Rule-Making Notices (Hearing Notices)

Wisconsin Administrative Register No. 653, 5/14/2010

Rule-Making Notices

Notice of Hearing

Agriculture, Trade and Consumer Protection

EmR1012

The Wisconsin Department of Agriculture, Trade and Consumer Protection (DATCP) announces that it will hold a public hearing on its emergency rule to revise section ATCP 70.03, relating to food processing plant license exemptions. DATCP adopted a temporary emergency rule, effective April 22, 2010, to create license exemptions for certain small-scale home canners and maple syrup processors. DATCP is also soliciting public input to assist DATCP in developing “permanent" rules related to food processing plant license exemptions (DATCP has not yet proposed “permanent" rules).

Hearing Information

Tuesday, May 25, 2010

9:30 a.m. – 12:30 p.m.

WI Dept. of Agriculture, Trade & Consumer Protection

2811 Agriculture Drive – Board Room, 1st Floor

Madison, WI 53718

DATCP will hold the public hearing at the time and location shown above. DATCP invites the public to attend the hearing and comment on the emergency rule (summarized below). DATCP also seeks public input for the development of proposed “permanent" rules, including answers to the following questions:

•   Should small-scale processors of other types of foods also be exempted from food processing plant license requirements?

•   If so, what food types? Under what conditions?

•   If not, why not?

•   Should food processors claiming exemption be required to register with DATCP and obtain a registration certificate, to help farmers market operators and others verify their license status?

Accessibility

Hearing impaired persons may request an interpreter for these hearings. Please make reservations for a hearing interpreter by May 7, 2010, by writing to Deb Mazanec, Division of Food Safety, P.O. Box 8911, Madison, WI 53708-8911; e-mailing to [e-mail] or by phone at [phone]. Alternatively, you may contact the DATCP TDD at [phone]. Handicap access is available at the hearings.

Submittal of Written Comments

Following the hearing, the hearing record will remain open until Monday, June 7, 2010 for additional written comments. Comments may be sent to DATCP's Division of Food Safety at the address below, by email to [e-mail] or online at http://AdminRules.Wisconsin.gov/

Copies of Emergency Rule

You may obtain free copies of the temporary emergency rule by contacting the Wisconsin Dept. of Agriculture, Trade and Consumer Protection, Division of Food Safety, 2811 Agriculture Drive, P.O. Box 8911, Madison, WI 53708. You may also obtain copies by calling [phone] or e-mailing [e-mail]. Copies will also be available at the hearing. To view the proposed rule online, go to: http://adminrules.wisconsin.govKeeley.Moll@datcp. state.wi.us.

Analysis Prepared by Department of Agriculture, Trade and Consumer Protection

The Department of Agriculture, Trade and Consumer Protection (DATCP) administers state food processing plant license requirements under s. 97.29, Stats. This temporary emergency rule exempts the following persons from licensing under s. 97.29, Stats., subject to certain conditions:

•   An individual who home-cans acidic, acidified or fermented vegetable or fruit products for retail sale at a community or social event, farmers' market or farm roadside stand, and receives no more than $5,000 from those sales in any license year. This exemption implements the statutory exemption created by 2009 Wis. Act 101.

•   A person who processes maple sap to create maple syrup or concentrated maple sap that the person sells only to other processors for further processing, and who receives no more than $5,000 from those sales in any license year.

DATCP is adopting this temporary emergency rule pending the adoption of a “permanent" rule to cover the same matters.

•   This emergency rule is needed to implement 2009 Act 101, to provide clear guidance to home canners who wish to sell their products to the public, and to protect the public against potentially serious food safety risks.

•   This emergency rule is also needed to relieve certain maple sap processors from unnecessary cost and compliance burdens, while ensuring adequate food safety protection.

•   A temporary emergency rule is needed now because a “permanent" rule cannot be completed in time for this year's farmers market and maple syrup production seasons.

•   This emergency rule will take effect immediately upon publication in the official state newspaper, and will remain in effect for 150 days. The Legislature's Joint Committee for Review of Administrative Rules may extend this emergency rule for up to 120 additional days.

Statutes interpreted

Sections 97.09 (4), 97.29 and 227.24, Stats.

Statutory authority

Sections 93.07 (1), 97.09 (4), 97.29 (1) (g) 8. and (5), and 227.24, Stats.

Explanation of agency authority

•   DATCP has broad general authority, under s. 93.07(1), Stats., to interpret laws under its jurisdiction.

•   Under s. 97.09(4), Stats., DATCP may establish and enforce standards governing the production, processing, packaging labeling, transportation, storage, handling, display, sale, including retail sale, and distribution of foods that are needed to protect the public from the sale of adulterated or misbranded foods.

•   Under s. 97.29(1)(g)8. and (5), Stats., DATCP may spell out food processing plant license requirements and exemptions.

•   DATCP is authorized to adopt temporary emergency rules under s. 227.24, Stats., if emergency rules are needed to protect the public health, safety or welfare pending the adoption of “permanent" rules on the same subject.

Related statutes and rules

DATCP administers Wisconsin's food safety and labeling laws under ch. 97, Stats., including food processing plant license requirements under s. 97.29, Stats. (as modified by 2009 Wis. Act 101). DATCP has adopted food processing plant licensing rules under ch. ATCP 70, Wis. Adm. Code.

A person who processes food for sale or distribution is generally required to hold a state food processing plant license under s. 97.29, Stats. (there are certain exemptions). Persons who are engaged in dairy or meat processing, or who operate retail food establishments, must be licensed under other statutes. Local food license and zoning regulations may apply in some cases.

2009 Wis. Act 101 exempted, from state licensing under s. 97.29, Stats., persons who home-can acidic, acidified or fermented vegetable or fruit products for retail sale at a community or social events or farmers' markets, provided that the person receives no more than $5,000 from those sales during the license year. Act 101 does not exempt those persons from other state license requirements that may apply, nor does it exempt them from local licensing or zoning ordinances that may apply.

Plain language analysis

Home Canning for Retail Sale

Under this emergency rule, a person who home-cans acidic, acidified or fermented vegetable or fruit products for retail sale at a community or social event, farmers' market or farm roadside stand is exempt from a food processing plant license under s. 97.29, Stats, if all of the following apply:

•   The person is an individual, not a legal entity such as a corporation.

•   The individual receives no more than $5,000 during the license year from those sales. If 2 or more individuals home-can acidic, acidified or fermented vegetable or fruit products at the same home address, none of those individuals qualifies for the license exemption unless their combined gross receipts from the sale of those products totals no more than $5,000.

•   The canned products have an equilibrium pH value of 4.6 or lower. The individual must test the first batch of canned product produced according to each separate recipe used by the individual in each license year, to verify that canned products produced according to that recipe meet this pH requirement. The individual must keep, for at least 2 years, a record of each pH test.

•   The individual registers annually with DATCP. There is no cost to register, and the registrant is not required to obtain a registration certificate from DATCP.

•   The individual completes a home-canning safety course, or follows a written recipe (including ingredients and canning procedures) that reliably ensures the safety of each home-canned product.

•   The individual discloses to potential buyers, by means of a sign or placard, that the canned products “are homemade in a kitchen that has not been subject to state inspection."

•   Each canned product is properly labeled to include all of the following:

□   The name and address of the individual who canned the product.

□   The date on which the product was canned.

□   The following statement: “This product was made in a home not subject to state licensing or inspection."

□   A list of ingredients in descending order of prominence (major ingredients must be of vegetable or fruit origin). The list must include the common name of any ingredient that originates from milk, eggs, fish, crustacean shellfish, tree nuts, wheat, peanuts or soybeans.

•   The individual keeps a complete written record of every batch of canned product.

□   The batch record must include the name of the product, the product recipe (including procedures and ingredients), the amount of the product batch canned and sold, the canning and sale dates, the sale location, gross sales receipts, the results of any pH test conducted on the product, and the disposition of any product not sold.

□   The individual must keep the record for at least 2 years after the individual sells or otherwise disposes of the product, and must make that record available to DATCP for inspection and copying upon request.

Maple Sap Processed for Sale to Other Processors

Under this rule, a person who processes maple sap to produce maple syrup or concentrated maple sap for sale to another processor for further processing is exempt from licensing under s. 97.29, Stats., if all of the following apply:

•   The person receives less than $5,000 from those sales in a license year.

•   The person registers annually with DATCP. There is no cost to register, and the registrant is not required to obtain a registration certificate from DATCP.

•   The person keeps a written record of each sale, retains that record for at least 2 years, and makes the record available to DATCP for inspection and copying upon request. The record must include the name and address of the purchaser, the date of sale, the amount of maple syrup or concentrated maple sap sold, and the sale price.

Comparison with federal regulations

There is no federal law that addresses these issues, or compels DATCP to adopt this emergency rule.

Comparison with rules in adjacent states

Minnesota:

Minnesota exempts a person from licensing as a food processor if the person produces less than $5,000 of non-potentially hazardous food or less than $5,000 of home-canned acidified food. Home-canned acidified foods may only be sold at community or social events or farmers' markets in Minnesota. A point-of-sale placard and the product label must disclose that the product was produced in an unlicensed and uninspected home setting. The product label must also disclose the name and address of the processor and the date the goods were processed. Wisconsin's new law (2009 Act 101) was influenced by Minnesota's law.

Illinois and Michigan:

Illinois and Michigan have no laws related to home-processed foods. All food processed for sale to the public in Illinois and Michigan must be processed in a licensed facility.

Iowa:

In Iowa, individuals may annually process up to $20,000 in potentially-hazardous baked goods (including soft pies and bakery products with a custard or cream filling) at a licensed “home food establishment" for sale on the premises (the bakery goods may be consumed elsewhere). Individuals may sell non-potentially hazardous home-baked goods at a farmers' market, without a license. Canning and processing of low acid or acidified foods must be done in a licensed commercial establishment.

Summary of data and analytical methodologies

This emergency rule is not based on any specialized data or analytical methodologies. Portions of this rule (such as pH requirements for home-canned food sold to the public) are based on well-established food science and public health principles.

Small Business Impact

This emergency rule implements 2009 Wis. Act 101, which removes license requirements for certain home-canners who wish to sell their products to the public at community or social events, farmers' markets and farm roadside stands. The food safety standards in this rule will help protect the public from serious food safety hazards (including botulism) that may be associated with improperly home-canned products. The prevention of food safety problems promotes public confidence, and benefits the entire food industry including home-canners.

This emergency rule may encourage some home-canning hobbyists to sell their home-canned products at community or social events, at farmers' markets, or at their own farm roadside stands. That may have an adverse competitive impact on licensed canners who currently supply those sales outlets, although the adverse effect is likely to be minimal. Larger food canning businesses that supply canned food for the mass consumer market will not be significantly affected by this emergency rule.

This rule also exempts certain small maple sap processors from licensing under s, 97.29. The exemption will relieve those processors from unnecessary licensing costs and compliance burdens, while ensuring adequate food safety protection.

Small business regulatory coordinator

To provide comments or concerns relating to small business, you may also contact DATCP's small business regulatory coordinator Keeley Moll at the address below, or by emailing to [e-mail] or by telephone at [phone].

Environmental Impact

This rule will not have any significant environmental impact.

Fiscal Estimate

This rule will not have a significant fiscal impact on the state of Wisconsin or on local governments.

Agency Contact Person

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

Debbie Mazanec

Dept. of Agriculture, Trade and Consumer Protection

P.O. Box 8911

Madison, WI 53708-8911

Telephone [phone]

E-Mail: [e-mail]

Notice of Hearing

Agriculture, Trade and Consumer Protection

CR 10-045

The Wisconsin Department of Agriculture, Trade and Consumer Protection (DATCP) announces that it will hold a public hearing on a proposed rule to revise Chapter ATCP 127, Wis. Adm. Code, relating to adding cell numbers to Wisconsin's Telemarketing “No Call" List.

Hearing Information

Tuesday, June 8, 2010

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

Dept. of Agriculture, Trade and Consumer Protection

2811 Agriculture Drive, Board Room (CR-106)

Madison, Wisconsin, 53718-6777

Hearing impaired persons may request an interpreter for these hearings. Please make reservations for a hearing interpreter by June 11, 2010, by writing to Michelle Reinen, Division of Trade and Consumer Protection, P.O. Box 8911, Madison, WI 53708-8911, [e-mail], telephone [phone]. Alternatively, you may contact the DATCP TDD at [phone]. Handicap access is available at the hearings.

Submittal of Written Comments

DATCP invites the public to attend the hearing and comment on the rule. Following the hearing, the hearing record will remain open until Friday, June 25, 2010 for additional written comments. Comments may be sent to the Division of Trade and Consumer Protection at the address below, by email to [e-mail] or online https://health.wisconsin.gov/admrules/public/Home.

Copies of Proposed Rule

You may obtain a free copy of this rule by contacting the Wisconsin Department of Agriculture, Trade and Consumer Protection, Division of Trade and Consumer Protection, 2811 Agriculture Drive, P.O. Box 8911, Madison, WI 53708. You can also obtain a copy by calling [phone] or emailing [e-mail]. Copies will also be available at the hearings. To view the proposed rule online, go to: https://health.wisconsin.gov/admrules/public/Home.

Analysis Prepared by Department of Agriculture, Trade and Consumer Protection

The Department of Agriculture, Trade and Consumer Protection (DATCP) administers the Wisconsin's telemarketing “No Call" law, s. 100.52, Stats. The “No Call" law authorizes DATCP to create a list of telephone numbers of Wisconsin residents who do not want to receive telemarketing calls.

The law prohibits telemarketers from calling the listed numbers. Telemarketers must register with DATCP, and receive copies of the periodically-updated “No Call" list. DATCP has adopted rules to interpret and administer the “No Call" law, and prohibit unfair telemarketing practices. The rules are contained in ch. ATCP 127, Wis. Adm. Code.

When first enacted, the “No Call" law only authorized DATCP to include residential “land line" numbers on the “No Call" list. 2007 Act 226 changed the law to allow the inclusion of commercial mobile service numbers (cell phone numbers) on the “No Call" list. DATCP has already implemented that law change. This rule merely updates current rules to reflect current law and practice.

Statutes interpreted

Sections 100.20 (2) and 100.52, Wis. Stats.

Statutory authority

Sections 93.07 (1), 100.20 (2) and 100.52, Wis. Stats.

Explanation of agency authority

DATCP has general authority, under s. 93.07(1), Stats., to interpret laws under its jurisdiction. DATCP has authority, under s. 100.52, Stats., to create a list of the telephone numbers of residential consumers with landline service and consumers with cell phone service who do not want to receive telemarketing calls and prohibit telemarketing calls made to telephone numbers on the list. DATCP also has broad authority, under s. 100.20, Stats., to regulate methods of competition and trade practices in business.

Related rules or statutes

Chapter ATCP 127, subchapter II, Wis. Adm. Code, which is promulgated under the authority of s. 100.20(2), Wis. Stats., regulates the sales practice of persons who solicit consumers over the telephone.

Rule content

This rule does all of the following:

•   Changes the definition of “residential telephone customer" to “covered telephone customer" and defines this term to mean “an individual in this state who receives basic local exchange service or commercial mobile service from a telecommunications utility."

•   Changes the definition of “nonresidential telephone customer" to “noncovered telephone customer" and defines this term to mean “a person, other than a covered customer, who receives telecommunications service from a telecommunications utility."

•   Amends the definition of “telephone call" to include a voice communication “through the use of commercial mobile service."

•   Clarifies that the definition of “telecommunications utility" includes a person who provides commercial mobile service.

•   Renumbers the definitions and amends other parts of the rule to reflect changes in the definitions.

Comparison with federal regulations

Congress, the federal communications commission, and the federal trade commission have created a federal “No Call" list that includes cell phone numbers as well as land line numbers. The federal “No Call" regulations are not identical to Wisconsin regulations, and in some cases would allow calls that Wisconsin prohibits. However, the federal regulations do not preempt the more protective Wisconsin regulations.

Comparison with rules in adjacent states

Surrounding states, including Minnesota, Iowa, Illinois and Michigan have all adopted the federal “No Call" list as the state list. Indiana, like Wisconsin, maintains its own “No Call" list (the Indiana list, like the federal and Wisconsin lists, includes cell phone as well as land line numbers).

Small Business Impact

This rule will have few, if any, negative impacts on business. This rule simply updates the definitions and coverage of current rules to reflect law changes already enacted by the Legislature and implemented by DATCP.

To provide comments or concerns relating to small business, you may also contact DATCP's small business regulatory coordinator Keeley Moll at the address below, or by emailing to [e-mail]; telephone at [phone].

Fiscal Estimate

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

Agency Contact Person

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

Michelle Reinen, Program & Policy Analyst

Department of Agriculture, trade and Consumer Protection

P.O. Box 8911

Madison, WI 53708-8911

Phone: [phone]

EMail: [e-mail]

Notice of Hearing

Commerce

Financial Resources for Businesses and Communities, Chs. Comm 100—

EmR1008, CR 10-044

NOTICE IS HEREBY GIVEN that pursuant to section 560.033 of the Statutes, the Department of Commerce will hold a public hearing on emergency rules and proposed permanent rules to create Chapter Comm 124, relating to the Forward Innovation Fund, and affecting small businesses.

Hearing Information

The public hearing will be held as follows:

Date and Time:	Location:
May 26, 2010 Wednesday At 9:00 a.m.	Thompson Commerce Center Third Floor, Room 3B 201 West Washington Avenue Madison

This hearing will be held in an accessible facility. If you have special needs or circumstances that may make communication or accessibility difficult at the hearing, please call Sam Rockweiler at [phone] or at 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.

Submittal of Written Comments

Interested persons are invited to appear at the hearing and present comments on the emergency rules and proposed permanent rules. Persons making oral presentations are requested to submit their comments in writing, via e-mail. Persons submitting comments will not receive individual responses. The hearing record on this rulemaking will remain open until May 28, 2010, 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.

E-mail comments should be sent to [e-mail]. If e-mail submittal is not possible, written comments may be submitted to Sam Rockweiler, Department of Commerce, Division of Environmental and Regulatory Services, P.O. Box 14427, Madison, WI 53708-0427.

Copies of Emergency Rules and Proposed Permanent Rules

The emergency rules and proposed permanent rules and an analysis of the rules are available on the Internet by entering “Comm 124" in the search engine at the following Web site: https://health.wisconsin.gov/admrules/public/Home. Paper copies may be obtained without cost from Sam Rockweiler at the Department of Commerce, Division of Environmental and Regulatory Services, P.O. Box 14427, Madison, WI 53707, or at [e-mail], or at telephone [phone], or at Contact Through Relay. Copies will also be available at the public hearing.

Analysis Prepared by the Department of Commerce

Statutes interpreted

Sections 560.30 to 560.305.

Statutory authority

Sections 227.11 (2) (a) and 560.301, Stats.

Explanation of agency authority

Section 227.11 (2) (a) of the Statutes authorizes the Department to promulgate rules interpreting the provisions of any Statute administered by the Department. Section 560.301 of the Statutes requires the Department to promulgate rules for administering the Forward Innovation Fund, as established under subchapter II of chapter 560 of the Statutes.

Related statute or rule

The Department has various rules for administering several economic development programs, but those rules do not specifically include the rule text in this order for providing grants and loans that will fund innovative proposals to strengthen inner cities; rural municipalities; entrepreneurship; and industrial, academic and artistic clusters.

Plain language analysis

Under 2009 Wisconsin Act 28, the Department's Minority Business Development Fund and Community-Based Economic Development Fund were merged into the Forward Innovation Fund – and the corresponding rules in this order are expected to foster innovative start-up, expansion or retention of minority businesses and businesses in economically distressed areas. The rules in this order also address grants and loans for other entities that undertake innovative projects for strengthening inner cities; rural municipalities; entrepreneurship; and industrial, academic and artistic clusters.

Comparison with federal regulations

The U.S. Commerce Department is creating an Office of Innovation and Entrepreneurship and launching a National Advisory Council on Innovation and Entrepreneurship, to promote high-growth entrepreneurship in America. The mission is to maximize the economic potential of new ideas by removing barriers to entrepreneurship, and to foster the development of high-growth and innovation-based businesses. The Office will drive policies that help entrepreneurs translate new ideas, products and services into economic growth. The Office will focus on the following areas:

•   Encouraging entrepreneurs through education, training, and mentoring.

•   Improving access to capital.

•   Accelerating technology commercialization of federal research and development.

•   Strengthening interagency collaboration and coordination.

•   Providing data, research and technical resources for entrepreneurs.

•   Exploring policy incentives to support entrepreneurs and investors.

The Minority Business Development Agency in the U.S. Commerce Department has recently allocated $900,000 to seven minority business centers across the country to increase minority business access to contracting opportunities under the federal American Recovery and Reinvestment Act (ARRA). The funding will allow each center to hire at least one business development specialist to focus exclusively on ARRA to ensure minority businesses have access to federal, state and local contracting opportunities that are expected to create jobs, jumpstart growth and rebuild the economy.

Comparison with rules in adjacent states

None of the adjacent states were found to have rules that are likewise primarily directed at innovatively fostering business and community investment, job creation and retention, workforce development, and diversification of the state's economy, particularly in economically distressed areas and through minority businesses. However, the following programs in the adjacent states for enhancing community-based economic development and minority businesses appear to address some of the activities that are expected to occur under these proposed rules, for achieving this objective.

Michigan:

Michigan helps minority-owned businesses access State purchasing contracts by requiring bidders on State construction contracts to submit an equal-employment- opportunity plan. This plan describes in detail the equal-employment-opportunity efforts that the potential contract recipient has engaged in.

The Michigan State Housing Development Authority Board oversees several community and faith-based grant programs that focus on rural housing and economic development, housing counseling, community reinvestment, and Community Development Block Grants.

Minnesota:

Minnesota supports minority and inner-city business development through a Small Business Administration (SBA) Microloan program. The program helps women, low-income individuals, and minority entrepreneurs and business owners operate successful businesses, particularly in economically distressed areas. The SBA makes direct loans to eligible intermediary lenders who then make short-term loans to start-up, newly established, and growing small-business concerns. The loans can range from a few hundred dollars to $35,000. The SBA also makes grants to eligible intermediary lenders for providing marketing, management, and technical assistance to their borrowers.

Minnesota also assists economic-development efforts of a certain size in a specific area through a Certified Development Company loan program that provides joint federal and private-sector financing to small businesses – which creates jobs, increases the local tax base, and expands business-ownership opportunities. Long-term fixed-asset financing is provided by a Certified Development Company in conjunction with a second loan from a commercial lender.

Iowa:

Iowa does not appear to have a business-development program for minority-owned businesses, other than a certification program that is similar to Wisconsin's. However, Iowa has a grant program that is designed to assist low- to moderate-income entrepreneurs and microenterprises. A microenterprise is defined as a start-up, home-based or self-employed business which has five or fewer employees and which encounters barriers to obtaining business development assistance or to securing financing from conventional lending sources. Microenterprise development programs differ from traditional small business development programs by focusing on low- to moderate-income and low-wealth individuals, and on economically distressed communities and neighborhoods.

Iowa's community-based economic development programs range from Community Development Block Grant programs and Neighborhood Stabilization Grants to initiatives that support energy efficiency and conservation. They provide technical assistance and grant-writing workshops to assist communities in securing federal grants. Like Wisconsin, Iowa has a Mainstreet/Downtown program that funds renewal efforts for aged buildings and infrastructure.

Illinois:

The Illinois Business Enterprise Program promotes economic development for diverse businesses – such as those owned by minorities, women, and persons with disabilities – and awarded nearly $400 million to BEP-certified firms in 2009. The Illinois BEP-certification program operates very similarly to the Wisconsin minority-business certification program. The primary intent is to connect minority-business owners with State procurement opportunities, although in Illinois, State agencies and universities are encouraged to spend at least 19 percent of their procurement budgets with BEP-certified companies.

Illinois also has an Office of Urban Assistance that addresses the pressing economic needs of residents, businesses and stakeholders in the State's urban areas. The Office oversees an Employment Opportunities Grant Program; and implements new strategies such as an Urban Weatherization Initiative and an innovative, community-based Illinois Fresh Food Financing Initiative. The Office is also responsible for (1) incentivizing new industrial enterprises to locate in the urban areas of Illinois, thereby stimulating local economies and creating jobs; (2) gathering and providing information on revitalization efforts in urban areas to public and private entities; (3) recommending and formulating policies that result in the reconstruction of urban economies; and (4) recommending urban economic policies to the General Assembly and Governor relating to a wide variety of topics including housing, urban youth unemployment, and business incubators.

Summary of factual data and analytical methodologies

The data and methodology for developing these rules were derived from and consisted of (1) applying the corresponding provisions in 2009 Wisconsin Act 28; (2) incorporating applicable best practices the Department has developed in administering similar programs for economic development and business development; and (3) reviewing Internet-based sources of related federal, state, and private-sector information.

Analysis and supporting documents used to determine effect on small business

The primary document that was used to determine the effect of the rules on small business was 2009 Wisconsin Act 28. The proposed rules and the applicable portion of this Act apply their private-sector requirements only to entities that choose to pursue a corresponding grant or loan. No economic impact report was prepared.

Small Business Impact

The rules are expected to result in only beneficial effects on small business because the rules only address grants and loans for entities that undertake innovative projects for strengthening inner cities; rural municipalities; entrepreneurship; and industrial, academic and artistic clusters.

Initial regulatory flexibility analysis

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

Businesses choosing to pursue grants and loans for undertaking innovative projects for strengthening inner cities; rural municipalities; entrepreneurship; and industrial, academic and artistic clusters.

Reporting, bookkeeping and other procedures required for compliance with the rules.

An application form prescribed by the Department must be completed and submitted to the Department. Grants and loans that are awarded may be issued in conjunction with contracts that require periodic reporting of the ensuing performance.

Types of professional skills necessary for compliance with the rules.

No new professional skills are necessary for compliance with the rules.

Rules have a significant economic impact on small businesses?

No

Small business regulatory coordinator

Any inquiries for the small business regulatory coordinator for the Department of Commerce can be directed to Sam Rockweiler, as listed above.

Environmental Impact

The Department has considered the environmental impact of the proposed rules. In accordance with chapter Comm 1, the proposed rules are a Type III action. A Type III action normally does not have the potential to cause significant environmental effects and normally does not involve unresolved conflicts in the use of available resources. The Department has reviewed these rules and finds no reason to believe that any unusual conditions exist. At this time, the Department has issued this notice to serve as a finding of no significant impact.

Fiscal Estimate

Although the rules will newly result in review of documentation relating to applications and reports for grants or loans under this chapter, the time needed for these reviews is expected to be spent by current employees. Therefore, the proposed rules are not expected to have any significant fiscal effect on the Department.

The proposed rules are not expected to impose any significant costs on the private sector because the rules address submittal of documentation, and other activities, only by entities that choose to pursue obtaining grants or loans under this chapter.

State fiscal effect

None.

Local government fiscal effect

None.

Long-range fiscal implications

None known.

Agency Contact Person

Mark Richardson

Wisconsin Department of Commerce

Division of Business Development

P.O. Box 7970, Madison, WI 53703

Phone: [phone]

E-mail: [e-mail]

Notice of Hearing

Insurance

EmR1005, CR 10-043

NOTICE IS HEREBY GIVEN That pursuant to the authority granted under s. 601.41 (3), Stats., and the procedures set forth in ss. 227.18 and 227.24 (4), Stats., the Office of the Commissioner of Insurance (OCI) will hold a public hearing to consider the emergency rules and proposed permanent rules to create section Ins 3.36, Wis. Adm. Code, relating to autism spectrum disorders treatment and affecting small business.

Hearing Information

Date:   May 26, 2010

Time:   1:00 p.m., or as soon thereafter as the matter
  may be reached

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

Submittal of Written Comments

Written comments can be mailed to:

Julie E. Walsh

Legal Unit - OCI Rule Comment for Rule Ins 336

Office of the Commissioner of Insurance

PO Box 7873

Madison WI 53707-7873

Written comments can be hand delivered to:

Julie E. Walsh

Legal Unit - OCI Rule Comment for Rule Ins 336

Office of the Commissioner of Insurance

125 South Webster St – 2nd Floor

Madison WI 53703-3474

Comments can be emailed to:

Julie E. Walsh

[e-mail]

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

The deadline for submitting comments is 4:00 p.m. on the 10th day after the date for the hearing stated in this Notice of Hearing.

Copies of Proposed Rule and Fiscal Estimate

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

Analysis Prepared by the Office of the Commissioner of Insurance

Statutes interpreted

Sections 600.01, 628.34 (12), 632.895 (12m) Stats.

Statutory authority

Sections 600.01 (2), 601.41 (3), 601.42, 628.34 (12), 632.895 (12m), Stats.

Explanation of agency authority

The statutes all relate to the commissioner's authority to promulgate rules regulating the business of insurance as it relates to disability insurance products. Specifically, s. 632.895 (12m) (f), Wis. Stats., requires the commissioner to define “intensive-level services," “nonintensive-level services," “paraprofessional," and “qualified" for purposes of providing services under this subsection. The statute further authorizes that the commissioner may promulgate rules governing the interpretation or administration of this subsection.

Related statutes or rules

There are no other statutes or rules that mandate services for autism spectrum disorders. This rule creates a new section to implement the newly created mandate pursuant to 2009 Wis. Act 28.

Plain language analysis and summary of the proposed rule

Under 2009 Wisconsin Act 28, the Commissioner is required pursuant to s. 632.895 (12m), Stats., to define four terms: intensive level services, non-intensive level services, qualified, and paraprofessionals; and may draft rules that relate to the interpretation or administration of section.

To ensure clear understanding of current provider qualifications and treatment options for autism spectrum disorders, the Commissioner established the Autism Working Group. The work group was charged with advising the Commissioner on definitions for the four required terms and making recommendations on how the statute should be implemented. The group was composed of parents, providers, insurers, legislators and advocates. Administrators of the Waiver program at the Department of Health Services also participated. The group met every other week beginning June 23rd, 2009 until September 10th, 2009 and continues meeting on a quarterly basis.

The Waiver program was used as a baseline to discuss the implementation of the new mandate. Current literature on autism spectrum disorders and information from other states was presented to the working for review and consideration. Because the research and literature in the realm of autism treatments is rapidly evolving, the working group recommended defining “evidence-based" and “behavioral" rather than creating a list of approved therapies that could readily become outdated.

The proposed rule includes definitions of intensive level evidence-based behavioral therapy and non-intensive level evidence-based therapy. Based upon current research, the rule limits intensive level services to children aged 2 to 9 as this period of time has shown to be the optimum time for gains for individuals diagnosed with autism spectrum disorders. Building from the Waiver program, the working group developed a comprehensive regulation.

The proposed rule contains criteria necessary for one to be considered a qualified provider, qualified professional, qualified therapist and qualified paraprofessional. The criteria include a combination of educational, professional and specific training with individuals diagnosed with autism spectrum disorders and, for qualified paraprofessionals, specific requirements for supervised implementation of a treatment plan for the insured. The rule includes provisions to permit individuals who are currently providing services through the department's Waiver program to be deemed qualified for up to two years and to permit insurers and self-funded plans to contract with these individuals who are experienced but may not meet the “qualified" requirements. The proposed rule differentiates between treatment providers for intensive versus nonintensive-level services. For a psychiatrist, psychologist, social worker certified or licensed to practice psychotherapy or a professional working under the supervision of an outpatient mental health clinic to be considered qualified to provide intensive-level services, the rule delineates a combination of education, training and experience with individuals diagnosed with autism spectrum disorders.

A current, valid state-issued license or certificate is necessary in order for a psychiatrist, psychologist, social worker certified or licensed to practice psychotherapy, speech pathologist, or occupational therapist to be qualified to provide nonintensive-level services or to implement an intensive-level treatment plan. For a person who is a qualified professional working under the supervision of an outpatient mental health clinic, the clinic must be certified under s. 51.038, Stats., in order for the professional to provide nonintensive-level services or to implement an intensive-level treatment plan.

The proposed rule also establishes requirements for paraprofessionals, individuals who may only provide services while working under the supervision of a psychiatrist, psychologist or social worker certified or licensed to practice psychotherapy.

The rule also handles several administrative concerns. It allows insurers to deny claims they believe to be fraudulent, exclude travel time from the required hours of treatment and allocated dollars for treatment and permits dispute resolution through independent review organizations.

Comparison with federal regulations

Autism Treatment Acceleration Act of 2009 (S. 819, H.R. 2413) was proposed in May. If passed, Section 12 will require all insurance companies to provide coverage for evidence-based, medically-necessary autism treatments and therapies. A comparison of final federal requirements and state law and regulation will be reviewed if this act is passed.

Additionally, the ``Paul Wellstone and Pete Domenici Mental Health Parity and Addiction Equity Act of 2008'' (29 U.S.C. 1185a), requires group health plans that offer both medical and surgical benefits and mental health or substance use disorder benefits to ensure financial and treatment limitations are no more restrictive than the predominant financial requirements applied to substantially all medical and surgical benefits covered by the plan. Further, the federal law does not permit separate cost-sharing requirements that are applicable only with respect to mental health or substance-use disorder benefits.

The federal government issued interim final rules implementing the Mental Health Parity and Addiction Equity Act of 2008 (MHPAEA) on February 5, 2010. Although the interim rules do not specifically define what constitutes a mental health condition, the newly issued rules provide some guidance to states and insurers. The MHPAEA rules are first effective July 1, 2010 to newly-issued plans or upon the renewal, extension or modification on or after July 1, 2010. The MHPAEA rules require mental health benefits to be defined within the plan by the issuer in accordance with federal and state law and consistent with generally recognized independent standards of current medical practice including the most current version of the Diagnostic and Statistical Manual of Mental Disorders (DSM). The DSM, most current version IV, contains diagnostic criteria for “autistic disorder." Although there is no direct federal guidance that autism spectrum disorders are subject to federal parity requirements, it is the position of the Commissioner that parity for autism services does apply to group health plans with more than 50 employees based upon preliminary review of the regulations.

Wisconsin's law is broader than the federal law, as it mandates inclusion of mental health, alcohol and other substance abuse benefits. Further, Wisconsin's autism treatment mandate applies to individual, small employer and governmental self-funded health plans in addition to group health plans with more 50 employees. The individual, small employer and governmental self-funded plans will remain subject to these mandates as they are not regulated by the federal government.

Comparison of similar rules in adjacent states

Illinois:

Public Act 95-1005 requires private insurers cover autism benefits for children under 21 years of age. No rule-making accompanied this law, however, the statute does include Applied Behavioral Analysis, intervention, and modification as a part of the covered behavioral treatments. The law is subject to pre-existing condition limitations. It is also subject to denials based on medical necessity.

Iowa:

A Bill, SF 1, was introduced in the Iowa legislature this year but did not pass. There are no other similar laws or rules in Iowa.

Michigan:

Two bills, HB 4183 and 4176, requiring autism coverage, have passed the Michigan House; however, they are not expected to reach a vote this year. There are no other similar laws or rules in Michigan.

Minnesota:

Section 62A.3094 was enacted and became effective August 1, 2009. The mandate requires coverage for the diagnosis, evaluation, assessment and medically necessary care for autism spectrum disorders including intensive evidence-based behavior therapy, behavior services, speech therapy, occupational therapy, physical therapy and medications.

Summary of factual data and analytical methodologies

The Commissioner created an advisory Autism Working Group to assist in the development of workable definitions of “intensive" and “nonintensive" level services; “qualified" providers and “paraprofessionals." The advisory working group was comprised of providers, insurers, advocates, parents of autistic children and representatives from the Department of Health Services familiar with the Medicaid Waiver program for autism services. The working group met seven times between June 23 and September 10, 2009, and continues to meet quarterly. This proposed rule reflects the advisory working group's recommendations.

Analysis and supporting documentation used to determine rule's effect on small businesses

There are no insurers offering disability insurance or state or local governmental self-funded entities that meet the definition of a small business.

Small Business Impact

This rule will have little or no effect on small businesses and does not impose any additional requirements on small businesses.

Small business regulatory coordinator

The OCI small business coordinator is Eileen Mallow and may be reached at phone number [phone] or at email address [e-mail].

Fiscal Estimate

This rule change will have no significant effect on the private sector regulated by OCI.

There will be no state or local government fiscal effect

Agency Contact Person

Inger Williams, OCI Services Section

Address:   125 South Webster Street, 2nd Floor
  Madison WI 53703-3474

Mail:   PO Box 7873
  Madison, WI 53707-7873

Phone:   [phone]

Email:   [e-mail]

Notice of Hearing

Natural Resources

Fish, Game, etc., Chs. NR 1—

CR 10-051

(DNR # WM-02-10)

NOTICE IS HEREBY GIVEN that pursuant to ss. 29.011, 29.014, 29.024, 29.03, 29.053(3), 29.192, 29.193, 29.885, 169.21, 169.39 and 227.11, Stats., the Department of Natural Resources will hold a public hearing to consider revisions to Chapters NR 8, 10, 12 and 17, Wis. Adm. Code relating to license and permit procedures, game and hunting, wildlife damage and nuisance control and dog trials and training.

Hearing Information

Date and Time:   Location:

June 7, 2010   Natural Resources State Office Bldg.
Monday   Room 613
at 2:00 PM   101 S. Webster Street
  Madison, WI

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 Scott Loomans at [phone] with specific information on your request at least 10 days before the date of the scheduled hearing.

Copies of Proposed Rule and Submittal of Written Comments

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 Mr. Scott Loomans, Bureau of Wildlife Management, P.O. Box 7921, Madison, WI 53707. Comments may be submitted until June 8, 2010. 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 Mr. Loomans.

Analysis Prepared by Department of Natural Resources

Statutory authority

Sections 29.011, 29.014, 29.024, 29.03, 29.053(3), 29.192, 29.193, 29.885, 169.21, 169.39 and 227.11, Stats.

Statutes interpreted

Sections 29.011, 29.014, 29.024, 29.03, 29.053(3), 29.192, 29.193, 29.324, 29.592, 29.885, 169.21, 169.39 and 227.11, Stats.

Plain language rule analysis

The intent of these rule changes is to correct drafting errors, provide clarification to existing rules, simplify regulations, and update administrative code language and references. Policy issues affected by this rule are ones which have already been addressed by previous rulemaking. The proposed rules will:

1. Allow customers to request free hard copies of turkey, pheasant, trout, waterfowl or salmon stamps through the phone, a designated county clerk's office, or any department office that provides counter service.

2. Update agency contact information and requirements for administration of the Wildlife Violator Compact Program.

3. Clarify that a person who may only hunt with a mentor, and the mentor with whom they are hunting, can group hunt for deer even though they are only allowed to possess or control one firearm jointly. The season must be open for both hunters, they must be hunting within arms reach of one another, and both must possess the proper licenses and permits. This is consistent with s. 29.324, Stats., related to group hunting and simplifies the explanation of how this law applies during a mentored hunt.

4. Eliminate extraneous deer hunting season language and add a cross reference to update language following the 2006 sunset of a two-year experiment with seasons that did not include October antlerless only deer hunts.

5. Eliminate the description of where hunting is allowed at Big Bay state park because it is unnecessary and the only state park for which such language is established in code.

6. Update a cross reference related to the hours when hunting is allowed.

7. Clarify that in addition to .410 shotguns, it is also illegal to hunt deer, bear or elk with handguns which fire .410 shotgun slugs.

8. Update cross references related to deer registration and deer carcass tags in the CWD zone.

9. Clarify that enforcement action can be taken against a person who fails to report bobcat harvest as required.

10. Repeal a redundant, unnecessary prohibition on hunting from a roadway specifically for wild turkeys.

11. Clarify that when the assistant to a disabled hunter uses a firearm to aid in retrieval of a deer or turkey that has been shot by the disabled hunter, the assistant needs to possess a deer hunting license or any license that authorizes hunting when retrieving a turkey.

12. Clarify that disabled hunters participating in special hunts may tag a deer of either sex with their gun buck carcass tag and additional antlerless deer if they possess valid tags for that unit.

13. Move a provision to a more proper location in order to simplify code language about the removal of nuisance animals.

14. Clarify that a federal permit for the removal of certain nuisance animals can serve as the state permit in order to reduce paperwork. The state could still review permits.

15. Clarify that deer may be shot under the authority of nuisance permits on the day before the opening of nine day gun season in the CWD Management Zone where other firearm hunting is also allowed on that day. Outside the CWD Management Zone, hunting with firearms for species other than waterfowl would continue to be prohibited.

16. Clarify that hunters under the authority of damage and nuisance program permits can retain more than one deer when authorized by the department.

17. Clarify that pen standards apply to captive coyote, fox and rabbit when being transported or for the purpose of health care or treatment and special handling needs. These standards already apply for animals possessed under the authority of Ch. NR 16 related to captive wildlife and to bear, bobcat and raccoon possessed under the authority of Ch. NR 17, dog trials and training.

Related statute or rule

There are no state rules or statutes currently under promulgation that directly relate to the provisions that are proposed in this administrative order.

Comparison with federal regulations

These state rules and statutes do not relieve individuals from the restrictions, requirements and conditions of federal statutes and regulations. Regulating the hunting and trapping of native species has been delegated to state fish and wildlife agencies. Additionally, none of the proposed rules exceed the authorities granted to states in 50 CFR part 10.

Comparison with rules in adjacent states

These rule change proposals do not represent significant policy changes and do not differ significantly from surrounding states. All surrounding states have regulations and rules in place for the management and recreational use of wild game and furbearer species that are established based on needs that are unique to that state's resources and public desires.

Summary of factual data and analytical methodologies

This rule order is necessary to correct inconsistencies created through the promulgation of other rules and statutes, update code language, correct previous drafting errors, and to clarify existing administrative code language. The rule changes included in this order do not deviate from current department policy on the management of wildlife and the regulation of hunting and trapping.

Small Business Impact

Pursuant to s. 227.114, Stats., it is not anticipated that the proposed rules will have a significant economic impact on small businesses.

The Department's Small Business Regulatory Coordinator may be contacted at [e-mail] or by calling [phone].

Environmental Impact

The Department has made a preliminary determination that this action does not involve significant adverse environmental effects and does not need an environmental analysis under ch. NR 150, Wis. Adm. Code. However, based on the comments received, the Department may prepare an environmental analysis before proceeding with the proposal. This environmental review document would summarize the Department's consideration of the impacts of the proposal and reasonable alternatives.

Fiscal Estimate

State fiscal effect

None.

Local government fiscal effect

None.

Anticipated private sector costs

These rules, and the legislation which grants the department rule making authority, do not have a significant fiscal effect on the private sector. Additionally, no significant costs are associated with compliance to these rules.

Long-range fiscal implications

None are anticipated.

Agency Contact Person

Scott Loomans

101 South Webster Street

PO Box 7921

Madison, WI 53707-7921

Phone: [phone]

Email: [e-mail]

Notice of Hearings

Natural Resources

Environmental Protection — Air Pollution Control,
Chs. NR 400—

CR 10-046

(DNR # AM-06-10)

NOTICE IS HEREBY GIVEN That pursuant to ss. 227.16 and 227.17, Stats, the Department of Natural Resources, hereinafter the Department, will hold public hearings on amending and creating rules affecting Chapter NR 410, relating to increased and new fees for asbestos notifications and inspections and affecting small business.

Hearing Information

Date and Time:   Location:

June 3, 2010   Natural Resources State Office Bldg.
Thursday   Room G09
at 1:30 PM   101 S. Webster St.
  Madison, WI

June 4, 2010   Northcentral Technical College
Friday   Main Building, Room E101
at 11:00 AM   1000 West Campus Drive
  Wausau, WI

Reasonable accommodations, including the provision of informational material in an alternative format, will be provided for qualified individuals with disabilities upon request. Contact Robert B. Eckdale in writing at the Department of Natural Resources, Bureau of Air Management (AM/7), 101 S Webster, Madison, WI 53707; by E-mail to [e-mail]; or by calling [phone]. A request must include specific information and be received at least 10 days before the date of the scheduled hearing.

Copies of the proposed rules and fiscal estimate

The proposed rule and supporting documents, including the fiscal estimate, may be viewed and downloaded from the Administrative Rules System Web site which can be accessed through the link provided on the Proposed Air Pollution Control Rules Calendar at http://www.dnr.state.wi.us/ air/rules/calendar.htm. If you do not have Internet access, a printed copy of the proposed rule and supporting documents, including the fiscal estimate, may be obtained free of charge by contacting Robert B. Eckdale, Department of Natural Resources, Bureau of Air Management (AM/7), 101 S. Webster St., Madison, WI 53703, or by calling [phone].

Submittal of Written Comments

Comments on the proposed rule must be received on or before June 8, 2010. Written comments may be submitted by U.S. mail, fax, E-mail, or through the Internet and will have the same weight and effect as oral statements presented at the public hearing. Written comments and any questions on the proposed rules should be submitted to:

William Baumann

Department of Natural Resources

Bureau of Air Management (AM/7)

101 S. Webster Street, Madison, WI 53703

Phone: [phone]

Fax:   [phone]

E-mail:   [e-mail]

Internet:   Use the Administrative Rules System Web site accessible through the link provided on the Proposed Air Pollution Control Rules Calendar at http://dnr.wi.gov/air/rules/calendar.htm

Analysis Prepared by the Department of Natural Resources

Statute interpreted

Section 285.69 (3), Stats.

Statutory authority

Sections 227.11 (2a), 285.11 (1), and 285.69 (3), Stats.

Explanation of agency authority

Sections 227.11 (2) (a) and 227.14 (1), Stats., expressly convey rulemaking authority. Section 285.69 (3), Stats., conveys authority to establish fees for specified department activities, and sets maximum levels for those fees.

Related statute or rule

Chapter NR 447 contains regulations related to asbestos abatement activities.

Plain language analysis

The rules amended and created by this proposed order increase fees for certain Department of Natural Resources (Department) asbestos regulatory activities, and create new fees for asbestos regulatory activities related to fire training burns and revised asbestos notifications. These additional fees will offset decreases in federal United States Environmental Protection Agency (EPA) Air Pollution Control grant funds that had previously been used to fund (in part) Department asbestos regulatory activities.

Comparison with federal regulations

Chapter NR 447 contains asbestos regulatory requirements, which parallel corresponding federal regulations. The rule changes and additions proposed in this order change the fees used to fund Department asbestos regulatory activities, but do not affect the underlying regulatory requirements themselves. There is no federal counterpart to the ch. NR 410 fee rule.

Comparison with rules in adjacent states

Illinois, Iowa, Michigan, and Minnesota each operate federally delegated asbestos programs. Iowa, Michigan, and Minnesota each fund their respective asbestos programs with federal grant funds. Illinois, similar to Wisconsin, funds their asbestos program activities through fees charged for asbestos notifications. Illinois fees are $150 per notification, regardless of other factors (size of project, etc.). If a notification is received late, an additional $300 is charged to the contractor. Lab analysis costs may be charged to the owner or operator in large enforcement cases, along with employee overtime costs that result from enforcement cases.

Summary of factual data and analytical methodologies

The Asbestos Program is funded by asbestos inspection and permit exemption review fees paid by persons who perform asbestos abatement as part of nonresidential demolition and certain renovation projects. In addition, asbestos program funding has been supplemented by the equivalent of 2.0 full time employees (FTE) from the EPA federal Air Pollution Control grant (105 grant). Asbestos program fees currently fund 2.0 permanent FTE, two half-time limited term employee (LTE) field inspection positions, and four contracts with the following government agencies to perform inspections on behalf of the Department's Air Management Asbestos Program: City of Menasha; City of Milwaukee, Sauk County, and Waushara County. Due to declining levels of 105 grant funds, that funding source can no longer be used to fund asbestos program activities. Consequently, additional asbestos fee revenue is needed to replace 2.0 FTE of funding from the 105 grant, and thus maintain present levels of asbestos program staffing and public health protection activities.

Analysis and supporting documents used to determine the effect on small business

Asbestos related regulatory requirements are not changed by the proposed rules. The proposed rules do increase notification fees for asbestos related projects. See “Effect on small business" section below.

Small Business Impact

Asbestos related regulatory and reporting requirements will not be changed by the proposed rules. The proposed rules will increase notification fees for asbestos related renovation and demolition activities. The fees increases vary according to the quantity of asbestos involved in a renovation or demolition project, and the increases range from $60 per project for small projects (less than 160 square feet or less than 260 linear feet of asbestos containing material) to $575 per project for very large projects (more than 5000 combined linear and square footage of asbestos containing materials). On the order of 1600 project notifications are received annually. It is not possible to predict the number of these projects that will be undertaken by small businesses.

The Small Business Regulatory Coordinator may be contacted at [e-mail], or by calling [phone].

Environmental Impact

The Department has made a preliminary determination that adoption of the proposed rules would not involve significant adverse environmental effects and would not need an environmental analysis under ch. NR 150, Wis. Adm. Code. However, based on comments received, an environmental analysis may be prepared before proceeding. This analysis would summarize the Department's consideration of the impacts of the proposal and any reasonable alternatives.

Fiscal Estimate

The 2009-11 Budget Bill increased asbestos inspection fees to: $135 for small asbestos abatement projects, defined as 160 square feet to 260 linear feet; $350 for medium, defined as involving greater than 160 square feet or 260 linear feet but less than 1,000 combined feet; $575 for large, defined as greater than or equal to 1,000 combined feet but less than 5,000 combined feet, and $1,200 for extra large, defined as greater than 5,000 combined feet. These new fees are approximately a 60% increase from the current fees. The bill also created a new $100 fee for notification revisions and a new $100 fee for community fire training burns. Finally, the bill provided supporting statutory language for the above-mentioned fees and for the Department to charge double inspection fees to a project for which a notice of an asbestos renovation or demolition activity was not provided, as required by the Department.

It is projected that the increased fees will generate $246,400 annually.

Agency Contact Person

Bill Baumann

P.O. Box 7921

Madison, WI 53707

Phone:   [phone]

Fax:   [phone]

Email:   [e-mail]

Notice of Hearings

Natural Resources

Environmental Protection — Air Pollution Control,
Chs. NR 400—

CR 10-047

(DNR # AM-09-10)

NOTICE IS HEREBY GIVEN That pursuant to ss. 227.16 and 227.17, Stats, the Department of Natural Resources, hereinafter the Department, will hold a public hearing on revising Chapter NR 410, relating to fees for reviewing applications for construction of air pollution sources and affecting small business.

Hearing Information

Date and Time:   Location:

June 7, 2010   Natural Resources State Office Bldg.
Monday   Room G09
at 3:00 PM   101 S. Webster Street
  Madison, WI

June 8, 2010   Havenwoods — Auditorium
Tuesday   6141 N. Hopkins
at 2:00 PM   Milwaukee, WI

June 9, 2010   Northcentral Technical College
Wednesday   Main Building, Room E101
at 2:30 PM   1000 West Campus Drive
  Wausau, WI

Reasonable accommodations, including the provision of informational material in an alternative format, will be provided for qualified individuals with disabilities upon request. Contact Robert B. Eckdale in writing at the Department of Natural Resources, Bureau of Air Management (AM/7), 101 S Webster, Madison, WI 53707; by E-mail to [e-mail]; or by calling [phone]. A request must include specific information and be received at least 10 days before the date of the scheduled hearing.

Copies of the proposed rules and fiscal estimate

The proposed rule and supporting documents, including the fiscal estimate, may be viewed and downloaded from the Administrative Rules System Web site which can be accessed through the link provided on the Proposed Air Pollution Control Rules Calendar at http://www.dnr.state.wi.us/ air/rules/calendar.htm. If you do not have Internet access, a printed copy of the proposed rule and supporting documents, including the fiscal estimate, may be obtained free of charge by contacting Robert Eckdale, Department of Natural Resources, Bureau of Air Management (AM/7), 101 S. Webster St., Madison, WI 53703, or by calling [phone].

Submittal of Written Comments

Comments on the proposed rule must be received on or before June 14, 2010. Written comments may be submitted by U.S. mail, fax, E-mail, or through the Internet and will have the same weight and effect as oral statements presented at the public hearing. Written comments and any questions on the proposed rules should be submitted to:

Andrew Stewart

Department of Natural Resources

Bureau of Air Management (AM/7)

101 S. Webster Street, Madison, WI 53703

Phone:   [phone]

Fax:   [phone]

E-mail:   [e-mail]

Internet:   Use the Administrative Rules System Web site accessible through the link provided on the Proposed Air Pollution Control Rules Calendar at http://dnr.wi.gov/air/rules/calendar.htm

Analysis Prepared by the Department of Natural Resources

Statutes interpreted

Sections 227.11 (2), 285.11 (1) and (6), 285.14 (1), Stats. The State Implementation Plan developed under s. 285.11(6), Stats., is revised.

Statutory authority

Sections 285.11, 285.69 (1) and (1d), Wis. Stats.

Explanation of agency authority

Section 227.11 (2) (a), Stats., gives state agencies general rulemaking authority. Section 285.11, Stats., gives the Department authority to promulgate rules consistent with ch. 285, Stats. Section 285.69 gives the department the authority to promulgate rules for the payment and collection of reasonable fees for construction permit related activities.

Related statute or rule

None.

Plain language analysis

The proposal is to increase fees for construction permit related actions to ensure that the new source review program has adequate funding to perform it's duties in accordance with requirements and deadlines mandated under s. 285.61, Wis. Stats.

Comparison with federal regulations

Existing federal regulations require, but do not set, fees for review of construction permit applications. Section 110(a)(2)(E)(i) of the Clean Air Act requires that any government who wishes to carry out a State Implementation Plan have ``adequate personnel, funding, and authority under State law to do so." Wisconsin's new source review program is an approved part of the State Implementation Plan and therefore requires adequate funding. US EPA last approved a revision to Wisconsin's State Implementation Plan for a fee related provision on March 11, 2008. [73 FR 12893].

Comparison with similar rules in adjacent states

Other state agencies were contacted to obtain information regarding their air permit programs. While an attempt was made to do a direct comparison, it proves to be difficult since the funding sources and fee structures differ from state to state. No state was able to provide accurate, average costs of different types of construction permit reviews. Based on the review conducted, it appears that fees proposed in this order are similar to those being charged for similar activities in adjacent states having a fee based construction permit program.

Illinois and Indiana:

Illinois and Indiana have similar programs to Wisconsin where their new source review program is funded mainly by construction permit fees. Illinois last raised their fees in 2004, Indiana in 2007.

Michigan:

Michigan relies on general funding for their new source review program. Communications with Michigan indicate there have been internal proposals in Michigan to establish permit fees to help fund the new source review program, but none have moved forward at this time.

Minnesota:

Minnesota currently has a proposal to raise construction permit fees and to structure the fees much like Wisconsin, Illinois, and Indiana. Their proposal would have core activities paid through permit fees. Major reasons given for their proposal to raise fees are that the cost and complexity associated with new source review has increased significantly over the years. Minnesota's current fee structure attempts to base the amount on the level of effort needed to review and issue the air permit. Iowa funds its new source review program through grants and general funds. There are two local Iowa air pollution control agencies that do charge construction permit fees to fund new source review.

Comparisons for fees common to adjacent states

	Illinois	Indiana	Minnesota	Wisconsin (current)	Wisconsin (proposed)
Initial Application Fee	$5,000	No fee	No fee	$1,350	$7,500
BACT/LAER Determination	$5,000	$4,375	$4,275	$2,700	$4,500
Case by case MACT Determination	$5,000	No fee	No fee	$2,700	$4,500
Detailed Modeling Analysis	No fee	$4,375	$4,275	$3,200	$4,500
Public Hearing	$10,000	$625	No fee	$150	$950
Application for Major Modification	$8,000/$12,000	$10,000	No fee	$8,000	$12,000

Summary of factual data and analytical methodologies

Data related to revenues generated by new source fees for FY05-FY09, along with projected work load and costs to administer the new source review program, were used to develop and support this order.

Annual new source review program cost

Estimates were made as to the type and number of construction permit reviews to be conducted in the upcoming fiscal year. For each of these, the level of program effort required to complete each type of review was determined. These levels of efforts then were used to estimate the annual cost to administer the construction permit program, taking into account estimated costs for program staff.

Individual fee increases

A 30% increase was applied to fees last revised in 1999 to account for inflation over the last 11 years. An additional increase was also applied to each fee category to better reflect the level of effort associated with the fee related action. Estimates were made as to the number of fee related actions associated with each type of permit review. These estimate were used in conjunction with the proposed fee to determine that the projected future revenue is sufficient to cover the annual program cost.

Analysis and supporting documents used to determine the effect on small business

The same information described under number 8. was used to determine the effect on small business. No economic impact report has been requested.

Small Business Impact

The cost to small business to obtain a minor construction permit is proposed to increase in the range of 30 to 75 percent depending on the air regulations applicable to the project. The current cost of a minor construction permit sometimes associated with small business, ranges from $6,000 to $8,000.

Many small businesses are able to qualify for coverage under general or registration permits in lieu of needing to obtain a minor construction permit. Currently there is no charge for review and issuance for this type of coverage. New fees are being proposed in this order for reviewing and issuing coverage under a general or registration construction permit, establishing the fee for a general construction permit at $1,500 and a registration construction permit at $1,000.

The Small Business Regulatory Coordinator may be contacted at [e-mail] , or by calling [phone].

Environmental Impact

The Department has made a preliminary determination that adoption of the proposed rules would not involve significant adverse environmental effects and would not need an environmental analysis under ch. NR 150, Wis. Adm. Code. However, based on comments received, an environmental analysis may be prepared before proceeding. This analysis would summarize the Department's consideration of the impacts of the proposal and any reasonable alternatives.

Fiscal Estimate

A revenue increase to the state of $1,334,307 is projected based on a four year actual average for revenue generated through new source review fees for FY2006-2009 of $1,647,293.

This proposal does not seek to authorize an increase to Chapter 20 spending authority.

Agency Contact Person

Andrew Stewart

P.O. Box 7921

Madison, WI   53707

Phone:   [phone]

Fax:   [phone]

Email:   [e-mail]

Notice of Hearings

Natural Resources

Environmental Protection — Air Pollution Control,
Chs. NR 400—

CR 10-048

(DNR # AM-12-10)

NOTICE IS HEREBY GIVEN That pursuant to ss. 227.16 and 227.17, Stats, the Department of Natural Resources, hereinafter the Department, will hold public hearings on creating rules affecting Chapters NR 400, 405, and 406, relating to permit requirements for Class I areas, and affecting small business.

Hearing Information

Date and Time:   Location:

June 7, 2010   Natural Resources State Office Bldg.
Monday   Room G09
at 2:00 PM   101 S. Webster Street
  Madison, WI

June 9, 2010   Northcentral Technical College
Wednesday   Main Building, Room E101
at 1:30 PM   1000 West Campus Drive
  Wausau, WI

Reasonable accommodations, including the provision of informational material in an alternative format, will be provided for qualified individuals with disabilities upon request. Contact Robert B. Eckdale in writing at the Department of Natural Resources, Bureau of Air Management (AM/7), 101 S Webster, Madison, WI 53707; by E-mail to [e-mail]; or by calling [phone]. A request must include specific information and be received at least 10 days before the date of the scheduled hearing.

Copies of the proposed rules and fiscal estimate

The proposed rule and supporting documents, including the fiscal estimate, may be viewed and downloaded from the Administrative Rules System Web site which can be accessed through the link provided on the Proposed Air Pollution Control Rules Calendar at http://www.dnr.state.wi.us/ air/rules/calendar.htm. If you do not have Internet access, a printed copy of the proposed rule and supporting documents, including the fiscal estimate, may be obtained free of charge by contacting Robert Eckdale, Department of Natural Resources, Bureau of Air Management (AM/7), 101 S. Webster St., Madison, WI, 53703, or by calling [phone].

Submittal of Written Comments

Comments on the proposed rule must be received on or before June 14, 2010. Written comments may be submitted by U.S. mail, fax, E-mail, or through the Internet and will have the same weight and effect as oral statements presented at the public hearing. Written comments and any questions on the proposed rules should be submitted to:

Steve Dunn

Department of Natural Resources

Bureau of Air Management (AM/7)

101 S. Webster Street, Madison, WI 53703

Phone:   [phone]

Fax:   [phone]

E-mail:   [e-mail]

Internet:   Use the Administrative Rules System Web site accessible through the link provided on the Proposed Air Pollution Control Rules Calendar at http://dnr.wi.gov/air/rules/calendar.htm

Analysis Prepared by the Department of Natural Resources

Statute interpreted

The State Implementation Plan developed under s. 285.11 (6), Stats., is revised.

Statutory authority

Sections 227.11 (2) (a) and 285.11 (1) and (6), Stats.

Explanation of agency authority

Section 227.11 (2) (a), Stats., gives state agencies general rulemaking authority. Section 285.11 (1), Stats., gives the Department authority to promulgate rules consistent with ch. 285, Stats. Section 285.11 (6), Stats., requires the Department to develop a plan for abatement of air pollution in the State. The permitting program, in general, and these regulations specifically, is part of that plan.

These rules are based on federal rules as well as a 1999 Final Agreement reached between the State and the Forest County Potawatomi Community (FCPC).

Related statute or rule

The FCPC Class I area was established as part of a Federal Implementation Plan approved by USEPA in an April 29, 2008 Federal Register Notice.

Plain language analysis

This rule is being proposed to amend portions of Department rules to incorporate the federal re-designation of certain parcels of the Forest County Potawatomi Community Reservation as a non-Federal Class I area for the prevention of significant deterioration (PSD) of air quality, and to include portions of a 1999 Final Agreement reached between the State and the Forest County Potawatomi Community concerning the Class I area.

A Class I area is defined in ch. NR 405, Wis. Adm. Code. In general, the PSD program is designed to preserve air quality in Class I areas such as national parks and other areas meeting National Ambient Air Quality Standards. Class I areas are subject to lower allowable increases in ambient concentrations of particulate matter, sulfur dioxide, and nitrogen dioxide.

Comparison with federal regulations

In an April 29, 2008, Federal Register Notice, the USEPA established the FCPC Class I area. The Department and the FCPC have agreed to provisions impacting the FCPC Class I area that USEPA stated, in the April 29, 2008, notice, need to be promulgated as part of the State's Implementation Plan for controlling air pollution in order to be effective for federal purposes.

Comparison with similar rules in adjacent states

There are no non-federal Class I areas or non-federal Class I rules in any of these states.

Summary of factual data and analytical methodologies

The proposed rule is based on the federal re-designation of the FCPC Reservation lands to non-federal Class I, and the Final Agreement.

Analysis and supporting documents used to determine the effect on small business

An analysis of the effect of the proposed rules on small business was not performed since the proposed rule only impacts major sources of air pollution in the State and conforms to federal requirements. Major sources of air pollution are not typically small businesses.

Small Business Impact

These rules should not have a significant economic impact on small business because major air pollution sources do not generally meet the definition of a small business.

The Small Business Regulatory Coordinator may be contacted at [e-mail], or by calling [phone].

Environmental Impact

The Department has made a preliminary determination that adoption of the proposed rules would not involve significant adverse environmental effects and would not need an environmental analysis under ch. NR 150, Wis. Adm. Code. However, based on comments received, an environmental analysis may be prepared before proceeding. This analysis would summarize the Department's consideration of the impacts of the proposal and any reasonable alternatives.

Fiscal Estimate

The proposed rules amend the existing air permitting rules to include a non-federal Class air quality area. The Department already processes air permits which may impact existing Class I areas and expects no significant change in permit workload as a result of this rule.

Agency Contact Person

Steven Dunn

P.O. Box 7921

Madison, WI   53707

Phone:   [phone]

Fax:   [phone]

Email:   [e-mail]

Notice of Hearing

Natural Resources

Environmental Protection — Air Pollution Control,
Chs. NR 400—

CR 10-049

(DNR # AM-13-10)

NOTICE IS HEREBY GIVEN That pursuant to ss. 227.16 and 227.17, Stats., the Department of Natural Resources, hereinafter the Department, will hold a public hearing on proposed rules revising Chapters NR 484 and 485, relating to the motor vehicle inspection and maintenance program and affecting small business. The proposed revisions relate to issues for State Implementation Plan approvability; and the State Implementation Plan developed under s. 285.11 (6), Stats., will be revised.

Hearing Information

Date and Time:   Location:

June 10, 2010   Mead Public Library
Thursday   Rocca Meeting Room
at 1:30 PM   710 North 8th Street
  Sheboygan, WI

Reasonable accommodations, including the provision of informational material in an alternative format, will be provided for qualified individuals with disabilities upon request. Contact Robert B. Eckdale in writing at the Department of Natural Resources, Bureau of Air Management (AM/7), 101 S Webster, Madison, WI 53707; by E-mail to [e-mail]; or by calling [phone]. A request must include specific information and be received at least 10 days before the date of the scheduled hearing.

Copies of the proposed rules and fiscal estimate

The proposed rule and supporting documents, including the fiscal estimate, may be viewed and downloaded from the Administrative Rules System Web site which can be accessed through the link provided on the Proposed Air Pollution Control Rules Calendar at http://www.dnr.state.wi.us/ air/rules/calendar.htm. If you do not have Internet access, a printed copy of the proposed rule and supporting documents, including the fiscal estimate, may be obtained free of charge by contacting Robert B. Eckdale, Department of Natural Resources, Bureau of Air Management (AM/7), 101 S. Webster St., Madison, WI, 53703, or by calling [phone].

Submittal of Written Comments

Comments on the proposed rule must be received on or before Monday, June 21, 2010. Written comments may be submitted by U.S. mail, fax, E-mail, or through the Internet and will have the same weight and effect as oral statements presented at the public hearing. Written comments and any questions on the proposed rules should be submitted to:

Chris Bovee

Department of Natural Resources

Bureau of Air Management (AM/7)

101 S. Webster Street, Madison, WI 53703

Phone:   [phone]

Fax:   [phone]

E-mail:   [e-mail]

Internet:   Use the Administrative Rules System Web site accessible through the link provided on the Proposed Air Pollution Control Rules Calendar at http://dnr.wi.gov/air/rules/calendar.htm

Analysis Prepared by the Department of Natural Resources

Statute interpreted

Sections 110.20 (13) (b), 285.11 (6) and 285.30 (2), Wis. Stats. The State Implementation Plan developed under s. 285.11 (6), Stats., is revised.

Statutory authority

Sections 110.20 (13) (b), 227.11 (2) (a), 285.11 (1) and 285.30 (2), Wis. Stats.

Explanation of agency authority

Section 110.20 (13)(b), Stats., gives the Department authority to establish the amount of the repair cost limit for the vehicle inspection and maintenance program. Section 227.11 (2) (a), Stats., gives agencies general rulemaking authority. Section 285.11(1), Stats., gives the Department authority to promulgate rules consistent with ch. 285, Stats. Section 285.30 (2), Stats., provides authority for the Department to adopt and revise emission limitations for motor vehicles.

Related statute or rule

The related statutes are ss. 110.20, 110.21, and 285.30, Stats. These sections specify requirements for motor vehicle emission inspections in Wisconsin. The first two sections apply to the Department of Transportation and the third section applies to the Department of Natural Resources. A related rule is ch. Trans 131, Wis. Adm. Code. This chapter establishes the Department of Transportation's administrative interpretation of s. 110.20, Stats., relating to a motor vehicle emissions inspection program.

Plain language analysis

A motor vehicle inspection and maintenance (I/M) program has been in effect in southeastern Wisconsin since 1984. The program is presently operating in the seven counties of Kenosha, Milwaukee, Ozaukee, Racine, Sheboygan, Washington, and Waukesha. Initially, all vehicles were inspected by measuring tailpipe emission levels. Since July of 2001, however, all model year 1996 and newer cars and light trucks were inspected by scanning the vehicles' computerized second generation on-board diagnostic (OBD-II) systems. As of July, 2008, the program dropped tailpipe testing entirely and thereby inspected all vehicles by scanning the OBD-II systems. This change was the result of statutory changes in the 2007-2009 biennial budget which exempted from the I/M program the model years of vehicles not federally-required to be equipped with the OBD-II technology (model year 1995 and older cars and light trucks and model year 2006 and older heavy trucks).

Throughout the history of the I/M program, a vehicle failing the tailpipe test was eligible for a waiver of compliance if the cost of repairs to the vehicle exceeded the applicable repair cost limit and if other conditions specified in Trans 131, Wis. Adm. Code, were met. Prior to July, 2009, the program did not allow such waivers, referred to as “cost waivers", for vehicles failing the OBD-II inspection. The repair cost limits are currently provided in s. NR 485.045, Wis. Adm. Code.

This rule is being proposed in response to two issues relating to the issuing of cost waivers: (1) the lower repair cost limits currently in effect for vehicles registered in Sheboygan County and (2) the I/M program's policy change to allow cost waivers for vehicles failing the OBD-II inspection, starting July, 2009. Descriptions of these two issues follow:

Sheboygan County:

For all I/M program counties except Sheboygan, the repair cost limit is $787 ($450 in 1989, adjusted annually for inflation, using the federal consumer price index). In Sheboygan County the repair cost limit is fixed at $200 for vehicles of a 1981 or newer model year and at $75 for older vehicles. Sheboygan County has had lower repair cost limits since its nonattainment classification established in 1992 was at a lower level than that for the other six counties. However, ozone levels in Sheboygan County have not improved as much as in the other six counties, in part due to the aid of federally-mandated reformulated gasoline in the other six counties. Presently, Sheboygan County has the highest ozone levels in the seven-county I/M program area.

OBD:

Prior to July, 2009, the I/M program did not issue any cost waivers for vehicles failing the OBD-II inspection. Cost waivers were not issued for OBD-II failures because the Wisconsin Department of Transportation had interpreted s. Trans 131.05 (1) (j), Wis. Adm. Code, to mean that to pass a waiver equipment inspection, which is a prerequisite for receiving a waiver, the OBD-II system's malfunction indicator light (MIL) must be operational and non-active (that is, not lit). Such a condition could not exist when a vehicle fails the OBD-II inspection. Therefore, no cost waivers were issued for vehicles failing the OBD-II inspection and once the I/M program became OBD-II-only in July of 2008, the program did not issue any cost waivers at all.

Prior to the I/M program becoming OBD-II-only in July, 2008, the program also provided an alternative test, allowing a vehicle to be inspected regardless of the MIL status. However, now that the program administers only the OBD-II test, the DOT's Office of General Counsel has determined that DOT's prior interpretation of s. Trans 131.05(1)(j), Wis. Adm. Code, was contrary to s. 110.20(13), Wis. Stats., since it prevented issuing a cost waiver to every inspected vehicle, regardless of the amount spent on repairs. Consequently, since July, 2009, the DOT has been implementing its new interpretation, thereby allowing cost waivers for vehicles failing by means of a lit MIL. The DOT is also in the process of amending Trans 131.05(1)(j), Wis. Adm. Code, to allow a cost waiver in certain circumstances even if a vehicle's MIL is unable to be turned off; thereby conforming their rule to statutory language.

For the six I/M program counties other than Sheboygan, the DNR is projecting that the resumption of cost waivers would not increase emission levels in those six counties above those projected in the Wisconsin's state implementation plan (SIP) for attaining and maintaining ozone air quality standards. However, the DNR is projecting that the current lower cost limits for Sheboygan County would increase the motor vehicle emissions in Sheboygan County by four percent, enough to exceed the emissions projected in the SIP. Raising the repair cost limit for Sheboygan County to the level used for the other six I/M program counties would enable Sheboygan County to achieve the emission levels projected in the SIP.

Rule summary

The DNR is proposing to expand the coverage of the inflation-adjusted, currently $787, repair cost limit in s. NR 485.045, Wis. Adm. Code, to all counties subject to the I/M program, thereby raising the lower limits for Sheboygan County.

The DNR is also proposing to repeal the emission limitations in s. NR 485.04, Wis. Adm. Code, for the following tests:

•   Evaporative system integrity (pressure) test

•   Evaporative system purge test

•   Steady-state tests

These tests provide no significant additional information regarding vehicle emission performance beyond that already provided by the OBD-II scans. Furthermore, the two evaporative system tests have never been conducted by the I/M program and are intrusive, involving the cutting or crimping of fuel vapor lines. The steady-state tests were effective early in the I/M program, but are no longer conducted. These tests are poor at identifying and diagnosing emission problems in today's vehicles.

Comparison with federal regulations

The proposed rule is consistent with the federal clean air act and the federal regulations for motor vehicle inspection and maintenance programs under that act. These regulations are found in 40 CFR 51.350 to 51.373.

Comparison with similar rules in adjacent states

Illinois is the only adjacent state that has a vehicle inspection and maintenance program. In Illinois the repair cost limit for a waiver is $450. Thus, the state of Illinois has not adjusted its repair cost limit for the increase in the federal consumer price index since 1989.

Summary of factual data and analytical methodologies

The U. S. Environmental Protection Agency (EPA) has issued guidance for adjusting the repair cost limit for inflation: Calculation of the I/M Waiver Adjusted for CPI, Office of Mobile Sources, U.S. EPA, EPA 420-B-99-011, December, 1999, http://www.epa.gov/otaq/epg/b99011.pdf. The DNR has followed this guidance for calculating the repair cost limit. The consumer price index (CPI) adjustment for 1989 to 2008 was 1.7487, resulting in a repair cost limit for July, 2009, through June, 2010, of $450 * 1.7487 = $787.

Analysis and supporting documents used to determine the effect on small business

The only economic effect of the proposed rule is that the I/M-related repairs may be more expensive for some vehicles in Sheboygan County that what they would be under the current rule. The proposed rule would not affect repair costs for vehicles in the other six I/M program counties. The DNR estimates that under the proposed rule, the average cost to repair a failed vehicle during 2011 would be $416 throughout the seven-county program area. The DNR further estimates that under the current rule the average cost to repair a failed vehicle during 2011 would be only $200 for vehicles in Sheboygan County and the same $416 value for vehicles in the other six I/M program counties. Thus, the proposed rule is estimated to increase the average repair cost per failed vehicle in Sheboygan County by $216.

Small Business Impact

Small businesses that own vehicles subject to the I/M program have been and will continue to be affected by the I/M program in the same way that individual vehicle owners are affected. The proposed rule may have a small, but not significant, economic impact on those small businesses that own non-exempt vehicles registered in Sheboygan County. Improved fuel efficiency resulting from the more thorough repairs may offset some of these increased costs. The proposed rule will not impose any new requirements on small businesses.

The Small Business Regulatory Coordinator may be contacted at [e-mail] , or by calling [phone].

Environmental Impact

The Department has made a preliminary determination that adoption of the proposed rules would not involve significant adverse environmental effects and would not need an environmental analysis under ch. NR 150, Wis. Adm. Code. However, based on comments received, an environmental analysis may be prepared before proceeding. This analysis would summarize the Department's consideration of the impacts of the proposal and any reasonable alternatives.

Fiscal Estimate

The only fiscal effect of the proposed rule is that the I/M-related repairs may be more expensive for some vehicles in Sheboygan County than what they would be under the current rule. The proposed rule would not affect repair costs for vehicles in the other six I/M program counties. The DNR estimates that under the proposed rule, the average cost to repair a failed vehicle during 2011 would be $416 throughout the seven-county program area. The DNR further estimates that under the current rule the average cost to repair a failed vehicle during 2011 would be only $200 for vehicles in Sheboygan County and the same $416 value for vehicles in the other six I/M program counties. Thus, the proposed rule is estimated to increase the average repair cost per failed vehicle in Sheboygan County by $216. Since about seven percent of the vehicles fail the initial inspection and since vehicles are inspected every other year, the estimated annual average additional repair cost per inspected vehicle in Sheboygan County is: $216 * 0.07 * 0.5 = $7.56.

The DNR estimates that the number of state and local government vehicles registered in Sheboygan County which are subject to inspection is 565 (115 for state government and 450 for local governments). Thus the total increased costs are $7.56 * 115 = $870 for state government and $7.56 * 450 = $3400 for local governments.

The proposed rule would have some fiscal effect on the private sector. The affected entities would be those having vehicles registered in Sheboygan County which are subject to inspection. The estimated fiscal effect is an average increase in annual repair costs of $7.56 per inspected vehicle. Thus, the estimated fiscal effect for an entity having 100 vehicles registered in Sheboygan County and subject to inspection is $756 per year.

Improved fuel efficiency resulting from the more thorough repairs may offset some of these increased costs.

Agency Contact Person

Chris Bovee

P.O. Box 7921

Madison, WI   53707

Phone:   [phone]

Fax:   [phone]

Email:   [e-mail]

Notice of Hearings

Natural Resources

Environmental Protection — Air Pollution Control,
Chs. NR 400—

CR 10-050

(DNR # AM-16-10)

NOTICE IS HEREBY GIVEN THAT pursuant to ss. 227.16 and 227.17, Stats, the Department of Natural Resources, hereinafter the Department, will hold public hearings on proposed rules to revise Chapters NR 400, 404 to 408, and 484, relating to air pollution permit requirements for fine particulate matter (PM 2.5) emissions. The proposed revisions relate to issues for State Implementation Plan approvability, and the State Implementation Plan developed under s. 285.11(6), Stats., will be revised.

Hearing Information

Date and Time:   Location:

June 7, 2010   Natural Resources State Office Bldg.
Monday   Room G09
at 2:30 PM   101 S. Webster Street
  Madison, WI

June 8, 2010   Havenwoods — Auditorium
Tuesday   6141 N. Hopkins
at 1:30 PM   Milwaukee, WI

June 9, 2010   Northcentral Technical College
Wednesday   Main Building, Room E101
at 2:00 PM   1000 West Campus Drive
  Wausau, WI

Reasonable accommodations, including the provision of informational material in an alternative format, will be provided for qualified individuals with disabilities upon request. Contact Robert B. Eckdale in writing at the Department of Natural Resources, Bureau of Air Management (AM/7), 101 S Webster, Madison, WI 53707; by E-mail to [e-mail]; or by calling [phone]. A request must include specific information and be received at least 10 days before the date of the scheduled hearing.

Copies of the proposed rules and fiscal estimate

The proposed rule and supporting documents, including the fiscal estimate, may be viewed and downloaded from the Administrative Rules System Web site which can be accessed through the link provided on the Proposed Air Pollution Control Rules Calendar at http://www.dnr.state.wi.us/ air/rules/calendar.htm. If you do not have Internet access, a printed copy of the proposed rule and supporting documents, including the fiscal estimate, may be obtained free of charge by contacting Robert B. Eckdale, Department of Natural Resources, Bureau of Air Management (AM/7), 101 S. Webster St., Madison, WI 53703, or by calling [phone].

Submittal of Written Comments

Comments on the proposed rule must be received on or before Monday, June 14, 2010. Written comments may be submitted by U.S. mail, fax, E-mail, or through the Internet and will have the same weight and effect as oral statements presented at the public hearing. Written comments and any questions on the proposed rules should be submitted to:

Steve Dunn

Department of Natural Resources

Bureau of Air Management (AM/7)

101 S. Webster Street, Madison, WI 53703

Phone:   [phone]

Fax:   [phone]

E-mail:   [e-mail]

Internet:   Use the Administrative Rules System Web site accessible through the link provided on the Proposed Air Pollution Control Rules Calendar at http://dnr.wi.gov/air/rules/calendar.htm

Analysis Prepared by the Department of Natural Resources

Statute interpreted

The State Implementation Plan developed under s. 285.11 (1) and (6), Stats., is revised.

Statutory authority

Sections 227.11 (2) (a) and 285.11 (1), (16) and (17), Stats.

Explanation of agency authority

Section 227.11(2)(a), Stats., gives state agencies general rulemaking authority. Section 227.14(1m)(b), Stats., allows the Department to use the format of federal regulations in preparing a proposed rule if it determines that all or part of a state environmental regulatory program is to be administered according to standards, requirements or methods which are similar to standards, requirements or methods specified for all or part of a federal environmental program. Section 285.11(1), Stats., gives the Department authority to promulgate rules consistent with ch. 285, Stats. Section 285.11(16), Stats., requires the Department to promulgate rules, consistent with but no more restrictive than the federal clean air act, that specify the amounts of emissions that result in a stationary source being classified as a major source. Section 285.11(17) requires the Department to develop and implement rules that define the term modification in a manner consistent with the clean air act.

Related statute or rule

None.

Plain language analysis

The proposed rules contained in this order reflect changes made by the United States Environmental Protection Agency (EPA) in their regulations regarding the regulation matter less than 2.5 microns in size (PM2.5). The Department needs to make this change in order to retain EPA approval of Wisconsin's air permit programs.

PM2.5 is proposed to be included as a pollutant used to determine whether a facility is a major source of air pollution. Additionally, increases in PM2.5 emissions will potentially trigger the need to obtain an air pollution control construction permit, including requirements to control emissions to levels which represent best available control technology or lowest achievable emission rate.

Additionally, the rule package includes some cleanup changes to otherwise unaffected existing rules. These changes are proposed to include up-to-date test methods and definitions in these existing rules. These changes do not change the effect or intent of these rules.

Comparison with federal regulations

The proposed PM2.5 rules will make the regulations consistent with the equivalent Federal rules.

Comparison with similar rules in adjacent states

The proposed rule is based on the federal rule changes. The adjacent states will all be implementing the federal rule changes.

Summary of factual data and analytical methodologies

The proposed rule is based on the federal rule changes and the data and methodologies used by USEPA in developing these rules. Some portions of the proposed rule have yet to be finalized by the USEPA. Finalization of these rule sections is expected in Spring 2010. Placeholders for these final rule additions are included in the proposed rule.

Analysis and supporting documents used to determine the effect on small business

An analysis of the effect of the proposed rules on small business was not performed since the proposed rule only impacts major sources of air pollution in the State and conforms to federal requirements. Major sources of air pollution are not typically small businesses. Additionally, USEPA has concluded that this rule will not impact a significant number of small entities.

Small Business Impact

These rules should not have a significant economic impact on small businesses because major air pollution sources do not generally meet the definition of a small business.

The Small Business Regulatory Coordinator may be contacted at [e-mail], or by calling [phone].

Environmental Impact

The Department has made a preliminary determination that adoption of the proposed rules would not involve significant adverse environmental effects and would not need an environmental analysis under ch. NR 150, Wis. Adm. Code. However, based on comments received, an environmental analysis may be prepared before proceeding. This analysis would summarize the Department's consideration of the impacts of the proposal and any reasonable alternatives.

Fiscal Estimate

The Department anticipates that there will be no state fiscal effect and no local government costs as a result of the proposed rules. In addition, the Department does expect the proposed rules will have a significant fiscal impact on those private sector facilities requiring permits.

Agency Contact Person

Steven Dunn

P.O. Box 7921

Madison, WI 53707

Phone:   [phone]

Fax:   [phone]

Email:   [e-mail]