Rule-Making Notices (Hearing Notices)

Plant inspection and pest control

This rule makes two minor technical changes in ch. ATCP 21. The current rule defines, in s. ATCP 21.21 (1) (c) 1., an “infested area" by listing the states known to be infected at the time the current rule was adopted. The proposed amendment adds the states of North Carolina, Virginia, Ohio, and Pennsylvania to the list of states included in that definition. Each of those states now has quarantined counties based on a detection of TCD (Thousand Cankers Disease).

Appendix A to ch. ATCP 21 is being repealed and replaced because Hemlock Woolly Adelgid has been detected in additional counties in other states since the last time ch. ATCP 21 was updated. The proposed language identifies those new counties. In some states, the status has changed so that the entire state is now considered generally infested and the state as a whole is now listed. Because this pest is not federally regulated, DATCP cannot reference the Code of Federal Regulations to identify infested areas, but has to identify them specifically in our rule.

Agricultural enterprise areas

This rule repeals ch. ATCP 53 in its entirety for the following reasons: Section 91.84, Stats., authorizes the department to designate agricultural enterprise areas (AEAs) for the Farmland Preservation Program. Section 91.84 (2), Stats., previously required that designation to be made through the emergency rulemaking process. For two years, the department used emergency rulemaking to designate AEAs in ch. ATCP 53. In 2011 Wis. Act 253, s. 91.84 (2), Stats., on emergency rulemaking was repealed, sub. (2m) was created (requiring all previous designations by rule to remain in effect only through December 31, 2012), and other provisions of s. 91.84, Stats., were amended to authorize the department's secretary to designate AEAs by order. Since, as of January 1, 2013, ch. ATCP 53 is no longer in effect, this proposed rule repeals that chapter in its entirety.

Dairy farms

This rule makes the following technical changes to ch. ATCP 60 relating to dairy farms. In s. ATCP 60.08 (3) and (6), the references to “NR 811 or 812" are changed to “NR 810, 811, or 812" due to the splitting of the former ch. NR 811 into chs. NR 810 and 811. This rule also amends the reference in s. ATCP 60.01 (23m) to the “2005 revision" of the Pasteurized Milk Ordinance (the “PMO") to refer to the “2011 revision" of the PMO, since the PMO is updated every two years.

Food processing plants

This rule amends ch. ATCP 70 by making the following technical change. Section ATCP 70.03 (7) (b) 1. currently exempts a restaurant, which holds a permit under s. 254.64, Stats., from the requirement to obtain a food processing plant license if the restaurant “does not process food for wholesale distribution, and is not engaged in canning or production of processed fish." This rule would amend that language to read “does not process food for wholesale distribution, and is not engaged in canning of food products or in the production of processed fish." The proposed change clarifies that “canning" applies to all canned foods and not just processed fish.

Dairy plants

This rule amends ch. ATCP 80 relating to dairy plants as follows. Section ATCP 80.01 (7) (c) defines a “dairy product" as a “commodity in which milk or any milk product or by-product is a principal ingredient." This rule amends this section by adding, after “ingredient," the following: “except prepared foods made in a licensed food processing plant for which the federal food and drug administration has not prescribed a standard of identity under title 21 of the code of federal regulations and which contain dairy products manufactured at a dairy plant from ingredients that are pasteurized or are produced under other processes that eliminate or reduce to an acceptable level the food safety hazards associated with the dairy products, including aseptically processed foods, high acid foods, heat treated foods, aged foods, cold pack foods, and similarly processed foods." The proposed amendment incorporates new statutory language in 2011 Wisconsin Act 195, which narrows the definition of a dairy product in s. 97.20 (2) (e) 5., Stats.

This rule amends s. ATCP 80.01 (27m) by changing the reference to the “2005 revision" of the PMO to the “2011 revision" of the PMO.

This rule amends s. ATCP 80.24 (3) (a) 2. by deleting “dried whey and nonfat dry milk." This rule amends s. ATCP 80.24 (3) (a) by adding a new section, s. ATCP 80.24 (3) (a) 3., to read: “3. 10,000 per gram for nonfat dry milk, dried whey and dry milk products." This rule amends s. ATCP 80.24 (3) (b) by deleting “other than cultured grade A dairy products" from that section. These changes reflect changes in the most recent PMO.

Standards incorporated by reference

Pursuant to s. 227.21, Stats., DATCP has requested permission from the Department of Justice to incorporate the updated technical standards incorporated by reference in this rule. Copies of the updated standards will be kept on file with DATCP and the Legislative Reference Bureau.

Summary of, and comparison with existing or proposed federal statutes and regulations

The vast majority of dairy farms in Wisconsin have Grade “A" permits, which means that their milk, or pasteurized milk and certain other dairy products made from the farm's milk, can be shipped across state and international boundaries. Milk moving in this manner, referred to as Grade “A" milk, must be produced, transported, and processed in accordance with the Pasteurized Milk Ordinance (PMO). The PMO is a document written by the US Food and Drug Administration and regulators from the 50 states and Puerto Rico, which participate in the biennial National Conference on Interstate Milk Shipments, and it is periodically revised. State regulations governing the production and processing of Grade “A" milk must be at least as stringent, and consistent with, the PMO. Some states adopt the PMO by reference; Wisconsin regularly revises ch. ATCP 60 (Dairy Farms), ch. ATCP 82 (Milk Haulers), and ch. ATCP 80 (Dairy Plants) to ensure the necessary stringency and consistency with the current PMO.

Comparison with rules in adjacent states

The housekeeping and technical rules changes proposed in this rule will not create any disparities between Wisconsin and the adjacent states.

Summary of factual data and analytical methodologies

This rule does not depend on any complex analysis of data. This rule merely makes minor or technical changes to current rules.

Analysis and supporting documents used to determine effect on small business

Because this bill makes minor housekeeping technical changes, no significant analysis or documentation was required to determine that the proposed rule will have no impact on small businesses.

Effect on Business

This rule will not have any impact on small business or other business. This rule makes minor technical “housekeeping" changes that will not have any impact on business standards, costs or operations. See the complete initial regulatory flexibility analysis that accompanies this rule.

Environmental Impact

This “housekeeping" rule will have no significant impact on the environment.

Agency Contact Person

Kelly Monaghan

Department of Agriculture, Trade and Consumer Protection

P.O. Box 8911

Madison, WI 53708-8911

Telephone: [phone]

E-Mail: [e-mail]

ADMINISTRATIVE RULES Fiscal Estimate & Economic Impact Analysis
Type of Estimate and Analysis
X Original ⍽ Updated ⍽ Corrected
Administrative Rule Chapter, Title and Number
Chs. ATCP 17, 21, 53, 60, 70 and 80, Technical Rule Changes
Subject
Technical Rule Changes
Fund Sources Affected			Chapter 20 , Stats. Appropriations Affected
⍽ GPR ⍽ FED ⍽ PRO ⍽ PRS ⍽ SEG ⍽SEG-S
Fiscal Effect of Implementing the Rule
X No Fiscal Effect ⍽ Indeterminate	⍽ Increase Existing Revenues ⍽ Decrease Existing Revenues		⍽ Increase Costs ⍽ Could Absorb Within Agency's Budget ⍽ Decrease Costs
The Rule Will Impact the Following (Check All That Apply)
⍽ State's Economy ⍽ Local Government Units		⍽ Specific Businesses/Sectors ⍽ Public Utility Rate Payers
Would Implementation and Compliance Costs Be Greater Than $20 million? ⍽ Yes X No
Policy Problem Addressed by the Rule
This rule makes minor or technical changes to a number of current DATCP rules. This rule does all of the following: Livestock Premises Registration This rule amends current DATCP rule ch. ATCP 17, relating to Livestock Premises Registration. In s. ATCP 17.01, certain terms used in the chapter are defined. In that section, there are currently two definitions for “captive game birds," at s. ATCP 17.01 (9) and (19). This rule amends s. ATCP 17.01 (9) by amending the current definition to conform to the definition for “captive game bird" now found in s. ATCP 17.01 (19), and repealing the definition now found in s. ATCP 17.01 (19). Plant Inspection and Pest Control This rule makes two minor technical changes in ch. ATCP 21. The current rule defines, in s. ATCP 21.21 (1) (c) 1., an “infested area" by listing the states known to be infected at the time the current rule was adopted. The proposed amendment adds the states of North Carolina, Virginia, Ohio, and Pennsylvania to the list of states included in that definition. Each of those states now has quarantined counties based on a detection of TCD (Thousand Cankers Disease). Appendix A to ch. ATCP 21 is being repealed and replaced because Hemlock Woolly Adelgid has been detected in additional counties in other states since the last time ch. ATCP 21 was updated. The proposed language identifies those new counties. In some states the status has changed so that the entire state is now considered generally infested and the state as a whole is now listed. Because this pest is not federally regulated, DATCP cannot reference the Code of Federal Regulations to identify infested areas, but has to identify them specifically in our rule. Agricultural Enterprise Areas This rule repeals ch. ATCP 53 in its entirety for the following reasons: Section 91.84, Stats., authorizes the department to designate agricultural enterprise areas (AEAs) for the Farmland Preservation Program. Section 91.84 (2), Stats., previously required that designation to be made through the emergency rulemaking process. For several years, the department used emergency rulemaking to designate AEAs in ch. ATCP 53. In 2011 Wis. Act 253, s. 91.84 (2), Stats., on emergency rulemaking was repealed, sub. (2m) was created (requiring all previous designations by rule to remain in effect only through December 31, 2012), and other provisions of s. 91.84, Stats., were amended to authorize the department's secretary to designate AEAs by publication of a special order. Since, as of January 1, 2013, ch. ATCP 53 is no longer in effect, this proposed rule repeals that chapter in its entirety. Dairy Farms This rule makes the following technical changes to ch. ATCP 60 relating to dairy farms: In s. ATCP 60.08 (3) and (6), the references to “NR 811 or 812" are changed to “NR 810, 811, or 812" due to the splitting of the former ch. NR 811 into chs. NR 810 and 811. This rule also amends the reference in s. ATCP 60.01 (23m) to the “2005 revision" of the Pasteurized Milk Ordinance (the “PMO") to refer to the “2011 revision" of the PMO, since the PMO is updated every two years. Food Processing Plants This rule amends ch. ATCP 70 by making the following technical change: Section ATCP 70.03 (7) (b) 1. currently exempts a restaurant, which holds a permit under s. 254.64, Wis. Stats., from the requirement to obtain a food processing plant license if the restaurant “does not process food for wholesale distribution, and is not engaged in canning or production of processed fish." This rule would amend that language to read “does not process food for wholesale distribution, and is not engaged in canning of food products or in the production of processed fish." The proposed change clarifies that “canning" applies to all canned foods and not just processed fish.
Dairy Plants This rule amends ch. ATCP 80 relating to dairy plants as follows: Section ATCP 80.01 (7) (c) defines a “dairy product" as a “commodity in which milk or any milk product or by-product is a principal ingredient." This rule amends this section by adding, after “ingredient," the following: “except prepared foods made in a licensed food processing plant for which the federal food and drug administration has not prescribed a standard of identity under title 21 of the code of federal regulations and which contain dairy products manufactured at a dairy plant from ingredients that are pasteurized or are produced under other processes that eliminate or reduce to an acceptable level the food safety hazards associated with the dairy products, including aseptically processed foods, high acid foods, heat treated foods, aged foods, cold pack foods, and similarly processed foods." The proposed amendment incorporates new statutory language in, 2011 Wisconsin Act 195, which narrows the definition of a dairy product in s. 97.20 (2) (e) 5., Wis. Stats. This rule amends s. ATCP 80.01 (27m) by changing the reference to the “2005 revision" of the PMO to the “2011 revision" of the PMO. This rule amends s. ATCP 80.24 (3) (a) 2. by deleting “dried whey and nonfat dry milk." This rule amends s. ATCP 80.24 (3) (a) by adding a new section, s. ATCP 80.24 (3) (a) 3., to read: “3. 10,000 per gram for nonfat dry milk, dried whey and dry milk products." This rule amends s. ATCP 80.24 (3) (b) by deleting “other than cultured grade A dairy products" from that section. These changes reflect changes in the most recent PMO.
Summary of Rule's Economic and Fiscal Impact on Specific Businesses, Business Sectors, Public Utility Rate Payers, Local Governmental Units and the State's Economy as a Whole (Include Implementation and Compliance Costs Expected to be Incurred)
Small Businesses This rule makes technical housekeeping changes that will have no effect upon small businesses. Utility Rate Payers The rule will have no impact on utility rate payers. Local Governments This rule will not impact local governments. Local governments will not have any implementation or compliance costs. General Public This rule makes technical changes to the existing rules identified above. The proposed rule will not have any economic impact on the general public or the State's economy different from the impact of the existing rules that are proposed to be amended.
Benefits of Implementing the Rule and Alternative(s) to Implementing the Rule
Benefits This rule will benefit the public and various business sectors, as described above, by making technical changes to existing rules. General Public The general public and consumers will benefit from the technical changes in this rule through the clarification and updating of existing rules. Alternatives This rule makes necessary technical changes in existing rules. If DATCP does not make the proposed technical changes, there will continue to be outdated provisions in existing regulations, inconsistencies between regulations and referenced documents, and certain regulations will lack necessary clarity.
Long Range Implications of Implementing the Rule
Long-term, implementing the rule will benefit businesses and the general public for the reasons stated above.
Compare With Approaches Being Used by Federal Government
The technical changes are proposed to ensure that the specified existing DATCP rules remain consistent with federal statutes and regulations administered by the United States Department of Agriculture and the Food and Drug Administration. The vast majority of dairy farms in Wisconsin have Grade “A" permits, which means that their milk, or pasteurized milk and certain other dairy products made from the farm's milk, can be shipped across state and international boundaries. Milk moving in this manner, referred to as Grade “A" milk, must be produced, transported, and processed in accordance with the Pasteurized Milk Ordinance (PMO). The PMO is a document written by the US Food and Drug Administration and regulators from the 50 states and Puerto Rico, which participate in the biennial National Conference on Interstate Milk Shipments, and it is periodically revised. State regulations governing the production and processing of Grade “A" milk must be at least as stringent, and consistent with, the PMO. Some states adopt the PMO by reference; Wisconsin regularly revises ch. ATCP 60 (Dairy Farms), ch. ATCP 82 (Milk Haulers), and ch. ATCP 80 (Dairy Plants) to ensure the necessary stringency and consistency with the current PMO.
Compare With Approaches Being Used by Neighboring States (Illinois, Iowa, Michigan and Minnesota)
The housekeeping and technical rules changes proposed in this rule will not create any disparities between Wisconsin and the adjacent states. Comments Received in Response to Web Posting and DATCP Response No comments were received in response either to the posting on the DATCP external website or the statewide administrative rules website.

Notice of Hearing

Insurance

rulemaking_notices CR 13-059 CR 13-059

Notice is hereby given that pursuant to the authority granted under s. 601.41 (3), Stats., and the procedures set forth in under s. 227.18, Stats., OCI will hold a public hearing to consider the adoption of the attached proposed rulemaking order affecting section Ins 51.01, Wis. Adm. Code, relating to risk based capital requirements and affecting small business.

Hearing Information

Date:   September 5, 2013
Time:   10:30 a.m., or as soon thereafter as the matter
  may be reached
Location:   Office of the Commissioner of Insurance
  Room 227
  125 South Webster St., 2nd Floor
  Madison, WI

Written comments can be mailed to:

Sarah E. Norberg

Legal Unit — OCI Rule Comment for Rule Ins 51.01

Office of the Commissioner of Insurance

PO Box 7873

Madison, WI 53707-7873

Written comments can be hand delivered to:

Sarah E. Norberg

Legal Unit — OCI Rule Comment for Rule Ins 51.01

Office of the Commissioner of Insurance

125 South Webster St — 2nd Floor

Madison, WI 53703-3474

Comments can be emailed to:

Sarah E. Norberg

[e-mail]

Comments submitted through the Wisconsin Administrative 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 September 19, 2013.

Summary of Proposed Rule and Fiscal Estimate

For a summary of the rule, see the analysis contained in the attached proposed rulemaking order. There will be no state or local government fiscal effect. The full text of the proposed changes, a summary of the changes, and the fiscal estimate are attached to this Notice of Hearing.

Initial Regulatory Flexibility Analysis

Notice is hereby further given that pursuant to s. 227.114, Stats., the proposed rule may have an effect on small businesses. The initial regulatory flexibility analysis is as follows:

a.   Types of small businesses affected:

Domestic life and health insurers that complete a life annual statement and domestic fraternal insurers.

b.   Description of reporting and bookkeeping procedures required:

None beyond those currently required.

c.   Description of professional skills required:

None beyond those currently required.

OCI Small Business Regulatory Coordinator

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

Contact Person

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.

PROPOSED ORDER AMENDING A RULE

Office of the Commissioner of Insurance

Rule No. 145-: To amend s. Ins 51.01 (4) (a) 2., Wis. Admin. Code.

Relating to: risk based capital requirements and affecting small business.

The statement of scope of this rule, SS 069-12, was approved by the Governor on September 13, 2012, published in Register No. 681, on September 30, 2012, and approved by the Commissioner on October 15, 2012.

Analysis Prepared by the Office of the Commissioner of Insurance (OCI)

1. Statutes interpreted

ss. 623.11 (1) and (2), Wis. Stats.

2. Statutory authority

ss. 227.11 (2) (a), 623.11 (1) and (2), Wis. Stats.

3. Explanation of OCI's authority to promulgate the proposed rule under these statutes

Pursuant to s. 623.11 (1), Wis. Stats., “The commissioner shall, when necessary, determine the amount of compulsory surplus that an insurer is required to have in order not to be financially hazardous under s. 645.41 (4), Wis. Stats., as an amount that will provide reasonable security against contingencies affecting the insurer's financial position that are not fully covered by reserves or reinsurance."

Pursuant to s. 623.11 (2), Wis. Stats., “The commissioner may . . . establish by rule minimum ratios for the compulsory surplus in relation to any relevant variables, including the following: (a) amounts at risk; (b) premiums written or premiums earned; (c) liabilities; (d) equity investments of all or certain kinds in combination with any of the variables under pars. (a) to (c)."

The company action level provision under the regulation provides an early warning that an insurer might be approaching a financially hazardous condition. The proposed change to the regulation would modify a single variable, as authorized by s. 623.11 (2), Wis. Stats., potentially resulting in an earlier warning that a company is approaching financially hazardous condition.

4. Related statutes or rules

Section 623.11, Wis. Stats. and s. Ins 51.01, Wis. Admin. Code, both address risk based capital requirements. The proposed rule merely updates the minimum ratio for insurers.

5. The plain language analysis and summary of the proposed rule

The existing regulation establishes risk based capital requirements for an insurer based on the risks inherent in the insurer's operations by requiring it to perform a calculation of its authorized control level risk based capital. Under the current regulation, a company action level event, which requires the company to take certain remedial steps, is triggered if: