Wisconsin Legislature: Text

Rules Clearinghouse #: Not yet assigned

DATCP Docket #: 04-R-09

Purpose and Content of Proposed Rule

This rule regulates the import and movement of host materials that may spread infestations of Emerald Ash Borer, Asian Longhorn Beetle, Phytophthora ramorum or Hemlock Woolly Adelgid. Each of these pests has been found in the United States, and each poses a major threat to Wisconsin's forest and urban landscapes. None of these pests has yet been found in Wisconsin. This rule is designed to prevent and limit the spread of these pests, by regulating imports of host materials, to Wisconsin, from known infested areas. If any of these pests is ever found in Wisconsin, this rule will also affect the movement of host materials from infested areas in this state.

This rule will protect the environment by preventing the infestation and loss of tree species in Wisconsin. This rule includes the following key provisions:

Emerald Ash Borer

This rule prohibits the import or intrastate movement of host materials from infested areas designated by USDA-APHIS in the Code of Federal Regulations (CFR), unless a pest control official inspects the materials and certifies that they are free of Emerald Ash Borer. Host materials include:

Ash trees.

Ash limbs, branches and roots.

Ash logs, slabs or untreated ash lumber with bark attached.

Cut firewood of all non-coniferous species.

Ash chips and ash bark fragments (both composted and uncomposted) larger than one inch in diameter.

Asian Longhorned Beetle

Cut firewood of all non-coniferous species.

Nursery stock, logs, green lumber, stumps, roots, branches or debris from any of the following trees: maple, horse chestnut, mimosa, birch, hackberry, ash, sycamore, poplar, willow, mountain ash and elm.

Phytophthora ramorum

This rule restricts the import or intrastate movement of host materials from infested areas designated by USDA-APHIS in the Code of Federal Regulations (CFR), unless a pest control official inspects the materials and certifies that they are free of Phytophthora ramorum. Host materials include:

Nursery stock, unprocessed wood, and unprocessed wood and plant products (including bark chips, firewood, logs, lumber, mulch, wreaths, garlands and greenery) from species designated in this rule. The designated species include a large variety of different trees and plants, including for example: fir, maple, buckeye, heather, camellia, chestnut, hazelnut, wood fern, beech, ash, witch hazel, Christmas berry, California holly, laurel, oak, tanoak, honeysuckle, Douglas fir, rhododendron, sumac, rose, raspberry, blackberry, blueberry, willow, coast redwood, Lilac, yew, poison ivy and poison oak.

Soil and potted media.

Any other material that could reasonably harbor Phytophthora ramorum.

Hemlock Woolly Adelgid

DATCP rules currently limit the import and movement of Hemlock Woolly Adelgid host materials from infested areas identified in the current rules. The current DATCP rule is based on an outdated Forest Service list. This rule updates the current DATCP list to conform to the most recent Forest Service list. This rule makes no other changes to current DATCP rules.

Who is Affected, and How?

The rule could affect a variety of in-state businesses, including nursery growers and dealers, lumber mills, paper mills, firewood sellers and dealers, landscapers and loggers. However, because none of the pests regulated by this rule have been detected in Wisconsin to date, the initial impact of this rule will be limited to businesses that may be importing host materials from outside this state. If any of the regulated pests is ever found in this state, this rule may have a larger impact on in-state business. These businesses would not be permitted to move host materials from infested areas unless a state inspector first inspected the materials and certified that they were pest free. DATCP estimates that 50-60% of the businesses affected by this rule are “small businesses."

Costs to Comply

This rule will add costs for some affected businesses. Affected businesses may incur costs related to:

Inspection and certification. Businesses would not be able to move host materials from infested areas unless a state inspector first inspected the materials and certified that they were pest free.

The current inspection certificate charge is $50.

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]
(reprinted from 2/15/06, Wis. Adm. Register)

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 (corrected)

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: