law enforcement and would be burdensome to customers without any documented value in reducing fraud.
The reason that DMV proposes to distinguish, by card design, disabled parking cards for organizations as distinct from parking cards for individuals is to possibly reduce the misuse of organization parking cards.
Comparison with Federal Regulations
Federal Americans with Disability Act is the over-arching federal law that governs treatment of disabled persons. The National Highway Traffic Safety Administration (NHTSA) implements disabled parking requirements, in
23 CFR 1235, Uniform System for Handicapped Parking.
Entities Affected by the Rule
Individuals who apply for disabled parking cards, and replacement cards; and, organizations that apply for and receive disabled parking cards.
Statutory Authority
Staff Time Required
240 hours.
Workforce Development
Subject
Unemployment insurance rules for determining a claimant's ability and availability to work.
Policy Analysis
To be eligible to receive unemployment insurance benefits, an individual must, in addition to other requirements, be “able" to perform suitable work and be “available" for suitable work. Section
108.04 (2), Stats., provides that a claimant shall be eligible for benefits for any week of total unemployment only if the claimant is able to work and available for suitable work. Sections
108.04 (1) (b) 1.,
108.04 (7) (c), and
108.04 (8) (e), Stats., provide that a claimant shall be eligible for unemployment benefits only if the claimant is able to work and available for work.
Under the current ch.
DWD 128, a claimant is not considered “able" to work if the claimant's physical or psychological ability to work limits the claimant to less than 15% of the opportunities for suitable work in the claimant's labor market area. A claimant is not considered “available" for work if the claimant restricts his or her availability for work to less than 50% of the full-time opportunities for suitable work. The Department has found that rigid adherence to percentage standards sometimes produces results that are arbitrary and inconsistent. The Department is unaware of any other states that use percentage tests to determine whether a claimant is “able and available" to work.
The Department proposes amendments to Chapter
DWD 128 to clarify the determination when claimants are able to work and available for work. The proposed rule eliminates the requirement that a claimant be “able" to work 15% of the opportunities for suitable work in the claimant's labor market area, and replaces this with five relevant factors the Department may consider in making the determination whether the claimant is considered to have withdrawn from the labor market due to physical or psychological inability to work and is therefore ineligible for benefits. Appropriate factors include, but are not limited to: the claimant's usual or customary occupation, the nature of the restrictions, the qualification to do other work based on the claimant's education, training and experience, the ability to be trained in another occupation, and certain occupational data and reports available to the Department.
The proposed rule also eliminates the requirement that a claimant be “available" for work 50% of the full-time opportunities for suitable work in the claimant's labor market area and the requirement that first shift full-time work governs the availability standard for most jobs, and replaces this with eight relevant factors the Department may consider in making the determination whether a claimant is considered to have withdrawn from the labor market by restricting his or her availability to work and is therefore ineligible for benefits. These factors include: restrictions on the claimant's salary or wages, shift and time restrictions, travel and transportation restrictions, if the claimant is incarcerated or otherwise absent from the labor market for 48 hours in one week, the types of work sought, other unreasonable restrictions on the claimant's working conditions, and occupational data and reports available to the Department.
The proposed rule carries over from federal law the general presumption that a claimant is able and available to work if the claimant is registered to work and does the required work search. The proposed rule will help the Department determine whether a claimant is “able and available" for work based on the claimant's attachment to, or withdrawal from, the labor market by methods that are more transparent than the percentage standards and are more understandable to claimants and employers. The proposed rule also deletes the provision that overpayments will not be collected for benefits erroneously paid before issuance of an eligibility determination for a given week, clarifies the difference between refusal of work and availability for work, incorporates federal law standard for proof of alien status, and deletes the grace period for claimants with uncontrollable restrictions as unnecessary in light of the new definition of able to work.
Statutory Authority
Staff Time Required
200 hours.
Comparison with Federal Regulations
All states must have provisions that require a claimant to be “able and available" for work in order to receive unemployment benefits. The United States Department of Labor (DOL) and its predecessors have interpreted and enforced federal “able and available" requirements since the inception of the federal-state unemployment compensation program. Although no “able and available" requirements are explicitly stated in the federal statutes, the DOL interprets five provisions of federal law, contained in the Social Security Act and Federal Unemployment Tax Act, as requiring that states condition the payment of unemployment benefits upon a claimant being able to and available for work. Two of these provisions, at Section 3304(a)(4), FUTA, (
26 U.S.C. 3304(a)(4)) and Section 303(a)(5), SSA, (
42 U.S.C. 503(a)(5)) with specific exceptions, limit withdrawals from a state's unemployment fund to the payment of “compensation." Section 3306(h), FUTA, (
26 U.S.C. 3306(h)) defines “compensation" as “cash benefits payable to individuals with respect to their unemployment." The “able and available" requirements provide a federal test of an individual's continuing unemployment. Two other provisions, found in Section 3304(a)(1), FUTA, (
26 U.S.C. 3304(a)(1)) and Section 303(a)(2), SSA, (
42 U.S.C. 503(a)(2)) require that compensation “be paid through public employment offices." The requirement that compensation be paid through the public employment system (the purpose of which is to find people jobs) ties the payment of UC to both an individual's ability to work and availability for work. These requirements serve to limit benefit eligibility. The federal government has proposed rules,
20 CFR Part 604, regarding Unemployment Compensation Eligibility relating to determinations of individuals who are able and available for work.
Entities Affected by the Rule
Employees and employers covered by the unemployment insurance program.
