Rule-Making Notices
Notice of Hearings
Agriculture, Trade and Consumer Protection
[
CR 07-085]
(Reprinted from 9/30/07 Wis. Adm. Register}
The State of Wisconsin Department of Agriculture, Trade and Consumer Protection (DATCP) announces that it will hold public hearings on a proposed rule affecting s.
ATCP 21.20, Wis. Adm. Code, relating to voluntary certification of firewood dealers.
DATCP will hold two public hearings at the times and places shown below. DATCP invites the public to attend the hearing and comment on the proposed rule. Following the public hearings, the hearing record will remain open until November 2, 2007 for additional written comments. Comments may be sent to the Division of Agricultural Resource Management at the address below, to
Robert.dahl@datcp.state.wi.us or at
https://apps4.dhfs.state. wi.us/admrules/public/home.
Hearing impaired persons may request an interpreter for this hearing. Please make reservations for a hearing interpreter by October 12, 2007, by writing to Deb Bollig, Division of Agricultural Resource Management, P.O. Box 8911, Madison, WI 53708-8911, telephone (608) 224-4584. Alternatively, you may contact the DATCP TDD at (608) 224-5058. The hearing facilities are handicap accessible.
Copy of Rule
You may obtain a free copy of this hearing draft rule by contacting the Wisconsin Department of Agriculture, Trade and Consumer Protection, Division of Agricultural Resource Management, 2811 Agriculture Drive, P.O. Box 8911, Madison, WI 53708. You can also obtain a copy by calling (608) 224-4573 or emailing
robert.dahl@datcp.state.wi.us. Copies will also be available at the hearing. To view the hearing draft rule online, go to:
https://apps4. dhfs.state.wi.us/admrules/public/Home.
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 Information
October 16, 2007
1:00 p.m. to 3:00 p.m.
DNR Service Center
4301 Rib Mountain Road
Wausau, WI 54401
October 18, 2007
1:00 p.m. to 3:00 p.m.
Dept. of Agriculture, Trade and Consumer Protection
2811 Agriculture Drive, Board Room (CR-106)
Madison, Wisconsin, 53718-6777
Analysis Prepared by Dept. of Agriculture, Trade and Consumer Protection
This hearing draft rule creates a voluntary certification program for firewood dealers. Under this rule, the Department of Agriculture, Trade and Consumer Protection (“DATCP") may certify firewood dealers who agree to treat firewood according to rule standards to eliminate potential infestations of Emerald Ash Borer and other pests. A firewood dealer is not required to be certified under this rule in order to sell firewood in this state.
Statutory authority
Statutes interpreted
Explanation of agency authority
The Wisconsin Department of Agriculture, Trade and Consumer Protection (“DATCP") has broad general authority, under s.
93.07 (1), Stats., to interpret laws under its jurisdiction. DATCP has broad general authority, under ss.
93.06 (1p),
93.07 (12) and
94.01, Stats., to adopt regulations to prevent and control plant pest infestations. The voluntary certification program created by this rule is part of an overall state strategy to prevent and control plant pest infestations, including Emerald Ash Borer infestations.
Background
Emerald Ash Borer and other major pests are carried by firewood. The Wisconsin Department of Natural Resources (DNR) has adopted rules, under NR 45, to restrict the entry of firewood into Wisconsin state parks. The DNR rules prohibit, in state parks, firewood originating from outside this state or more than 50 miles from the state park unless the firewood originates from a firewood dealer who is certified by DATCP.
Rule content
This rule creates a DATCP program for certification of firewood dealers. Firewood dealers certified under this rule may supply firewood to Wisconsin state parks. The certification program would be open to all firewood dealers in the state, regardless of whether they supply firewood to Wisconsin state parks. Certified firewood dealers must comply with this rule. A firewood dealer is not required to be certified under this rule in order to sell firewood in this state. A certified firewood dealer may sell or distribute firewood acquired from an out of state source but must apply the treatment required to be certified at the dealer's premises in Wisconsin. Certification does not authorize firewood imports from quarantined areas that are currently prohibited under ch.
ATCP 21, Wis. Adm. Code.
Under this rule, DATCP may annually certify a firewood dealer. An annual certification expires on December 31 of each year. A firewood dealer is not required to be certified in order to sell or distribute firewood in this state. There is a $50 charge for certification. The authority for the department to charge the fee is in s.
93.06 (1m) and
(1q), Stats. Certification permits a firewood dealer to supply firewood to Wisconsin state parks, pursuant to NR 45.04(1)(g).
DATCP may certify a firewood dealer if all of the following apply:
• The firewood dealer submits a complete application that complies with this rule.
• DATCP inspects all of the business premises identified in the certification application and determines, based on that inspection, that the firewood dealer is equipped to fulfill all of the representations included in the certification application.
A certification application must include all of the following:
• The correct legal name of the firewood dealer, and any trade names under which the firewood dealer sells or distributes firewood in this state.
• The address of the firewood dealer's business headquarters.
• The address of every business location from which the firewood dealer sells or distributes firewood in this state.
• The approximate annual volume of firewood that the firewood dealer sells or distributes in this state, including the approximate annual volume sold or distributed from each business location.
• The sources from which the firewood dealer obtains firewood for sale or distribution in this state. The application shall include the name and address of each person, if any, from whom the firewood dealer procures cut firewood.
A certification application must also include the following statement (the firewood dealer must notify DATCP if, at any time before or after the firewood dealer is certified, the statement is no longer accurate):
Firewood the applicant sells or distributes in this state intended to meet the requirements of NR 45.04 (1) (g) is treated at the premises of the firewood dealer in at least one of the following ways prior to sale or distribution:
1. Each piece of firewood is heated to a temperature at least 160° F. (71.1° C.) at the center of the piece, and is maintained at that temperature for at least 75 minutes.
2. All bark, and additional wood to a depth of at least ½ inch beneath the bark, is removed from each piece of firewood.
3. The firewood is stored on the firewood dealer's premises for at least 2 years before it is sold or distributed in this state.
4. The firewood is fumigated with a registered fumigant pesticide, according to the pesticide label, to kill all insect pests that may inhabit the firewood.
5. The firewood is treated in a manner approved, in writing, by the Wisconsin Department of Agriculture, Trade and Consumer Protection, to kill all insect pests that may inhabit the firewood."
DATCP must grant or deny a certification application within 60 business days after DATCP receives a complete application. DATCP may withdraw a certification if the applicant materially misrepresents any information in the application, or fails to honor any of the commitments made in the application. A certification does not constitute a warranty, by the department, that firewood is free of pests.
Comparison to federal regulations
Under the federal Plant Protection Act, the Animal and Plant Health Inspection Service of the United States Department of Agriculture (USDA-APHIS) has responsibility for excluding, eradicating and controlling serious plant pests, including the Emerald Ash Borer. USDA-APHIS has instituted statewide quarantines on the movement of ash wood for Illinois, Indiana, Pennsylvania and Ohio, in addition to the Lower Peninsula of Michigan. These quarantines include restrictions on the interstate movement of any hardwood (non-coniferous) firewood, and are in addition to the regulations adopted by each state related to the movement of firewood. Firewood cannot be moved from a quarantined area unless it is accompanied by an APHIS certificate that shows the firewood to be free of infested wood.
Comparison to adjacent states
Surrounding states where EAB has been identified (Illinois, Indiana, Ohio, Pennsylvania and Michigan) have state and federal quarantines that prohibit the movement of regulated articles, including all hardwood firewood, out of quarantined areas. Firewood can only move out of quarantined areas after it is certified by USDA. Other surrounding states, such as Minnesota and Iowa, are conducting information and education campaigns about the danger of moving firewood and are considering regulatory options for dealing with firewood movement.
Fiscal Impact
There are thousands of firewood dealers in Wisconsin, but few of them will have a strong incentive to be certified under this rule. DATCP assumes that, at least initially, certification will be attractive mainly for large firewood dealers who can afford to implement the firewood treatment regimen required for certification.
Certification may be especially attractive for large firewood dealers who wish to supply firewood to Wisconsin state parks. DNR state park rules prohibit firewood originating from outside the state or more than 50 miles from the state park, unless the firewood dealer is certified under this rule.
DATCP projects approximately one day of staff time to process each certification application and to inspect the firewood dealer's business premises. DATCP will incur inspector travel costs, but will attempt to minimize those costs by integrating inspections with other inspections. DATCP does not plan to do routine follow-up inspections, but may conduct occasional random inspections of certified firewood dealers.
DATCP assumes that approximately 30 firewood dealers will apply for certification for calendar year 2007. The $50 annual certification fee will offset a portion of DATCP's expenses related to the operation of the firewood certification program. DATCP will absorb the remaining expenses.
Business Impact
This rule will not have a significant impact on firewood dealers. This rule does not require firewood dealers to be certified, nor does it restrict the sale or distribution of firewood by uncertified dealers. This rule creates a voluntary certification program, which may benefit some firewood dealers. Those dealers who choose to be certified will pay a $50 fee for certification
DNR state park rules prohibit firewood originating outside this state or more than 50 miles away, unless the firewood dealer is certified by DATCP. This rule will allow certified firewood dealers to supply firewood to state parks throughout the state, regardless of the firewood dealer's distance from the park. This rule will primarily benefit large firewood dealers who can afford to implement the firewood treatment regimen required for certification. This rule does not authorize or prohibit imports of firewood from outside this state. Current DATCP rules under ATCP 21.17 prohibit imports of firewood from areas which the U.S. department of agriculture has formally designated as being infested with certain wood pests, such as Emerald Ash Borer.
