Rule-Making Notices (Hearing Notices)

Businesses in infested areas would likely incur added costs, and could lose some markets for their products. Those consequences would result from the infestation itself, with or without this rule. This rule might add some incremental costs, but would provide a mechanism by which commerce could continue subject to regulation. The rule would protect businesses and forest resources in other areas of the state, and would forestall more general federal quarantines that could limit exports from the entire state (including exports from uninfested areas).

Small Business Impact

Approximately 50-60% of the businesses affected by this rule are small businesses. Only a small fraction, 10% at most, of these nurseries, landscapers, firewood producers and dealers, mulch producers and dealers, loggers, lumber mills, paper mills, wood manufacturers, and wood recycling or disposal facilities request an inspection certificate to ship or move host plant materials interstate or internationally. The 168 nursery growers, representing about 10% of the total number of nurseries in the state, would be the most affected by this rule. The current $50 cost for a plant health certificate would apply to businesses exporting host materials out of an infested area.

Small businesses in infested areas, like large businesses, would likely incur added costs, and could lose some markets for their products. However, those consequences would result from the infestation itself, with or without this rule. This rule might add some incremental costs, but would provide a mechanism by which commerce could continue subject to regulation. An exemption for small business would undermine the effectiveness of the rule in preventing the introduction and spread of harmful pests. This rule will not have a significant adverse economic impact on small business. Therefore, it is not subject to the delayed small business effective date provision in s. 227.22 (2) (e), Stats.

Farmers

Farmers will not be directly affected by this rule.

General Public

This rule will positively impact the general public, by helping to prevent the introduction and spread of serious plant pests that threaten key urban and residential tree species in Wisconsin. If enacted, this rule would help to minimize the impact of the plant pests on the public, to lessen damage and losses that could result in reductions in private property value when tree removal is mandated.

Environmental Impact

This rule will positively impact the environment by helping to prevent the introduction and spread of serious plant pests that threaten key tree species in Wisconsin. The primary environmental consequences of no action are increased risk of pest spread and elevated environmental risks from uncoordinated application of pesticides to limit damage from the emerald ash borer. Also, introductions of these pests would lead to changes in the composition and age structure of forests resulting from the no action alternative and could have long-term effects on the ecological relationships in the forested areas.

Economic Effects

This rule will prevent the economic effects that would be caused by an infestation. The cost of tree removal and the subsequent lowering of property values would be significant.

Social and Cultural Effects

This rule will not have significant social or cultural effects, except that it will help to prevent the disruption of local communities that can result from urban tree removal. Further it will help to protect black ash which is a sacred material used by Wisconsin Indian Tribes for making baskets.

Alternatives to this Rule

No Action

Under the no action alternative, DATCP would not implement measures to prevent the import and movement of Emerald Ash Borer, Asian Longhorn Beetle, Phytophthora ramorum or Hemlock Woolly Adelgid. Left unchecked, these pests would spread throughout Wisconsin and the U.S., having severe environmental and economic impacts. In the case of Emerald Ash Borer it is certain that all affected ash trees would die or lose commercial value within just a few years.

The absence of control or containment measures would lead to an increase in Emerald Ash Borer, Asian Longhorn Beetle, Phytophthora ramorum or Hemlock Woolly Adelgid populations, and an increase in long-term, continuing costs for detection and removal of infested host plants. Local business owners and area residents could attempt to control damage from infestations by removing the infested trees or plants from their properties.

In addition, the spread of these pests would lead to loss of valuable ornamental and commercial trees, loss of associated forest products, and private or uncoordinated use of pesticides to control the pest with associated adverse impacts to the environment. The wide distribution of host plants for these pests suggests the danger of spread across much of the country with increases in damage and losses commensurate with the spread. The damage and losses to commercial trees would lower the value and production of timber and tree products such as lumber used in the production of furniture.

Lastly, control measures would likely be taken by USDA-APHIS if DATCP does not act; those actions would not be under DATCP's control and would likely results in a statewide quarantine.

Modify Rule Provisions

Under this alternative, DATCP would enact import control and quarantine to restrict the movement of firewood, green lumber, and other living, dead, cut or fallen material, including nursery stock, logs, stumps, roots, and branches from any host trees. These materials may be moved within the quarantine area but would be restricted from moving outside the area.

Controversial Public Issues

DATCP does not anticipate major public controversy related to this rule. However, some industry members may express concern about possible increased costs for inspections or limited markets. The controversial issues would be certain in the absence of this rule and the associated necessity of tree removal.

This rule will improve protection for the public at large.

Conclusion

This rule will have a positive effect on the environment, and will not have any significant negative effects. This rule may increase costs for some businesses, including small businesses, but the costs are minimal, are greatly outweighed (even for those businesses) by the protection that this rule affords. There are no preferable alternatives to this rule. This rule is not a “major action significantly affecting the quality of the environment," for purposes of s. 1.11, Stats. No environmental impact statement is required under s. 1.11, Stats. or ch. ATCP 3, Wis. Adm. Code.

Notice of Hearing

Labor and Industry Review Commission

[CR 05-092]

NOTICE IS HEREBY GIVEN That pursuant to ss. 103.04 (2), Stats., and interpreting ss. 40.65 (2), 102.18 (3) and (4), 106.52 (4), 106.56 (4), 108.09 (6), 108.10 (2) and (3), 111.39 (5) (a), 303.07 (7) and 303.21 of the statutes, the Wisconsin Labor and Industry Review Commission will hold a public hearing at Room B103 of the GEF I State Office Building, 201 East Washington Avenue, in the City of Madison, Wisconsin, on the 8th day of March, 2006, at 10:30 a.m., to consider the repeal, amendment and recreation of rules relating to the procedures applicable to review of decisions by the commission.

Analysis Prepared by Labor and Industry Review Commission

The proposed rules update and reorganize chs. LIRC 1 to 4 to clarify provisions relating to when, where and how petitions for commission review may be filed, to create a provision allowing petitions for review to be filed electronically through the commission's website in unemployment insurance and workers compensation cases, to clarify provisions relating to use of hearing transcripts, synopses and summaries of evidence, and to make other minor corrective changes in its rules of procedure.

Text of Rule

Section 1. LIRC 1.01 is amended to read:

LIRC 1.01 General. The labor and industry review commission has jurisdiction for review of cases arising under ss. 40.65 (2), 66.191, 1981 Stats., 102.18 (3) and (4), 106.52 (4), 106.56 (4), 108.09 (6), 108.10 (2) and (3), 111.39 (5) (a), 303.07 (7) and 303.21, Stats.

Section 2. LIRC 1.015 is created to read:

LIRC 1.015 Definitions. (1) In chapters LIRC 1 to 4, “commission" means the Wisconsin labor and industry review commission.

(2) In chapters LIRC 1 to 4, “department" means the Wisconsin department of workforce development.

Section 3. LIRC 1.02 (intro.) is amended to read:

LIRC 1.02 Petitions for commission review; appeal period. All petitions for commission review shall be received, or, in unemployment compensation, received or postmarked, filed within 21 days from the date of mailing of the administrative law judge's findings and decision or order, except as provided under this section. “Received" means physical receipt. A mailed petition postmarked on or prior to the last day of an appeal period, but received on a subsequent day is not a timely appeal, except in unemployment compensation. All petitions shall be in writing. The last day of an appeal period shall be that the petition may be filed on the next business day if the last day for filing 21st day falls on any of the following:

Section 4. LIRC 1.025 is repealed and recreated to read:

LIRC 1.025 Petitions for review; filing. (1) Petitions for review may be filed by mail or personal delivery. A petition for review filed by mail or personal delivery is deemed filed only when it is actually received by the commission or by the division of the department to which the petition is mailed, except that petitions for review in unemployment insurance cases under s. 108.09 or 108.10, Stats. which are filed by mail or personal delivery are deemed filed when received or postmarked as provided for in s. LIRC 2.015.

(2) Except as provided for in subs. (3) and (4), petitions for review may not be filed by e-mail or by any other method of electronic data transmission.

(3) Petitions for review may be filed by facsimile transmission. A petition for review transmitted by facsimile is not deemed filed unless and until the petition is received and printed at the recipient facsimile machine of the commission or of the division of the department to which the petition is being transmitted. The party transmitting a petition by facsimile is solely responsible for ensuring its timely receipt. The commission is not responsible for errors or failures in transmission. A petition for review transmitted by facsimile is deemed filed on the date of transmission recorded and printed by the facsimile machine on the petition.

(4) Except in the case of petitions for review in fair employment and public accommodations cases under s. 106.52 or 111.39 (5), Stats., petitions for review may be filed electronically through the internet website of the commission, at the page found at:
http://www.dwd.state.wi.us/lirc/petition.htm.

Successful filing of a petition for review electronically through the internet website of the commission will result in a display on the petitioner's internet browser of a message confirming that the petition has been successfully filed. A petition for review transmitted electronically through the website of the commission is not deemed filed unless and until the confirmation message is displayed. The commission is not responsible for errors in transmission that result in failure of a petition to be successfully filed electronically through the website of the commission. A petition for review filed electronically through the internet website of the commission is deemed filed on the date of filing stated on the commission's electronic record of the filing.

(5) Petitions for review may not be filed by telephone.

Section 5. LIRC 1.04 is repealed and recreated to read:

LIRC 1.04 Record used for review. Review by the commission shall be based on the record of the case including the evidence previously submitted at hearing before the department. The record of the hearing may be in the form of a written synopsis or a transcript, and may include an audio recording of the hearing. The form of the record of the hearing which the commission uses in its review shall be determined as follows:

(1) Except as provided in subs. (2) through (5) of this section, the commission shall base its review on a written synopsis of the testimony taken at the hearing. The synopsis shall be prepared by the department, by the commission, or by an outside contractor, from an audio recording of the hearing or from notes taken at the hearing by the administrative law judge. In those cases any party may obtain a copy of the synopsis as provided for in s. LIRC 1.045.

(2) The commission shall base its review on a transcript of the hearing rather than a synopsis if a transcript was prepared and was used by the administrative law judge in deciding the case. In such cases any party may obtain a copy of the transcript as provided for in s. LIRC 1.045.

(3) Except in unemployment insurance cases, the commission shall base its review on a transcript of the hearing rather than a synopsis if a party timely requests the commission in writing to conduct its review on the basis of a transcript, the party certifies in such request that it has ordered preparation of a transcript at the party's own expense, and the party thereafter files a copy of the transcript with the commission and serves a copy of the transcript on all other parties. To be timely under this subsection, a request must be made no later than 14 days after the requesting party's receipt from the commission of written confirmation that a petition for commission review has been filed.

(4) The commission shall base its review on a transcript of the hearing rather than a synopsis if a party shows to the commission that the synopsis is not sufficiently complete and accurate to fairly reflect the relevant and material testimony and other evidence taken. In those cases the commission shall direct the preparation of a transcript at its own expense and provide a copy of the transcript to each party without charge.

(5) On its own motion, the commission may base its review on a transcript of the hearing in addition to a synopsis. In those cases the commission shall direct the preparation of a transcript at its own expense and provide a copy of the transcript to each party without charge.

(6) A transcript used pursuant to subs. (2) to (5) shall be prepared by an independent court reporter or transcriptionist and shall include a certification by the court reporter or transcriptionist that the transcript is an original, verbatim transcript of the proceedings.

(7) On its own motion, the commission may base its review on an audio recording of the hearing in addition to a synopsis or transcript.

Section 6. LIRC 1.045 is amended to read: LIRC 1.045 Obtaining copy of record. A party in a case before the commission may request the commission to provide a copy of the synopsis or transcript of the testimony, exhibits received at the hearing, or other documents in the file materials. The commission shall furnish the materials copies upon request but may charge a fee for photocopying of 20 cents per page. Upon proper showing of financial inability to pay for photocopying, the commission may waive the fee.

Section 7. LIRC 2.01 is repealed and recreated to read: LIRC 2.01 Petitions for review; where filed. (1) Except as provided in subs. (2) and (3), a petition for commission review of an appeal tribunal decision under s. 108.09 or 108.10, Stats., shall be filed with any of the following:

(a) The division of unemployment insurance of the department, at any of the following locations:

1. The Madison hearing office, at 1801 Aberg Ave., Suite A, P.O. Box 7975, Madison, Wisconsin 53707-7975 (FAX: [phone]).

2. The Milwaukee hearing office, at 819 N. 6th St., Rm. 382, Milwaukee, Wisconsin 53203-1606 (FAX: [phone]).

3. The Eau Claire hearing office, at 715 S. Barstow St., Suite 1, Eau Claire, Wisconsin 54701-3880 (FAX: [phone]).

4. The Fox Valley hearing office, at 926 Westhill Blvd., Appleton, Wisconsin 54914 (FAX: [phone]).

5. The central administrative office of the division's bureau of legal affairs, at P.O. Box 8942, Madison, Wisconsin 53708 (FAX: [phone]).

(b) The commission, at its office at 3319 West Beltline Highway, P.O. Box 8126, Madison, Wisconsin 53708 (FAX: [phone]).

(2) A petition filed by an interstate claimant may be filed at one of the locations in sub. (1) or with a qualified employee of the agent state in which the interstate claimant files his or her claim.

(3) A petition by the department shall be filed only at the office of the commission.

Section 8. LIRC 2.015 is amended to read:

LIRC 2.015 Timeliness of petitions. For purposes of s. 108.09 (6) (a), Stats., “received or postmarked" means the words “received" and “postmarked" have the following meanings:

(1) If the petition is personally delivered, the petition is “received" when the division of unemployment insurance of the department or the commission physically receives the petition.

(2) If the petition is mailed and bears only a United States postal service postmark, the petition is “postmarked" on the date of that postmark.

(3) If the petition is mailed and bears both a United States postal service postmark and a private meter mark, the petition is “postmarked" on the date of the United States postal service postmark.

(4) If the petition is mailed and bears only a private meter mark, the petition is “postmarked" on the date of that mark.

(5) If the petition is mailed and bears no mark, or bears an illegible mark, the petition is “postmarked" 2 business days prior to the date the petition was physically received by the division of unemployment insurance of the department or the commission.

(6) If the petition is sent using a delivery service other than the United States postal service, and bears a delivery service mark which is the equivalent of a United States postal service postmark, the petition is “postmarked" on the date of that delivery service mark.

(7) If the petition is sent using a delivery service other than the United States postal service, and does not bear a delivery service mark which is the equivalent of a United States postal service postmark, or bears an illegible delivery service mark, the petition is “postmarked" 2 business days prior to the date the petition was physically received by the division of unemployment insurance of the department or the commission.

Section 9. LIRC 2.03 is repealed.

Section 10. LIRC 2.04 is repealed.

Section 11. LIRC 3.01 is repealed and recreated to read:

LIRC 3.01 Petitions for review; where filed. A petition for commission review of the findings or order of a department administrative law judge under s. 102.18, Stats., shall be filed with any of the following:

(1) The worker's compensation division of the department, at any of the following locations:

(a) 201 East Washington Avenue, P.O. Box 7901, Madison, Wisconsin 53707 (FAX: [phone]).

(b) 819 North Sixth Street, Milwaukee, Wisconsin 53203 (FAX: [phone]).

(c) 1500 North Casaloma Drive, Suite 310, Appleton, Wisconsin 54915 (FAX: [phone]).

(2) The commission, at its office at 3319 West Beltline Highway, P.O. Box 8126, Madison, Wisconsin 53708 (FAX: [phone]).

Section 12. LIRC 3.02 is repealed.

Section 13. LIRC 3.04 is amended to read:

LIRC 3.04 Compromise settlements. Compromise settlements of worker's compensation claims are solely within the jurisdiction of the worker's compensation division, department of workforce development, according to governed by s. 102.16, Stats., and s. DWD 80.03. Under s. 102.18 (4) (d), Stats., if a compromise is reached while a case is pending commission review, the compromise shall be submitted to the commission, and the commission shall remand the case to the worker's compensation division of the department for consideration of the compromise. If the compromise is not approved, the party who filed the petition for commission review may reinstate its petition by notifying the commission. Under s. 102.24 (2), Stats., if a compromise is reached while a case is pending court review of a commission order, remand shall be to the commission and the commission shall then remand the case to the department for consideration of the compromise.