Summary and plain language analysis
The objective of the rule is to obtain greater compliance from user groups regarding facility use. This objective will be achieved by codifying historical Department practices and more clearly detailing certain provisions of the administrative code as informed by judicial interpretations.
Section 1 — The proposed change, in combination with a change in Section 3, seeks to clarify the historical interpretation of the Wisconsin State Capitol Police, that the Administrative Rules can be applied in areas under the control of the Legislature, at the invitation of the Legislature.
Section 2 — The proposed changes incorporate definitions found in the Department's Facilities Access Policy, and harmonizes those definitions with existing rules.
Section 3 — There are three proposed changes occurring in this section. The first proposed change, in combination with the change in Section 1, seeks to clarify the historical interpretation of the Wisconsin State Capitol Police, that the Administrative rules can be applied in areas under the control of the Legislature, at the invitation of the Legislature. The second proposed change expands the types of persons who are allowed by rule to apply for a permit from only the listed persons (governmental bodies, non-profits, etc.) to any person, in accordance with the historical practice of the Wisconsin State Capitol Police. The third proposed change incorporates the use of the terms “event" and “exhibit," as found in Section 2 above.
Section 4 — There are two proposed changes in this section. The first proposed change codifies the ability of the Department to set reasonable time, place, and manner restrictions for particular buildings and facilities. Due to the fact that there are dozens of buildings and facilities under the jurisdiction of the Department, and due to the potential for changes to the use of those buildings and facilities, it would not be practicable to incorporate all such time, place, and manner restrictions into the Administrative Code. The second proposed change codifies additional restrictions on the exercise of discretion by the Wisconsin Capitol Police and creates a severability clause.
Section 5 — There are five proposed changes in this section. The first proposed change codifies the ability of the Department to waive the 72 hour application requirement on a neutral basis. The second proposed change removes from the code a provision giving the Department unlimited discretion to resolve conflicts between competing uses. The third proposed change allows the Department to provide additional explanation to the public regarding how costs are applied under the Administrative Code for informational purposes. The fourth change extends protection to persons based upon sexual orientation, which is not found in the existing rule. The fifth change incorporates the use of the terms “event" and “exhibit."
Section 6 — There are two proposed changes in this section. The first change incorporates the use of the terms “event" and “exhibit." The second seeks to further clarify the distinction between when a person is simply holding a sign as part of an event, as opposed to creating an exhibit, by creating a size distinction between the two.
Section 7 — There are two proposed changes to this section. The first change clarifies that a person who creates a hazard in a state building or facility may receive a citation if they refuse to correct or remove the hazard. The second change clarifies that the prohibition applies to all types of decorations and the like, and not simply holiday decorations.
Section 8 — The proposed change is meant to clarify what occurs with confiscated materials given that there are two administrative code provisions dealing with this topic; the clarification is intended to follow the cannon of construction that the more specific rule applies over the more general rule.
Section 9 — The proposed changes are organizational in nature, and are designed to clarify that there were multiple potential citations created under one administrative code subsection in the existing code, Wis. Adm. Code s.
Adm 2.14 (2) (v), in accordance with recent judicial interpretations of that subsection. By dividing the existing subsection into multiple pieces, and by arranging the use of some language more appropriately, the new code section should require less technical expertise to interpret. Additionally, defined terms are incorporated and used in the new code sections.
Section 10 — The proposed changes in this section again continue the clarification of Wis. Adm. Code s.
Adm 2.14 (2) by improving the organization of the subsection.
Section 11 — The proposed change eliminates language now rendered superfluous by improved organization of Wis. Adm. Code s.
Adm 2.14 (2).
Summary of and comparison with, existing or proposed federal regulations
Existing federal regulations vary by agency, state, and facility, and are too numerous to permit meaningful comparative analysis.
Comparison with rules in adjacent states
All adjacent states have similar administrative code provisions. Illinois requires permits for demonstrations or other events to be submitted at least 48 hours in advance of the use, unless the requestor can provide by a preponderance of the evidence that the cause of the event was unknown or resulted from changed circumstances. Michigan does not permit demonstrations or other activities without written authorization. Michigan also requires written authorization for displays, and requires that such requests “normally" be submitted 30 days in advance. Likewise, Minnesota requires a permit, with agreements to be reached regarding topics including, “security, police protection, liability for damages, and cleanup of areas" prior to issuance of a permit. Iowa also requires a written application and approval by written letter or a memorandum of understanding signed by the event director.
Effect on Small Business
The proposed rule changes will have no impact upon small businesses.
Initial Regulatory Flexibility Analysis
The proposed rule will not affect small businesses.
Fiscal Estimate
Modification of the existing rules should decrease the costs of gaining compliance with the rules by reducing the number of issues currently subject to litigation. In the long term, modification of existing rules to conform to practice and to expand the legally recognized categories of permitted users should increase the legitimacy of the permitting process for the general public, leading to greater voluntary compliance and reduced costs.
Summary of Economic Impact Analysis
The rule modifications are expected to have no economic impact. A copy of the Economic Impact Analysis may be obtained from the agency at no charge by contacting Donna Sorenson at:
Department of Administration
P.O. Box 7864
Madison, WI 53707-7864
Fax: (608) 267-3842
Small Business Regulatory Coordinator
Joe Knilans
608-267-7873
Internet Link to Rule
Contact Person
Wendy Coomer
Department of Administration
101 E. Wilson Street, 10th Floor
Madison, WI 53702
Notice of Hearing
Agriculture, Trade and Consumer Protection
NOTICE IS HEREBY GIVEN that the Wisconsin Department of Agriculture, Trade and Consumer Protection (DATCP) will hold a public hearing on a proposed rule to revise Chapters
ATCP 90,
91,
92,
113, and
136, relating to fair packaging and labeling; selling commodities by weight, measure, or count; weights and measures; gasoline advertising; and mobile air conditioners — reclaiming or recycling refrigerant; various minor and technical rule changes; and affecting small business.
DATCP will hold one public hearing at the time and place shown below:
Hearing Information
Date: Wednesday, August 7, 2013
Time: 10:00 a.m. to 11:00 a.m.
Location: Board Room (1st Floor)
Department of Agriculture, Trade and
Consumer Protection
2811 Agriculture Drive
Madison, WI 53718-6777
Hearing impaired persons may request an interpreter for this hearing. Please make reservations for a hearing interpreter by July 24, 2013, by writing to Kevin LeRoy, Division of Trade and Consumer Protection, P.O. Box 8911, Madison, WI 53708-8911; or by emailing
kevin.leroy@wisconsin.gov; or by telephone at (608) 224-4928. Alternatively, you may contact the DATCP TDD at (608) 224-5058. The hearing facility is handicap accessible.
Copies of Proposed Rules and Submittal of Written Comments
DATCP invites the public to attend the hearing and comment on the proposed rule. Following the public hearings, the hearing record will remain open until
August 21, 2013, for additional written comments. Comments may be sent to the Division of Trade and Consumer Protection at the address below, or to
kevin.leroy@wisconsin.gov, or to
http://adminrules.wisconsin.gov.
You can obtain a free copy of this hearing draft rule and related documents including the Economic Impact Analysis 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 (608) 224-4728 or by emailing
kevin.leroy@wisconsin.gov. Copies will also be available at the hearing. To view the hearing draft rule online, go to:
http://adminrules.wisconsin.gov.
Comments or concerns relating to small business may also be addressed to DATCP's small business regulatory coordinator Keeley Moll at the address above, or by email to
keeley.moll@wisconsin.gov, or by telephone at (608) 224-5039.
Analysis Prepared by the Department of Agriculture, Trade and Consumer Protection
This rule makes minor and technical changes to a number of current rules administered by the Department of Agriculture, Trade and Consumer Protection (DATCP).
Statutes interpreted
Statutory authority
Sections
93.07 (1),
97.09 (1) and
(4),
97.42 (4) (j),
98.03 (2),
98.07 (3) and
(4),
98.16 (4),
98.18 (2),
98.224 (4),
98.245 (9),
100.20 (2), and
100.45 (5) (a) and
(e), Stats.
Explanation of statutory authority
DATCP has broad general authority, under s.
93.07 (1), Stats., to interpret laws under its jurisdiction.
DATCP has authority under s.
97.09 (1), Stats., to define or adopt standards of identity, composition, quality, and fill of food containers. DATCP has general authority, under s.
97.09 (4), Stats., to adopt rules specifying standards to protect the public from the sale of adulterated or misbranded foods. DATCP has authority under s.
97.42 (4) (j), Stats., to administer inspections of animals, poultry and carcasses.
DATCP has authority under s.
98.03 (2), Stats., to issue rules governing the construction, installation, and use of commercial weights and measures and prescribing tolerances. DATCP has authority under s.
98.07 (3) and
(4), Stats., to issue rules specifying tolerances for variations from quantities stated on packages. DATCP has authority under s.
98.16 (4), Stats., to regulate the construction, operation, testing, and maintenance of vehicle scales. DATCP has authority under s.
98.18 (2), Stats., to regulate the installation, servicing, testing, and certification of weights and measures. DATCP has authority under s.
98.224 (4), Stats., to promulgate rules that establish standards for the construction, operation, and maintenance of vehicle tank meters, and authority under s.
98.245 (9), Stats., to establish standards for liquefied petroleum gas meters.
DATCP has authority under s.
100.20 (2) (a), Stats., to forbid unfair methods of competition and unfair trade practices.
DATCP has authority under s.
100.45 (5) (a), Stats., to promulgate rules establishing standards for recycled refrigerant based on recognized national industry standards, and qualifications for individuals and businesses that service mobile air conditioners. However, s.
100.45 (5e) (b), Stats., prohibits DATCP from promulgating rules that prohibit the sale of refrigerant that is a substitute for ozone-depleting refrigerant in a container holding less than 15 pounds.
Related statutes and rules
This proposed rule updates a number of existing rule chapters and is related to several statutes and rules.
Chapter
ATCP 90, Fair Packaging and Labeling, requires certain information be included on product labels. This rule is related to ch.
97, Stats., Food Regulation and ch.
ATCP 98, Stats., Weights and Measures.
Chapter
ATCP 91, Selling Commodities by Weight, Measure or Count, regulates how a seller communicates quantity of product to the buyer. This rule is related to ch.
98, Stats., Weights and Measures.
Chapter
ATCP 92, Weights and Measures, regulates the accuracy of scales, tank meters, and other measuring devices. It contains license or certification programs for devices, technicians and service companies. This rule is related to ch.
98, Stats., Weights and Measures.
Chapter
ATCP 113, Gasoline Advertising, prohibits gasoline sellers from misrepresenting the octane rating of gasoline. This rule is promulgated under s.
100.20, Stats., Unfair Trade Practices. Gasoline octane is also regulated under Ch.
168, Stats., Oil Inspection, and ch.
SPS 348, Petroleum and Other Liquid Fuel Products.
Chapter
ATCP 136, Mobile Air Conditioners; Reclaiming or Recycling Refrigerant, regulates the repair or service of motor vehicle air conditioners and trailer refrigeration equipment. This rule relates to s.
100.45, Stats., Mobile Air Conditioners.
Plain language analysis
Rule Content
General
This rule modifies existing rules with a number of technical updates and minor changes. It does not represent any significant shift in the overall goals or policies of the existing rules.
Chapter
ATCP 90 — Fair Packaging and Labeling
Under current rules, the definition of “unreasonable shortage" as it relates to Fair Packaging and Labeling, refers to the maximum allowable variation specified for a commodity in the National Institute of Standards and Technology (NIST) Handbook 133, “Checking the Net Contents of Packaged Goods." However, the current rule does not specify which edition of NIST Handbook 133 it is referencing. This rule modifies the definition of “unreasonable shortage" to specifically reference NIST Handbook 133, “Checking the Net Contents of Packaged Goods," (2013 edition).
Chapter
ATCP 91 — Selling Commodities by Weight, Measure or Count
The current rule lists a number of commodities and incorporates references to NIST Handbook 130, “Uniform Laws and Regulations in the Area of Legal Metrology and Engine Fuel Quality," (2011 edition). This rule updates these references to the 2013 edition. It also corrects references to specific sections (in the case of liquid oxygen used for respiration and liquefied petroleum gases).
Chapter
ATCP 92 — Weights and Measures
The current rule regulates weighing and measuring devices, state and municipal inspection programs, and licensing requirements for service companies. The current rule incorporates references to NIST Handbook 44, “Specifications, Tolerances and Other Technical Requirements for Weighing and Measuring Devices," (2011 edition) This rule updates these references to the 2013 edition.
The current rule contains several “notes" informing the reader how to obtain license applications and similar documents from DATCP. This rule updates these notes to conform to changes in DATCP web pages and other changes.
Chapter
ATCP 92, Subchapter IV, regulates vehicle scales and livestock scales. However, there are some significant differences between the two. Installing or relocating a vehicle scale requires a permit from DATCP. DATCP also collects installation reports for vehicle scales, and reviews request for variances on the construction standards contained in the rule. This rule clarifies that there is no need for operators to request variances for livestock scales (because there is no permit requirement and they are not required to submit their construction plans).
This rule also modifies the definition of “vehicle scale" to make it clear that ch.
ATCP 92 does not apply to scales that are not in commercial service.
The current rule affirms that it is an unfair trade practice for sellers of gasoline to mislead buyers regarding the octane rating of gasoline, claim that the gasoline is suitable for aviation if it is not, or claim the gasoline is of greater value because it contains high octane components without clearly stating the octane value of the total product. The current rule references octane standards contained in “ASTM Manual for Rating Motor Fuels by Motor and Research Methods", published 1956.
This rule updates references to ASTM standards.
Chapter
ATCP 136 — Mobile Air Conditioners; Reclaiming or Recycling Refrigerant
