NOTICE IS HEREBY GIVEN that pursuant to ss. 16.004 (1), 16.705 (1) and (2), Stats., the Department of Administration will hold a public hearing on the Department's emergency rulemaking order and proposed permanent rulemaking order amending ch. Adm 10, Wisconsin Administrative Code, relating to cost-benefit analyses of contractual services.

Friday, August 11, 2006 at 1:00 p.m.

Wisconsin Administration Building

101 E. Wilson Street, 1st Floor

St. Croix Room

Madison, Wisconsin

Interested persons are invited to present information at the hearing. Persons appearing may make an oral presentation but are also urged to submit facts, opinions and arguments in writing as well. Written comments from persons unable to attend the public hearing, or who wish to supplement testimony offered at the hearing, should be directed to: Terri Lenz, Wisconsin Department of Administration, Division of Enterprise Operations, P.O. Box 7867, Madison, WI 53707-7867, or by calling (608) 261-2298, fax at (608) 267-0600 or by email at terri.lenz@wisconsin.gov. Written comments must be received by August 11, 2006, to be included in the record of rule-making proceedings.

1. Statutes Interpreted: ss. 16.004 (1), 16.705 (2) and 227.11, Stats.

2. Statutory Authority: ss. 16.004 (1), 16.705 (2) and 227.11, Stats.

3. Explanation of agency authority: 2005 Wisconsin Act 89 (“Act 89") renumbered and amended s. 16.705 (8), Stats., amended s. 16.705 (1) and (2), Stats., and created ss. 16.70 (3g) and 16.705 (8) (a) and (b), Stats., in order to prescribe uniform procedures for determining whether services are appropriate for contracting under the State procurement system.

4. Related statute or rule: Administrative rule chapter 10.

5. Plain language analysis: The department intends to promulgate a rule as required by Act 89 to require a cost-benefit analysis to be completed for each bid or request for proposal to compare the cost of contracting for services versus providing the services with state employees.

Currently, all state agencies and UW System campuses may contract for services between $25,000 and $200,000 if they can show that the services can be performed more economically or efficiently by such a contract than by state employees. Currently, if the contractual services would be greater than $200,000, the contracting agency must complete a more rigorous and detailed cost/benefit analysis to demonstrate that the services can be performed more economically or efficiently by such a contract than by state employees. This more rigorous and detailed analysis includes total cost, quality and nature of services required, specialized skills, time factors, risk factors and legal barriers. Act 89 requires agencies to conduct uniform cost-benefit analysis of each proposed contractual service procurement involving an estimated expenditure of more than $25,000 in accordance with standards prescribed in the rules. Cost benefit-analysis is defined to include total cost, quality, technical expertise and timeliness of a service.

Act 89 also requires agencies to review periodically, and before any renewal, the continued appropriateness of contracting under each services agreement involving an estimated expenditure of more than $25,000. Act 89 requires the department to complete an annual summary report of the cost benefit-analysis prepared by state agencies in the preceding fiscal year and recommendations for elimination of unneeded contractual service procurements and for the consolidation or resolicitation of existing contractual service procurements.

6. Summary of, and comparison with, existing or proposed federal regulations: This proposed rule is specific to State of Wisconsin procurement laws and is completely separate from, and unaffected by, federal regulations.

7. Comparison with rules in adjacent states.

Michigan: The department is unaware of and was unable to locate any rules in this state pertaining to this subject.

Minnesota: The department is unaware of and was unable to locate any rules in this state pertaining to this subject.

Illinois: The department is unaware of and was unable to locate any rules in this state pertaining to this subject.

Iowa: The department is unaware of and was unable to locate any rules in this state pertaining to this subject.

8. Summary of factual data and analytical methodologies used and how the related findings support the regulatory approach chosen: 2005 Wisconsin Act 89 requires the department to promulgate this rule.

9. Analysis and supporting documents used to determine effect on small business or in preparation of economic impact statement: The proposed rule prescribes uniform procedures for determining whether services are appropriate for contracting, however the rule does not require agencies and UW System campuses to make a procurement decision based upon the cost benefit analysis and therefore is expected to have no effect on small business.

10. Effect on small business: The proposed rule prescribes uniform procedures for determining whether services are appropriate for contracting, however the rule does not require agencies and UW System campuses to make a procurement decision based upon the cost benefit analysis and therefore is expected to have no effect on small business.

11. Agency contact person: Requests for copies of the proposed rule should be submitted to Terri Lenz, Department of Administration, Division of Enterprise Operations, P.O. Box 7867, Madison, WI 53707-7867. You may also contact Ms. Lenz at (608) 261-2298, by fax at (608) 267-0600 or by email at terri.lenz@wisconsin.gov.

12. Place where comments are to be submitted and deadline for submission: Comments on the proposed rule should be submitted to Terri Lenz, Department of Administration, Division of Enterprise Operations, P.O. Box 7867, Madison, WI 53707-7867. You may also contact Ms. Lenz at (608) 261-2298, by fax at (608) 267-0600 or by email at terri.lenz@wisconsin.gov.

13. Fiscal effect: The fiscal estimate for the act is attached.

The proposed rule prescribes uniform procedures for determining whether services are appropriate for contracting, however the rule does not require agencies and UW System campuses to make a procurement decision based upon the cost benefit analysis and therefore is expected to have no effect on small business.

A copy of the proposed rules and the full fiscal estimate may be obtained from the Department of Administration upon request.

A copy of the emergency rule may be obtained upon request from Terri Lenz, Wisconsin Department of Administration, Division of Enterprise Operations, P.O. Box 7867, Madison, WI 53707-7867, or by calling (608) 261-2298, fax at (608) 267-0600 or by email at terri.lenz@wisconsin.gov.

The state of Wisconsin Department of Agriculture, Trade and Consumer Protection (DATCP) announces that it will hold public hearings on a proposed repeal and recreation of chapter ATCP 156, Wis. Adm. Code, relating to Seed Potato Certification and Grading.

DATCP will hold three public hearings at the times and places shown below. 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, August 31, 2006 for additional written comments. Comments may be sent to the Division of Trade and Consumer Protection at the address below, by email to kevin.leroy@datcp.state.wi.us or online at https://apps4. dhfs.state.wi.us/admrules/public/Home

You may obtain a free copy of this 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 a copy by calling (608) 224-4928 or emailing kevin.leroy@datcp.state.wi.us. Copies will also be available at the hearings. To view the proposed rule online, go to:

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 Keeley.Moll@datcp.state.wi.us or by telephone at (608) 224-5039.

Hearing impaired persons may request an interpreter for these hearings. Please make reservations for a hearing interpreter by July 31, 2006, by writing to Kevin LeRoy, Division of Trade and Consumer Protection, P.O. Box 8911, Madison, WI 53708-8911, telephone (608) 224-4584. Alternatively, you may contact the DATCP TDD at (608) 224-5058. Handicap access is available at the hearings.

Monday, August 7, 2006

1:00 p.m. until 3:00 p.m.

Department of Agriculture, Trade and Consumer Protection

Board Room (CR-106)

2811 Agriculture Drive

Madison, Wisconsin, 53718-6777

Wednesday, August 9, 2006

10:00 a.m. until 11:30 a.m.

The Portage County Public Library

Charles M. White Library Building

The Pinery Room

1001 Main Street

Stevens Point, Wisconsin 54481

Wednesday, August 9, 2006

2:30 p.m. until 5:00 p.m.

Langlade County Fair Grounds

Clover Room, Multipurpose Building

1581 Neva Road

Antigo, Wisconsin, 54409-2340

This rule repeals and recreates current rules related to Wisconsin's certified seed potato program, a voluntary program for the certification and grading of seed potatoes in this state. The program is jointly administered by the Wisconsin department of agriculture, trade and consumer protection (“DATCP") and the university of Wisconsin college of agricultural and life sciences (the “college"). This rule updates and clarifies current certification standards and procedures.

Statutory authority: ss. 93.07 (1), 93.09, 100.14 (1) and 100.20 (2), Stats.

Statutes interpreted: ss. 93.06 (1), (1m), (1p), (1q) and (11), 93.09, 100.14 (1) and 100.20, Stats.

DATCP has broad authority, under s. 93.07(1), Stats., to adopt rules to implement laws under its jurisdiction. DATCP also has authority, under the above statutes, to adopt grading and certification standards for commodities, to provide grading and certification services upon request, and to recover the cost of the requested services. DATCP has authority, under s. 100.20, Stats., to prohibit unfair and deceptive business practices.

Under s. 93.06 (11), Stats., DATCP may cooperate with other entities and appoint agents for the administration of programs under its jurisdiction. DATCP administers the certified seed potato program pursuant to this rule and a memorandum of understanding with the college.

DATCP has delegated authority to the college to inspect and certify seed potatoes for disease risk. The college may charge fees to cover the college's costs of inspection and certification. Certification decisions by the college may be subject to administrative review by DATCP, as provided in this rule.

DATCP grades seed potatoes, once they are certified by the college. A person may not sell potatoes as Wisconsin certified seed potatoes unless the potatoes are certified by the college and graded by DATCP.

Wisconsin is one of the nation's largest potato producing states. Wisconsin's certified seed potato program helps Wisconsin's potato industry, by maintaining the quality and disease-free reliability of seed potatoes. Commercial potato growers can rely on the seed potatoes they purchase. Seed potato growers can market their seed potatoes more effectively, because buyers can purchase with confidence. Certification helps prevent the spread of serious and potentially devastating potato diseases, and facilitates the movement of seed potatoes in interstate and international commerce.

Seed potato certification and grading is voluntary, and is done at the request of the seed potato grower. Yet most Wisconsin potatoes are grown from certified seed, because certification helps buyers and sellers alike.

At the request of a seed potato grower, the college inspects seed potatoes for diseases and other conditions. The college then certifies the seed potatoes in appropriate categories based on predicted disease-free reliability. DATCP inspects and grades college-certified seed potatoes for other measures of quality. A grower may not sell potatoes as certified seed potatoes unless the potatoes have been certified by the college and graded by DATCP.

Seed potatoes are labeled with their certification and grade classifications, so that buyers know what they are getting. Certification and grade classifications affect purchase decisions and sale prices. DATCP and the college charge fees to cover the cost of requested grading and certification services.

The Certification Process

DATCP rules specify standards and procedures for seed potato certification and grading. Current rules are contained in ch. ATCP 156, Wis. Adm. Code. Historically, the college has provided disease-free propagative material used to grow multi-generational lines of certified seed potatoes in this state.

Seed potato growers plant propagative material provided by the college, and harvest the seed potatoes. Harvested seed potatoes may be sold to commercial growers, or replanted to produce subsequent generations of seed potatoes. If the seed potatoes are certified by the college (and graded by DATCP), they may be sold as certified seed potatoes (normally at a higher price). If they are certified as “foundation" seed potatoes, they may be replanted to produce subsequent generations of certified seed potatoes.

With each generation of planting in the field, the disease-free reliability of the seed potatoes (and hence their certification classification) is reduced. After a certain number of generations, seed potatoes may no longer be used as “foundation" seed potatoes to produce other certified seed potatoes. However, a seed potato grower may start a new line of certified seed potatoes, using new disease-free propagative material provided by the college or a comparable source.

As part of the certification process, the college samples and inspects growing and harvested seed potatoes. The college also conducts follow-up evaluations of potatoes grown from the certified “lot." The college looks for diseases of concern. The college may not certify a seed potato “lot" if samples from that “lot" fail to meet minimum disease standards.

If a “lot" meets minimum disease standards, the college assigns a classification code based on generation (with each year of field planting the classification drops one level, reflecting increased disease risk). Each “lot" is labeled with its assigned classification code.

Once the college has certified seed potatoes, and assigned a disease-risk classification, DATCP may grade the potatoes based on various quality factors. DATCP visually inspects samples of potatoes drawn from the graded “lot," and grades the “lot" according to DATCP rules. Each graded “lot" is labeled with its assigned grade.

Rule Changes Needed