CR_09-037 Hearing to consider rules revising Ch. ATCP 91, relating to selling commodities by weight, measure or count.

Wisconsin Administrative Register No. 642, 6/14/2009

Rule-Making Notices

Notice of Hearing

Agriculture, Trade and Consumer Protection
(Reprinted from May 31, 2009 Register)

CR 09-037

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 91 , Wis. Adm. Code, relating to selling commodities by weight, measure or count.

Hearing Information

June 23, 2009

Commencing at 9:30 AM

WI Dept. of Agriculture, Trade & 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 Monday, June 15, 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.

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: http://adminrules.wisconsin.gov .

Appearances at the Hearing and 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, July 3, 2009 for additional written comments. Comments may be sent to the Division of Trade and Consumer Protection at the address above, 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].

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

The Department of Agriculture, Trade and Consumer Protection (DATCP) currently regulates methods of sale of commodities (including required methods of sale by weight, measure or count). The current rules are designed to ensure fair competition, to prevent unfair and deceptive sales practices, and to facilitate value comparisons by consumers. Current DATCP rules are contained in ch. ATCP 91 , Wis. Adm. Code.

This rule changes current rules to make them consistent with standards published by the National Institute of Standards and Technology ("NIST") and adopted by 45 other states. This rule also updates and clarifies current rule coverage.

Statutes interpreted

Sections 98.06 , 98.07 and 100.20 , Stats.

Statutory authority

Sections 93.07 (1) , 98.07 (3) and (4) , and 100.20(2) , Stats.

Explanation of agency authority

DATCP has authority to regulate methods of competition and trade practices in business under s. 100.20 , Stats. DATCP also administers laws, including ss. 98.06 and 98.07 , Stats., related to the pricing and sale of commodities by weight, measure or count.

DATCP has general authority, under s. 93.07 (1) , Stats., to interpret laws under its jurisdiction. DATCP may adopt rules (general orders) under s. 100.20 (2) , Stats., to regulate methods of competition and trade practices in business. DATCP may also adopt rules under s. 98.07(3) and (4) , Stats., related to the pricing and sale of commodities by weight, measure or count.

Related statutes or rules

Statutes

Chapter 97 , Stats., regulates the sale and labeling of food, and ch. 98 , Stats., regulates commercial weights and measures. Various statutes specify methods of sale for specific commodities. See, for example, the following statutory sections:

•   97.177, Stats. (cheese).

•   97.176 and 97.18, Stats. (butter and margarine).

•   98.06, Stats. (berries and small fruits).

•   98.12, Stats. (frozen desserts).

•   98.21, Stats. (bread).

•   98.225, Stats. (deliveries of liquid fuel).

•   98.245, Stats. (LP gas).

•   98.246 and 100.18(6) and (8), Stats. (petroleum products and motor fuel).

Administrative Code

DATCP has adopted a number of rules affecting the method of sale of commodities. See, for example, the following chapters of the Wisconsin administrative code:

•   ATCP 55 (meat and meat food products).

•   ATCP 75 (retail food establishments).

•   ATCP 81 (cheese grading, packaging and labeling).

•   ATCP 85 (butter grading and labeling).

•   ATCP 88 (egg grading and labeling).

•   ATCP 90 (fair packaging and labeling).

•   ATCP 92 (weights and measures).

•   ATCP 109 (freezer meat and food service plans).

Rule background

Current DATCP rules (ATCP 91) regulate the sale of commodities by weight, measure or count. The current rules spell out general standards for all commodities, and more specific standards for some commodities. The current rules do all of the following:

•   Require liquid commodities to be sold by liquid measure and nonliquid commodities by weight, with certain exceptions.

•   Regulate price declarations by weight, to facilitate accurate price comparisons.

•   Specify methods of sale for various food commodities including fruits and vegetables, meat, poultry, cheese, frozen desserts, pizza and "ready to eat" foods.

•   Specify methods of sale for various non-food commodities including firewood, roofing material, polyethylene sheeting, potpourri and petroleum products.

NIST has published model method-of-sale standards, which are designed to promote reasonable and uniform standards between the states. However, the NIST standards do not have the force of law unless adopted by the states. At least 45 states have adopted some or all of the NIST standards.

Current DATCP rules are, in some respects, inconsistent with NIST. The Wisconsin statutes also include some requirements that differ from NIST. Within statutory limits, this rule modifies current DATCP rules (ATCP 91) to make them more consistent with NIST. This rule also makes non-substantive changes to reorganize and clarify current rules.

Rule content

Standards for Specific Commodities

NIST has published specific method-of-sale standards for certain commodities (these standards typically address consumer protection or fair competition issues that have arisen in connection with those particular commodities). This rule incorporates current NIST standards for the following commodities (subject, in some cases, to exceptions required by Wisconsin law):

Food products

•   Meat, poultry, fish and seafood.

•   Dairy products.

•   Fresh fruits and vegetables.

•   Butter, margarine and like spreads.

•   Flour, corn meal and like products.

•   Pickles and pickle relish.

Non-food products

•   Fence wire.

•   Coatings.

•   Fireplace and stove wood.

•   Peat and peat moss.

•   Prefabricated utility buildings.

•   Roofing and roofing material.

•   Sealants.

•   Sod and turf.

•   Softwood lumber.

•   Carpet.

•   Hardwood lumber (retail)

•   Polyethylene products.

•   Insulation.

•   Precious metals.

•   Mulch.

•   Liquefied petroleum gas.

•   Liquid oxygen for respiration.

•   Animal bedding.

•   Wiping cloths.

•   Baler twine.

•   Potpourri.

•   Communication paper.

•   Bulk sand, rock, gravel and stone.

General Standards

This rule incorporates the following general NIST standards (or makes DATCP rules more consistent with those NIST standards):

•   Price declarations for food commodities sold from bulk by weight (must be shown per whole unit, not fractional unit, of weight).

•   Price presentation (showing fractions of a cent).

•   Combination quantity declarations.

•   Vending machine labeling.

•   Railroad car tare weights.

Comparison with federal regulations

States have the primary responsibility for regulating methods of sale of commodities. The federal government (NIST) has published model method-of-sale standards, to promote effective state regulation and interstate uniformity. But those standards are not legally binding unless adopted by the states.

Comparison with rules in adjacent states

All surrounding states have adopted the NIST standards that DATCP proposes to adopt in this rule.

Standards incorporated by reference

This rule incorporates, by reference, standards contained in NIST Handbook 130 (2009 edition) , published by the national institute of standards and technology, United States department of commerce. Pursuant to s. 227.21 , Stats., DATCP has requested permission from the Wisconsin Department of Justice to incorporate the standards by reference in this rule. Copies of the standards will be kept on file with DATCP and the Legislative Reference Bureau.

Summary of factual data and analytical methodologies

This rule is based on standards published by NIST, and are based on NIST data and analytical methodologies.

Small Business Impact

This rule will benefit businesses that sell commodities in more than one state, because it incorporates many of the NIST model standards and thus makes Wisconsin standards more consistent with standards used in 45 other states. This rule also reorganizes and clarifies current rules, so they will be easier to read and understand.

This rule adds some new standards to current rules. However, those standards are based on NIST standards with which most affected businesses are already complying. This rule will not have any significant adverse impact on small business or other affected businesses.

Fiscal Estimate

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

Notice of Hearings

Corrections

CR 09-039

NOTICE IS HEREBY GIVEN that pursuant to section 227.11 (2) , Stats., the Department of Corrections will hold public hearings to consider repealing and recreating Chapter DOC 346 , relating to secure detention facilities and juvenile portions of a county jail.

Hearing Information

Date and Time   Location

June 26, 2009     Conference Room 5 (3 rd Floor)

9:30 a.m.     Portage County Annex

    1462 Strongs Avenue

    Stevens Point, Wisconsin 54481

June 26, 2009     Conference Room 1M-B (1 st Floor)

2:00 p.m.     Department of Corrections

    3099 East Washington Avenue

    Madison, Wisconsin 53704

The public hearing sites are accessible to people with disabilities. If you have special needs or circumstances that may make communication or accessibility difficult at the hearing, please contact Kathryn Anderson, DOC, P.O. Box 7925, Madison, WI 53707-7925, email: kathryn.anderson@ wisconsin.gov , telephone [phone] by June 19, 2009.

Appearances at the Hearings 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. Written comments on the proposed rule will be accepted into the record and receive the same consideration as testimony presented at the hearing if they are received by Friday, July 10, 2009. Written comments should be addressed to: Kathryn R. Anderson, DOC, P.O. Box 7925, Madison, WI 53707-7925, or by email [e-mail] .

Copies of Proposed Rule

The proposed rule and an analysis of the proposed rule are available on the Internet at the Department of Corrections Web site at www.wi-doc.com . Paper copies may be obtained without cost from Kathryn R. Anderson, at the Department of Corrections, P.O. Box 7925, Madison, WI 53707-7925, or by email at [e-mail] , or by telephone [phone]. Copies will also be available at the public hearing.

Analysis Prepared by Department of Corrections

Statutes interpreted

Sections 301.36 , 301.37 and 938.209 , Stats., and 42 USC 5601 to 5761 and 28 CFR Part 31 .

Statutory authority

Sections 227.11 (2) and 938.22 (2) (a) , Stats.

Explanation of agency authority

The Department of Corrections is responsible for establishing standards for and inspecting juvenile detention facilities and juvenile portions of a county jail.

Related statute or rule

Subchapter IV of Chapter 938 , Stats., (Taking a Juvenile in Custody), and Chapter DOC 346 , Wis. Adm. Code.

Plain language analysis

The rule:

1.   Reorganizes and renumbers the existing chapter DOC 346.

2.   Updates citations to include references to chapter 938, Wis. Stats.

3.   Updates citation to the federal Juvenile Justice and Delinquency Prevention Act, 42 USC 5601 to 5761 , and its regulations, 28 CRF Part 31, to indicate Wisconsin's compliance with the current version of the act and regulations.

4.   Creates definitions for the following terms: construction plans, facility program and officer.

5.   Amends definitions for the following terms: family, juvenile, multi-purpose space, and undergarments.

6.   Amends the requirements for the operational plan to include policies and procedures concerning disciplinary hearings, release, and searches.

7.   Creates a requirement that the facility shall maintain a record of the proceedings for the annual meeting.

8.   Amends the information which the facility is required to maintain on an admitted juvenile to include date and time of admission, authority for admission, and date and time of release.

9.   Amends the timeframe for reporting to the department major occurrences from 48 to 24 hours.

10.   Amends the reporting requirement for suicide attempts to those situations where the juvenile is admitted to a hospital or if the juvenile is treated for a life-threatening injury.

11.   Clarifies that juveniles may only be admitted to secure detention based on enumerated statutory provisions.

12.   Eliminates the reference to the intake worker as a step in the admission process for a secure detention facility.

13.   Prohibits the holding of a person who is 18 years of age or older in a secure detention facility or a juvenile portion of a county jail.

14.   Deleted requirement to report to the department violations of s. 938.067 , Wis. Stats., powers and duties of intake workers.

15.   Creates a requirement that facilities develop policies and procedures addressing the release of juveniles from the facility.

16.   Clarifies the procedure for the submission and approval of construction plans.

17.   Limits the use of receiving cells not to exceed 72 continuous hours.

18.   Limits the use of holding rooms not to exceed 24 continuous hours.

19.   Requires facilities which are newly built or substantially remodeled after the effective date of the rule to install anti-rollout plates on all upper bunks.

20.   Creates a requirement for storage space and visiting space but does not impose any dimensional requirements.

21.   Creates a requirement for classroom space which complies with local or state requirements. This requirement only applies to facilities that are newly constructed or substantially remodeled after the effective date of the rule.

22.   Creates a requirement that if medical or dental services are provided in the facility, there shall be sufficient space, equipment, supplies and materials for the performance of the services in a confidential and private manner.

23.   Creates a minimum dimensional requirement for outdoor recreation space if a facility provides for outdoor recreation.

24.   Reduces the frequency of fire inspections from semi-annually to annually.

25.   Requires specific training on the subjects of suicide prevention, mental health, crisis intervention, medication, use of restraints and control devised, and communication skills.

26.   Requires that 8 hours of the current annual 24-hour recertification training address suicide prevention, mental health, crisis intervention, and medications.

27.   Requires that the second staff person on duty must be an officer, not an administrative or clerical person.

28.   Requires that a facility include a policy and procedure on the issue of delivery of medications.

29.   Permits a facility to create a policy for the supervised self-administration of insulin injections.

30.   Requires TB testing for juveniles who are held beyond one week if prescribed by a medical professional.

31.   Permits a juvenile to abstain from eating foods which violate the juvenile's religion and requires the facility to substitute from other available food from the menu served at the meal as long as the substitution is nutritious and meets generally accepted nutritional standards.

32.   Prohibits audio monitoring of professional visits.

33.   Clarified language regarding the observation of juveniles.

34.   Creates requirement for facilities to develop policies and procedures relating to searches (juveniles, staff, and property).

35.   Amends the list of restraints and control devices to include restraint chairs.

36.   Creates a subchapter which addresses the use of juvenile portions of a county jail.

37.   Clarifies that juveniles may only be admitted to a juvenile portion of a county jail for limited periods of time.

Comparison with federal regulations

Wisconsin opted to come into compliance with the federal Juvenile Justice and Delinquency Act (JJDPA), 42 USC 5601 , et seq., and the implementing regulations ( 28 CFR Part 31 ), thereby making certain funds under the Act available to Wisconsin counties. In 1990 the federal Office of Juvenile Justice and Delinquency Prevention approved Wisconsin's Revised Jail Removal Plan. This plan permitted an exception to the JJDPA provision prohibiting co-location of juveniles in adult jails. In order to come into compliance with the JJDPA and the Wisconsin Jail Removal Plan, the Department of Corrections revised chapter DOC 346, Wis. Adm. Code, which governs juvenile detention facilities, in 1992 and 1994. The level of compliance with the JJDPA may affect the level of funding available to Wisconsin.

In general the JJDPA and its regulations generally prohibit sight and sound contact between juveniles and adults. A facility may achieve sight and sound separation through architectural or procedural means. Sight or sound contact is permitted if it is both brief and inadvertent or accidental. Contacts must be reported as violations of the JJDPA. The JJDPA permits the transfer or placement of adjudicated delinquents in adult facilities once the juvenile has attained the age of full criminal responsibility under State law (17 years of age for Wisconsin). ( 42 USC 5633 (a) (11), (12), and (13))

The JJPDA also regulates co-located facilities, that is, adult and juvenile facilities which are in the same building complex. The JJDPA requires sight and sound separation of juveniles and adults through architectural or procedural means. ( 42 USC 5633 (a) (11), (12), and (13))

The JJDPA also limits the amount of time that a juvenile may be held in an adult jail or lockup. ( 42 USC 5633 (a) (11), (12), and (13))

Comparison of rules in adjacent states

Illinois:

The Illinois Department of Corrections oversees county juvenile detention facilities. The standards are found in Title 20: Corrections, Criminal Justice, and Law Enforcement; Chapter 1 : Department of Corrections; Subchapter f: County Standards; Part 702, County Juvenile Detention Standards.

The WI DOC and the IL DOC have similar minimum standards for juvenile detention facilities, including staff training, reporting requirements, strip searches, admission and release procedures, clothing, personal hygiene and grooming, food service, sanitation, classification, fire safety, discipline, mail, telephone, visiting, programs (recreations, religion, etc.), and design and construction of new or substantially remodeled facilities.

Like Wisconsin, Illinois requires that a superintendent be appointed to oversee the facility. However, Illinois also requires that an assistant superintendent be appointed in facilities with a rated capacity of 25 or more. Illinois also requires that there be 3 persons on duty per shift, Wisconsin requires only two.

Illinois requires an initial orientation conducted by a caseworker or supervisor which is not required by Wisconsin. Illinois prohibits newly admitted juveniles from being placed in isolation pending a routine medical examination by a health care professional or as a cooling off period.

Illinois requires 70 square foot for single cells, while Wisconsin requires 54 square feet. For multiple occupation cells or rooms Illinois maintains the 70 square foot requirement, regardless of the number of occupants. Illinois requires 30 square feet per juvenile living space per cluster of cells. Wisconsin requires 35 square feet per juvenile based the rated capacity of the adjacent cells.

Illinois requires that all juveniles who are held for more than 7 days be given a medical screening by a health care professional. This appears to be in addition to the intake screening.

Illinois requires outdoor recreations space of 200 square feet per occupant with a minimum size of 3,000 square feet.

Illinois has established minimum standards. In addition, in the rules, Illinois provides further recommendations with regard to specific areas. The Illinois requirements may be waived for existing facilities.

Iowa:

The Iowa Department of Corrections does not oversee county juvenile detention facilities or establish standards. The Iowa Department of Human Services performs those functions. The standards are found in IAC Human Services Title XII (Licensing and Approved Standards) Chapter 105 (County and Multi-county Juvenile Detention Homes and County and Multi-county Juvenile Shelter Care Homes).

The WI DOC and IA Department of Human Services have similar minimum standards for juvenile detention facilities, including written policy and procedure manual, intake procedures, educational and other daily programming, recreation, health care, restraints, cell confinement, juvenile facility handbook, and clothing.

Iowa provides that adequate storage be provided for each juvenile in their sleeping room. (Wisconsin provides for storage of juvenile personal property but does not require that the storage be in the cell.) Iowa provides a minimum of 60 square feet/child for multiple occupancy and 80 square feet/child for single occupancy rooms. (Wisconsin provides 70 square feet for double cells, 54 square feet for single cells and 70 square feet of combined sleeping and day room square feet per juvenile for dormitories.) In addition, Iowa provides for single and double cells but does not provide for dormitories.

Iowa provides more detail regarding employment standards and records and the maintenance of those records. Iowa requires that there be a minimum of two staff members for six of more juveniles. (Wisconsin requires two staff members are on duty at all times and the ratio is a minimum of one staff member to 15 juveniles.) Iowa requires visual observation of juveniles every half hour. (Wisconsin has a similar requirement. However, Wisconsin also requires an every 15 minute check for juveniles in higher security level.)

Iowa does not address some issues which the Wisconsin standards do, specifically suicide prevention, mental health care, mail, telephone, access to religion, searches, classification plan and visitation.

Iowa addresses some issues which the Wisconsin standards do not, specifically, child abuse or mistreatment. Iowa also has a broader, more specific provision addressing documentation of the juvenile case file.

Michigan:

The Michigan Department of Corrections does not oversee county juvenile detention facilities or establish standards for those facilities. The MI Department of Consumer and Industry Services, Division of Child Welfare Licensing performs those functions. The standards are found in MI Rule 400.10101, et seq.

The WI DOC and MI Department of Consumer and Industry Services have similar minimum standards for juvenile detention facilities, including reporting hospitalization and injury or death of a juvenile, clothing, personal hygiene, nutrition, discipline, cell confinement, bedding and linen, construction, variances, training, mail (regular and privileged), visitation, religious programming, resident records and admission information, construction plans review and approval.

The WI Department of Commerce rules address with specificity fire detection standards.

There are differences between the standards in the following areas: staffing (WI ratio is 1:15, the MI ratio is 1:8; WI establishes dimensions and standards for single, double occupancy cells and dormitories (3 juveniles or more), MI has established dimensions and standards for single occupancy and multi-occupancy (WI provides for single cells to be a minimum of 54 sq. ft., double cells minimum of 70 sq. ft., and dormitories minimum of 70 sq. ft. combined day room and sleeping space; MI 70 sq. ft. single cell; 45 square feet in multi-resident sleeping rooms); grievance procedure; use of cell confinement for discipline purposes (WI up to 6 hours before administrator approval, MI up to 72 hours before supervisory approval); restraints (WI requires facilities to establish policies and procedures, MI has provided specific standards); inspection and approval required before occupancy.

Minnesota:

The Minnesota Department of Corrections establishes minimum standards and inspects county juvenile detention facilities. The standards are found at Minnesota Rules, Chapter 2960.

The WI DOC and MN Department of Corrections have similar minimum standards for juvenile detention facilities, including admission criteria, property, intake screening, rules, discipline and due process, religious services, exercise and recreation, education, health and hygiene, food service, clothing, bedding, laundry, visitation, mail, staff training, staffing plan, staffing plan, and a classification plan.

There are differences between the Wisconsin and Minnesota standards: Minnesota requires a staffing ratio of one staff member to 12 juveniles when the juveniles are awake and one staff member to 25 juveniles when the juveniles are asleep. (Wisconsin requires a staffing ratio of 1 staff to 15 juveniles. Wisconsin does not differentiate between juveniles who are awake or asleep.) Minnesota requires that facilities with more than 24 juveniles have a full time program director.

Minnesota has established several different types of secure facilities: 24 temporary hold over facility, 8 day temporary hold over facility, and a secure detention facility. (Wisconsin only has secure detention facilities.) Depending on the facility, some of the requirements and standards differ. For example, staff training for a MN 8 day facility is 24 hours annually, but for a secure detention facility the training is 40 hours. (Wisconsin requires 24 hours of training for facility staff. Under the proposed rule, Wisconsin will specify 8 hours of the 24 hours required training shall address the care and custody of juveniles, suicide prevention, mental health, crisis intervention, medication, and use of restraints and control devices.)

Summary of factual data and analytical methodologies

This rule does not affect small businesses. The rule establishes minimum standards for county secure detention facilities.

Analysis and supporting documentation used to determine effect on small businesses

No economic impact report was required.

Small Business Impact

There is no expected effect on small businesses under s. 227.114 , Stats.

Fiscal Estimate

Summary

Although the Department anticipates it will have some additional workload related to policy and procedure development, any additional costs that would be generated should be able to be absorbed within the Department's budget.

Some counties may need to re-write their policies and procedures. Costs to individual counties cannot be determined at this time, but it is estimated that they will be minimal.

State fiscal effect

Increase in costs that may be possible to absorb within the agency's budget.

Local government fiscal effect

Increase in costs.

Types of local governmental units affected

Counties.

Long-range fiscal implications

Indeterminable.

Agency Contact Person

Kathryn R. Anderson, Chief Legal Counsel

Department of Corrections

3099 East Washington Avenue

P.O. Box 7925

Madison, WI 53707-7925

Phone: [phone]

FAX: [phone]

Email: [e-mail]

Notice of Hearing

Insurance

CR 09-038

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 (OCI) will hold a public hearing to consider the adoption of rules creating section Ins 6.90 , Wis. Adm. Code, relating to the use of designations or certifications purporting to demonstrate special expertise in the financial or retirement needs of seniors.

Hearing Information

Date:   July 6, 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 St.
  Madison, WI

Submission of Written Comments

Written comments can be mailed to:

Holly L. Strop

Legal Unit - OCI Rule Comment for Rule Ins 690

Office of the Commissioner of Insurance

PO Box 7873

Madison WI 53707-7873

Written comments can be hand delivered to:

Holly L. Strop

Legal Unit - OCI Rule Comment for Rule Ins 690

Office of the Commissioner of Insurance

125 South Webster St – 2 nd Floor

Madison WI 53703-3474

Comments can be emailed to:

Holly L. Strop

[e-mail]

Comments submitted through the Wisconsin 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.

Copies of Proposed Rule and Contact Person

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

Inger Williams

OCI Services Section

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

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

Statutes interpreted

Sections 600.01 , 601.41 (3) , 628.34 (12) , Stats.

Statutory authority

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

Explanation of agency authority

The proposed rule is promulgated under the Commissioner's authority to prescribe misleading, deceptive and prohibited practices for insurers and insurance intermediaries.

Related statutes or rules

The proposed rule relates to existing statutes and rules defining misleading, deceptive and prohibited practices for insurers and insurance intermediaries under ch. 628 , Wis. Stats., and s. Ins 6.60 , Wis. Adm. Code.

Plain language analysis

Chapter Ins 6 , Wis. Adm. Code, sets forth general information regarding prohibited business practices insurers and insurance intermediaries. Recently, states have identified a possible fraudulent marketing and sales activity related to the use of senior-specific certifications in the sale of insurance products to seniors. In 2008, the National Association of Insurance Commissioners (NAIC) created a committee to establish a model rule setting standards for the use of senior specific certifications and professional designations by insurance producers in the sale of life insurance and annuities to all consumers regardless of age. The NAIC Model Rule was adopted in July of 2008. The proposed Wisconsin rule follows the NAIC Model with two exceptions. First, the proposed rule adds the term advertising to the list of practices and conduct to which the rule applies. Second, the proposed rule adds health insurance to life insurance an annuity products in the list of insurance products to which the rule applies.

Comparison with federal regulations

The North American Securities Administrators Association (NASAA) Model Rule, adopted March 20, 2008, addresses the use of senior specific certifications or designations by any person in connection with the offer, sale, or purchase of securities. The NAIC Model Rule, adopted in September of 2008, addresses the use of senior specific certifications and professional designations by insurance producers in the sale of life insurance and annuities.

Comparison with rules in adjacent states

To date, Iowa is the sole state, adjacent to Wisconsin to adopt the NAIC Model Rule. Nationally, several non-adjacent states have adopted the NAIC Model Rule, including, California, Kentucky, Missouri, New Hampshire, New Jersey, and Utah. Similar legislation is pending in Alaska, Arkansas, Florida, Oklahoma, Ohio, Rhode Island, and Virginia. The degree to which each state's regulations track the Model Rule varies widely. Utah and Ohio also expanded the scope of the regulation to include health insurance.

Illinois: n/a

Iowa:

Iowa Administrative Code 191-10.19, tracks the NAIC Model Rule.

Michigan: n/a

Minnesota: n/a

Summary of factual data and analytical methodologies

OCI review of complaints, NAIC models, similar legislation in other states, and insurer's financial information.

Analysis and supporting documentation used to determine effect on small businesses

This rule relates to prohibited business practices of insurance intermediaries and there is no significant effect on small businesses.

Small Business Impact

This rule does not impose any additional requirements on small businesses and will have little or no effect on small businesses.

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

Fiscal Estimate

State or local government fiscal effect

There will be no state or local government fiscal effect.

Private sector fiscal effect

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

Notice of Hearings

Transportation

CR 09-041

NOTICE IS HEREBY GIVEN that pursuant to ss. 85.16 (1) , 86.31 (6) and 227.11 (2) , Stats., the Department of Transportation will hold public hearings at the following locations to consider the creation of Chapter Trans 206 , relating to the local roads improvement program.

Hearing Information

Monday, July 20, 2009 — 1:00 PM

Department of Transportation

Hill Farms State Transportation Building

4802 Sheboygan Avenue, Room 144-B

Madison, WI

Wednesday, July 22, 2009 — 12:00 Noon

North Central Technical College

1000 W. Campus Drive, Main Building

Room E101

Wausau, WI

An interpreter for the hearing impaired will be available on request for this hearing. Please make reservations for a hearing interpreter at least 10 days prior to the hearing.

Parking for persons with disabilities and an accessible entrance are available.

Copies of Proposed Rule

A copy of the proposed rule may be obtained upon request from Lori Richter, Department of Transportation, Bureau of Transit, Local Roads, Railroads & Harbors, Room 951, P. O. Box 7913, Madison, WI 53707-7913. You may also contact Lori by phone at [phone] or via e-mail: [e-mail] .

Agency Contact Person and Submission of Written Comments

The public record on this proposed rule making will be held open until August 5, 2009, to permit the submission of comments in lieu of public hearing testimony or comments supplementing testimony offered at either hearing. Any such comments should be submitted to:

Lori Richter, Department of Transportation

Bureau of Transit, Local Roads, Railroads & Harbors

Room 951

P. O. Box 7913

Madison, WI 53707-7913.

Phone: [phone]

e-mail: [e-mail] .

To view the proposed amendments to the rule, view the current rule, and submit written comments via e-mail/internet, you may visit the following website: http://www.dot.wisconsin.gov/library/research/law/rulenotices.htm .

Analysis Prepared by the Wisconsin Department of Transportation

Statutes interpreted

Sections 86.31(1) (am) , (b) and (c) , (2) (a) , (b) , (d) and (e) , (3g) , (3r) and (6) (d) , (f) , (g) and (h) , Stats.

Statutory authority

Sections 85.16 (1) , 86.31 (6) and 227.11 (2) , Stats.

Explanation of agency authority

Chapter Trans 206 interprets and administers s. 86.31 , Stats., the local roads improvement program. Section 86.31 was revised in 1999 Wis. Act 9 (eff. October 29, 1999), in 2001 Wis. Act 16 (eff. September 1, 2001), in 2003 Wis. Act 33 (eff. July 26, 2003), and in 2005 Wis. Act 25 (eff. July 27, 2005). The proposed rule will incorporate these statutory revisions and other related changes.

Related statute or rule

Sections 84.01 (9) and 84.02 (11) , Stats.

Plain language analysis

1997 Wis. Act 27 , s. 86.31 (3g) , Stats., incorporates the county highway improvement discretionary program (CHIP-D) for high cost county highway projects of at least $250,000 in eligible total project costs. This proposed rule making creates procedures and criteria for the selection of projects.

1999 Wis. Act 9 , s. 86.31 (3r) , Stats., created a new Municipal Street Improvement Discretionary Program (MSIP-D) to fund a competitive, municipal street improvement program similar to the existing discretionary programs for high-cost town roads and county highways. It specified that eligible projects must have a total estimated cost of at least $250,000. This proposed rule making creates procedures and criteria for the selection of projects.

This proposed rule making amends s. Trans 206.03 (14) to indicate that it applies to recipients of entitlement projects only; it does not apply to recipients of CHIP-D, TRIP-D or MSIP-D projects.

1999 Wis. Act 9 requires the Department to amend ch. Trans 206 , relating to the Local Roads Improvement Program (LRIP), to incorporate the changes set forth in the Act regarding the provisions for projects that can be done by county highway departments and the solicitation and awarding of bids for town projects.

1999 Wis. Act 9 eliminates the provisions set forth in s. 86.31 (2) (d) 1. , 2. and 3. , Stats., that restrict the amount of work on county trunk highways that may be done by county highway departments under the county highway improvement program (CHIP) and CHIP-D.

1999 Wis. Act 9 provides that county highway departments may do work under the basic county highway improvement program or the discretionary county highway improvement discretionary program if they demonstrate that doing so will be cost-effective, provided that each county highway department uses competitive bidding for the funds provided by the state under the CHIP and the CHIP-D programs.

The Act eliminates the provision that requires each county highway improvement district committee to ensure compliance with the provisions related to the amount of work that may be done by county highway departments and, instead, requires these committees to: (1) review each project proposed by a county highway department and to determine if it would be cost-effective for the county highway department to perform the work; and (2) to approve the proposed project prior to its being performed by the county highway department.

The Act modifies the membership of each county highway improvement district committee to specify that it shall be composed of the highway commissioners from each county in the Wisconsin County Highway Association district.

The Act requires DOT to amend the existing rule to include: (a) criteria for determining whether a project can be done cost-effectively by county highway departments; and (b) procedures for departmental review of disputes relating to whether proposed work by a county highway department is cost-effective.

The Act eliminates the provision in s. 86.31 (2) (b) , Stats., that allows towns to contract with counties to perform work under the town road improvement program and the town road improvement discretionary programs (TRIP and TRIP-D) if the town does not receive a responsible bid on a project. Instead, the Department must amend ch. Trans 206 to include criteria and procedures for determining when a contract for a project under the TRIP and TRIP-D programs may be awarded to a county. The criteria must include: (a) a requirement that a written and sealed estimate of the cost of the improvement that includes the source of the estimate be prepared prior to the time set for the opening of bids for the improvement and not be opened until after the opening of all bids; (b) a requirement that all bids may be rejected and the contract awarded to a county for the improvement if the lowest bid exceeds the cost estimate by at least 10% and the town board notifies the lowest two bidders or, if only one bid was received, the single bidder, to provide information on the accuracy of the cost estimate; (c) a requirement that the amount of the contract with a county for the improvement be at least 10% below the lowest bid received for the improvement; and (d) a provision that permits re-bidding if the amount of the proposed contract with a county for the improvement is less than 10% below the lowest bid received for the improvement.

The proposed rule limits the number of times a project may be substituted under the LRIP program to one, requires county highway commissioners to review and maintain required documents for project approved within their counties, except for applications from cities or villages with populations of 20,000 or more. It also requires funds committed under the LRIP to be reimbursed within three biennia of when the funds were originally committed. It also requires that the number of projects that can be submitted in a given biennium for funding under TRIP and MSIP less than 20,000 in population is not to exceed one half of the number of towns or eligible cities or villages.

Comparison with federal regulations

This is a state program for local governments assisting in the improvement of deteriorating local highways, streets and roads. There are no existing or proposed federal regulations.

Comparison with rules in the following states

Michigan:

No similar program.

Minnesota:

Minnesota has a local roads program, but the State provides grants rather than reimbursement.

Illinois:

No similar program.

Iowa:

No similar program.

Summary of factual data and analytical methodologies

This proposed rule implements statutory changes and clarifies program policies, procedures and requirements related to the Local Roads Improvement Program. The Department's implementation is the same as the Department applies to its other local programs under ch. 86 , Stats., Miscellaneous Highway Provisions .

Analysis and supporting documentation used to determine effect on small businesses

This proposed rule pertains to a state program for local governments entering into a state municipal agreement with the Department for partial reimbursement of costs related to deteriorating local highways, streets and roads. The program does not provide any direct reimbursements or assess any fees to any small businesses.

Small Business Impact

The proposed rule will have no adverse impact on small businesses.

The Department's Regulatory Review Coordinator may be contacted by e-mail at [e-mail] , or by calling [phone].

Fiscal Estimate

The Department estimates that there will be no fiscal impact on the liabilities of any county, city, village, town, school district, vocational, technical and adult education district, sewerage district, or federally-recognized tribes or bands.

Under 1997 Wis. Act 27 , s. 86.31 (3g) , Stats., the Department allocates $5,000,000 annually, beginning in fiscal year 2001-02, to fund county highway improvement projects with total eligible costs of $250,000 or more from the discretionary LRIP appropriation. This funding is in addition to the allocation of funds available to counties through the formula generated entitlement program.

Under 1999 Wis. Act 9 , s. 86.31 (3r) , Stats., the Department allocates $1,000,000 annually, beginning in fiscal year 2001-02, to fund municipal street improvement projects with total eligible costs of $250,000 or more from the discretionary LRIP appropriation. This funding is in addition to the allocation of funds available to cities and villages through the formula generated entitlement program.

The proposed rule defines and incorporates the sunset on funds policy recommended by the LRIP study group. This policy is intended to ensure the timely use of program funds, within three biennia of programming.

The proposed rule also defines and incorporates the program review process recommended by the LRIP study group. The process includes a mechanism for assessing sanctions and provides the community with an opportunity for appeal.

The proposed rule updates language related to engineering certification to be consistent with statutory language.

The proposed rule updates administrative costs to be consistent with administrative policy and clarifies several issues in the current rule relating to the definition of eligible project and utilities.

The proposed rule clarifies the role of the county highway commissioner, detailing the responsibility for the commissioner to ensure adherence with statutory law and program rules and required recordkeeping. It requires the commissioner to submit entitlement applications totaling no more than one-half the available funds in any given year.

Anticipated costs incurred by private sector

The Department estimates that there will be no fiscal impact on private sector revenues or liabilities.