Wisconsin Legislature: Text

• Temporary restaurants the equivalent of an annual increase of approximately $6 per year since the fees were last revised in 2002;

• DPI (School) Satellite the equivalent of an annual increase of approximately $3 per year since the fees were last revised in 2002; DPI (School) Production the equivalent of an annual increase of approximately $11 per year.

The proposed pre-inspection fee for these businesses is a one-time only fee for operators seeking initial licensure or moving to open a new establishment. The amount of the increase represents the complexity of the services needed and provided and the value of the services to public health and safety and to the person seeking licensure.

The re-inspection fee, fee for late renewal, and fee for operating without a license, or fees for operating without a certified food operator would not affect entities that are in compliance with state law and applicable administrative rules. The fee for a duplicate license is assessed only if the licensee requests a duplicate license. The special condition inspection fee would only be charged to un-licensed persons seeking inspection and consultation services from the department.

The proposed fee and rules changes do not have a significant economic impact on restaurants.

HFS 197 – Bed and Breakfast Establishments

Proposed fees for bed and breakfast establishments for SFY 2010 (applicable for licenses issued from April 1, 2009 through March 31, 2011) and for SFY 2012 (applicable for licenses issued on or after April 1, 2011)

License type	Current Fee	Proposed SFY 2010 Fee	Difference from Current to SFY 2010 Proposed Fee	Proposed SFY 2012 Fee	Difference from SFY 2010 Fee to SFY 2012 Proposed Fee
			Amount		Amount
Bed and Breakfast	$65	$100	$35	$110	$10
B&B Preinspection	$125	$225	$100	$240	$15
B&B Reinspection	$0	$140	$140	$150	$10

Late Fee	Fee for Operating Without a License	Duplicate Fee	Fee for special condition inspections
$85	$749	$15	$175

The department proposes to increase permit, pre-inspection, and late renewal fees; and to create a re-inspection fee, a fee for operating without a permit, and a fee for special condition inspections. In addition to modifying and creating fees, the department may update the rules as needed to ensure continued consistency between rules and current practice. The proposed rules include fee schedules, provisions clarifying the department's authority or a permittee's requirements under state law relating to the initial and renewal application process, failure to pay fees, and enforcement.

The department regulates bed and breakfast establishments under ch. HFS 197. Bed and Breakfast establishments are personal residences that also serve as lodging facilities with 8 or fewer guest rooms and the only meal served to guests is breakfast. Bed and breakfast establishments may have no more than 20 guests per night and those guests may not stay longer than 10 nights per stay.

Data obtained from the department's FLIP database indicates that the department licenses approximately 408 establishments. This industry is included under the North American Classification System (NAICS) industry code 721191. According to the NAICS data, the total gross annual receipts for the 81 establishments included under industry code 721191 is $16,171,000, making average gross annual receipts for 81 establishments to be $199,642. NAICS reports that the total number of paid employees in these 81 establishments is 391 for an average of 4.83 employees per establishment.

Based on a review of the department's data and a review of the NAICS data from the 2002 U.S. Economic Census for Wisconsin, the department has determined that it is likely that all of the businesses regulated under ch. HFS 197 are small businesses as that term is defined under s. 227.114, Stats.

The proposed license fee for these businesses for the 2010 and 2012 state fiscal years represent the equivalent of an annual increase of approximately $4 per year since the fees were last revised in 2002.

The re-inspection fee, fee for late renewal, and fee for operating without a license would not affect entities that are in compliance with state law and applicable administrative rules. The fee for a duplicate license is assessed only if the licensee requests a duplicate license. The special condition inspection fee would only be charged to un-licensed persons seeking inspection and consultation services from the department.

The proposed fee changes do not have a significant economic impact on bed and breakfast establishments.

HFS 198 – Vending of Food

Proposed fees for vending of food for SFY 2010 (applicable for licenses issued from April 1, 2009 through March 31, 2011) and for SFY 2012 (applicable for licenses issued on or after April 1, 2011)

License type	Current Fee	Proposed SFY 2010 Fee	Difference from Current to SFY 2010 Proposed Fee	Proposed SFY 2012 Fee	Difference from SFY 2010 Fee to SFY 2012 Proposed Fee
			Amount		Amount
Vending Machine Commissary	$175	$230	$55	$280	$50
Vending Comm Preinspection	$150	$455	$305	$675	$220
Vending Comm Reinspection	$0	$335	$335	$400	$65
Vending Machine Storage	$85	$150	$65	$215	$65
Vending Mach. Preinspection	$0	$285	$285	$515	$230
Vending Mach. Reinspection	$0	$210	$210	$310	$100
Vending Machine Operator	$100	$125	$25	$125	$0
Vending Machine Sticker	$6	$8	$2	$9	$1

Late Fee	Fee for Operating Without a Permit	Duplicate Fee	Fee for special condition inspections
$85	$749	$15	$175

The department regulates vending machine operators, vending machines, vending machine commissaries, and vending machine commissary storage under ch. HFS 198.

Data obtained from the department's FLIP database indicate the following licensed facilities: 26 food vending machine commissaries, 83 food vending machine storage facilities, and 170 food vending machine operators. This industry is included under the North American Classification System (NAICS) industry code 454210. According to the NAICS data, the total gross annual receipts for the 130 establishments included under industry code 454210 is $224,896,000, making average gross annual receipts for 130 establishments to be $1,729,969. NAICS reports that the total number of paid employees in these 130 establishments is 1,880 for an average of 14.5 employees per establishment.

Based on a review of the department's data and a review of the NAICS data from the 2002 U.S. Economic Census for Wisconsin, the department has determined that it is likely that all of the businesses regulated under ch. HFS 198, are small businesses as that term is defined under s. 227.114, Stats.

Based on the type of license, the proposed permit fee for these businesses for the 2010 and 2012 state fiscal years are as follows:

• Vending machine commissaries, the equivalent of an annual increase of approximately $10 per year since the fees were last revised in 2002;

• Vending machine commissary storage, the equivalent of an annual increase of approximately $12 per year since the fees were last revised in 2002;

• Vending machine operators, the equivalent of an annual increase of approximately $3 per year since the fees were last revised in 2002;

• Vending machine stickers, the equivalent of an annual increase of approximately $.30 per year since the fees were last revised in 2002.

The proposed pre-inspection fee for these businesses is a one-time only fee for operators seeking initial licensure or to operate a new establishment. The amount of the increase represents the complexity of the services needed and provided and the value of the services to public health and safety and to the person seeking licensure.

The proposed fee changes do not have a significant economic impact on persons vending food.

Initial Regulatory Flexibility Analysis

The proposed fees and proposed rule changes to chs. HFS 173, 175, 178, 195, 196, 197, and 198, will affect a substantial number of small businesses, however, the proposed fees and proposed rule changes will not have a significant economic impact on those businesses.

The direct impact of the proposed fee changes on businesses is limited to the fees associated with obtaining initial and renewal permits or licenses and pre-inspections to operate an establishment. Licenses and pre-inspections, and the associated fees are required by the legislature. Re-inspection fees, fees for late renewal, fees for operating without license, for the majority of the entities affected by the proposed changes are also required by the legislature. The department cannot exempt businesses from the fee requirements.

Re-inspection fees, fees for late renewal, fees for operating without license only affect an entity if the entity is out of compliance with the state law or regulations. Proposed fees for special condition inspections only affect un-licensed persons who request inspection or consultation services from the department.

Proposed rules should not add additional cost to businesses, as they are intended to update and clarify current rules and statutes. The proposed rules do not contain schedules or deadlines for compliance, reporting requirements, operational or performance standards.

Fiscal Estimate

Summary

The Wisconsin Division of Public Health's Food Safety and Recreational Licensing (FSRL) program provides licensing and inspection regulatory services for restaurants, lodging, public pool and water attraction, body art and vending establishments. The state's service delivery is supported entirely by program revenue through licensing, inspection and other regulatory service fees. The proposed changes to the fee schedules contained in HFS 173 -Tattooing and Body Piercing; HFS 175 – Recreational and Educational Camps; HFS 178 – Campgrounds; HFS 195 – Hotels, Motels and Tourist Rooming Houses; HFS 196 – Restaurants; HFS 197 – Bed and Breakfast Establishments; and HFS 198 – Vending of Food will increase the fees for environmental health regulatory service delivery for state-licensed establishments. In order to better sustain the program and ease the impact of increases fees, the FSRL program has proposed a two-phase fee increase. An initial fee increase will go into effect in state fiscal year 2010 and a second, and generally smaller, fee increase will go into effect in SFY 2012. This two-phased fee increase approach should ensure that the FSRL program can operate without a deficit until 2014.

The proposed fee increases will not affect Food Safety and Recreational Licensing program's operating costs. Approximately 71% of the program's costs are associated with staff salaries and fringe benefits. Staffing levels are projected to remain flat for the foreseeable future. For the past several years, staff salaries and benefits have increased at a rate lower than the average annual rate of inflation. The fee increases should raise program revenue from approximately $2,862,088 in State Fiscal Year (SFY) 2009 to $3,565,811 in SFY 2010 and to $3,733,332 in SFY 2012.

The impact of this proposed fee schedule increase on local governments is varied and indeterminate. Slightly more than half of the state's local public health departments (LPHDs) provide environmental health regulatory services as agents of the state. Each agent LPHD reimburses 10% of its regulated establishment license revenue to the state for centralized administration and technical support. For those agent health departments, the increased fees will result in a higher reimbursement amount – equaling higher operating costs.

Some agent health departments base their local environmental health regulatory fee structure on the state's fee schedule while other agent health departments maintain fees that are much higher than the state's. Therefore, some local jurisdictions will raise fees commensurate with the new state fees. Other jurisdictions - whose fees are higher than the state's - may wish to wait before adopting their own fee increases. Regardless, the increased state fee structure will result in higher local health department reimbursements to the state for those local agencies that provide environmental health regulatory services.

The impacts of the proposed fee increases on small businesses will be varied. The proposed fees schedules generally reflect a typical increase of $20 to $100 for an annual operating license. Most FSRL fees have not kept pace with the rate of inflation for the past several years and, in general, the current and proposed annual license fee burdens are small. The proposed fees will increase operating costs for small businesses. However, the annual impact of most fees is small – particularly when evaluated in respect to the rate of inflation. A small business impact analysis determined that the proposed fees increases will be at a level well below the revenue and expense increases brought about by the change in the previous year's consumer price index.

Based on input from regulated industry representatives, the financial burden will be less on those businesses that comply with state codes and act to protect public health and safety. A greater fiscal burden will be borne by those establishments that require repeated re-inspections and operate without licenses. Small business revenues should not be impacted by these fee increases.

The proposed rule will have a positive fiscal effect on state government. The proposed fee increases should raise Food Safety and Recreational Licensing program revenue to a level where, for an approximately two-year period, the program's revenue will support program operating expenses. Despite losing permanent full-time employee positions and keeping operating costs increases at a level lower than that of inflation, current program fee revenue is not adequate to support the FSRL program. The proposed fee increases will allow the FSRL program to once again cover its operating costs.

The proposed rule will have an indeterminate fiscal effect on units of local government. Those units that do not provide environmental health regulatory services at the local level will feel no effect. Those local governments that provide EH regulatory services will experience a fiscal effect. However the effects will vary widely depending on local fee structures and how local fees are tied to state fees. In general, the proposed rule change will result in a larger amount of EH regulatory service reimbursement revenue being sent to the state.

The proposed rule will have indeterminate and highly varied effects on small businesses. As discussed above, the proposed rule contains increased FSRL program fees and more fee revenue will be collected from small businesses. However, the FSRL program fees have not kept pace with inflation and, in general, the annual license fee represents a very small fraction of a business' annual operating expenses. In addition, a greater portion of the fee burden will be borne by those establishments who require greater regulatory oversight. At the suggestion of regulated industry representatives, a lesser amount of the fee burden will be placed on those small businesses who observe their due diligence and who operate in compliance with the appropriate public health and safety codes.

State fiscal effect

Increase existing revenues. Increase in costs.

Fund sources affect

PRO

Local fiscal effect

Indeterminate.

Local government units affected

Counties and cities

Private sector fiscal effect

Indeterminate.

Notice of Hearings

Natural Resources

Fish, Game, etc., Chs. NR 1—

rulemaking_notices CR 08-074 CR 08-074

NOTICE IS HEREBY GIVEN THAT pursuant to ss. 23.09 (2) (intro.), 23.091, 23.11 (1), 23.22 (2) (a) and (b) 6., 23.28 (3), 27.01 (2)(j), 29.014 (1), 29.039 (1), 29.041 and 227.11 (2) (a), Stats., interpreting s. 23.22 (2) (a), Stats., the Department of Natural Resources will hold public hearings on the creation of ch. NR 40, Wis. Adm. Code, relating to the identification, classification and control of invasive species. The order creates rules for the identification, classification and control of invasive species, as part of the department's state-wide program to control invasive species required under s. 23.22 (2), Stats. Section 23.22 (1) (c), Stats., defines “invasive species" to mean nonindigenous species whose introduction causes or is likely to cause economic or environmental harm or harm to human health.

Hearing Information

The hearings will be held on:

August 14, 2008 Thursday at 10:00 a.m.	Gathering Waters/Glacier's Edge Conference Room DNR South Central Region Hdqrs. 3911 Fish Hatchery Road Fitchburg
August 14, 2008 Thursday at 3:00 p.m.	Room 141 DNR Southeast Region Hdqrs. 2300 N. Dr. Martin Luther King Jr. Drive Milwaukee
August 15, 2008 Friday at 1:00 p.m.	Lake Michigan Room DNR Northeast Region Hdqrs. 2984 Shawano Avenue Green Bay
August 19, 2008 Tuesday at 1:00 p.m.	Room B19 & B20 State Office Building 3550 Mormon Coulee Road La Crosse
August 20, 2008 Wednesday at 2:30 p.m.	Large Conference Room DNR Northern Region Hdqrs. 810 W. Maple Street Spooner
August 26, 2008 Tuesday at 1:00 p.m.	Council Chambers Wausau City Hall 407 Grant Street Wausau

Pursuant to the Americans with Disabilities Act, reasonable accommodations, including the provision of informational material in an alternative format, will be provided for qualified individuals with disabilities upon request. Please call Ms. Kelly Kearns at (608) 267-5066 with specific information on your request at least 10 days before the date of the scheduled hearing.

Submission of Written Comments, Agency Contact Person and Copies of Proposed Rule

The proposed rule and fiscal estimate may be reviewed and comments electronically submitted at the following Internet site: http://adminrules.wisconsin.gov . Written comments on the proposed rule may be submitted via U.S. mail to Ms. Kelly Kearns, Bureau of Endangered Resources, P.O. Box 7921, Madison, WI 53707 or by email to DNRNR40Comments@ wisconsin.gov. Written comments may be submitted until September 5, 2008. Written comments, whether submitted electronically or by U.S. mail, will have the same weight and effect as oral statements presented at the public hearings. A personal copy of the proposed rule and fiscal estimate may be obtained from Ms. Kearns.

Analysis Prepared by Dept. of Natural Resources

Statutory authority

Sections 23.09 (2) (intro.), 23.091, 23.11 (1), 23.22 (2) (a) and (b) 6., 23.28 (3), 27.01 (2) (j), 29.014 (1), 29.039 (1), 29.041 and 227.11 (2) (a), Stats.

Statute interpreted

Section 23.22 (2) (a), Stats.

Rule analysis

The proposed rules establish criteria for classifying invasive species, and then list or identify specific invasive species into 2 specific categories (prohibited and restricted) according to those criteria (giving consideration to recommendations from the Wisconsin Council on Invasive Species). The rules prohibit or restrict the transportation (including importation), possession, transfer (including sale) and introduction of invasive species that are listed or identified as “prohibited", with certain exceptions. “Restricted" invasive species are also subject to a conditional ban on transportation, transfer and introduction, but not possession (except for fish and crayfish), with certain exceptions. The rules also allow transportation, possession, transfer or introduction for research, education, identification, control or disposal, or for other specified purposes when authorized by a department permit.

Transportation, possession, transfer and introduction without a permit are not prohibited if the department determines that the transportation, possession, transfer or introduction was incidental or unknowing, and was not due to the person's failure to take reasonable precautions. However, the rules ban transportation of items or host materials that may carry any invasive species and that are subject to a quarantine by the department, the Wisconsin Department of Agriculture, Trade and Consumer Protection (DATCP) or the United States Department of Agriculture Animal and Plant Health Inspection Service (USDA APHIS), regardless of whether the transportation was incidental or unknowing.

The rules authorize the department to enter property for the purpose of inspection, sampling and control of prohibited invasive species and allow the department to order persons who own, control or manage property where prohibited invasive species are present to implement approved control measures. If a control order is not complied with and the department undertakes control measures, the rules allow for cost-recovery by the department for the expenses it incurred. In contrast, “restricted" species are not subject to any control requirements, except that persons who grow restricted plant species at a nursery are required to destroy them if the nursery closes.

General preventative measures are also required by the rules, without being specific as to species. These rules limit certain common activities that may function as pathways for the inadvertent introduction or spread of invasive species, unless a permit to engage in the activity has been issued by the department. These include conditional requirements to drain all water from boats, boat trailers, equipment and containers upon their removal from the water; a ban on the transport of live fish and fish eggs away from the water; and restrictions on the transport on public highways of boats, trailers and equipment with aquatic plants or animals attached.

Criteria and procedures for permit application, issuance, administration and revocation are detailed in the rules.

Finally, the rules set out the procedures or mechanisms available to the department under the statutes for enforcement of the rules and of permits issued under the rules.

Comparison with federal regulations

There are no directly comparable federal regulations that address the activities regulated by the proposed rule.

Comparison of rules in adjacent states

Minnesota. Minnesota has invasive species regulations that make it unlawful to possess, import, purchase, transport, or introduce these species except under a permit for disposal, control, research, or education. Minnesota also has a regulated and unlisted species regulation that states “Regulated and unlisted invasive species are legal to possess, sell, buy, and transport, but they may not be introduced into a free-living state, such as being released or planted in public waters." Minnesota's classifications include aquatic plants, fish, invertebrates, mammals and birds. The invasive species laws are similar in scope to Wisconsin's proposed rules, minus the inclusion of terrestrial plants.

Iowa. Iowa has a noxious weed law similar to Wisconsin, but includes many more plant species (25+). The Iowa Noxious Weeds and Iowa Weed Law is rather involved, including roads and railroad regulations, removal and cost issues.

Illinois. Illinois has a noxious weed law similar to Wisconsin's noxious weed law. It defines noxious weed “as any plant which is determined by the State Director of Agriculture, the Dean of the College of Agriculture of the University of Illinois and the Director of the Agricultural Experiment Station at the University of Illinois, to be injurious to public health, crops, livestock, land or other property."

Michigan. Michigan has a noxious weed law similar to Wisconsin, but lists many more species. They also have a law titled Transgenic and Nonnative Organisms which lists prohibited and restricted aquatic plants, fish and insects. It seems similar to the proposed rule, again, minus the terrestrial plants.

Summary of factual data and analytical methodologies

The department and the Wisconsin Council on Invasive Species (Council) have been working over the last 2 years to develop rules to classify and regulate invasive species. The Research Subcommittee of the Council developed a detailed set of criteria for assessing the species to be classified. The criteria include:

a) Potential economic, environmental or human health impacts of the species

b) Current presence, distribution and abundance in the state

c) Potential for establishment and spread