Notice is hereby given that pursuant to s 227.16 (2) (e), Stats., the state of Wisconsin Department of Agriculture, Trade and Consumer Protection will adopt the following rule without public hearing unless within 30 days after publication of this notice on August 15, 1995, the Department receives a petition for hearing signed by 25 persons who will be affected by the rule, a municipality which will be affected by the proposed rule, or an association which is representative of a farm, labor, business or professional group which will be affected by the rule.

The State of Wisconsin Department of Agriculture, Trade and Consumer Protection proposes the following order to repeal s. ATCP 27.06, ch. ATCP 106 (note), ch. ATCP 107 (note), ch. ATCP 108 (note), ch. ATCP 130 and s. ATCP 135.11 (note); to renumber ch. ATCP 26 (title), ss. ATCP 26.01 (title), (1) to (3), (5), (7), (8), (10) to (13) and (15), 26.02 (title), (1) and (3), 26.03, 26.04(title), (1) to (4), (5) (title), (5) (a) (title) and 1 to 10, and (5) (b) (title) and 1 to 9, 26.05 (title), (1) (title) and (intro.), (1) (a), (1) (b) (intro.) and 1 to 6, and (2) to (5), 26.07 (title), (1) (title), (1) (a) (title), (1) (b) and (c), (2) (title), and (2) (a) (title), (b) and (c), 26.08 (title), 26.09, ch. 27 (title), 27.01 (title), (1), (3) to (5) and (7) to (9), 27.02, 27.03 (title), (1) to (4), (5) (a) and (b), and (6) (a) and (b), 27.04 and 27.05, 100.57 (1), (2), (3) and (4), 106.01 to 106.03, 107.01 and 107.02, 107.04 (title), 107.05 (title) and (1) (a), (c), (d) and (f), 107.06, ch. ATCP 108 (title), 108.01 (title) and (1) to (4), 108.02 and 108.03, ch. ATCP 135 (title), 135.05 (title), (2) and (3), ch. ATCP 156 (title), 156.01 (title) and (1) to (12), 156.02 to 156.08, ch. ATCP 157 (title) and 157.01 to 157.04; to renumber and amend ss. ATCP 26.01 (4), (6), (9) and (14), 26.02 (2), 26.04 (5) (a) (intro.) and (b) (intro.), 26.05 (1) (b) 7 and 8, 26.06 (1) (b) 6 and 7, 26.07 (1) (a) and (2) (a), 26.08 (1) and (2), 27.01 (2) and (6), 27.03 (5) (intro.), (6) (intro.) and (7), ch. ATCP 106 (title), ch. ATCP 107 (title), 107.03, 107.04 (1) and (2), 107.05 (1) (intro.), (b) and (e), 107.05 (2), 108.01 (intro.), 135.01, 135.03, 135.05 (1), 135.07, 135.11 and 156.01 (intro.); to amend ss. ATCP 1.06 (1), ch. ATCP 105 (title), 137.01, 137.02 (intro.), 137.04 (4), 137.05 (4), 137.07 (3), 140.15 and 161.23 (4) (b); and to create ss. ATCP 21.14 (1) (intro.), ch. ATCP 102 (title), ch. ATCP 102 (note), 102.01 (intro.), 102.11 (intro.), ch. ATCP 137, subch. I (title), and ch. ATCP 157 (title); relating to nonsubstantive rule organization and drafting changes.

Statutory authority: ss. 93.07(1), 93.09, 93.44, 96.15, 97.09 (4), 100.20 (2), 100.295, 100.33 (2), 227.11

Statutes interpreted: ss. 93.06 (1m), 93.09, 93.14, 93.18, 93.44, 94.01, 94.02, 94.03; ch. 96; ss. 97.09 (4), 100.06, 100.20, 100.295, 100.30, and 100.33; and subch. III of ch. 227

This rule makes nonsubstantive organizational and drafting changes to several rules which the Department currently administers. This rule consolidates, renumbers, and corrects typographical errors in the current rules, but does not change the substance of those rules. This rule does all of the following:

○   Incorporates a current rule related to potato rot nematode (ATCP 27) into the Department's general rule related to plant inspection and pest control (ATCP 21).

○   Renumbers the Department's certified seed potato rule from ATCP 26 to ATCP 156, so that it will be located among other rules administered by the Department's Marketing Division. The Marketing Division is primarily responsible for administering the rule, in cooperation with the College of Agricultural and Life Sciences.

○   Consolidates 3 current price discrimination rules into a single new chapter (ATCP 102, Price Discrimination and Related Practices). The 3 current rules regulate price discrimination in the sale of fermented malt beverages (ATCP 106), soda water beverages (ATCP 107) and motor fuel (ATCP 108). Each of the current rules will comprise a subchapter in the consolidated rule.

○   Retitles Ch. ATCP 105 from “Unfair Sales Act” to “Sales Below Cost.” ATCP 105 interprets the unfair sales act, s. 100.30, Stats., but is not itself the unfair sales act. The rule interprets provisions of s. 100.30, Stats., related to sales below cost.

○   Consolidates 2 current rules related to environmental labeling of products into a single chapter (ATCP 137, Environmental Labeling of Products). One of the current rules (ATCP 137) regulates claims that products are recycled, recyclable or degradable. The other (ATCP 135) requires that plastic containers be labeled to facilitate recycling. Each of the current rules will comprise a subchapter in the consolidated rule.

○   Repeals ch. ATCP 130, an obsolete list of forms.

○   Consolidates current grading rules for honey and maple syrup into a single chapter (ATCP 157, Honey and Maple Syrup). Within the consolidated rule, there will be separate subchapters for honey and maple syrup.

○   Corrects miscellaneous typographical errors in current rules.

SECTION 1. ATCP 1.06 (1) is amended to read:

ATCP 1.06 (1) WHO MAY REQUEST. A person adversely affected by a department action may request a hearing on that action. Except as provided under s. ATCP 1.03 (4) (a) ATCP 1.03 (3) (a), a request for hearing shall be filed with the secretary and shall comply with sub. (2). A request for hearing on a department action does not stay or modify that action.

SECTION 2. ATCP 21.14 (1) (intro.) is created to read:

ATCP 21.14 (1) (intro.) In this section:

SECTION 3. Chapter ATCP 26 is renumbered chapter ATCP 156; and ATCP 156.01 (4), (6), (9) and (14), 156.02 (2), 156.04 (5) (a) (intro.) and (b) (intro.), 156.05 (1) (b) 7 and 8, 156.06 (1) (b) 6 and 7, 156.07 (1) (a) and (2) (a), and 156.08 (1) and (2), as renumbered, are amended to read:

ATCP 156.01 (4) “Damage” means any defect, except sunburn, greening and hollow heart, or any combination of defects which materially detracts from the internal or external appearance of the potato, or any defect which cannot be removed without a loss of more than 5% of the total weight of the potato. “Damage” may include one or more of the internal or external defects specified in s. ATCP 26.04 (5) (a) and (b) ATCP 156.04 (5) (a) and (b).

ATCP 156.01 (6) “External defect” means any defect under s. ATCP 26.04 (5) (a) ATCP 156.04 (5) (a) which can be detected by inspection of the outer surface of a seed potato, except that cutting may be required to determine the extent of internal injury related to the external defect.

ATCP 156.01 (9) “Internal defect” means any defect under s. ATCP 26.04 (5) (b) ATCP 156.04 (5) (b) which cannot be detected without cutting the potato.

ATCP 156.01 (14) “Serious damage” means any defect or combination of defects under s. ATCP 26.04 (5) ATCP 156.04 (5), except sunburn or greening, which seriously detracts from the internal or external appearance of the potato, or any defect which cannot be removed without a loss of more than 10% of the total weight of the potato.

ATCP 156.02 (2) ISSUANCE OF CERTIFICATES. Field and bin and grading inspections and certifications or reports shall be based upon visual inspections of fields, bins, plants and tubers in accordance with standards, procedures, and tolerances specified in ss. ATCP 26.03 and 26.04 ATCP 156.03 and 156.04. In the issuance of inspection certificates or reports, neither the department nor the college may make any express or implied warranties or representations as to freedom from disease or quality of the certified seed, but certifies only that at the time of inspection the sample plants and tubers of each lot inspected conform to standards and tolerances for certified seed or certified seed of a particular grade under this chapter.

ATCP 156.04 (5) (a) (intro.) External defects. The following external defects may individually or collectively constitute damage or serious damage as defined under s. ATCP 26.01 (4) ATCP 156.01 (4) and (14), respectively:

ATCP 156.04 (5) (b) (intro.) Internal defects. The following internal defects may individually or collectively constitute damage or serious damage as defined under s. ATCP 26.01 (4) ATCP 156.01 (4) and (14), respectively.

ATCP 156.05 (1) (b) 7 Damage as defined in s. ATCP 26.01 (4) ATCP 156.01 (4), including damage arising from external or internal defects under s. ATCP 26.04 (5) (a) ATCP 156.04 (5) (a) and (b), and

ATCP 156.05 (1) (b) 8 Serious damage as defined in s. ATCP 26.01 (14) ATCP 156.01 (14).

ATCP 156.06 (1) (b) 6 Damage by external defects as defined in s. ATCP 26.04 (5) (a) ATCP 156.04 (5) (a), and

ATCP 156.06 (1) (b) 7 Serious damage, except hollow heart, caused by internal defects as defined in s. ATCP 26.04 (5) (b) ATCP 156.04 (5) (b).

ATCP 156.07 (1) (a) Grade requirements. Badger State Brand Foundation certified seed potatoes shall consist of potatoes of one variety, certified by the college, which shall meet the grade requirements of Badger State Brand certified seed potatoes under s. ATCP 26.05 ATCP 156.05.

ATCP 156.07 (2) (a) Grade requirements. Yellow Tag Grade Foundation seed potatoes shall consist of potatoes of one variety, certified by the college, which shall meet the grade requirements of Yellow Tag Grade certified seed potatoes under s. ATCP 26.06 ATCP 156.06.

ATCP 156.08 (1) Seed potatoes produced and sold by the college as elite foundation seed potatoes may be used for the planting and production of potatoes to be entered for certification as foundation or certified seed without grading inspection by the department. Elite foundation seed shall conform to all of the requirements prescribed in s. ATCP 26.03 (6) ATCP 156.03 (6), and shall be the progeny from tuber-unit selections combined with clonal increase that have been rigidly screened for freedom from diseases by accepted indexing methods. No person may sell or represent potatoes as elite foundation seed potatoes unless the potatoes have been produced by the college and conform to the requirements of this section.

ATCP 156.08(2) Elite foundation seed potatoes shall consist of potatoes of one variety and as a minimum meet the standards for Yellow Tag Grade seed potatoes under s. ATCP 26.06 ATCP 156.06, except for defects not affecting productivity such as shape, sunburn, insect damage, mahogany browning, and internal discoloration. Elite foundation seed potatoes shall be labeled with a white tag printed with the words “Wisconsin Certified Seed Potatoes” with the words “Elite Foundation” overprinted on the face of the tag.

SECTION 4. Chapter ATCP 27 (title) and ATCP 27.01 to 27.05 are renumbered ATCP 21.14 (title) and (1) to (5); and ATCP 21.14 (1) (b), (1) (f), (3) (e) (intro.), (3) (f) (intro.) and (3) (g), as renumbered, are amended to read:

ATCP 21.14 (1) (b) “Certified seed potatoes” means seed potatoes which have been inspected and certified by the college as having been produced under and meeting field and bin inspection standards and requirements under ch. ATCP 26 ch. ATCP 156, and which have been graded and certified by the department as being of a grade specified under ch. ATCP 26 ch. ATCP 156.

(1) (f) “Infested field” means any parcel of land which is declared to be an infested field under s. ATCP 27.03 (1) sub. (3) (a), or which is known to be currently infested in fact with potato rot nematode.

(3) (e) (intro.) If a field used in the production of table stock potatoes is designated as an infested field under sub. (1) par. (a), the department may withdraw that designation only if one of the following conditions is met:

(3) (f) (intro.) If any field used in the production of certified seed potatoes is designated as an infested field under sub. (1) par. (a), the department may not withdraw that designation unless both of the following conditions are met:

(3) (g) If a notice of infestation is withdrawn under sub. (5) or (6) par. (e) or (f), the department may continue to examine potatoes grown on the field to verify that there is no evidence of potato rot nematode infestation.

SECTION 5. ATCP 27.06 is repealed.

SECTION 6. ATCP 100.57 (1), (2), (3) and (4) are renumbered ATCP 100.57 (2) to (5).

SECTION 7. Chapter ATCP 102 (title) is created to read:

SECTION 8. Chapter ATCP 102 (note) is created to read:

  NOTE: This chapter is adopted under authority of s. 100.20 (2), Stats., and is administered by the Wisconsin department of agriculture, trade and consumer protection. Violations of this chapter may be prosecuted under s. 100.26 (3) or (6), Stats. A person who suffers a monetary loss because of a violation of this chapter may sue the violator directly under s. 100.20 (5), Stats., and may recover twice the amount of the loss together with costs and reasonable attorneys' fees.

  See also s. 133.04, Stats. (price discrimination; intent to destroy competition); s. 100.201, Stats., and ch. ATCP 103 (dairy trade practices); s. 100.22, Stats. (price discrimination in milk procurement); and s. 100.31, Stats. (drug price discrimination).

SECTION 9. ATCP 102.01 (intro.) is created to read:

ATCP 102.01 Definitions. In this subchapter:

SECTION 10. ATCP 102.11 (intro.) is created to read: