DATCP Docket No. 22-R-11 Hearing Draft Rule
Rules Clearinghouse No. September 21, 2023
THE DEPARTMENT OF AGRICULTURE, TRADE
AND CONSUMER PROTECTION’S
PROPOSED ORDER TO ADOPT PERMANENT RULES
PROPOSED ORDER
The Wisconsin department of agriculture, trade and consumer protection proposes the following rule to repeal ATCP 90.10 (2) (Note 2) and ATCP 92.50 (3) (a); to amend ATCP 90.01 (15g) and (Note), 90.01 (15r) and (Note), 90.01 (19), 90.01 (26) and (Note), 90.04 (e), (f), (g), and (t), 90.07 (2), 90.07 (7) (a) 2. and 4., 90.08 (10) (g) and (h), 90.08 (12) (a), 90.08 (14) (a) 2. (Note), 90.08 (16) (b), 90.09 (2) (a) and (c) (Note), and 90.09 (4) (a), ATCP 91.03 (1) (e) and 91.01 (4) and (Note), ATCP 92.01 (10h) and (Note), (10p) and (Note), (10t) and (Note), (15), and (16), 92.02 (1) (Note), 92.02 (2), 92.06, 92.22 (1) (b) and (Note), 92.22 (2), 92.30 (3) (c) 2. and 3., 92.30 (3) (e) 2., and 92.43 (3) (a); relating to fair packaging and labeling; selling commodities by weight, measure, or count; and weights and measures; affecting small businesses.
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Analysis Prepared by the Department
of Agriculture, Trade and Consumer Protection
Statutes Interpreted
Statutes Interpreted: Wis. Stat. § 93.07 (1) and Wis. Stat. ch. 98. Statutory Authority
Explanation of Statutory Authority
Under Wis. Stat. § 93.07 (1), the department’s duties include, “To make and enforce such regulations, not inconsistent with law, as it may deem necessary for the exercise and discharge of all the powers and duties of the department, and to adopt such measures and make such regulations as are necessary and proper for the enforcement by the state of chs. 93 to 100, which regulations shall have the force of law.” In addition, various sections in Wis. Stat. ch. 98 require or authorize the department to promulgate rules concerning commercial weights and measures. Wis. Stat. § 98.03(2) provides: “The department may issue rules governing the construction, installation, and use of commercial weights and measures and prescribing tolerances thereof. The specifications, tolerances, and regulations for commercial weighing and measuring devices issued by the national institute of standards and technology shall apply in this state except as modified by such rules or by statute.” Wis. Stat. § 98.07(4) requires the department to promulgate rules to prevent consumer deception: “In order to prevent consumer deception, the department shall prescribe, by rule, standards for determining and declaring weight, measure or count, including the conspicuousness of quantity declarations.” Subsection (3) of that staute requires promulgating rules for commodities packaged prior to sale: “With respect to commodities packaged prior to sale, the department shall issue rules permitting reasonable variations from declared quantity which unavoidably occur in good packaging and distribution practices.” Among the other statutes in Wis. Stat. ch. 98 requiring or authorizing the department to promulgate rules are the following: § 98.16(4), which requires promulgating rules for vehicle scales; § 98.18(2), which authorizes promulgating rules “to regulate the installation, servicing, testing and certification of weights and measures” and permits those rules to “include record-keeping and reporting requirements”; § 98.224(4), which concerns promulgating rules for vehicle tank meters; and § 98.245(9), which concerns promulgating rules for liquified petroleum gas meters. Related Statutes and Rules
Wisconsin law on weights and measures is set forth in Wis. Stat. ch. 98 and in Wis. Admin. Code chs. ATCP 90, 91, and 92. Plain Language Analysis
Background
The Wisconsin Department of Agriculture, Trade and Consumer Protection (department) administers Wis. Stat. ch. 98, titled Weights and Measures. In fulfilling that responsibility, the department has promulgated administrative rules that incorporate by reference specifications and standards set forth in handbooks published by the National Institute of Standards and Technology (NIST), which is “a science, engineering, technology, and measurement laboratory” within the United States Department of Commerce. See 15 U.S.C. § 272(a). NIST works with and supports the National Conference on Weights and Measures (NCWM) in developing the standards set forth in NIST handbooks. NCWM is a professional not-for-profit association of state and local weights and measures officials, federal agencies, manufacturers, retailers, and consumers. Under 15 U.S.C. § 272(b)(10) and (c)(4), NIST is directed to cooperate with states in securing uniformity of weights and measures laws and methods of inspection. In partial fulfillment of that duty, NIST publishes handbooks with standards for weights and measures. Periodically, NIST updates those handbooks, thus leading the department to update its rules to incorporate by reference the latest version of relevant NIST handbooks. The department would like to update the NIST technical standards incorporated by reference in Wis. Admin. Code chs. ATCP 90, 91, and 92 (newer editions of technical references already cited in current rules). The code currently incorporates by reference the 2018 editons of NIST Handbook 44, NIST Handbook 130, and NIST Handbook 133. The proposed rule incorporates by reference the 2023 edtions of those NIST publications.The department’s Board approved the scope statement at its November 17, 2022 meeting. Rule Content
This rule revision makes minor technical changes to the three rules (Wis. Admin. Code chs. 90, 91, and 92). As previously stated, the revision updates the rules to incorporate by reference the 2023 editions of relevant NIST Handbooks. In addition, the revision changes the notes that explain how to obtain the handbooks, corrects various typographical errors, and makes other changes to adhere to the Administrative Rules Procedures Manual. For instance, the examples in § 1.06 (3) of the Administrative Rules Procedures Manual implicitly advise against using the percentage sign and instead recommend using the word “percent.” With respect to the general topic of spelling, § 1.05(1)(g) of the Manual directs, “Use the current edition of Webster’s New International Dictionary as the standard for spelling conventions.” Therefore, terms such as “corn meal” and “dish cloths” became “cornmeal” and “dishcloths.” Administrative Rules Procedures Manual § 1.06(c) reads, “Avoid using parentheses or dashes.If certain material is important to the thought or concept expressed in the rule, the material should be set apart with commas, not parentheses or dashes.” Finally, NIST does not “certify” laboratories; it instead “recognizes or accredits” them. To reflect the NIST terminology, rule language has been changed. This rule specifically does not adopt Section 3.40, Electric Vehicle Fueling Systems. The 2018 edition of NIST Handbook 44 lists this section as tentatively adopted. However, the 2023 edition permanently adopts this section. The department believes that the adoption of the Electric Vehicle Fueling Systems section would be a substantive rather than a technical revision. Therefore, if necessary or appropriate to do so in the future, the department will commence a separate rulemaking to address that section of NIST Handbook 44 and its incorporation into the Wisconsin Administrative Code. Summary of and Comparison with Existing or Proposed
Federal Statutes and Regulations
Not applicable. While NIST is “a science, engineering, technology, and measurement laboratory” within the United States Department of Commerce (See 15 U.S.C. § 272(a)), NIST develops recommended national standards through participation from state and local weights and measures officials and industry representatives during annual meetings of the National Conference on Weights and Measures. The specifications and standards set forth in NIST handbooks are themselves recommendations, not federal laws.
Summary of Comments Received during the Public Hearing on Statement of Scope
