Statutes interpreted
Statutory authority
Explanation of agency authority
DATCP has general authority, under s.
93.07(1), Stats., to adopt rules interpreting statutes under its jurisdiction. DATCP is specifically authorized, under s.
96.15, Stats., to adopt rules to administer the marketing order program under ch.
96, Stats.
Related statutes and rules
DATCP has adopted general rules under ch.
ATCP 140, Wis. Adm. Code, to govern the creation and operation of marketing orders, including the operation of marketing boards.
Background
DATCP administers Wisconsin's agricultural marketing order program under ch.
96, Stats. DATCP may adopt marketing orders for Wisconsin agricultural commodities, with the approval of affected commodity producers. DATCP has adopted marketing orders for cherries, cranberries, corn, milk, mint, soybeans, ginseng and potatoes.
Each marketing order, including the potato marketing order, provides for assessments on commodity producers. Affected producers elect a marketing board that establishes assessment levels within limits specified by the marketing order, and spends assessment revenues for purposes identified in the marketing order. The current potato industry board (potato marketing board) includes 10 members elected from 5 geographic districts for staggered 3-year terms. DATCP monitors marketing board activities for compliance with applicable law, including the marketing order.
Under the current potato marketing order, the potato industry board is authorized to collect potato marketing assessments of up to 6 cents per hundredweight. The board has implemented an actual assessment rate of 5 cents per hundredweight – one cent per hundredweight below the maximum assessment currently allowed. Assessments may be used to finance market development, research and education, subject to the terms of the marketing order.
DATCP has adopted general rules under ch.
ATCP 140, Wis. Adm. Code, to govern the operation of marketing orders and marketing boards. DATCP must adopt marketing orders as rules. Affected producers must approve (by referendum) the adoption, amendment or repeal of a marketing order.
Summary of rule
This rule modifies the current potato marketing order (ATCP 149) to do all of the following:
•
Increase the maximum assessment that the potato industry board is authorized to charge to producers. This rule changes the maximum assessment rate from 6 cents to 10 cents per hundredweight on potatoes sold into commercial channels.
•
Change the election and membership of the potato industry board. This rule reduces the number of election districts from 5 to 3, and reduces the number of board members from 10 to 9. Eight of the 9 members of the modified board will be elected by producers from districts identified in this rule, and one board member will be chosen by all potato producers in a statewide “at large" election. Under this rule, all board members will be elected for 3-year terms.
•
Provide for a gradual changeover to the new board membership. Current board members will continue to hold office until their current terms expire.
Under this rule, potato industry board election districts will be as follows:
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District 1 will be represented by 3 board members and will include Ashland, Barron, Bayfield, Brown, Burnett, Chippewa, Clark, Door, Douglas, Dunn, Eau Claire, Florence, Forest, Iron, Kewaunee, Langlade, Lincoln, Marinette, Menominee, Oconto, Oneida, Pepin, Pierce, Polk, Price, Rusk, Sawyer, St. Croix, Taylor, Vilas, and Washburn counties.
•
District 2 will be represented by 3 board members and will include Marathon, Outagamie, Portage, Shawano, Waupaca and Waushara counties.
•
District 3 will be represented by 2 board members and will include Adams, Buffalo, Calumet, Columbia, Crawford, Dane, Dodge, Fond du Lac, Grant, Green, Green Lake, Iowa, Jackson, Jefferson, Juneau, Kenosha, LaCrosse, Lafayette, Manitowoc, Marquette, Milwaukee, Monroe, Ozaukee, Racine, Richland, Rock, Sauk, Sheboygan, Trempealeau, Vernon, Walworth, Washington, Waukesha, Winnebago and Wood counties.
The changes to the current election districts, and the election of one “at large" representative, will address changes in the geographic distribution of potato production in the state. The increase in the maximum authorized marketing order assessment will facilitate additional funding for market development and research, including University of Wisconsin research related to new potato varieties and pesticide and chemical management.
Comparison with federal regulations
The United States department of agriculture (USDA) administers an agricultural marketing order program, under which USDA has broad authority to regulate prices and production, as well as to charge assessments for market development, promotion, research and education. USDA has adopted marketing orders for some of the same commodities covered by Wisconsin marketing orders (including potatoes). However, the state marketing orders do not directly duplicate or conflict with the federal marketing orders.
Comparison with rules in adjacent states
Michigan and Minnesota have marketing assessments for potatoes produced within those states. Minnesota's current assessment is 3 cents per hundredweight and Michigan's assessment is 5 cents per hundredweight (the same as Wisconsin's current assessment).
Factual data and analytical methods
DATCP keeps an updated list of potato producers for the purpose of determining eligible voters in marketing order referenda and marketing board elections. Changes in that list reflect significant changes in the geographic distribution of potato producers in the state. DATCP has worked with affected producers and the potato marketing board to obtain information related to assessment revenues and revenue needs.
Small Business Impact
Summary
The current potato marketing order is designed to improve the production and marketing of potatoes in this state, for the benefit of potato producers. This rule, initiated at the request of potato producers, is intended to improve the current potato marketing order. This rule must be approved in a referendum of affected producers before it can take effect. Many of the affected producers are “small businesses."
This rule will change the composition and election of the current potato industry board. The changes reflect changes in the geographic distribution of the Wisconsin potato industry. The changes will have little, if any, impact on affected producers.
This rule also authorizes the potato industry board to increase the current potato marketing assessment from a maximum of 6 cents per hundredweight to a maximum of 10 cents per hundredweight of potatoes sold in commercial channels. The board may not increase the actual assessment rate by more than one cent per year.
While the authorized increase may eventually add expense for producers, the added expense will be small. Wisconsin has over 150 farms that produce nearly 23 million hundredweight of potatoes annually. The current marketing assessment is 5 cents per hundredweight. With potatoes currently selling at nearly $25 per hundredweight, the current assessment represents only 2/10ths of 1% of the current market value of potatoes. Even if the potato industry board were to increase the assessment (over a period of at least 5 years) to the maximum 10 cents per hundredweight allowed by this rule, the assessment would still amount to only 4/10 of 1% of potato market value.
Steps to assist small business
Most of the businesses affected by this rule are “small businesses." The rule allows for an increased maximum assessment rate to meet expenses related to operation of the marketing order board. Those expenses are indirectly paid by producers through their assessments. The effect of the increased maximum assessment rate will be to enable the board to have sufficient income to continue research, marketing and education necessary for the business of those affected producers.
Conclusion
This rule will have a minimal impact on individual potato producer expenses or incomes and will generally benefit those producers most of which are small businesses by providing the ability to fund research, marketing and education necessary to the industry. This rule will not have a significant adverse effect on “small business," and is not subject to the delayed “small business" effective date provided in s.
227.22 (2) (e), Stats.
Fiscal Estimate
Summary
This rule will have no significant fiscal impact on DATCP or local government.
State fiscal effect
None
Local government fiscal effect
None
Long-range fiscal implications
Ability to raise the assessment in order to provide the necessary research and market development.
Agency Contact Person
Questions and comments on this rule may be directed to:
Noel Favia, DATCP
PO Box 8911
Madison, WI 53708- 8911
Phone: 608-224-5140
Email: noel.favia@ datcp.state.wi.us.
Notice of Hearing
Commerce
Licenses, Certifications and Registrations, Ch.
Comm 5
NOTICE IS HEREBY GIVEN that pursuant to ss.
145.12 (5) (a) and
145.20 (6) Stats., as affected by
2007 Wisconsin Act 197, the Department of Commerce will hold a public hearing on proposed rules under section
Comm 5.12 establishing a schedule of forfeitures for POWTS Governmental Unit Employees.
Hearing Information
The public hearing will be held as follows:
Date and Time:
|
Location:
|
April 15, 2009
Wednesday
10:00 AM
|
Conference Room 3B
Thompson Commerce Center
201 West Washington Avenue
Madison
|
This hearing is held in an accessible facility. If you have special needs or circumstances that may make communication or accessibility difficult at the hearing, please call (608) 266-8741 or contact through Relay 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.
Appearances at the Hearing and Submission of Written Comments
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. Persons submitting comments will not receive individual responses. The hearing record on this proposed rulemaking will remain open until 4:30 p.m., Thursday, April 23, 2009, 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. Written comments should be submitted to James Quast, at the Department of Commerce, P.O. Box 2689, Madison, WI 53701-2689, or Email at jim.quast@ wisconsin.gov.
Copies of Proposed Rules
The proposed rules and an analysis of the proposed rules are available on the Internet at the Safety and Buildings Division Web site at
www.commerce.wi.gov/SB/. Paper copies may be obtained without cost from Roberta Ward, at the Department of Commerce, Program Development Bureau, P.O. Box 2689, Madison, WI 53701-2689, or Email at
roberta.ward@wisconsin.gov, or at telephone (608) 266-8741 or contact through Relay. Copies also will be available at the public hearing.
Analysis Prepared by Department of Commerce
Statutes interpreted
Statutory authority
Related statute or rule
None
Explanation of agency authority
Section
145.02, Stats., grants the Department of Commerce general authority for protecting the health, safety and welfare of the public by establishing reasonable and effective standards for Private Onsite Wastewater Treatment Systems (POWTS) including the licensing of individuals to inspect POWTS. Section
145.20, Stats., delineates the responsibilities and duties of governmental units administering and enforcing the laws and rules pertaining to POWTS. Section
145.12 (5) (a), Stats., as affected by
2007 Wisconsin Act 197, authorizes the Department to directly assess forfeitures to governmental unit employees who violate the limitations under s.
145.20, Stats., for POWTS employees that perform work outside of the scope of their governmental unit responsibilities.
Summary of proposed rules
The proposed rules under chapter Comm 5 delineate the procedures for implementing the forfeiture assessments for POWTS governmental unit employees violating the outside employment limitations established under
2007 Wisconsin Act 197. The proposed rules establish a schedule for forfeitures based upon various situations and/or activities. Current rules delineate a process for appealing a forfeiture assessment.
Comparison with federal regulations
There are no known federal regulations or proposed federal regulations that could be compared to the direct forfeiture provision.
Comparison with rules in adjacent states
A search of the rules in adjacent states found that Minnesota, Iowa, Illinois, and Michigan do not have any regulations regarding conflict of interest related to their onsite sewage program governmental unit employees. The comparisons were completed via a web search.
Summary of factual data and analytical methodologies
The proposed rules were developed by reviewing the provisions under ss.
145.12 (5) (a) and
145.20 (6), Stats., as created by
2007 Wisconsin Act 197, as well as existing administrative rules for administrative forfeitures administered by the Department of Commerce.
Analysis and supporting documents used to determine effect on small business
The
2007 Wisconsin Act 197 affects governmental unit employees who administer and enforce regulations pertaining to design, installation and maintenance of POWTS by limiting the activities that such employees may undertake outside of their governmental employment. The proposed rules implement administrative forfeitures authorized under
2007 Wisconsin Act 197 for violations of these limitations.
Small Business Impact
The department does not believe that the proposed rules will increase the effect on small businesses over that imposed by the Act.
An economic impact report has not been required pursuant to s.
227.137, Stats.
