CR_09-023 Hearings to consider rules to revise Ch. ATCP 149, relating to a potato marketing order.

Wisconsin Administrative Register No. 639, 3/31/2009

Rule-Making Notices

Notice of Hearing

Agriculture, Trade and Consumer Protection

CR 09-023

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 149 , Wis. Adm. Code, relating to the Potato Marketing Order.

Hearing Information

Antigo

Tuesday, April 14, 2009

1:00 p.m. to 2:30 p.m.

Langlade County, UW Extension Office

837 Clermont Street

Antigo, WI 54409

Stevens Point

Wednesday, April 15, 2009

1:00 p.m. – 2:30 p.m.

Portage County, UW Extension

County Annex Building, Rm 2

1462 Strongs Avenue

Stevens Point, WI 54481

Hearing impaired persons may request an interpreter for these hearings. Please make reservations for a hearing interpreter by April 8, 2009, by writing to Noel Favia, Division of Agricultural Development, 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.

Appearances at the Hearing and Submission of Written Comments

DATCP will hold two public hearings at the times and places shown above. 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 Thursday, April 30, 2009, for additional written comments. Comments may be sent to the Division of Agricultural Development at the address below or by e-mail to [e-mail] .

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].

Copies of Proposed Rule

You may obtain a free copy of this rule by contacting the Wisconsin Department of Agriculture, Trade and Consumer Protection, Division of Agricultural Development, Marketing Order Program, 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:

http://adminrules.wisconsin.gov

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

The Department of Agriculture, Trade and Consumer Protection (DATCP) has adopted a potato marketing order (ch. 149 , Wis. Adm Code), pursuant to ch. 96 , Stats. (Wisconsin agricultural marketing act). A potato industry board, elected by potato producers, administers the marketing order. The potato industry board collects assessments from potato producers, and spends assessment revenues for potato market development, research and education.

This rule changes the election and membership of the potato industry board, and authorizes the board to charge higher assessments to potato producers. This rule must be approved in a referendum of affected producers, as provided in s. 96.08 (1) (b) 3. , Stats., before it can take effect.

Statutes interpreted

Chapter 96 , Stats.

Statutory authority

Sections 93.07 (1) and 96.15 , Stats.

Explanation of agency authority

DATCP has general authority, under s. 93.07(1) , Stats., to adopt rules interpreting statutes under its jurisdiction. DATCP is specifically authorized, under s. 96.15 , Stats., to adopt rules to administer the marketing order program under ch. 96 , Stats.

Related statutes and rules

DATCP has adopted general rules under ch. ATCP 140 , Wis. Adm. Code, to govern the creation and operation of marketing orders, including the operation of marketing boards.

Background

DATCP administers Wisconsin's agricultural marketing order program under ch. 96 , Stats. DATCP may adopt marketing orders for Wisconsin agricultural commodities, with the approval of affected commodity producers. DATCP has adopted marketing orders for cherries, cranberries, corn, milk, mint, soybeans, ginseng and potatoes.

Each marketing order, including the potato marketing order, provides for assessments on commodity producers. Affected producers elect a marketing board that establishes assessment levels within limits specified by the marketing order, and spends assessment revenues for purposes identified in the marketing order. The current potato industry board (potato marketing board) includes 10 members elected from 5 geographic districts for staggered 3-year terms. DATCP monitors marketing board activities for compliance with applicable law, including the marketing order.

Under the current potato marketing order, the potato industry board is authorized to collect potato marketing assessments of up to 6 cents per hundredweight. The board has implemented an actual assessment rate of 5 cents per hundredweight – one cent per hundredweight below the maximum assessment currently allowed. Assessments may be used to finance market development, research and education, subject to the terms of the marketing order.

DATCP has adopted general rules under ch. ATCP 140 , Wis. Adm. Code, to govern the operation of marketing orders and marketing boards. DATCP must adopt marketing orders as rules. Affected producers must approve (by referendum) the adoption, amendment or repeal of a marketing order.

Summary of rule

This rule modifies the current potato marketing order (ATCP 149) to do all of the following:

•   Increase the maximum assessment that the potato industry board is authorized to charge to producers. This rule changes the maximum assessment rate from 6 cents to 10 cents per hundredweight on potatoes sold into commercial channels.

•   Change the election and membership of the potato industry board. This rule reduces the number of election districts from 5 to 3, and reduces the number of board members from 10 to 9. Eight of the 9 members of the modified board will be elected by producers from districts identified in this rule, and one board member will be chosen by all potato producers in a statewide "at large" election. Under this rule, all board members will be elected for 3-year terms.

•   Provide for a gradual changeover to the new board membership. Current board members will continue to hold office until their current terms expire.

Under this rule, potato industry board election districts will be as follows:

•   District 1 will be represented by 3 board members and will include Ashland, Barron, Bayfield, Brown, Burnett, Chippewa, Clark, Door, Douglas, Dunn, Eau Claire, Florence, Forest, Iron, Kewaunee, Langlade, Lincoln, Marinette, Menominee, Oconto, Oneida, Pepin, Pierce, Polk, Price, Rusk, Sawyer, St. Croix, Taylor, Vilas, and Washburn counties.

•   District 2 will be represented by 3 board members and will include Marathon, Outagamie, Portage, Shawano, Waupaca and Waushara counties.

•   District 3 will be represented by 2 board members and will include Adams, Buffalo, Calumet, Columbia, Crawford, Dane, Dodge, Fond du Lac, Grant, Green, Green Lake, Iowa, Jackson, Jefferson, Juneau, Kenosha, LaCrosse, Lafayette, Manitowoc, Marquette, Milwaukee, Monroe, Ozaukee, Racine, Richland, Rock, Sauk, Sheboygan, Trempealeau, Vernon, Walworth, Washington, Waukesha, Winnebago and Wood counties.

The changes to the current election districts, and the election of one "at large" representative, will address changes in the geographic distribution of potato production in the state. The increase in the maximum authorized marketing order assessment will facilitate additional funding for market development and research, including University of Wisconsin research related to new potato varieties and pesticide and chemical management.

Comparison with federal regulations

The United States department of agriculture (USDA) administers an agricultural marketing order program, under which USDA has broad authority to regulate prices and production, as well as to charge assessments for market development, promotion, research and education. USDA has adopted marketing orders for some of the same commodities covered by Wisconsin marketing orders (including potatoes). However, the state marketing orders do not directly duplicate or conflict with the federal marketing orders.

Comparison with rules in adjacent states

Michigan and Minnesota have marketing assessments for potatoes produced within those states. Minnesota's current assessment is 3 cents per hundredweight and Michigan's assessment is 5 cents per hundredweight (the same as Wisconsin's current assessment).

Factual data and analytical methods

DATCP keeps an updated list of potato producers for the purpose of determining eligible voters in marketing order referenda and marketing board elections. Changes in that list reflect significant changes in the geographic distribution of potato producers in the state. DATCP has worked with affected producers and the potato marketing board to obtain information related to assessment revenues and revenue needs.

Small Business Impact

Summary

The current potato marketing order is designed to improve the production and marketing of potatoes in this state, for the benefit of potato producers. This rule, initiated at the request of potato producers, is intended to improve the current potato marketing order. This rule must be approved in a referendum of affected producers before it can take effect. Many of the affected producers are "small businesses."

This rule will change the composition and election of the current potato industry board. The changes reflect changes in the geographic distribution of the Wisconsin potato industry. The changes will have little, if any, impact on affected producers.

This rule also authorizes the potato industry board to increase the current potato marketing assessment from a maximum of 6 cents per hundredweight to a maximum of 10 cents per hundredweight of potatoes sold in commercial channels. The board may not increase the actual assessment rate by more than one cent per year.

While the authorized increase may eventually add expense for producers, the added expense will be small. Wisconsin has over 150 farms that produce nearly 23 million hundredweight of potatoes annually. The current marketing assessment is 5 cents per hundredweight. With potatoes currently selling at nearly $25 per hundredweight, the current assessment represents only 2/10ths of 1% of the current market value of potatoes. Even if the potato industry board were to increase the assessment (over a period of at least 5 years) to the maximum 10 cents per hundredweight allowed by this rule, the assessment would still amount to only 4/10 of 1% of potato market value.

Steps to assist small business

Most of the businesses affected by this rule are "small businesses." The rule allows for an increased maximum assessment rate to meet expenses related to operation of the marketing order board. Those expenses are indirectly paid by producers through their assessments. The effect of the increased maximum assessment rate will be to enable the board to have sufficient income to continue research, marketing and education necessary for the business of those affected producers.

Conclusion

This rule will have a minimal impact on individual potato producer expenses or incomes and will generally benefit those producers most of which are small businesses by providing the ability to fund research, marketing and education necessary to the industry. This rule will not have a significant adverse effect on "small business," and is not subject to the delayed "small business" effective date provided in s. 227.22 (2) (e) , Stats.

Fiscal Estimate

Summary

This rule will have no significant fiscal impact on DATCP or local government.

State fiscal effect

None

Local government fiscal effect

None

Long-range fiscal implications

Ability to raise the assessment in order to provide the necessary research and market development.

Agency Contact Person

Questions and comments on this rule may be directed to:

Noel Favia, DATCP

PO Box 8911

Madison, WI 53708- 8911

Phone: [phone]

Email: noel.favia@ datcp.state.wi.us .

Notice of Hearing

Commerce

Licenses, Certifications and Registrations, Ch. Comm 5

CR 09-021

NOTICE IS HEREBY GIVEN that pursuant to ss. 145.12 (5) (a) and 145.20 (6) Stats., as affected by 2007 Wisconsin Act 197 , the Department of Commerce will hold a public hearing on proposed rules under section Comm 5.12 establishing a schedule of forfeitures for POWTS Governmental Unit Employees.

Hearing Information

The public hearing will be held as follows:

Date and Time:	Location:
April 15, 2009 Wednesday 10:00 AM	Conference Room 3B Thompson Commerce Center 201 West Washington Avenue Madison

This hearing is held in an accessible facility. If you have special needs or circumstances that may make communication or accessibility difficult at the hearing, please call [phone] or contact through Relay at least 10 days prior to the hearing date. Accommodations such as interpreters, English translators, or materials in audio tape format will, to the fullest extent possible, be made available upon a request from a person with a disability.

Appearances at the Hearing and Submission of Written Comments

Interested persons are invited to appear at the hearing and present comments on the proposed rules. Persons making oral presentations are requested to submit their comments in writing. Persons submitting comments will not receive individual responses. The hearing record on this proposed rulemaking will remain open until 4:30 p.m., Thursday, April 23, 2009, to permit submittal of written comments from persons who are unable to attend the hearing or who wish to supplement testimony offered at the hearing. Written comments should be submitted to James Quast, at the Department of Commerce, P.O. Box 2689, Madison, WI 53701-2689, or Email at jim.quast@ wisconsin.gov.

Copies of Proposed Rules

The proposed rules and an analysis of the proposed rules are available on the Internet at the Safety and Buildings Division Web site at www.commerce.wi.gov/SB/ . Paper copies may be obtained without cost from Roberta Ward, at the Department of Commerce, Program Development Bureau, P.O. Box 2689, Madison, WI 53701-2689, or Email at [e-mail] , or at telephone [phone] or contact through Relay. Copies also will be available at the public hearing.

Analysis Prepared by Department of Commerce

Statutes interpreted

Sections 145.12 (5) (a) and 145.20 (6) , Stats., as affected by 2007 Wisconsin Act 197

Statutory authority

Sections 145.12 (5) (a) and 145.20 (6) , Stats., as affected by 2007 Wisconsin Act 197

Related statute or rule

None

Explanation of agency authority

Section 145.02 , Stats., grants the Department of Commerce general authority for protecting the health, safety and welfare of the public by establishing reasonable and effective standards for Private Onsite Wastewater Treatment Systems (POWTS) including the licensing of individuals to inspect POWTS. Section 145.20 , Stats., delineates the responsibilities and duties of governmental units administering and enforcing the laws and rules pertaining to POWTS. Section 145.12 (5) (a) , Stats., as affected by 2007 Wisconsin Act 197 , authorizes the Department to directly assess forfeitures to governmental unit employees who violate the limitations under s. 145.20 , Stats., for POWTS employees that perform work outside of the scope of their governmental unit responsibilities.

Summary of proposed rules

The proposed rules under chapter Comm 5 delineate the procedures for implementing the forfeiture assessments for POWTS governmental unit employees violating the outside employment limitations established under 2007 Wisconsin Act 197 . The proposed rules establish a schedule for forfeitures based upon various situations and/or activities. Current rules delineate a process for appealing a forfeiture assessment.

Comparison with federal regulations

There are no known federal regulations or proposed federal regulations that could be compared to the direct forfeiture provision.

Comparison with rules in adjacent states

A search of the rules in adjacent states found that Minnesota, Iowa, Illinois, and Michigan do not have any regulations regarding conflict of interest related to their onsite sewage program governmental unit employees. The comparisons were completed via a web search.

Summary of factual data and analytical methodologies

The proposed rules were developed by reviewing the provisions under ss. 145.12 (5) (a) and 145.20 (6) , Stats., as created by 2007 Wisconsin Act 197 , as well as existing administrative rules for administrative forfeitures administered by the Department of Commerce.

Analysis and supporting documents used to determine effect on small business

The 2007 Wisconsin Act 197 affects governmental unit employees who administer and enforce regulations pertaining to design, installation and maintenance of POWTS by limiting the activities that such employees may undertake outside of their governmental employment. The proposed rules implement administrative forfeitures authorized under 2007 Wisconsin Act 197 for violations of these limitations.

Small Business Impact

The department does not believe that the proposed rules will increase the effect on small businesses over that imposed by the Act.

An economic impact report has not been required pursuant to s. 227.137 , Stats.

Initial regulatory flexibility analysis

Types of small businesses that will be affected by the rules:

The 2007 Wisconsin Act 197 affects governmental unit employees who administer and enforce regulations pertaining to design, installation and maintenance of POWTS by limiting the activities that such employees may undertake outside of their governmental employment relative to the design, installation and maintenance of POWTS. The proposed rules implement administrative forfeitures authorized under 2007 Wisconsin Act 197 for violations of these limitations. The proposed rules may to a degree affect POWTS design and/or contract businesses.

Reporting, bookkeeping and other procedures required for compliance with the rules:

There are no reporting or bookkeeping procedures required for compliance with the rules.

Types of professional skills necessary for compliance with the rules:

There are no new types of professional skills necessary for compliance with the rules.

Rules have a significant economic impact on small businesses?

No.

Small business regulatory coordinator

The small business regulatory coordinator for the Department of Commerce is Carol Dunn, who may be contacted at telephone [phone], or Email at [e-mail] .

Environmental Impact

The Department has considered the environmental impact of the proposed rules. In accordance with chapter Comm 1, the proposed rules are a Type III action. A Type III action normally does not have the potential to cause significant environmental effects and normally does not involve unresolved conflicts in the use of available resources. The Department has reviewed these rules and finds no reason to believe that any unusual conditions exist. At this time, the Department has issued this notice to serve as a finding of no significant impact.

Fiscal Estimate

State fiscal effect

None.

Local government fiscal effect

None.

Long-range fiscal effect

No long-range fiscal implications are anticipated.

Agency Contact

James Quast

Program Manager

Phone: [phone]

Email: [e-mail]

Notice of Hearing

Insurance

CR 09-022

NOTICE IS HEREBY GIVEN That pursuant to the authority granted under s. 601.41 (3) , Stats., and the procedures set forth in s. 227.18 , Stats., the Office of the Commissioner of Insurance will hold a public hearing to consider the adoption of rules revising Chapters Ins 2 , 5 , 6 , 26 and 28 , Wis. Adm. Code, relating to licensing, prelicensing, and continuing education for insurance agents, and affecting small business.

Hearing Information

Date:   April 13, 2009

Time:   10:00 a.m., or as soon thereafter as
  the matter may be reached

Place:   OCI, Room 227 (2 nd Floor)
  125 South Webster Street
  Madison, WI

Copy of Proposed Rule

A copy of the full text of the proposed rule changes, analysis and fiscal estimate may be obtained from the Web site at: http://oci.wi.gov/ocirules.htm or by contacting Inger Williams, OCI Services Section, at:

Phone:   [phone]

Email:   [e-mail]

Address:   125 South Webster St – 2 nd Floor,
  Madison WI 53703-3474

Mail:   PO Box 7873, Madison, WI 53707-7873

Submission of Written Comments

Written comments can be mailed to:

Robert Luck

Legal Unit - OCI Rule Comment for Rule Ins 6

Office of the Commissioner of Insurance

PO Box 7873

Madison WI 53707-7873

Written comments can be hand delivered to:

Robert Luck

Legal Unit - OCI Rule Comment for Rule Ins 6

Office of the Commissioner of Insurance

125 South Webster St – 2 nd Floor

Madison WI 53703-3474

Comments can be emailed to:

Robert Luck

[e-mail]

Comments submitted through the Wis. 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 the 14 th day after the date for the hearing stated in this Notice of Hearing.

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

Statutes interpreted

Sections 600.01 , 628.04 , 628.34 (12) , Stats.

Statutory authority

Sections 600.01 (2) , 601.41 (3) , 601.42 , 628.04 , 628.04 (1c) , 628.34 (12) , Stats.

Explanation of agency authority

OCI has authority to set the initial licensing procedures and renewal requirements for insurance agents in the state of Wisconsin. These changes modify the existing requirements to conform to NAIC model requirements for agents in all states.

Related statutes or rules

None.

Plain language analysis

This rule changes the agent licensing requirements to conform to the NAIC model requirements for licensing and regulation of insurance agents. Three new lines of authority, variable life, crop and surety are created to bring Wisconsin in conformance with the lines in the NAIC model. For the variable line, there will be a 6 month transition period where an agent can solicit under either the current licensing requirements or the new ones. After that period, the agent would only be able to solicit under the new requirements.

These proposals will now allow online, self study and correspondence course credits to satisfy the existing prelicensing education requirements. This conforms Wisconsin to requirements under the NAIC model.

The NAIC model requires that the state of residence use fingerprint identification for crime checks. There are 16 States that now require fingerprinting of their resident insurance agent applicants including AK, AZ, CA, CT, FL, ID, MT, NJ, NV, PA, OH, OR, TN, UT, WA and WV. Wisconsin statutes permit the commissioner to require fingerprints for this purpose (see 628.04(1c), Stats.) Currently, resident agent applicant's criminal records are checked using only the Department of Justice, Crime Information Bureau ("CIB"). The CIB database contains no information about federal convictions or convictions in other states. The CIB matches are currently done using a name match and can result in inaccurate matches. A fingerprint match is the only method that the CIB match can be verified. Thus a person who applies for a Wisconsin insurance license could fail to disclose significant convictions under federal law, in other states or even Wisconsin and OCI would have no method to catch the falsehood. OCI would license the person not knowing that the public may be at significant risk. The FBI requires fingerprint in order to provide criminal records to the Commissioner. Other Wisconsin agencies currently require fingerprint crime checks with the FBI including those holding securities licenses, teachers, private detectives, and health professionals. The current testing vendor contracted with OCI holds the current statewide contract for fingerprinting, and provides those services for the licenses identified above. Pursuant to the current contract, the fingerprints collected would be used only to do an FBI and CIB crime check and then destroyed.

Another change proposed is to raise the application fee for the initial licensing of insurance agents. Currently, the fees OCI collects from insurance agent applicants are less than what OCI pays to have the licensing examination administered. As with most state contracts, the contract for the administration of the licensing examination was recently rebid with the new contract effective July 1, 2009. This new contract contains higher charges for examination and processing and makes the current fee structure even more inadequate. Unless the initial licensing fees are raised, OCI will not be able to administer the licensing program without incurring substantial debt.

A similar situation exists with the agent renewal fees. The cost of continuing regulation of agents after they are licensed has increased and the current fee is inadequate.

Comparison with federal regulations

None.

Comparison of rules in adjacent states

All states are modifying their procedures regarding continuing education, prelicensing education and lines of authority to conform to the NAIC models as Wisconsin is doing in this revision. There are 16 States that now require fingerprinting of their residents insurance agent applicants including AK, AZ, CA, CT, FL, ID, MT, NJ, NV, PA, OH, OR, TN, UT, WA and WV.

Fees do vary by state and are as follows for Wisconsin's 4 adjacent states. (Wisconsin includes the testing fee in the current and proposed fees.)

Illinois:

Resident Application:   $180 plus testing fee of $103/line

Nonresident Application:   $250

Resident Renewal:     Biennial fee of $180/line of
    authority

Nonresident Renewal:   Biennial fee of $250

Iowa:

Resident Application:   $50 plus testing fee of $71/line

Nonresident Application:   $50

Resident Renewal:     Biennial fee of $50

Nonresident Renewal:   Biennial fee of $50

Michigan:

Resident Application:   $10 plus testing fee of $51/line

Nonresident Application:   $10

Resident Renewal:     Biennial fee of $10

Nonresident Renewal:   No Renewal Fees

Minnesota:

Resident Application:   $40 plus $50/line plus testing
    fee of $51/line

Nonresident Application:   $40 plus $50/line of authority

Resident Renewal:     Biennial fee of $40 plus $50/line

Nonresident Renewal:   Biennial fee of $40 plus $50/line

Factual data and analytical methodologies

NAIC Model Agent Licensing laws

Analysis and supporting documentation used to determine effect on small businesses

The fee increases are minimal.

Small Business Impact

This rule may have an effect on small businesses.

Raising the application fees will affect the cost for new agents and agents seeking to expand their authority. It would be a one time fee at the time of licensing and thus have minimal impact. The fee increase is needed to cover the increased costs of testing for that line of authority and in issuing new licenses.

The biennial renewal fee increases would increase the costs for currently licensed agents every 2 two years when the fee is due. The increases are very minimal — $5 per year for resident agents and $10 per year for non resident agents.

Other changes would allow agents to take continuing education credits online, by correspondence course or by self study, thus giving agents more choices in how to gain the required credits. This probably would reduce costs for agents and would not require the agents to physically attend the continuing education classes.

Initial regulatory flexibility analysis

Types of small businesses affected: Insurance agents and agencies.

Description of reporting and bookkeeping procedures required: None beyond those currently required.

Description of professional skills required: None beyond those currently required.

Small business regulatory coordinator

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

Fiscal Estimate

Summary

This rule change will have no significant effect on the private sector regulated by OCI.

The Office of the Commissioner of Insurance (OCI) currently has a contract with a vendor to provide resident agent licensing exams and tracking of continuing education credits for insurance agents. The cost of the contract to provide these services to resident agents is currently more than the revenues that OCI brings in from the resident agents. This increase in fees will bring the costs and revenues more into alignment.

OCI projects issuing a total of 19,257 resident and nonresident agent licenses each year. The increased revenue from the increase in agent license fees is projected to be $1,109,300 per year with $110, 900 of the revenue going to GPR-Earned and $998,400 being retained by OCI.

OCI projects a total of 56,007 resident and nonresident agent biennial renewals each year. The increased revenue from the increase in the biennial renewal fee is projected to be $908,800 per year with $90,900 going to GPR-Earned and $817,900 being retained by OCI.

Total GPR-Earned $201,800

Total PR $1,816,300

Total Revenue $2,018,100

State fiscal effect

Increase existing revenues.

Local government fiscal effect

None.

Long-range fiscal implications

OCI will no longer be paying its vendor more per resident agent licensing examination than it receives in revenues from these resident agents.

Agency Contact Person

Inger Williams, OCI Services Section, at:

Phone:   [phone]

Email:   [e-mail]

Address:   125 South Webster St – 2 nd Floor,
  Madison WI 53703-3474

Mail:   PO Box 7873, Madison, WI 53707-7873

Notice of Hearing

Natural Resources

Environmental Protection — Air Pollution Control,
Chs. NR 400—

CR 09-020

NOTICE IS HEREBY GIVEN t hat pursuant to ss. 227.11 (2) (a) , 285.11 (1) and (16) , 285.60 (6) , and 285.67 , Stats., the Department of Natural Resources, hereinafter the DNR, will hold a public hearing to consider proposed rule revisions to Chapters NR 406 , 407 , 419 , 439 , and 484 , relating to federal hazardous air pollutant regulations, biodiesel fuel, incorporation of statutory changes, and air permit applications.

The proposed revisions relate to issues for State Implementation Plan approvability, and the State Implementation Plan developed under s. 285.11 (6) , Stats., will be revised.

Hearing Information

Date and Time:     Location:

April 16, 2009     Dept. of Natural Resources Bldg.
11:00 a.m. - 12:30 p.m.   (GEF 2) .— Room 613

    101 South Webster Street

    Madison, WI 53703

The public hearing site is accessible to people with disabilities. If you have special needs or circumstances that may make communication or accessibility difficult, please contact Robert Eckdale in writing at the DNR, Bureau of Air Management, P.O. Box 7921, Madison, WI 53707; by E-mail to [e-mail] ; or by calling [phone]. A request must include specific information and be received at least 10 days before the date of the scheduled hearing.

Copies of Proposed Rule

The proposed rule and supporting documents, including the fiscal estimate, may be viewed and downloaded from the Administrative Rules System Web site which can be accessed through the link provided on the Proposed Air Pollution Control Rules Calendar at http://www.dnr.state.wi.us/ air/rules/calendar.htm . If you do not have Internet access, a personal copy of the proposed rule and supporting documents, including the fiscal estimate, may be obtained free of charge by contacting Robert Eckdale, Bureau of Air Management Rules Coordinator, by e-mail at robert.eckdale@ wisconsin.gov or by calling 608-266-2856.

Submission of Written Comments

Comments on the proposed rule must be received on or before April 24, 2009 . Written comments may be submitted by mail, fax, E-mail, or through the Internet and will have the same weight and effect as oral statements presented at the public hearing. Written comments and any questions on the proposed rules should be submitted to:

Joseph Brehm

Department of Natural Resources

Bureau of Air Management (AM/7)

101 S Webster St, Madison, WI 53703

Phone:   [phone]

Fax:   [phone]

E-mail:   [e-mail]

Internet:   Use the Administrative Rules System Web site accessible through the link provided on the Proposed Air Pollution Control Rules Calendar at http://www.dnr.state.wi.us/air/rules/calendar.htm

Analysis Prepared by the Department of Natural Resources

Statutes interpreted

Sections 227.11 (2) (a) , 285.11 (1) and (6) , Stats.

Statutory authority

Sections 227.11 (2) (a) , 285.11 (1) and (16) , 285.60 (6) , and 285.67 , Stats.

Explanation of agency authority

Section 227.11 (2) (a) , Stats., gives state agencies general rulemaking authority. Section 285.11 (1) , Stats., gives the Department authority to promulgate rules consistent with ch. 285 , Stats. Section 285.11 (6) , Stats., gives the Department the authority to develop a state implementation plan for the control of air pollution. Section 285.11 (16) , Stats., requires the Department to promulgate rules, consistent with but no more restrictive than the federal clean air act, that specify the amounts of emissions that result in a stationary source being classified as a major source. Section 285.60 (6) Stats., allows the Department to promulgate rules to exempt types of stationary sources from the requirement to get a construction permit, if the potential emissions from the sources do not present a significant hazard to public health, safety, welfare or to the environment. Section 285.67 , Stats., requires the Department to promulgate rules establishing criteria and procedures for revising air pollution control permits.

Related statute or rule

These rules relate directly to the permitting of activities that result in air emissions. The consent of the Attorney General will be requested for the incorporation by reference of an ASTM test method, in ch. NR 484 .

Plain language analysis

The main objective of the proposed rule is to update permit language in chs. NR 406 and 407 regarding federal Generally Available Control Technology (GACT) rules for hazardous air pollutants. The current state rules do not exempt certain source categories from the need to obtain a construction or operation permit as is done on the federal level. Sources in Wisconsin potentially affected by this rule are bulk gasoline terminals, bulk gasoline plants, gasoline dispensing facilities (gas stations), pipeline facilities and wood preserving facilities.

Rules are also proposed that add biodiesel fuel, by definition, as an alternative clean fuel. Currently a permit modification for existing sources, or a construction permit for new sources, is required in order to burn it.

This proposal would also amend the time frame for submittal of operation permit renewal applications. Current rules require the application be submitted 12-18 months prior to the expiration of the operation permit. The Department proposes to change this deadline to no later than six months prior to the expiration of the operation permit to reflect updated statutory requirements in s. 285.66(3)(a) , Stats.

Currently only selected portions of our rules require submittal of two copies of permit applications and related materials. The proposed rule would correct this inconsistency so that two copies are required in all cases. Additionally, language will be added to allow for electronic copies. Two copies are required as one is retained by the central office and one copy is sent to the appropriate regional office.

Other non-substantive changes are being proposed for consistency, to update outdated rule language and to provide clarification where needed.

Comparison with federal regulations

The changes to chs. NR 406 and 407 , Wis. Adm. Code, are incorporating updates from federal rules, as referenced in Section 5. Chapter NR 407 is being changed as a result of a statutory change on the timeframe for the submittal of an operation permit renewal application. Other changes, to chs. 406 , 407 , 419 and 439 provide consistency within the rules by updating outdated language and providing clarification where appropriate. Chapter 484 is being amended to add an ASTM method for the testing of bio-diesel fuels

Comparison with similar rules in adjacent states

All the states (Illinois, Iowa, Michigan and Minnesota) manage an air construction and operation permit program. Comparisons between programs are difficult due to the varying ways sources may be exempt and how programs are funded.

The federal rules are effective nation-wide and the rules being proposed by the Department are essentially identical to the federal rules so the portions of the proposed rules dealing with the GACT standard should be similar or identical to rules in effect in adjacent states that have similar programs.

Summary of factual data and analytical methodologies

Since the Department is proposing rules consistent with federal regulations, and making consistency and clarification changes, the Department did not, with one exception, make use of any factual data or analytical methodologies in the rule development. That exception is the proposed amendment to ch. NR 484 .

The only exception is the adding of biodiesel as a clean fuel. Based on emission information developed by EPA in "A Comprehensive Analysis of Biodiesel Impacts on Exhaust Emissions" (October 2002, http://www.epa.gov/OMS/ models/biodsl.htm ), emissions from the burning of biodiesel are less than those of distillate fuels, except for Nitrogen Oxides (NO x ). NO x emissions are approximately, 10% higher for a 20% blend of biodiesel and distillate fuels. Normally, biodiesel is not burned independently from other fuel types. By blending the fuels, existing burner design and fuel feed systems do not need to be altered. Emissions of hydrocarbons (21.1), particulate matter (10.1) and carbon monoxide (11.0) were all reduced with a 20% by the amounts shown in the parentheses. Carbon dioxide remained approximately the same.

Analysis and supporting documents used to determine the effect on small business

An analysis of the effect of the proposed rules on small business was not performed since most of the changes are identical requirements that are already in effect at a federal level, and the Department is required by statute to adopt federal regulations or to develop similar standards. Preparation of an economic impact report has not been requested. The proposed changes not based on federal regulations, were clarification in nature or updating of old or outdated language in the rules.

Small Business Impact

Because the proposed GACT rule changes for permitting sources of hazardous air pollutants may result in a limited number of sources becoming subject to federal operation permit requirements, some small businesses may be required to report their compliance status semi-annually instead of annually.

The proposed rule is not expected to have a significant economic impact on small businesses nor have a significant economic effect on any entity.

Fiscal Estimate

Summary

It is assumed there will be no direct fiscal effect with these rule changes. The proposed changes are intended to clarify the current rules and update permit requirements for hazardous air pollutants. These changes will result in clarifications and some permit exemptions, but not in substantial dollar savings or expenditures.

The DNR does not believe the proposed rule changes will have a significant effect on the private sector or on state and local governments. Minor savings may result from a proposed reduction in reporting requirements from semi-annual to annual, affecting both private and government owned facilities. In addition, minor savings could result from a proposed change to consider a switch to burning bio-fuels as a permit revision, and not a permit modification. Where the DNR charges a fee for a permit modification, there are no fees associated with a permit revision.

State fiscal effect

None

Local government fiscal effect

None

Long-range fiscal implications

NA

Environmental Impact

The DNR has made a preliminary determination that adoption of the proposed rules would not involve significant adverse environmental effects and would not need an environmental analysis under ch. NR 150 , Wis. Adm. Code. However, based on the comments received, the DNR may prepare an environmental analysis before proceeding. This analysis would summarize the DNR's consideration of the impacts of the proposal and any reasonable alternatives.

Agency Contact Person

Robert Eckdale, Bureau of Air Management

P.O. Box 7921

Madison, WI 53707

E-mail:   [e-mail]

Phone:   [phone].

Notice of Hearing

Regulation and Licensing

EmR0827

NOTICE IS HEREBY GIVEN that pursuant to authority vested in the Department of Regulation and Licensing in s. 227.11 (2) , Stats., and s. 460.04 (2) , Stats., 2007 Wisconsin Act 104 , the Department of Regulation and Licensing will hold a public hearing on an order adopting emergency rules to create section RL 91.01 (3) (k) , relating to training and proficiency in the use of automated external defibrillators for certification as a massage therapist or bodyworker.

Hearing Information

Date:   April 13, 2009

Time:   9:00 A.M.

Location:   1400 East Washington Avenue
  (Enter at 55 North Dickinson Street)
  Room 121A
  Madison, Wisconsin

Appearances at the Hearing and Submission of Written Comments

Interested persons are invited to present information at the hearing. Persons appearing may make an oral presentation but are urged to submit facts, opinions and argument in writing as well. Facts, opinions and argument may also be submitted in writing without a personal appearance by mail addressed to Pamela Haack, Paralegal, Department of Regulation and Licensing, Office of Legal Counsel, P.O. Box 8935, Madison, Wisconsin 53708-8935, or by email to [e-mail] . Written comments must be received by April 13, 2009, to be included in the record of rule-making proceedings.

Analysis Prepared by the Department of Regulation and Licensing

Statutes interpreted

Section 460.04 (2) , Stats.

Statutory authority

Section 227.11 (2) , Stats., and s. 460.04 (2) , Stats., 2007 Wisconsin Act 104 .

Explanation of agency authority

2007 Wisconsin Act 104 amends ch. 460 , Stats., which regulates the profession of massage therapy and bodywork. The effect of the Act requires the Department of Regulation and Licensing to amend administrative rules for application for certification as a massage therapist or bodyworker. As required by 2007 Wisconsin Act 104 , the rule creates the requirement for applicants to be proficient in the use of automated external defibrillators (AEDs) through the completion of an approved instruction program prior to initial certification.

Related statutes or rules

Section RL 91.01 , Wis. Adm. Code.

Plain language analysis

The massage therapy and bodywork statutes and administrative rules regarding application for certification, reciprocal certification and renewal do not have a requirement for training and proficiency in the use of an AED. This rule implements a provision of 2007 Wisconsin Act 104 , requiring applicants for a credential to be proficient in the use of automated external defibrillators (AEDs) through the completion of an approved instruction program prior to initial certification.

SECTION 1 creates a requirement for applicants for a credential to be proficient in the use of automated external defibrillators (AEDs) through the completion of an approved instruction program prior to initial certification.

Comparison with federal regulation s

There is no existing or proposed federal regulation that is intended to address the activities to be regulated by the rule.

Comparison with rules in adjacent states

Minnesota:

Minnesota does not have regulations or state requirements for massage therapy.

Michigan:

Michigan does not have regulations or state requirements for massage therapy.

Iowa:

Laws and rules for Iowa do not require automated external defibrillator (AED) training. One of the requirements for Iowa licensure is proof of current CPR and First Aid cards, Chapter 131 , 131.2(6) states: The applicant shall submit proof of completion of a cardiopulmonary resuscitation (CPR) course and a first-aid course that were certified by the American Red Cross, by the American Heart Association, or by the National Safety Council. One of the following shall be required:

a. Official transcript documenting completion of a CPR class and a first-aid class within one year prior to submitting the application for licensure; or

b. Copy of the current certification card(s) or renewal card(s).

Illinois:

Illinois does not appear to require proficiency and training in the use of AEDs as a requirement for licensure and renewal of massage therapists. Massage Therapists are licensed under Title 68: Professions & Occupations: Chap. VII, Dept. of Financial and Professional Regulation, Subchapter B, Professions and Occupations Part 1284 Massage Licensing Act, ss. 1284.30 Application for Licensure and 1284.60 Renewals

Summary of factual data and analytical methodologies

2007 Wisconsin Act 104 created a requirement for applicants for a credential as a massage therapy or bodyworker to be proficient in the use of automated external defibrillators (AEDs) through the completion of an approved instruction program prior to initial certification. This requirement of the Act has been set forth in the newly created rule provision, as directed by the legislature.

Analysis and supporting documents used to determine effect on small business

Training for certification and renewal of certification may vary. The Madison Wisconsin Chapter of the American Red Cross (Badger Chapter) offers AED/CPR initial certification for $80.00 and $52.00 for review. Both trainings are valid for one year. Based on these figures, AED certification costs for a certified massage therapist could cost approximately $132.00 for the certification biennium and less so in subsequent bienniums (initial biennium in which AED certification was achieved: $132.00 initial certification plus $52.00 for review).

As of July 2008, there were 3,162 massage therapists and bodyworkers with active certifications.

Small Business Impact

This emergency rule will have no significant economic impact on a substantial number of small businesses, as defined in s. 227.114 (1) , Stats.

Fiscal Estimate

The department estimates that this rule will require staff time in the Office of Legal Counsel, Division of Management Services, Office of Exams, and the Division of Professional Credentialing. The total one-time salary and fringe costs are estimated at $3,032.

Anticipated costs incurred by private sector

The department finds that this rule has no significant fiscal effect on the private sector.

Agency Contact Person

Pamela Haack, Paralegal

Department of Regulation and Licensing

Office of Legal Counsel — Room 152

1400 East Washington Avenue

P.O. Box 8935

Madison, Wisconsin 53708

Telephone: [phone]

Email: [e-mail] .

Text of Emergency Rule

SECTION 1. RL 91.01 (3) (k) is created to read:

RL 91.01 (3) (k) Has current proficiency in the use of an automated external defibrillator achieved through instruction provided by an individual, organization, or institution of higher education approved under s. 46.03 (38) , Stats., to provide the instruction.

Finding of Emergency

Section 41 (2) (b) of the nonstatutory provisions of 2007 Wisconsin Act 104 provides that notwithstanding section 227.24 (1) (a) and (3) of the statutes, the department of regulation and licensing is not required to provide evidence that promulgating a rule as an emergency rule is necessary for the preservation of the public peace, health, safety, or welfare and is not required to provide a finding of emergency for a rule promulgated to implement 2007 Wisconsin Act 104 . Notwithstanding s. 227.24 (1) (c) and (2) of the statutes, these emergency rules will remain in effect until the date on which the final rules take effect.

This emergency rule was effective on September 10, 2008.

Notice of Hearing

Regulation and Licensing

CR 08-086

NOTICE IS HEREBY GIVEN that pursuant to authority vested in the Department of Regulation and Licensing in s. 227.11 (2) , Stats., and s. 460.04 (2) , Stats., 2007 Wisconsin Act 104 , the Department of Regulation and Licensing will hold a public hearing to consider an order to create section RL 91.01 (3) (k) , relating to training and proficiency in the use of automated external defibrillators for certification as a massage therapist or bodyworker.

Hearing Information

Date:   April 13, 2009

Time:   10:00 A.M.

Location:   1400 East Washington Avenue
  (Enter at 55 North Dickinson Street)
  Room 121A
  Madison, Wisconsin

Appearances at the Hearing and Submission of Written Comments

Interested persons are invited to present information at the hearing. Persons appearing may make an oral presentation but are urged to submit facts, opinions and argument in writing as well. Facts, opinions and argument may also be submitted in writing without a personal appearance by mail addressed to Pamela Haack, Paralegal, Department of Regulation and Licensing, Office of Legal Counsel, P.O. Box 8935, Madison, Wisconsin 53708-8935, or by email to [e-mail] . Written comments must be received by April 13, 2009, to be included in the record of rule-making proceedings.

Analysis Prepared by the Department of Regulation and Licensing

Statutes interpreted

Section 460.04 (2) , Stats.

Statutory authority

Section 227.11 (2) , Stats., and s. 460.04 (2) , Stats., 2007 Wisconsin Act 104 .

Explanation of agency authority

2007 Wisconsin Act 104 amends ch. 460 , Stats., which regulates the profession of massage therapy and bodywork. The effect of the Act requires the Department of Regulation and Licensing to amend administrative rules for application for certification as a massage therapist or bodyworker. As required by 2007 Wisconsin Act 104 , the proposed rule creates the requirement for applicants to be proficient in the use of automated external defibrillators (AEDs) through the completion of an approved instruction program prior to initial certification.

Related statutes or rules

Section 91.01 , Wis. Admin. Code.

Plain language analysis

The massage therapy and bodywork statutes and administrative rules regarding application for certification, reciprocal certification and renewal do not have a requirement for training and proficiency in the use of an AED. This proposed rule-making implements a provision of 2007 Wisconsin Act 104 , requiring applicants for a credential to be proficient in the use of automated external defibrillators (AEDs) through the completion of an approved instruction program prior to initial certification.

SECTION 1 creates a requirement for applicants for a credential to be proficient in the use of automated external defibrillators (AEDs) through the completion of an approved instruction program prior to initial certification.

Comparison with federal regulation s

There is no existing or proposed federal regulation that is intended to address the activities to be regulated by the rule.

Comparison with rules in adjacent states

Minnesota:

Minnesota does not have regulations or state requirements for massage therapy.

Michigan:

Michigan does not have regulations or state requirements for massage therapy.

Iowa:

Laws and rules for Iowa do not require automated external defibrillator (AED) training. One of the requirements for Iowa licensure is proof of current CPR and First Aid cards, Chapter 131 , 131.2(6) states: The applicant shall submit proof of completion of a cardiopulmonary resuscitation (CPR) course and a first-aid course that were certified by the American Red Cross, by the American Heart Association, or by the National Safety Council. One of the following shall be required:

a. Official transcript documenting completion of a CPR class and a first-aid class within one year prior to submitting the application for licensure; or

b. Copy of the current certification card(s) or renewal card(s).

Illinois:

Illinois does not appear to require proficiency and training in the use of AEDs as a requirement for licensure and renewal of massage therapists. Massage Therapists are licensed under Title 68: Professions & Occupations: Chap. VII, Dept. of Financial and Professional Regulation, Subchapter B, Professions and Occupations Part 1284 Massage Licensing Act, ss. 1284.30 Application for Licensure and 1284.60 Renewals

Summary of factual data and analytical methodologies

2007 Wisconsin Act 104 created a requirement for applicants for a credential as a massage therapist or bodyworker to be proficient in the use of automated external defibrillators (AEDs) through the completion of an approved instruction program prior to initial certification. This requirement of the Act has been set forth in the newly created rule provision, as directed by the legislature.

Analysis and supporting documents used to determine effect on small business

Training for certification and renewal of certification may vary. The Madison Wisconsin Chapter of the American Red Cross (Badger Chapter) offers AED/CPR initial certification for $80.00 and $52.00 for review. Both trainings are valid for one year. Based on these figures, AED certification costs for a certified massage therapist could cost approximately $132.00 for the certification biennium and less so in subsequent bienniums (initial biennium in which AED certification was achieved: $132.00 initial certification plus $52.00 for review).

As of July 2008, there were 3,162 massage therapists and bodyworkers with active certifications.

Small Business Impact

These proposed rules will have no significant economic impact on a substantial number of small businesses, as defined in s. 227.114 (1) , Stats.

Fiscal Estimate

The department estimates that this rule will require staff time in the Office of Legal Counsel, Division of Management Services, Office of Exams, and the Division of Professional Credentialing. The total one-time salary and fringe costs are estimated at $3,032.

Anticipated costs incurred by private sector

The department finds that this rule has no significant fiscal effect on the private sector.

Text of Proposed Permanent Rule

SECTION 1. RL 91.01 (3) (k) is created to read:

RL 91.01 (3) (k) Has current proficiency in the use of an automated external defibrillator achieved through instruction provided by an individual, organization, or institution of higher education approved under s. 46.03 (38) , Stats., to provide the instruction.

Agency Contact Person

Pamela Haack, Paralegal

Department of Regulation and Licensing

Office of Legal Counsel — Room 152

1400 East Washington Avenue

P.O. Box 8935

Madison, Wisconsin 53708

Telephone: [phone]

Email: [e-mail] .