Rule-Making Notices (Hearing Notices)

Fiscal Impact

This rule, together with 2011 Wisconsin Act 197, may result in some increase to both DATCP's revenues and costs. However, DATCP does not have sufficient data to estimate a dollar amount. There may be new revenue from telephone solicitor registration fees from solicitors who specialize in text message solicitations (and therefore must now register for the first time) and from solicitors who are currently registered, but must now pay a supplemental fee for using additional lines. There may be some one-time costs incurred as DATCP makes programmatic changes to accommodate the new rule. These one-time costs include such items as revising hand-outs, brochures, and solicitor registration forms, updating databases, and educating registered solicitors and consumers about the change in law. The additional revenues and costs represent small changes, and the costs can be absorbed within DATCP's budget.

DATCP anticipates additional annual costs as a result of new consumer complaints and investigations. Last year DATCP received approximately 1,200 consumer complaints related to telemarketing practices and the no-call list. Because this rule, along with 2011 Wisconsin Act 197, expands the types of communications to which the no-call list applies, it is likely that the number of complaints will increase. However, there is insufficient data to predict the rate of increase.

Business Impact

This rule will have minimal impact on business. This rule might affect the following businesses in the following ways (many of which are “small businesses"):

•   Direct marketers that conduct both telephone solicitation and text message solicitation. Wisconsin's no-call program was established in 2001. Therefore, businesses in this category are already regulated under current law, and will only experience minimal additional regulatory obligations or expenses. Currently, there are approximately 460 telephone solicitors registered for the Wisconsin no-call program.

•   Direct marketers that conduct text message solicitation but are not currently registered telephone solicitors. Under this rule (as well as s. 100.52, Stats., as amended by 2011 Wisconsin Act 197), businesses that send text message solicitations must register with the Wisconsin No Call program and refrain from sending text messages to numbers on the no-call list. The annual registration fees consist of the following; subject to a maximum limit of $20,000:

□   A basic fee of $700 for the first year and $500 each subsequent year.

□   An additional fee of $75 for each telephone line used for registrants greater than four lines.

□   An additional $25 fee for each e-mail address the registrant would like DATCP to transmit the no-call list, in excess of one.

□   An additional $25 fee for each compact disc set the registrant would like DATCP to mail, in excess of one.

□   An additional $1,000 for each hard-copy the registrant would like DATCP to mail, in excess of one.

Many of the businesses affected by this rule are “small businesses." However, given the subject matter, there are very few accommodations or special exceptions that can be made for small businesses.

This rule and the existing rule include many provisions that will benefit large and small businesses alike. For example:

•   DATCP publishes a fact-sheet for solicitors, explaining the requirements and prohibitions contained in the rule.

•   The rule allows solicitors to obtain the no-call list in a variety of formats, so they can use what is most convenient to them.

This new law and proposed rule may result in savings for some consumers on their monthly wireless service bills. On some plans, the provider charges the customer for each text message received. The new no-text provision protects consumers from these charges. DATCP does not have sufficient data to estimate a dollar amount that consumers might save.

Environmental Impact

This rule will not have any environmental impact.

DATCP Contact

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

Kevin LeRoy

Department of Agriculture, Trade and Consumer Protection

P.O. Box 8911

Madison, WI 53708-8911

Telephone [phone]

E-Mail: [e-mail]

STATE OF WISCONSIN DEPARTMENT OF ADMINISTRATION DOA 2049 (R 07/2011) ADMINISTRATIVE RULES FISCAL ESTIMATE AND ECONOMIC IMPACT ANALYSIS
Type of Estimate and Analysis
X Original Updated Corrected
Administrative Rule Chapter, Title and Number
ATCP 127, Direct Marketing
Subject
Prohibiting text message solicitations to numbers on the Do Not Call list, prohibiting “spoofing".
Fund Sources Affected			Chapter 20 , Stats. Appropriations Affected
GPR FED X PRO PRS SEG SEG-S			s. 20.115 (1) (im), stats.
Fiscal Effect of Implementing the Rule
No Fiscal Effect X 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		X 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
The Wisconsin no-call program was established by statute in 2001 and DATCP promulgated a rule, ch. ATCP 127, Subchapter V, to implement the program in 2002. Under the previous statute and existing rule, telephone solicitors must register with DATCP and refrain from contacting consumers who have enrolled for the no-call list. Recently enacted 2011 Wisconsin Act 197 extended the no-call provisions to include text messaging. This proposed rule revises ch. ATCP 127 to accommodate the change in statute. For purposes of the no-call program, this rule clarifies that the definition of “telephone solicitation" includes text message solicitations and creates a definition of “text message." In addition, this rule prohibits the practice known as “spoofing;" transmitting misleading or inaccurate call identification information. This proposed prohibition against “spoofing" is similar to the current rule requirements that telephone solicitors disclose the name of the seller, and not misrepresent the seller's identity, location or characteristics.
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)
This rule, together with 2011 Wisconsin Act 197, may result in some increase to both DATCP's revenues and costs. However, DATCP does not have sufficient data to estimate a dollar amount. There may be new revenue generated from telephone solicitor registration fees from solicitors who specialize in text message solicitations (and therefore must now register for the first time) and from solicitors who are currently registered, but must now pay a supplemental fee for using additional lines. There may be some one-time costs incurred as DATCP makes programmatic changes to accommodate the new rule. These one-time costs include such items as revising hand-outs and brochures, solicitor registration forms, updating databases, and educating registered solicitors and consumers about the change in law. The additional revenues and costs represent small changes and the costs can be absorbed within DATCP's budget. DATCP anticipates additional annual costs as a result of new consumer complaints and investigations. Last year, DATCP received approximately 1,200 consumer complaints related to telemarketing practices and the no-call list. Because this rule, along with 2011 Wisconsin Act 197, expands the types of communications to which the no-call list applies, it is likely that the number of complaints will increase. However, there is insufficient data to predict the rate of increase. Economic Impact Analysis Comments DATCP posted the proposed rule online and sought comments from businesses and the public about the potential economic impact of the rule. The department did not receive any comments about the potential economic impact of the rule.
Benefits of Implementing the Rule and Alternative(s) to Implementing the Rule
Implementing this proposed rule will bring congruity to existing statutes and rules. Not implementing the rule could lead to confusion because text messaging is now regulated as part of the no-call program (by statute), but is not specifically mentioned in the rule.
Long Range Implications of Implementing the Rule
Long-term, implementing the rule will benefit business and consumers by harmonizing the administrative rule with the existing statue.
Compare With Approaches Being Used by Federal Government
The federal CAN-SPAM Act prohibits sending commercial electronic mail messages to wireless devices, including cellular phones and pagers, unless the recipient provided prior authorization to receive such messages. In addition, Federal Communications Commission (FCC) rules prohibit sending unwanted text messages to a wireless phone number if they are sent using an auto dialer. Finally, FCC rules prohibit sending unwanted text messages to a telephone number on the national Do Not Call List.
Compare With Approaches Being Used by Neighboring States (Illinois, Iowa, Michigan and Minnesota)
Many states have do-not call programs. Several states, like Wisconsin, maintain their own do-not call list. Others, including the neighboring states of Illinois, Michigan and Minnesota have laws allowing for state enforcement of do-not call provisions, but rely on the FTC's registry rather than maintaining their own. Under FTC rules, texting is included in the do-not call provisions. Iowa does not presently have any statutes or rules related to a do-not call program.
Name and Phone Number of Contact Person
Kevin LeRoy, Program and Planning Analyst, 608/224-4928

Notice of Hearing

Agriculture, Trade and Consumer Protection

rulemaking_notices CR 12-037 CR 12-037

Rule Relating to Food Processing Plants

The Wisconsin Department of Agriculture, Trade and Consumer Protection (DATCP) announces that it will hold public hearings on a proposed rule relating to Chapter ATCP 70, relating to Food Processing Plants. The proposed rule will modify Chapter ATCP 70, Food Processing Plants, to adopt portions of the National Shellfish Sanitation Program (NSSP) Guide required to allow Wisconsin food processing plants to process and ship shellfish in interstate commerce.

Hearing Information

DATCP will hold two public hearings at the times and places shown below.

Date:   Tuesday, October 9, 2012

Time:   9:00 a.m.-9:45 a.m.

Location:   Department of Agriculture, Trade and         Consumer Protection
  Board Room (1st Floor)
  2811 Agriculture Drive
  Madison, WI 53718

Date:   Thursday, October 11, 2012

Time:   9:00 a.m.-9:45 a.m.

Location:   Waupaca County Courthouse
  Room LL42
  811 Harding Street
  Waupaca, WI 54981

Accessibility

Hearing impaired persons may request an interpreter for this hearing. Please make reservations for a hearing interpreter by September 21, 2012, by writing to Division of Food Safety, P.O. Box 8911, Madison, WI 53708-8911; by emailing [e-mail]; or by telephone at [phone]. Alternatively, you may contact the DATCP TDD at [phone]. The hearing facility is handicap accessible.

Appearances at the Hearing and Submittal of Comments

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 October 25, 2012 for additional written comments. Comments may be sent to the Division of Food Safety at the address below, or to [e-mail], or 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 [e-mail], or by telephone at [phone].

Copies of the Rule

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 Food Safety, 2811 Agriculture Drive, P.O. Box 8911, Madison, WI 53708. You can also obtain a copy by calling [phone] or by emailing [e-mail]. Copies will also be available at the hearing. To view the hearing draft rule online, go to: http://adminrules.wisconsin.gov.

Analysis Prepared by the Department of Agriculture, Trade and Consumer Protection

The Department of Agriculture, Trade and Consumer Protection (“DATCP" or “department") currently licenses and inspects food processing plants. This rule modifies ch. ATCP 70, Food Processing Plants, to incorporate changes that apply to processing molluscan shellfish (e.g., oysters, clams and scallops). Wisconsin does not produce molluscan shellfish. However, food processors may receive molluscan shellfish from other states and sell them within Wisconsin only. This rule will allow Wisconsin food processing plants to reprocess and sell molluscan shellfish in interstate commerce.

Statutes interpreted

Section 97.29 (2), Stats.

Statutory authority

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

Explanation of agency authority

DATCP has broad general authority, under s. 93.07 (1), Stats., to interpret laws under its jurisdiction. DATCP also 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 specific authority, under s. 97.29 (5), Stats., to promulgate rules related to food processing, including food handling and storage, sanitary production and processing, and food sources and labeling.

Related rules or statutes

Related statutes include Ch. 97, Stats., “Food Regulation", and food safety rules in Chs. ATCP 55 to 88, Wis. Adm. Code.

Plain language analysis

Background

This proposed rule would modify ch. ATCP 70, Food Processing Plants, to incorporate changes that apply to processing molluscan shellfish (e.g., oysters, clams and scallops). Under current rules, food processing plants in Wisconsin that perform fish processing may receive and process molluscan shellfish from another state for final sale only within Wisconsin. The proposed rule would establish a program that would allow Wisconsin food processing plants, that choose to participate in the program, to process and repack molluscan shellfish for sale in other states and internationally. Thirty-seven other states are members of the Interstate Shellfish Sanitation Conference (ISSC), which is the primary voluntary national organization of state shellfish regulatory officials. Acting under a Memorandum of Understanding with the United States Food and Drug Administration (FDA), the ISSC provides guidance and counsel on matters involving the sanitary control of shellfish. Participating states codify this guidance to regulate the processing of molluscan shellfish in their jurisdictions for interstate commerce and FDA recognizes regulations based on the guidance as suitable for ensuring compliance with the Federal Food, Drug and Cosmetic Act.

Rule Content

This rule does all of the following:

•   Defines terms related to activities associated with the receipt, processing, labeling, and shipping of molluscan shellfish.

•   Modifies current rules to include provisions of the National Shellfish Sanitation Program (NSSP) and the guidelines of the Interstate Shellfish Sanitation Conference (ISSC) related to receiving, processing, repacking, labeling and shipping molluscan shellfish for wholesale interstate trade.

•   Applies existing standards for facilities, sanitation, and personal hygiene in food processing plants to molluscan shellfish shippers and reprocessors.

•   Sets standards for record-keeping consistent with NSSP guidelines.

Federal and surrounding state programs

Federal Programs

There is no federal law related to the transportation and processing of molluscan shellfish. However, FDA administers the National Shellfish Sanitation Program (NSSP), which developed a model ordinance that states may use to develop uniform shellfish regulations. Compliance with the model ordinance is deemed consistent with meeting applicable provisions in the Federal Food, Drug and Cosmetic Act.

Surrounding State Programs

Illinois is the only surrounding state currently participating in this program. Illinois' rules are consistent with this proposed rule. Unlike this proposed rule, Illinois requires molluscan shellfish processors to pay additional fees to participate in the program. Iowa, Michigan, and Minnesota do not participate. These states may be potential customers for molluscan shellfish sold by Wisconsin businesses.

Analysis and supporting documents used to determine effect on small business or in preparation of an economic impact analysis

This rule was requested by the large wholesale businesses it is most likely to impact. Small businesses are unlikely to participate in this program. DATCP provided an opportunity for comment on the economic impact of the rule during the Economic Impact Analysis comment period. No comments related to the economic impact were received.

Data and analytical methodologies

DATCP staff reviewed information to determine the extent to which other states have adopted NSSP guidelines and contacted staff in Illinois involved with regulating molluscan shellfish to determine the extent to which their rules are consistent with this proposed rule. DATCP obtained additional information about the applicable requirements through communications and training with FDA officials overseeing the NSSP.

Fiscal Estimate

This rule will not have a significant fiscal impact on state government and DATCP will absorb any costs with current budget and staff since food processing plants are already regulated by DATCP. This rule will have no fiscal effect on local governments or public utility rate payers. DATCP estimates it will use the equivalent of .1 Full-Time Employee (FTE) to revise this rule, and it will utilize existing staff for that work.

Business Impact Analysis and Effects on Small Business

This rule will have a positive impact on businesses in Wisconsin. Currently, Wisconsin businesses may receive and process molluscan shellfish from out of state, but may only sell these products within Wisconsin. This rule will allow Wisconsin businesses to expand their markets for these products by allowing them to process and sell molluscan shellfish in interstate commerce. In addition, as one of only two states in the Midwest to participate in the program, this rule will provide an incentive to large wholesalers that operate in several states to locate molluscan shellfish processing operations in Wisconsin.

The implementation costs for businesses to participate in this program are expected to be minimal. The provisions of this rule are consistent with general facility and sanitation standards that food processors must already meet. Businesses that choose to participate in the program would not need to modify existing facilities or implement unusual recordkeeping. Participation in the program is voluntary and only businesses that choose to sell molluscan shellfish in interstate commerce would be required to meet the requirements. There will be no additional licensing fees beyond those already required for a food processing plant license.

This rule will primarily benefit large businesses that provide wholesale food products to retail food establishment, restaurants, and other wholesale food industries nationwide. Small businesses are unlikely to participate in this program, with current regulations allowing them to receive and sell molluscan shellfish in their local market sufficient to meet their needs. Any business regardless of size that sells molluscan shellfish products in interstate commerce must meet NSSP requirements. However, a small business that chooses to participate in the program is expected to be able to easily meet program requirements. DATCP would also provide support and guidance to any small business interested in participation to ensure they meet Hazard Analysis Critical Control Points (HACCP) and other regulatory requirements.

Standards Incorporated by Reference

This rule incorporates by reference Section IV Chapter III .01 of the Shellfish Industry Equipment Construction Guide, National Shellfish Sanitation Program, Guide for the Control of Molluscan Shellfish, 2009. Consent will be requested from the Attorney General to incorporate these standards by reference. A copy of this document will be kept on file with DATCP and the Legislative Reference Bureau. The Shellfish Industry Equipment Construction Guide is also available in electronic format at:
http://www.fda.gov/Food/FoodSafety/Product-SpecificInformation/Seafood/FederalStatePrograms/NationalShellfishSanitationProgram/ucm070560.htm.

DATCP Contact

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

Tim Anderson

Chief, Regulatory and Technical Services

Department of Agriculture, Trade and Consumer Protection-Division of Food Safety

P.O. Box 8911