Rule-Making Notices (Hearing Notices)

rulemaking_notices Wisconsin Administrative Register No. 622, 10/31/2007

Rule-Making Notices

Notice of Hearings

Agriculture, Trade and Consumer Protection

[CR 07-093]

The State of Wisconsin Department of Agriculture, Trade and Consumer Protection (DATCP) announces that it will hold public hearings on proposed amendments to chapter ATCP 74, Wis. Adm. Code, relating to the procedures that DATCP uses to evaluate agents and the amount of reimbursement paid annually to DATCP.

DATCP will hold two public hearings at the times and places shown below. DATCP invites the public to attend the hearings and comment on the proposed rule. Following the public hearings, the hearing record will remain open until Friday, November 30, 2007, for additional written comments. Comments may be sent to the Division of Food Safety at the address below, by email to [e-mail], or online by using the State of Wisconsin's Administrative Rules website at:
https://apps4.dhfs.state.wi.us/admrules/public/Home.

You may obtain a free copy of this rule by contacting the Wisconsin Department of Agriculture, Trade and Consumer Protection, Division of Food Safety, 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 the State of Wisconsin's Administrative Rules website at: https://apps4.dhfs.state.wi.us/admrules/public/Home.

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

Hearing impaired persons may request an interpreter for these hearings. Please make reservations for a hearing interpreter by November 7, 2007, by writing to Wayne Kopp, Division of Food Safety, P.O. Box 8911, Madison, WI 53708-8911, telephone [phone]. Alternatively, you may contact the DATCP TDD at [phone]. Handicap access is available at the hearings.

Hearing Information

Wednesday, November 14, 2007

10:00 a.m. to 12:00 p.m.

Marathon County Government –

Conservation Planning & Zoning Conference Room

210 River Drive

Wausau, WI 54403

Thursday, November 15, 2007

10:00 a.m. to 12:00 p.m.

Dept. of Agriculture, Trade and Consumer Protection

2811 Agriculture Drive, Room 172

Madison, Wisconsin 53718-6777

Analysis Prepared by the Dept. of Agriculture, Trade and Consumer Protection

This rule modifies current rules related to cities and counties (“local agents") that license and inspect retail food establishments for the department of agriculture, trade and consumer protection (“DATCP"). This rule increases fees paid by local agents, to compensate DATCP for its costs to train, evaluate and assist local agents. This rule also changes the procedures that DATCP uses to evaluate local agents.

Statutory authority

Sections 93.07 (1), 97.30 (5), 97.41 (2) and (5), Stats.

Statute interpreted

Section 97.41, Stats.

Explanation of agency authority

DATCP has broad general authority under s. 93.07 (1), Stats., to adopt rules needed to interpret and implement laws under its jurisdiction. Under s. 97.41, Stats., DATCP may contract with local agents to license retail food establishments for DATCP. DATCP may set standards for local agents, and may spell out procedures for evaluating local agents. Subject to statutory limits, DATCP may require local agents to pay fees to compensate DATCP for training, evaluation and other services provided to local agents.

Background

DATCP licenses and inspects retail food establishments such as groceries, convenience stores and retail bakeries. DATCP may contract with local agents to license and inspect retail food establishments for DATCP. Local participation is voluntary. A local agent may set its own license fees, which may be higher (and typically are higher) than state fees. A retail food establishment licensed by a local agent does not need to be licensed by DATCP.

The local agent program is growing. DATCP currently contracts with 37 local agents (there were 21 local agents in 2000). DATCP trains, monitors and assists local agent staff, establishes performance standards, and evaluates the consistency and adequacy of local performance.

Local agents must pay an annual fee to compensate DATCP for its costs to train, evaluate and assist local agents. The fee is based on the number of retail food licenses issued by the local agent. The per-license fee is calculated as a percentage of the state retail food license fee, even if the local agent chooses to charge a higher license fee. The statutes authorize DATCP to charge up to 20% of the state license fee. DATCP originally charged a 20% fee, but in 2000 reduced the fee to 10%.

The current 10% fee is not adequate to cover DATCP costs. At the current rate, DATCP recovers only about half of its costs to train, evaluate and assist local agents. The current inadequate fee, combined with growing local participation, has produced a substantial DATCP budget deficit. In FY 2006-07, DATCP collected only $58,800 in fees from local agents, but incurred local agent costs of $117,800.

Rule contents

Local Agent Fees. This rule increases fees paid by local agents, to compensate DATCP for services provided to local agents. This rule increases the fee to 20% (currently 10%) of the state license fee amount. DATCP projects that the higher fee will generate adequate revenue to cover (but not exceed) DATCP's actual and reasonable costs as allowed by statute. Local agents may adjust their license fees to pass on the increased cost, if they wish to do so. Local agents may also opt out of the program at any time.

Local Agent Personnel; Credentials. Under current rules, local retail food inspections must be performed or supervised by public health sanitarians registered by the Wisconsin department of regulation and licensing. Under this rule, inspections may alternatively be performed or supervised by environmental health specialists registered by the national environmental health association.

Evaluation of Local Agents. Under current rules, DATCP must annually evaluate local agent performance. This rule changes the standards that DATCP uses, so that the standards more nearly conform to federal guidelines established by the United States food and drug administration (FDA). Under this rule, an annual evaluation may be based in part on a local agent self-assessment. The self-assessment must be conducted according to procedures spelled out in the agent agreement (procedures are generally based on the FDA guidelines).

At least once every 3 years, DATCP must conduct an on-site evaluation to determine local compliance with applicable laws and rules. Under current rules, the 3-year evaluation must include a survey inspection of randomly selected retail food establishments. Under this rule, a 3-year evaluation may include, but is not required to include, a survey inspection of retail food establishments.

Under this rule, in lieu of performing its own 3-year evaluation, DATCP may accept an equivalent evaluation performed by the Wisconsin department of health and family services (DHFS) pursuant to a cooperative agreement with DATCP (DHFS currently evaluates local agents that license and inspect restaurants for DHFS). An agreement could also provide for reciprocal DATCP evaluation of DHFS local agents, so that the 2 agencies could minimize duplication and maximize evaluation efficiency. There is no cooperative agreement at this time.

Comparison with adjacent states

Michigan. Michigan does not contract with local governments to conduct inspections.

Minnesota. Minnesota contracts with a few local health agencies to conduct retail food inspections. There is no fee to cover state oversight costs (oversight activities are covered by state general purpose revenue appropriations). Minnesota evaluates local agents according to FDA standards.

Illinois. Illinois delegates all retail food licensing and inspection authority to local government. There is no fee to cover state oversight costs (oversight activities are covered by state general purpose revenue appropriations). Illinois evaluates local agents according to FDA standards.

Iowa. Iowa contracts with local government to license and inspect retail food establishments. Iowa does not routinely evaluate local performance, but does occasional audits. There is no fee to cover state oversight costs (oversight activities, such as they are, are covered by state general purpose revenue appropriations). When Iowa does review local performance, it does so according to FDA standards.

Business Impact

This rule increases the fee that local governments must pay for services received from DATCP. Local governments may increase retail food license fees to cover the increased cost, but they are not required to do so. If a local agent passes on the full amount of its increased cost to retail license holders, the added cost allocated to each license holder may range from $4 to $56 per year per license holder. The actual amount will depend on the license holder's annual sales and food processing activities. This rule does not impose any additional recordkeeping or other requirements on retail food establishments.

Fiscal Estimate

This rule will increase DATCP revenues to cover (but not exceed) DATCP's actual and reasonable costs to administer the local agent program. Under current rules, DATCP annually collects $58,800 per year from all of its local agents. Under this rule, revenues will increase by $58,800 per year so that DATCP will receive approximately $117,600 per year. That is the approximate amount needed to cover DATCP's current annual cost of $117,800.

Under this rule, the 37 local agents will incur combined added costs of $58,800 per year, or an average of just under $1,600 per local agent. The local agent program is voluntary, so local governments may opt out of the program at any time. Local agents may also recover the increased cost by increasing retail food license fees, but they are not required to do so.

Notice of Hearing

Employment Relations Commission

[CR 07-092]

NOTICE IS HEREBY GIVEN that pursuant to ss. 111.09, 111.71, 111.94, 227.11 and 227.24, Stats., and interpreting ss. 111.09, 111.71, and 111.94, Stats., the Wisconsin Employment Relations Commission will hold a public hearing in the Commission's Conference Room at 18 South Thornton Avenue in the City of Madison, Wisconsin on the 12th day of November, 2007 at 1:00 p.m. and in the Wausau Room, Marathon County Public Library, 300 North First Street, in the City of Wausau, Wisconsin on the 13th day of November, 2007 regarding the Commission's promulgation of the following emergency rules increasing filing fees and the Commission's proposed promulgation of the following permanent administrative rules increasing filing fees.

The Commission invites the public to attend the hearings and to present verbal and/or written comments regarding the emergency rules and the proposed permanent rules. In addition to or instead of verbal testimony, written comments can also be sent directly to the Commission at [e-mail] or at Wisconsin Employment Relations Commission, P.O. Box 7870, Madison, Wisconsin 53707-7870. Written comments should be received by the Commission on or before November 30, 2007.

Text of Rule

ERC 10.08 Fee schedule. (1) Complaints. For a complaint alleging that a prohibited practice has been committed under s. 111.70 (3), Stats., the complaining party or parties shall pay the commission a filing fee of $80. $100.