Scope Statements
Agriculture, Trade and Consumer Protection
Subject
Revises Chapter
ATCP 149, relating to Wisconsin's Potato Marketing Order.
Objective of the Rule
The Wisconsin Potato Board, a semi-autonomous marketing board administers the potato marketing order subject to the terms of the marketing order and other applicable statutes and rules. Board members are elected by affected potato growers by district. The Board spends producer assessments, collected under the marketing order, for purposes specified in the marketing order. Under the current marketing order the assessment on potato producers used to fund market development, research and educational programs currently has a cap of $0.06 per hundredweight of potatoes.
The rule may increase the cap on assessments to enable the Board to effectively promote the Wisconsin potato industry, and may alter the district representation to insure fair representation to affected potato growers.
Policy Analysis
DATCP may adopt marketing orders for agricultural commodities under ch.
96, Stats., and ch.
ATCP 140, Wis. Adm. Code. DATCP adopts and amends marketing orders by rule. Marketing orders, and marketing order amendments, must be approved in a referendum of affected producers.
A semi-autonomous marketing board, elected by affected producers, administers each marketing order (subject to the terms of the marketing order and other applicable rules). The marketing board spends producer assessments, collected under the marketing order, for purposes specified in the marketing order.
DATCP has adopted a Potato Marketing Order under ch.
ATCP 149, Wis. Adm. Code. The Wisconsin Potato Board, a producer-elected marketing board, administers the Potato Marketing Order. Under the marketing order, potato producers pay assessments on all potatoes produced and sold into commercial channels. Handlers, who purchase potatoes from producers, collect the assessments and pay them to the Wisconsin Potato Board. The Board uses the assessments to fund market development, research and educational programs related to potatoes.
The Wisconsin Potato Board has asked DATCP to amend the current Potato Marketing Order. In response to that request, DATCP proposes to consider the following amendments to the current marketing order:
•
Increase of the cap assessments to enhance market development, research, and education related to potatoes.
•
Changes to the election districts and number of members elected per district in order to assure fair representation for potato growers.
Policy Alternatives
If DATCP takes no action, the current Potato Marketing Order will remain in effect. The current election districts need to be altered to insure fair representation for potato growers and the increase in the cap on assessments is needed to enable the Board to meet the goals of improving the quality and promote the marketing of potatoes and the potato industry.
Statutory Authority
Entities Affected by the Rule
The entities directly affected are the potato growers who elect the members of the Wisconsin Potato Board and who pay assessments.
Comparison with Federal Regulations
There is a federal potato research and promotion plan administered by a National Potato Promotion Board that is appointed by the U.S. Secretary of Agriculture. The purpose of the federal program is to conduct promotion and research nationwide and to increase the export of potatoes. The authority for the federal program is
7 USC 2611-2627 and
7401. The federal program is supported by assessments of handlers and importers. The federal and the state marketing order program cooperate with and complement each other.
Estimate of Time Needed to Develop the Rule
DATCP estimates that it will use approximately 0.4 FTE staff to develop this rule. Staff time includes time involved in establishing a producer list, drafting rules, communicating with affected parties, holding public hearings, preparing documents and conducting a producer referendum. DATCP will use existing staff to develop this rule.
Commerce
Fee Schedule, Ch.
Comm 2
Licenses, Certifications and Registrations, Ch.
Comm 5
Subject
Revises Chapters
Comm 2 and
5, relating to fees.
Objective of the Rule
One objective under this project is to establish a fee for the department review of continuing education courses which fulfill license renewal obligations for a variety of individual license renewals under chapter Comm 5.
Another objective is to analyze the existing fees charged under various program services to ensure equity within the program and among the various programs.
The objectives of this rule project may be incorporated into more than one rule package and may include revisions to other chapters affected by the proposal.
Policy Analysis
Section
101.19, Stats., requires the Department to fix and collect fees by rule which shall, as closely a possible, equal the cost of providing services such as plan examination, inspections, and permits to operate. The fees for these services provided by the Safety and Buildings Division are contained in chapter Comm 2. The fees involved in the issuance of licenses, certifications and registrations are contained in chapter Comm 5.
Currently, the department does not charge fees for the review of continuing education courses that fulfill license renewal obligations under chapter Comm 5. Costs associated with such reviews are currently covered by credential fees. The proposed concept of charging specific course review fee is considered to be a more equitable way of covering the costs associated with the course review. Not charging a review fee would maintain the status quo, resulting in a less equitable fee collection system.
The analysis of program service fees is an issue of equity, so that one regulated group is not subsidizing the department services provided to another group.
Statutory Authority
Entities Affected by the Rule
The rule will potentially affect a wide variety of individuals and entities that utilize the Safety and Building Division's services. The Division is involved in the oversight of commercial buildings, new one- and 2- family dwellings, blasting, amusement rides, fireworks manufacturers, boilers, electric wiring, plumbing, public swimming pools, private onsite wastewater treatment systems, passenger ropeways, elevators, escalators, mines, pits and quarries and manufactured homes. The people affected by the rule would include building owners, designers and contractors and owners of the various mechanical devices. Under chapter Comm 5 the division issues licenses, certifications and registrations to approximately 65 different types of trade practices typically related to building construction. For example, the Division issues credentials to blasters, electricians and inspectors. The rules would not affect credential fees established by the statutes, such as license fees for plumbers and automatic fire sprinkler system installers.
Comparison with Federal Regulations
An internet-based search of the Code of Federal Regulations (CFR) and the Federal Register did not find any federal regulations relating to the licensing and continuing education activities to be regulated under the rules.
Estimate of Time Needed to Develop the Rule
The department estimates approximately 200 hours will be needed to perform the review and develop any needed rule changes. This time includes forming and meeting with advisory councils, if necessary, drafting the rule changes and processing the changes through public hearings, legislative review, and adoption. The department will assign existing staff to perform the review and develop the rule changes, and no other resources will be needed.
Commerce
Fee Schedule, Ch.
Comm 2
Licenses, Certifications and Registrations, Ch.
Comm 5
Flammable and Combustible Liquids, Ch.
Comm 10
Subject
Revises Chapters
Comm 2,
5, and
10, relating to training of operators of underground storage tank systems.
Objective of the Rule
The proposed rules would primarily implement the operator-training requirements issued by the United States Environmental Protection Agency in response to the federal Energy Policy Act of 2005.
Policy Analysis
The Department currently has rules for construction, maintenance and abandonment of storage tank systems for flammable, combustible or hazardous liquids – and has credential rules for several categories of contractors who perform those activities. However, those rules do not require any training for operators of these tank systems.
The proposed rules are expected to address (1) the operator-training requirements issued by the US EPA in response to the federal Energy Policy Act of 2005; (2) any corresponding changes that are needed in chapters Comm 2, 5 and 10 to effectively apply these requirements in Wisconsin; and (3) any other changes that may be needed in Comm 2, 5 or 10 as a follow-up to repealing and recreating Comm 10 in 2008.
The alternative of not promulgating these rules would conflict with a directive in Section 9010(b)(2) of the federal Solid Waste Disposal Act, as enacted in the federal Energy Policy Act of 2005, to develop these state-specific requirements; and would conflict with a US EPA mandate to develop these requirements by August 8, 2009.
Statutory Authority
Entities Affected by the Rule
The proposed rules would affect all or nearly all entities that operate underground storage tank systems for flammable, combustible or hazardous liquids; and may affect entities that operate aboveground storage tank systems for these liquids.
Comparison with Federal Regulations
The operator-training requirements in Section 9010 of the federal Solid Waste Disposal Act, and the US EPA requirements issued in conjunction with Section 9010, establish three classes of operators; i.e., Class A operators have primary responsibility for on-site operation and maintenance of underground storage tank systems, Class B operators have daily on-site responsibility for the operation and maintenance of underground storage tank systems, and Class C operators have daily on-site responsibility for addressing emergencies presented by a spill or release from an underground storage tank system. The US EPA criteria further specify (1) which facilities are subject to the training requirements, (2) who is subject to the training requirements, (3) minimum components of the training programs for each class of operator, (4) a 3-year timeframe for completing the training of all the operators, (5) establishment of a state-level system for ensuring all operators are trained in accordance with the requirements, (6) methods for states to demonstrate compliance with the requirements, and (7) methods the US EPA will use to enforce state-level compliance with the requirements.
The proposed rules are expected to match or otherwise comply with these federal requirements.
Estimate of Time Needed to Develop the Rule
The staff time needed to develop the rules is expected to range from 200 to 400 hours, depending upon the associated complexity. This includes research, rule drafting, and processing the rules through public hearings, legislative review, and adoption. There are no other resources necessary to promulgate the rules.
Commerce
Licenses, Certifications and Registrations, Ch.
Comm 5
Subject
Revises Chapter
Comm 5, relating to registration of building contractors and subcontractors.
Objective of the Rule
The objective of this project is to require contractor registrations for businesses engaged in building construction. The contractor registrations would be for those building construction disciplines not currently required to have a license, certification or registration under chapter Comm 5.
The objectives of this rule project may be incorporated into more than one rule package and may include revisions to other chapters affected by the proposal.
Policy Analysis
Chapter
Comm 5 establishes licensing, certification and registration programs for a variety of building trades, both for individuals and businesses. Currently under ch.
Comm 5, with the exception of dwelling contractors, electrical contractors, elevator contractors, and HVAC contractors, the department does not have a registration program for businesses engaged in building construction as contractors and subcontractors.
Under the statutory authority of chapters 101 and 145, Stats., the department has the responsibility to protect public health, safety and welfare in the design and construction of public buildings, places of employment and one- and 2- family dwellings. The department has established building codes that establish minimum standards for the protection of public health, safety and welfare. Compliance with the building codes is a shared responsibility involving building owners, designers and contractors. The proposed registration of building contractors and subcontractors is to enable the department to better communicate with such contractors and facilitate code compliance.
Not registering building contractors and subcontractors would be a lost opportunity to facilitate improved communication and code compliance for the construction of buildings. A possible alternative would be to credential the individuals who actually perform the work.
Statutory Authority
Entities Affected by the Rule
It is anticipated that at least the following businesses and individuals would be affected by the rules: all contractors and subcontractors associated with building construction other than those already credentialed by the department. This would include general contractors, excavating contractors, fire alarm contractors, drywall contractors, insulation contractors, finish carpentry contractors, flooring contractors, framing carpentry contractors, glass and glazing contractors, equipment contractors, fire sprinkler contractors, masonry contractors, painting and wall covering contractors, plumbing contractors, poured concrete foundation and structure contractors, roofing contractors, siding contractors, structural steel and precast concrete contractors, and tile and terrazzo contractors.
Comparison with Federal Regulations
An internet-based search of the Code of Federal Regulations (CFR) and the Federal Register did not find any federal regulations relating to the licensing and continuing education activities to be regulated under the rules.
Estimate of Time Needed to Develop the Rule
The department estimates approximately 200 hours will be needed to perform the review and develop any needed rule changes. This time includes forming and meeting with advisory councils, if necessary, drafting the rule changes and processing the changes through public hearings, legislative review, and adoption. The department will assign existing staff to perform the review and develop the rule changes, and no other resources will be needed.
Health Services
(Formerly Health and Family Services)
Subject
Revises Chapter
HFS 131, relating to hospices.
Policy Analysis
The Department proposes to update ch.
HFS 131 to align the rule with revised federal Medicare regulations, eliminate outdated regulations and to reflect current professional standards of practice. The Department also proposes to make minor, technical changes that will have little or no substantive effect on the entities regulated. The proposed changes are not expected to compromise the health, safety, and welfare of hospice patients.
On June 5, 2008 the Centers for Medicare Medicaid Services (CMS) published revised Medicare Hospice Conditions of Participation. The revised regulations become effective on December 2, 2008. Through this rulemaking initiative, the Department proposes to eliminate the inconsistencies between ch.
HFS 131 and the federal regulations to allow for more efficient and effective regulation of hospices. The Department anticipates that the proposed modifications will include revisions to s.
HFS 131.32 (3) concerning universal precautions, s.
HFS 131.42 (3) concerning the plan of care and s.
HFS 131.43 (2) concerning the core team.
Chapter
HFS 131 has not been substantially revised since initially promulgated in 1992. The Department proposes to eliminate outdated regulations and adopt current professional standards of practice. The Department anticipates that the proposed revisions will include the right of patients to receive effective pain management and symptom control and current infection control measures as recommended by the U.S. Centers for Disease Control and Prevention.
Statutory Authority
Entities Affected by the Rule
Entities affected by the proposed rule include hospices that are state licensed only and hospices that are both state licensed and certified for Medicare.
Comparison with Federal Regulations
Title
42 CFR 418 contains the Federal Medicare Hospice Conditions of Participation. These regulations establish conditions and standards for the operation of hospices that primarily provide palliative and supportive care to an individual with terminal illness where he or she lives and if necessary arranges for or provides short-term inpatient care and treatment or respite care. State regulations are comparable and the intent of these regulations is to foster safe and adequate care and treatment of patients by hospice agencies.
Estimate of Time Needed to Develop the Rule
The Department estimates that it will take 1,000 hours to draft the rulemaking order. In drafting the rule, the Department will seek the participation of Hospice Organization and Palliative Experts (HOPE) of Wisconsin, hospices and hospice consumers.
Contact Information
Pat Benesh
608-264-9896
Marriage and Family Therapy, Professional Counseling and Social Work Examining Board and Psychology Examining Board
Subject
Revises section
MPSW 1.11, regarding psychometric testing.
Objective of the Rule
The Marriage and Family Therapy, Professional Counseling and Social Work Examining Board, as well as the Psychology Examining Board, propose to amend s.
MPSW 1.11 regarding psychometric testing. Currently, the Marriage and Family Therapy, Professional Counseling and Social Work Examining Board rules define psychometric testing and provide guidelines as to how licensees of the Marriage and Family Therapy, Professional Counseling and Social Work Examining Board (e.g., licensed marriage and family therapists, licensed professional counselors, and licensed clinical social workers) may be trained for and have access to psychometric testing instruments.
The goal is to amend the existing rule in order to clarify the definition of psychometric testing, to better determine who may have access to psychometric tests and other testing instruments, and to determine who may supervise the individuals who administer these tests.
Policy Analysis
Psychometric testing is authorized under s.
457.033, Stats. Under that section, the Marriage and Family Therapy, Professional Counseling and Social Work Examining Board are required to jointly promulgate rules that specify the different levels of psychometric testing that an individual who is certified or licensed under ch.
457, Stats., is qualified to perform. The statute also directs that the resulting administrative rules are to be consistent with guidelines of the American Psychological Association or other nationally recognized guidelines. Both examining boards have agreed to initiate the rule-making process.
Statutory Authority
Entities Affected by the Rule
Licensed marriage and family therapists, licensed professional counselors, and licensed clinical social workers.
Comparison with Federal Regulations
There is no existing or proposed federal legislation that is intended to address the activities to be regulated by the rule.
Estimate of Time Needed to Develop the Rule
160 hours.
Transportation
Subject
Revises Chapter
Trans 276, relating to highways on which long combination vehicles may operate.
Objective of the Rule
A group of trucking companies led by LCK Transport LLC of Rosholt, Wisconsin, have petitioned the Department to consider amendments to ch.
Trans 276, which establishes a network of highways on which long combination vehicles may operate, by adding two highway segments to the network. The actual segments being proposed are:
STH 66 from the west side of Rosholt to CTH A east of Rosholt; and
CTH A in Portage County from STH 66 near Rosholt to USH 10 in Amherst
Policy Analysis
Federal law requires the Department of Transportation to react within 90 days to requests for changes to the long truck route network. Wisconsin state law requires that the Department use the administrative rule process to make changes to the long truck route network. Chapter
Trans 276 is an existing rule set up for long truck routes. The Department has received a request from LCK Transport LLC, of Rosholt, WI, to add these highway segments. Seventeen other individuals and businesses have signed the petition.
Current law limits straight trucks on STH 66 through Rosholt and on Portage County Highway A to 40 feet in length and combination vehicles to 65 feet in length. Double bottom trucks are currently not permitted on these stretches of highway.
Designating these particular highways as “long truck routes," would lift all limits on overall truck length and permit double-bottom trucks to be operated on these highway segments, provided that the trailer on a combination vehicle does not exceed 53 feet in length and no trailer on a double bottom exceeds 28 feet in length. This proposed rule change would not permit overweight loads.
Increasing overall vehicle length raises two primary safety concerns on any highway. First, whether the physical geometrics of the highway will permit longer vehicles to operate upon it. That is, “will the vehicles physically fit on the highway?" Sharp corners, for example, can make it impossible for a long vehicle to navigate a route while remaining within its lane of travel. Second, longer vehicles are more difficult for traffic to pass. This is especially true on 2-lane roads.
Statutory Authority
Entities Affected by the Rule
The rule will affect the requester of the route to be designated, other operators of commercial motor vehicles, and residents and businesses along STH 66 in Rosholt and along Portage County CTH A. Permitting long trucks on the route will necessarily affect all persons operating vehicles on or using those highways.
Comparison with Federal Regulations
In the Surface Transportation Assistance Act of 1982 (STAA), the federal government acted under the Commerce clause of the United States Constitution to provide uniform standards on vehicle length applicable in all states. The length provisions of STAA apply to truck tractor-semitrailer combinations and to truck tractor-semitrailer-trailer combinations. (See Jan. 6, 1983, Public Law 97-424, § 411) The uniform standards provide that:
•
No state shall impose a limit of less than 48 feet on a semitrailer operating in a truck tractor-semitrailer combination.
•
No state shall impose a length limit of less than 28 feet on any semitrailer or trailer operating in a truck tractor-semitrailer-trailer combination.
•
No state may limit the length of truck tractors.
•
No state shall impose an overall length limitation on commercial vehicles operating in truck tractor-semitrailer or truck tractor-semitrailer-trailer combinations.
•
No state shall prohibit operation of truck tractor-semitrailer-trailer combinations.
The vehicles authorized by the STAA may operate on the national system of interstate and defense highways and on those federal aid primary highways designated by regulation of the secretary of the United States Department of Transportation. In 1984 the USDOT adopted
23 CFR Part 658 which in Appendix A lists the highways in each state upon which STAA authorized vehicles may operate. Collectively these highways are known as the National Network. In
1983 Wisconsin Act 78, the legislature enacted §
348.07(4), Stats., which directs the Wisconsin Department of Transportation to adopt a rule designating the highways in Wisconsin on which STAA authorized vehicles may be operated consistent with federal regulations.
The Department of Transportation first adopted ch.
Trans 276 of the Wisconsin Administrative Code in December of 1984. The rule is consistent with
23 CFR Part 658 in that the Wisconsin rule designates all of the highways in Wisconsin that are listed in
23 CFR Part 658 as part of the National Network for STAA authorized vehicles. The federal regulation does not prohibit states from allowing operation of STAA authorized vehicles on additional state highways. The rule making authority granted to the Wisconsin Department of Transportation in §
348.07(4), Stats., allows the DOT to add routes in Wisconsin consistent with public safety. The rule making process also provides a mechanism to review requests from businesses and shipping firms for access to the designated highway system for points of origin and delivery beyond 15 miles from a designated route. A process to review and respond to requests for reasonable access is required by
23 CFR Part 658.
Estimate of Time Needed to Develop the Rule
It is estimated that state employees will spend 40 hours on the rule-making process, including research, drafting and conducting a public hearing.
Transportation
Subject
Amends Chapters
Trans 325,
326, and
327, relating to motor carrier safety and hazardous material transportation safety.
Objective of the Rule
The objective is to bring the rules into conformance with changes to the Federal Motor Carrier Safety Regulations (FMCSR'S) and the Hazardous Material Regulations (HMR's) which are currently in effect at the federal level. Amendment of these rules will assure State Patrol inspectors and troopers are enforcing the most current FMCSR's for interstate carriers and HMR's for both interstate and intrastate carriers of hazardous material.
Trans 325 (Motor Carrier Safety Regulations) - interstate. Amend the rule to include all changes currently in effect at the federal level. Changes have been made to the Federal Motor Carrier Safety Regulations 49 CFR, Parts
390 through
397 regulating interstate motor carrier operations. In addition it is necessary to adopt
49 CFR Part 385 Subpart C,
Certification of Safety Auditors, Safety Investigators, and Safety Inspectors, and
49 CFR Part 387 as it pertains to the financial responsibility requirements applicable to commercial motor vehicles subject to the provisions of
49 CFR 392.9a. Amendment to this rule will bring state regulations into compliance with current federal interstate regulations.
Trans 326 (Motor Carrier Safety Requirements for Transportation of Hazardous Materials) - for interstate and intrastate operations. Amend the rule to include all changes that have been made to federal Hazardous Material Regulations 49 CFR, Parts
107,
171,
172,
173,
177,
178, and
180. In addition it is necessary to adopt
49 CFR Part 385 Subpart E,
Hazardous Material Safety Permits. Amendment to this rule will bring state regulations, interstate and intrastate, into compliance with current federal regulations.
Trans 327 The rule making will also amend ch.
Trans 327 relating to intrastate motor carrier safety regulations to bring it into compliance with the most recent changes to the Federal Motor Carrier Safety Regulations which are currently in effect. In addition, it is necessary to adopt
49 CFR Part 385 Subpart C,
Certification of Safety Auditors, Safety Investigators, and Safety Inspectors. Amendment of this rule will assure State Patrol inspectors and troopers are enforcing the most current Federal Motor Carrier Safety Regulations applicable to intrastate carriers.
These proposed rule changes will bring the Department into compliance with the Federal Motor Carrier Safety Regulations and the federal Hazardous Material Regulations as necessary to qualify for continued Motor Carrier Safety Assistance Program (MCSAP) funding.
Policy Analysis
Trans 325 The Department is updating ch.
Trans 325 to keep current with the most recent changes and revisions to the Federal Motor Carrier Safety Regulations. The revisions allow state inspectors and troopers to enforce the most current safety regulations already in effect for interstate motor carriers. The rule will continue to reference the use of the most recent North American uniform out-of-service criteria for placing vehicles and drivers out-of-service.
Trans 326 The Department is updating ch.
Trans 326 to keep current with the most recent changes and updates to the federal Hazardous Material Regulations. The revisions will allow state inspectors and troopers to enforce the most current Hazardous Material Regulations already in effect for interstate and intrastate carriers.
Trans 327 The Department is updating ch.
Trans 327 to keep current with the most recent changes to the Federal Motor Carrier Safety Regulations, including
49 CFR Parts 40,
390 to
393, and
395 to
397.
Statutory Authority
Trans 325 - Section
110.075 and Chapter
194, Stats.
Entities Affected by the Rule
Interstate and intrastate motor carriers and law enforcement will be affected by this rule.
Comparison with Federal Regulations
Trans 325 Trans 325 (Interstate Motor Carrier Safety regulations) adopts Federal regulations
49 CFR Parts 390 to
393 and
395 to
397. In addition to the currently adopted regulations, it is necessary to adopt
49 CFR Part 385 Subpart C (Certification of Safety Auditors, Safety Investigators and Safety Inspectors).
Trans 326 Trans 326 (Motor Carrier Regulations for the Transportation of Hazardous Materials) adopts
49 CFR Parts 107,
171,
172,
173,
177,
178, and
180. In addition to the current adopted regulations, it is necessary to adopt
49 CFR Part 385 Subpart E (Hazardous Materials Safety Permits).
Trans 327 The Department updates Trans 327 to keep current with the most recent changes to the Federal Motor Carrier Safety Regulations,
49 CFR Parts 40,
390 to
393, and
395 to
397. In addition to the currently adopted regulations, it is necessary to adopt
49 CFR Part 385 Subpart C (Certification of Safety Auditors, Safety Investigators and Safety Inspectors).
Estimate of Time Needed to Develop the Rule
100 hours
