CR_09-002 Hearing to consider rules revising Ch. ATCP 139, relating to consumer product safety.

Wisconsin Administrative Register No. 637, 1/31/2009

Rule-Making Notices

Notice of Hearing

Agriculture, Trade and Consumer Protection

CR 09-002

The Wisconsin Department of Agriculture, Trade and Consumer Protection (DATCP) announces that it will hold a public hearing on a proposed amendment to Chapter ATCP 139 , Wis. Adm. Code, relating to consumer product safety.

Hearing Information

Date	Location
February 12, 2009 At 10:00 AM	WI Dept. of Agriculture, Trade and Consumer Protection 2811 Agriculture Drive Board Room, 1 st Floor Madison, WI 53718

Hearing impaired persons may request an interpreter for these hearings. Please make reservations for a hearing interpreter by February 2, 2009, by writing to Michelle Reinen, Division of Trade and Consumer Protection, P.O. Box 8911, Madison, WI 53708-8911, [e-mail] , telephone [phone]. Alternatively, you may contact the DATCP TDD at [phone]. Handicap access is available at the hearings.

Submission of Written Comments

DATCP will hold the public hearing at the time and location shown above. DATCP invites the public to attend the hearing and comment on the rule. Following the hearing, the hearing record will remain open until Friday, February 27, 2009 for additional written comments. Comments may be sent to the Division of Trade and Consumer Protection at the address below, by email to [e-mail] or online at https://apps4.dhfs.state.wi.us/admrules/public/Home .

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

Copies of Proposed Rule

You may obtain a free copy of this proposed rule 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 may also obtain copies by calling [phone] or emailing [e-mail] . Copies will also be available at the hearing. To view the proposed rule online, go to: https://apps4.dhfs.state.wi.us/admrules/public/ Home .

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

The Department of Agriculture, Trade and Consumer Protection (DATCP) administers state laws to protect consumers from hazardous consumer products, including hazardous household substances and toys. DATCP has adopted consumer product safety rules under ch. ATCP 139 , Wis. Adm. Code. This rule updates and reorganizes current rules, and bans the sale of certain products that pose an unreasonable hazard which cannot be adequately cured by product labeling.

Statutes interpreted

Sections 100.37 , 100.42 and 100.20 , Stats.

Statutory authority

Sections 93.07 (1) , 100.37 (2) , 100.42 (2) , and 100.20 (2) , Stats.

Explanation of agency authority

DATCP has general authority, under s. 93.07(1) , Stats., to interpret laws under its jurisdiction. DATCP has authority, under s.100.37, Stats., to regulate hazardous substances including toys and other articles intended for use by children. DATCP has authority under s. 100.42 , Stats., to regulate unsafe consumer products. DATCP also has broad authority, under s. 100.20 , Stats., to regulate unfair methods of competition and unfair trade practices in business.

Related statutes

DATCP administers several consumer product safety statutes including s. 100.37 , Stats. (hazardous household substances), 100.42, Stats. (consumer product safety), 100.41, Stats. (flammable fabrics) and 100.43, Stats. (poison prevention packaging).

Background

The Department of Agriculture, Trade and Consumer Protection (DATCP) administers state laws to protect consumers from hazardous consumer products, including hazardous household substances and toys. DATCP has adopted consumer product safety rules under ch. ATCP 139 , Wis. Adm. Code. Current DATCP rules do all of the following:

•   Require warning labels on certain products.

•   Ban certain products that pose serious hazards which cannot be adequately cured by labeling. Most of these products are also banned by federal rules.

•   Provide exemptions for certain small packages and minor hazards.

DATCP last updated its consumer product safety rules 8 years ago. Since then, the federal consumer product safety commission and DATCP have identified serious product safety hazards that are not addressed by current DATCP rules. This rule does all of the following:

•   Reorganizes and clarifies current rules.

•   Bans certain products, because they pose serious safety hazards that cannot be adequately cured by labeling (see below). Some of these products are also banned by federal rules.

•   Provides that violations of consumer product safety rules also constitute unfair business practices under s. 100.20 , Stats.

Rule content

Current DATCP rules ban a number of dangerous consumer products, including dangerous children's products (most of the products are also banned by federal rules). This rule reorganizes and clarifies a number of the current product bans, without substantially altering those bans. This rule also adds new bans related to the following consumer products:

Lawn darts that can cause puncture wounds

Current DATCP rules ban "lawn darts" that are intended for use by children. The current DATCP rules are based on federal rules ( 16 CFR 1500.18 (a)(4)). Recently, the federal Consumer Product Safety Commission adopted additional rules ( 16 CFR 1306 ) to ban "lawn darts" labeled for adult use, because those "lawn darts" are often used by children and pose a serious puncture wound hazard to children and adults.

Consistent with current federal rules, this rule bans all "lawn darts," regardless of whether they are intended for use by children or adults.

Infant walkers that may propel infants down stairways

Current DATCP rules and federal rules ( 16 CFR 1500.18 (a)(6)) ban hazardous infant walkers, but do not address stair-fall hazards. There is a voluntary industry standard (ASTM standard) for stair-fall protection, but some manufacturers and importers are not complying. The federal consumer product safety commission has documented that most "baby walker" incidents now involve children falling down stairs.

This rule bans infant walkers that are banned by 16 CFR 1500.18 (a)(6) and that fail to meet the stair-fall protection standard in ASTM standard F 977-07 ("Standard Consumer Safety Specification for Infant Walkers"). This rule applies to infant walkers, also known as "baby walkers," "baby bouncers," and "walker jumpers," that are propelled by infants. It does not apply to baby strollers that are propelled by attending adults.

Toys with magnets that can be swallowed and can cause serious intestinal injury or death

Small and powerful rare-earth magnets are now widely used in toys, building sets and jewelry. As the number of products with magnets has increased, so has the number of serious injuries to children. In several reported incidents, magnets have fallen out of toys and been swallowed by children. Swallowed magnets can attract separately-swallowed metal objects through intestinal walls, and get trapped in place. The trapped magnets can twist or pinch the intestines, and can cause holes, blockages, infection and death if not treated properly and promptly. These injuries are difficult to diagnose. In the United States over the past 3 years, there have been 86 reported injuries, one reported death, and about 8 million magnetic toys recalled.

This rule bans products which contain magnets that may be swallowed by a child. The ban does not apply to toys that comply with 15 USC 2056b which adopts ASTM standard 963-07 ("standard consumer safety specification for toy safety"). Nor does it apply to toys in which the magnets are used only as internal parts of motors, relays, speakers or other electrical components, provided that the magnetic action is not part of the play pattern of the toy.

Cribs that can strangle or suffocate infants

Over the past 20 years, more than 1,100 children have died from crib-related injuries in the United States, and more than 11,600 children are hospitalized with crib-related injuries each year. Current federal rules ( 16 CFR 1500.18 (13) and (14)) ban cribs and related enclosures that fail to comply with applicable federal standards under 16 CFR1508 and 1509 (the federal rules apply to cribs manufactured after 1974 and 1983, respectively).

This rule bans baby cribs and related enclosures that are currently banned by federal law under 16 CFR 1500.18 (13) or (14).

Yo-yo elastic tether toys that can strangle children

Yo-yo elastic tether toys, often called "yo-yo waterballs," have a weighted object attached to a stretchable elastic cord that can extend to over 2 feet. (These "yo-yo waterballs" are different from traditional yo-yos, which do not have stretchable elastic cords). Instructions tell children to "throw the ball into the air and try and catch it," encouraging a lasso-like movement. But the weighted object is heavy enough to generate significant momentum when swung like a lasso, which makes the toy difficult to control. In Wisconsin, there have been 7 reported incidents in which children became unconscious after the cord wrapped tightly around the child's neck and cut off circulation. In other cases, children have suffered broken blood vessels affecting eyes, face and head areas. Illinois, New Jersey, the United Kingdom and Australia have already banned this toy from sale.

This rule bans yo-yo elastic tether toys that do not comply with the standards for yo-yo elastic tether toys established by 15 USC 2056b which adopts ASTM standard 963-07 ("standard consumer safety specification for toy safety").

Toys containing excessive concentrations of lead, which can cause serious long-term health effects

Recently enacted federal law ( 15 USC 1278a ) treats as a hazardous substance any children's products that contain more lead than 600 parts per million beginning 180 days after August 14, 2008, 300 parts per million beginning on the date that is one year after August 14, 2008, and 100 parts per million beginning on the date that is 3 years after August 14, 2008.

This rule bans children's products, containing lead, which are treated as banned hazardous substances under 15 USC 1278a . This ban does not apply to any of the following:

•   Electronic devices, including batteries, which meet alternative federal standards related to lead exposure.

•   A product component that is fully covered or encased (by something more than paint or electroplating), so that the component is inaccessible to a child despite normal and reasonably foreseeable use and abuse of the product.

Comparison with federal regulations

The following federal regulations apply to consumer products that are newly banned under this rule (federal regulations also apply to some products banned by current DATCP rules):

•   Lawn darts. Lawn darts intended for use by children are currently banned under 16 CFR 1500.18 (a)(4). Lawn darts intended for use by adults are currently banned under 16 CFR 1306 . This rule bans lawn darts, consistent with the federal bans.

•   Infant walkers. 16 CFR 1500.18 (a)(6) bans infant walkers which have exposed parts capable of amputating, crushing, lacerating, fracturing, bruising, or causing hematomas or other injuries to fingers, toes, or other parts of a young child's anatomy. This rule bans infant walkers that are banned by the federal rules. The current federal ban does not address "stair-fall" hazards. This rule bans infant walkers that fail to comply with recognized industry standards related to "stair-fall" protection (ASTM standard F 977-07).

•   Toys with magnets. Newly-enacted 15 USC 2056b adopts ASTM standard 963-07 ("standard consumer safety specification for toy safety") which establishes standards for, among other things, toys with magnets that may be swallowed by a child. This rule bans toys with magnets that do not comply with the standards established by 15 USC 2056b .

•   Baby cribs. 16 CFR 1508 and 16 CFR 1509 bans baby cribs that do not meet federal standards intended to reduce the risk of injury. This rule bans cribs that are banned by federal rules

•   Yo-yo elastic tether toys. Newly-enacted 15 USC 2056b adopts ASTM standard 963-07 ("standard consumer safety specification for toy safety") which establishes standards for, among other things, yo-yo elastic tether toys. This rule bans yo-yo elastic tether toys that do not comply with the standards established by 15 USC 2056b .

•   Lead in children's products. 15 USC 1278a treats as a hazardous substance any children's products that contain more lead than 600 parts per million beginning 180 days after August 14, 2008, 300 parts per million beginning on the date that is one year after August 14, 2008, and 100 parts per million beginning on the date that is 3 years after August 14, 2008. This rule bans children's products containing excessive lead, consistent with the federal law.

Comparison of rules in adjacent states

Wisconsin has a fairly well-developed consumer product safety program, with broad authorizing legislation modeled after federal law. Wisconsin statutes authorize DATCP, as Wisconsin's equivalent of the federal consumer product safety commission, to issue orders and adopt rules regulating dangerous consumer products.

Surrounding states have less comprehensive consumer product safety programs, and fewer administrative options for regulating dangerous consumer products. Surrounding states tend to regulate consumer product safety on a more ad hoc basis, with special legislation aimed at specific products. However, several surrounding states have banned many of the same products that are newly banned under this rule.

Lawn darts

None of the surrounding states has banned lawn darts under state law.

Infant walkers

Illinois and Michigan ban infant walkers that are the subject of federal product recalls. The federal consumer protection safety commission has published an industry guidance stating that it will seek to recall infant walkers that fail to comply with relevant federal standards or ASTM standards.

Magnets in toys

Illinois and Michigan ban toys with magnets if the toys are the subject of a federal recall. The federal consumer protection safety commission has recalled 17 toys since 2007 because the toys contained magnets that could detach and be swallowed or aspirated. Those toys are accordingly banned in Illinois and Michigan.

Cribs

Illinois, Minnesota and Michigan have adopted "safe crib" laws that ban unsafe cribs, including cribs banned by this rule.

Elastic tether toys

Illinois bans elastic tether toys, also known as "yo-yo waterballs" (New Jersey has a similar ban).

Lead in children's products

Illinois and Michigan ban children's products containing more than 600 ppm lead by weight. None of the other surrounding states regulates the lead content of children's products. However, some other states have enacted more stringent bans:

•   Washington bans children's products containing more than 90 ppm lead by weight.

•   Connecticut bans children's products containing more than 300 ppm lead by weight (or 100 ppm after 2 years). The Connecticut law is consistent with federal legislation and this rule.

Data and analytical methodologies

DATCP relies on incident data from consumer complaints and from the federal consumer product safety commission. DATCP uses test methods prescribed by federal rules, or by relevant industry standards (ASTM standards, published by ASTM International).

Small Business Impact

This rule may have an adverse impact on some businesses that manufacture, sell or distribute articles banned by this rule. Some of those businesses may be "small businesses."

Manufacturing Industry

This rule creates new regulations which prohibit the sale of consumer products that do not meet federal regulations or the current industry consensus standards for baby walkers, toys containing magnets, yo-yo elastic tether toys, cribs, and toys containing lead. In addition, the rule bans the sale of lawn darts.

This rule will require manufactures to change designs and formulas for their products if they do not currently comply with the federal regulations and current industry consensus standards if they plan to distribute product to Wisconsin. As the federal regulations have been in place for some time, most manufacturers already have systems in place to verify that current and new product complies with the federal standards. In addition, many manufactures actively participate in the process for developing the industry consensus standards and are already complying with those standards. Finally, as many states already have laws in place requiring cribs to meet current industry consensus standards and governing lead levels in toys, manufacturers are currently developing products that are in compliances with those states. Those products would also be in compliance with this rule. \This rule will benefit the manufacturing industry by providing clear guidance in designing and selling a compliant and safe product. Providing federal and industry consensus standards in the rule will provide industry with a clear understanding of how it may comply with Wisconsin safety standards. It will also provide for harmonious standards among various governing bodies making it easier for manufactures to comply.

Retailers

This rule creates new regulations which prohibit the sale of consumer products that do not meet federal regulations or the current industry consensus standards for baby walkers, toys containing magnets, yo-yo elastic tether toys, cribs, and toys containing lead. In addition, the rule bans the sale of lawn darts.

Under current rules, retailers are already prohibited from selling a number of unsafe and hazardous products in Wisconsin. This rule will add to that list, however, many of the products being added are already regulated by federal rules. Those products that are not currently regulated by federal rules, and are either banned in other states or have industry consensus standards to guide retailers on what is considered a safe product. In addition, many retailers actively participate in the process for developing the industry consensus standards and are already purchasing products that comply with those standards.

For many years national retailers have needed to have systems in place to assure the products they sell in Wisconsin are in compliance with Wisconsin laws. By including federal and industry consensus standard in the rule retailers will be able to request certificates of compliance with Wisconsin laws from distributors and manufactures when buying product for sale. In addition, they will be able to confer with testing laboratories to assure that product complies with Wisconsin law when designing and ordering product for their own store labels.

Accommodation for Small Business

Overall, this rule prohibits the sale of unsafe toys and other articles that present a hazard and unreasonable risk of personal injury. In many cases, these children's products, as well as several of the children's products currently banned by the rule, have become regulated by the federal rules. In addition, industry consensus standards have been developed which further describe the types of durable children's products, toys and toy components that create unacceptable hazards. This rule will provide clear guidance for individual businesses, including small businesses, in designing and selling a compliant and safe product that will comply with the rule. Overall, this rule has few adverse impacts on small business.

This rule may have some adverse effects on some small businesses (especially resale and thrift stores). If consumers have any consumer products in their homes which do not comply with the rule and donate them to a resale or thrift store, the store will have an obligation to determine if the product is in compliance with the rule. If the product is not in compliance with the rule they will not be permitted to sell the product in Wisconsin. This could create an increase in the volume of refuse a store has to process.

However, over the years the department has worked with resale and thrift stores on various education campaigns to decrease the amount of unsafe product that is turned around. The department has created a poster that highlights 12 unsafe products, including products covered by this rule, to educate both store employees and consumers who donate goods. These campaigns have helped the stores make safe product available to consumers. These posters will be available for resale and thrift store owners to post.

This rule is needed to protect consumers from unsafe toys and other articles that present a hazard and unreasonable risk of personal injury. A majority of the products contained in the rule are intended for use by children. Children are at a disadvantage as they are unable to evaluate risk.

Although this rule may have some adverse effects on some small businesses, those effects are generally minimal and are outweighed by the need to prevent the potential for injury and death. DATCP has not exempted small businesses, because the risk of injury and death is unrelated to business size.

Fiscal Estimate

This rule will not have significant fiscal impact on DATCP or local units of government.

Notice of Hearing

Workforce Development

Public Works Construction Contracts,
Chs. DWD 290-294

EmR0838 and CR 09-001

NOTICE IS HEREBY GIVEN that pursuant to ss. 66.0903 (5) and 103.49 (3g) , Stats., the Department of Workforce Development proposes to hold a public hearing on emergency and proposed permanent rules to consider the amendment of s. DWD 290.155 (1) , relating to the adjustment of thresholds for application of prevailing wage rates.

Hearing Information

Date	Location
February 12, 2009 Thursday 1:30 PM	G.E.F. 1 Bldg., B103 201 East Washington Avenue Madison, WI

Interested persons are invited to appear at the hearing and will be afforded the opportunity to make an oral presentation of their positions. Persons making oral presentations are requested to submit their facts, views, and suggested rewording in writing.

Visitors to the GEF 1 building are requested to enter through the left East Washington Avenue door and register with the customer service desk. The entrance is accessible via a ramp from the corner of Webster Street and East Washington Avenue. If you have special needs or circumstances regarding communication or accessibility at the hearing, please call [phone] at least 10 days prior to the hearing date. Accommodations such as ASL interpreters, English translators, or materials in audiotape format will be made available on request to the fullest extent possible.

Copies of Proposed Rule

The proposed rules are available at the web site http://adminrules.wisconsin.gov by typing "prevailing wage" in the search engine. This site allows you to view documents associated with this rule's promulgation, register to receive email notification whenever the Department posts new information about this rulemaking order, and submit comments and view comments by others during the public comment period. You may receive a paper copy of the rule by contacting:

Howard Bernstein

Office of Legal Counsel

Dept. of Workforce Development

P.O. Box 7946

Madison, WI 53707-7946

[phone]

[e-mail]

Submission of Written Comments

Written comments on the proposed rules received at the above address, email, or through the http://adminrules. wisconsin.gov web site no later than February 12, 2009, will be given the same consideration as testimony presented at the hearing.

Analysis Prepared by the Department of Workforce Development

Statutes interpreted

Sections 66.0903 (5) and 103.49 (3g) , Stats.

Statutory authority

Sections 66.0903 (5) , 103.49 (3g) , and 227.11 , Stats.

Explanation of agency authority

The prevailing wage laws require that when a state agency or local governmental unit contracts for the erection, construction, remodeling, repairing, or demolition of a public works project it must obtain a prevailing wage rate determination from the Department of Workforce Development and require that the contractors and subcontractors on the project pay their employees in accordance with those wage rates. Sections 66.0903 (5) and 103.49 (3g) , Stats., set initial estimated project cost thresholds for application of the prevailing wage rate requirements and direct the Department to adjust the thresholds each year in proportion to any change in construction costs since the thresholds were last determined. Pursuant to s. DWD 290.15 , the Department adjusts the thresholds based on changes in the construction cost index published in the Engineering News-Record, a national construction trade publication.

Summary of the proposed rule

Section DWD 290.155 (1) currently provides that the prevailing wage rate requirements do not apply to any single-trade public works project for which the estimated cost of completion is below $45,000 and do not apply to any multi-trade public works project for which the estimated cost of completion is below $221,000. This rule adjusts the thresholds from $45,000 to $48,000 for a single-trade project and from $221,000 to $234,000 for a multi-trade project based on a 5.71% increase in the construction cost index between December 2007 and December 2008.

Comparison with federal regulations

The federal prevailing wage law applies to a federal public works project for which the contract is greater than $2,000. This threshold is in statute and is rarely adjusted.

Comparison with laws in adjacent states

Minnesota

Minnesota has a statutory threshold of $2,500 for a single-trade project and $25,000 for a multi-trade project.

Illinois

Illinois does not have a threshold in its prevailing wage law. The law covers public works projects and defines public works projects as projects financed under various other specified laws.

Michigan

Michigan does not have a threshold in its prevailing wage law. The law covers projects that must be bid and relies on other agencies to determine the thresholds for what projects must be bid.

Iowa

Iowa does not have a prevailing wage law.

Summary of factual data and analytical methodologies

The thresholds are increased based on the national inflation rate in the construction industry. The Department uses the construction cost index in the Engineering News-Record , a national construction trade publication, to determine the inflation rate.

Small Business Impact

The proposed rule does not affect small businesses.

Fiscal Estimate

Under the proposed and emergency rules, a state agency or local governmental unit contracting for the construction of a single-trade public works project that costs more than $45,000 but less than $48,000 or a multi-trade project that costs more than $221,000 but less than $234,000 will not be covered by the prevailing wage requirement.

Agency Contact Person

Julie Eckenwalder, Section Chief, Construction Wage Standards Section, [phone], Julie.Eckenwalder@ dwd.wisconsin.gov .