Rule-Making Notices (Hearing Notices)

Wisconsin Administrative Register No. 658, 10/31/2010

Rule-Making Notices

Notice of Hearing

Agriculture, Trade and Consumer Protection

CR 10-122

The State of Wisconsin Department of Agriculture, Trade and Consumer Protection (DATCP) announces that it will hold a public hearing on proposed rules to revise Chapters ATCP 30, 35, 90, 91, 92, and 161 that make minor remedial drafting changes to a number of department rules.

Hearing Information

DATCP will hold a public hearing at the time and place shown below:

Date and Time:	Location:
November 16, 2010 Tuesday 1:00-3:00pm	Dept. of Agriculture, Trade and Consumer Protection Room 472 2811 Agriculture Drive Madison, WI 53718

Hearing impaired persons may request an interpreter for this hearing. Please make reservations for a hearing interpreter by Friday, November 12, 2010, by writing to Karen Schultz, Office of Legal Counsel, P.O. Box 8911, Madison, WI 53708-8911, telephone [phone]. Alternatively, you may contact the DATCP TDD at [phone]. Handicap access is available at the hearing.

Submittal of Written Comments

DATCP invites the public to attend the hearing and comment on the proposed rule. Following the public hearing, the hearing record will remain open until Friday, November 26, 2010 for additional written comments. Comments may be sent to the Office of Legal Counsel at the address below, by email to [e-mail] or online at: http://AdminRules.Wisconsin.gov/.

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 [e-mail] or by telephone at [phone].

Copies of Proposed Rule

You may obtain a free copy of this rule by contacting the Wisconsin Department of Agriculture, Trade and Consumer Protection, Office of Legal Counsel, 2811 Agriculture Drive, P.O. Box 8911, Madison, WI 53708. You can also obtain a copy by calling [phone] or emailing [e-mail]. Copies will also be available at the hearings. To view the proposed rule online, go to:http://AdminRules.Wisconsin.gov/.

Analysis Prepared by the Department of Agriculture, Trade and Consumer Protection

This rule makes minor technical changes to a number of current rules administered by the Department of Agriculture, Trade and Consumer Protection (“DATCP").

Statute(s) interpreted

Sections 94.69, 94.73, 98.03, 98.06, 98.07, 100.20 and chapter 160, Stats.

Statutory authority

Sections 93.07 (1), 94.69 (1) (i), 94.73 (11), 98.03 (2), 98.07 (4), 100.20 (2), 160.19 (2) and 160.21 (1), Stats.

Explanation of statutory authority

DATCP has general authority, under s. 93.07 (1), Stats., to adopt rules to interpret laws under its jurisdiction. It also has specific rulemaking authority related to various matters addressed by this rule (see above). This rule makes minor changes to a number of different rules administered by DATCP. The changes are adopted under essentially the same authority used to adopt the original rules.

Related statute(s) or rule(s)

This rule is not substantially affected by other statutes or rules, other than those identified in this rule.

Plain language analysis

This rule makes minor or technical changes to a number of current DATCP rules. This rule does all of the following:

Atrazine Rules

This rule repeals an obsolete rule provision requiring DATCP to make a report on its atrazine pesticide rules (subch. VIII of ch. ATCP 30, Wis. Adm. Code) by April 1, 1996. DATCP made a timely report in response to that (now obsolete) reporting requirement. This rule makes no substantive change to the current atrazine rules, which are designed to protect groundwater from atrazine contamination. DATCP annually reviews and updates its atrazine rules, based on the most recent groundwater survey and test data.

Agricultural Chemical Cleanup Program

This rule makes minor technical wording changes to current rules related to the agricultural chemical cleanup program (ch. ATCP 35, Wis. Adm. Code). This rule makes no substantive change to the current rules.

Payment to Ethanol Producers

This rule repeals obsolete rules related to DATCP payments to ethanol producers (subch. III of ch. ATCP 161, Wis. Adm. Code), because the ethanol producer payment program has been eliminated. Section 93.75, Stats., which created the program, was repealed by 2007 Wis. Act 20.

Weights and Measures

This rule updates technical standards incorporated by reference in current rules related to fair packaging and labeling (ch. ATCP 90, Wis. Adm. Code), methods of sale of commodities (ch. ATCP 91, Wis. Adm. Code), and fair weights and measures (ch. ATCP 92, Wis. Adm. Code). The technical standards are published by the National Institute of Standards and Technology (NIST). This rule incorporates the latest published editions of the relevant NIST standards, which include routine technical updates to the previously-cited editions.

Other Minor Edits

This rule corrects typographical errors and makes other non-substantive edits to current rules, as needed.

Comparison with federal regulations

This rule updates references to weights and measures technical standards published by the National Institute of Standards and Technology (NIST). By incorporating the latest NIST standards, this rule keeps Wisconsin standards consistent with applicable national standards.

Comparison with rule(s) in surrounding states

This rule does not have a significant impact on programs in this state or other states, or create any significant disparity between this state and other states. The updated national weights and measures standards (NIST standards) incorporated by this rule are the same standards used in other states.

Data and analytical methodologies

This rule does not depend on any complex analysis of data. This rule merely makes minor or technical changes to current rules.

Standards incorporated by reference

This rule updates references to certain weights and measures technical standards (NIST standards) that are incorporated by reference in current rules. Updated technical standards include standards found in NIST Handbooks 44, 130 and 133 (2011 editions).

Pursuant to s. 227.21, Stats., DATCP will request permission from the Department of Justice to incorporate the updated technical standards by reference in this rule. Copies of the updated standards will be kept on file with DATCP and the Legislative Reference Bureau.

Fiscal Impact

This rule will have no significant fiscal impact on DATCP or local units of government This rule will not have a substantial impact on DATCP administrative or operating costs.

Small Business Impact

This rule will not have any significant impact on small business or other business. This rule makes minor technical “housekeeping" changes that will not have a significant impact on business standards, costs or operations.

Environmental Impact

This “housekeeping" rule will have no significant environmental impact.

Agency Contact Person

Questions or comments related to this rule may be sent to the following address:

Karen Schultz

Department of Agriculture, Trade and Consumer Protection

2811 Agriculture Drive

Madison, WI 53718

Telephone: [phone]

Email: [e-mail]

Notice of Hearing

Agriculture, Trade and Consumer Protection

CR 10-121

The Wisconsin Department of Agriculture, Trade and Consumer Protection (DATCP) announces that it will hold public hearings on proposed rules to revise Chapter ATCP 70, related to food processing plant license exemptions. DATCP adopted a temporary emergency rule, effective April 22, 2010, to create license exemptions for certain small-scale home canners and maple syrup processors.

Hearing Information

DATCP will hold public hearings at the times and places shown below:

Thursday, November 11, 2010

9:00 a.m. – 12:00 p.m.

Clark County Courthouse - Auditorium

517 Court Street

Neillsville, WI 54456

Friday, November 12, 2010

1:00 p.m. – 4:00 p.m.

Vernon County Courthouse Annex

Third Floor County Board Room

400 Courthouse Square

Viroqua, WI 54665

Monday, November 15, 2010

11:00 a.m. – 2:00 p.m.

Eau Claire County – UW Extension

227 1st Street West

Altoona, WI 54720-4712

Tuesday, November 16, 2010

9:00 a.m. – 12:00 p.m.

Spooner Ag Research Station

W6646 HWY 70

Spooner, WI 54801

Wednesday, November 17, 2010

10:00 a.m. – 1:00 p.m.

Northern Great Lakes Center Theater

29270 County Highway G

Ashland, WI 54806

Thursday, November 18, 2010

9:00 a.m. – 12:00p.m.

Oneida County – UW Extension

3375 Airport Road, #10

Rhinelander, WI 54501

Friday, November 19, 2010

9:00 a.m. – 12:00 p.m.

Shawano County Courthouse

311 N. Main Street

Shawano, WI 54166

Monday, November 22, 2010

8:30 a.m. – 11:30 a.m.

Fond du Lac County - UW Extension

Admin./Extension Building

400 University Drive, Room: AE 205/206

Fond du Lac, WI 54935

Monday, November 22, 2010

1:00 p.m. – 4:00 p.m.

Outagamie County - UW Extension

3365 W Brewster Street, Room: ABC

Appleton, WI 54911

Tuesday, November 23, 2010

9:00 a.m. – 12:00 p.m.

Washington County Courthouse

Room 1020 – Lower Level

432 E. Washington Street

West Bend, WI 53095

Tuesday, November 23, 2010

1:30 p.m. – 4:30 p.m.

Jefferson County - UW Extension

864 Collins Road, Room: 8/9 (on the lower level)

Jefferson, WI 53549

Wednesday, November 24, 2010

9:00 a.m. – 12:00 p.m.

Iowa County - UW Extension

222 North Iowa Street

Room: UW Extension Conference Room

Dodgeville, WI 53533

Hearing impaired persons may request an interpreter for these hearings. Please make reservations for a hearing interpreter by November 5, 2010, by writing to Deb Mazanec, Division of Food Safety, P.O. Box 8911, Madison, WI 53708-8911; e-mailing to [e-mail] or by phone at [phone]. Alternatively, you may contact the DATCP TDD at [phone]. Handicap access is available at the hearings.

Appearances at the Hearing

DATCP invites the public to attend the hearings and comment on the proposed rule. DATCP also seeks public input for the development of the proposed rules, including answers to the following questions:

* Should small-scale processors of other types of foods also be exempted from food processing plant license requirements?

* If so, what food types? Under what conditions?

* If not, why not?

* Should food processors claiming an exemption be required to register with DATCP and obtain a registration certificate, to help farmers market operators and others verify their license status?

Submittal of Written Comments

Following the hearings, the hearing record will remain open until November 30, 2010 for additional written comments. Comments may be sent to DATCP's Division of Food Safety at the address below, by email to [e-mail] or online at http://AdminRules.Wisconsin.gov/ .

To provide comments or concerns relating to small business, you may also contact DATCP's small business regulatory coordinator Keeley Moll at the address above, or by emailing to [e-mail] or by telephone at [phone].

Copies of Proposed Rule

You may obtain free copies of the proposed rule by contacting the Wisconsin Department of Agriculture, Trade and Consumer Protection, Division of Food Safety, 2811 Agriculture Drive, P.O. Box 8911, Madison, WI 53708. You may also obtain copies by calling [phone] or e-mailing [e-mail]. Copies will also be available at the hearing. To view the proposed rule online, go to: http://AdminRules.Wisconsin.gov/.

Analysis Prepared by the Department of Agriculture, Trade and Consumer Protection

The Department of Agriculture, Trade and Consumer Protection (DATCP) administers state food processing plant license requirements under s. 97.29, Stats. This proposed rule exempts the following persons from licensing under s. 97.29, Stats., subject to certain conditions:

  *An individual who home-cans acidic, acidified or fermented vegetable or fruit products for retail sale at a community or social event, m farmers' market or farm roadside stand, and receives no more than $5,000 from those sales in any license year. This exemption implements the statutory exemption created by 2009 Wis. Act 101.

  *A person who processes maple sap to create maple syrup or concentrated maple sap that the person sells only to other processors for further processing, and who receives no more than $5,000 from those sales in any license year.

Statutes interpreted

Sections 97.09 (4), 97.29 and 227.24, Stats.

Statutory authority

Sections 93.07 (1), 97.09 (4), 97.29 (1) (g) 8. and (5), and 227.24, Stats.

Explanation of statutory authority

DATCP has broad general authority, under s. 93.07 (1), Stats., to interpret laws under its jurisdiction. Under s. 97.09 (4), Stats., DATCP may establish and enforce standards governing the production, processing, packaging labeling, transportation, storage, handling, display, sale, including retail sale, and distribution of foods that are needed to protect the public from the sale of adulterated or misbranded foods. Under s. 97.29(1)(g)8. and (5), Stats., DATCP may spell out food processing plant license requirements and exemptions.

Related rule(s) or statute(s)

DATCP administers Wisconsin's food safety and labeling laws under ch. 97, Stats., including food processing plant license requirements under s. 97.29, Stats. (as modified by 2009 Wis. Act 101). DATCP has adopted food processing plant licensing rules under ch. ATCP 70, Wis. Adm. Code.

A person who processes food for sale or distribution is generally required to hold a state food processing plant license under s. 97.29, Stats. However, there are certain exemptions. Persons who are engaged in dairy or meat processing, or who operate retail food establishments, must be licensed under other statutes. Local food license and zoning regulations may apply in some cases.

2009 Wis. Act 101 exempted, from state licensing under s. 97.29, Stats., persons who home-can acidic, acidified or fermented vegetable or fruit products for retail sale at a community or social events or farmers' markets, provided that the person receives no more than $5,000 from those sales during the license year. Act 101 does not exempt those persons from other state license requirements that may apply, nor does it exempt them from local licensing or zoning ordinances that may apply.

Plain language analysis

Home Canning For Retail Sale

Under this proposed rule, a person who home-cans acidic, acidified or fermented vegetable or fruit products for retail sale at a community or social event, farmers' market or farm roadside stand is exempt from a food processing plant license under s. 97.29, Stats, if all of the following apply:

* The person is an individual, not a legal entity such as a corporation.

* The individual receives no more than $5,000 during the license year from those sales. If 2 or more individuals home-can acidic, acidified or fermented vegetable or fruit products at the same home address, none of those individuals qualifies for the license exemption unless their combined gross receipts from the sale of those products totals no more than $5,000.

* The canned products have an equilibrium pH value of 4.6 or lower. The individual must test the first batch of canned product produced according to each separate recipe used by the individual in each license year, to verify that canned products produced according to that recipe meet this pH requirement. The individual must keep, for at least 2 years, a record of each pH test.

* The individual registers annually with DATCP. There is no cost to register, and the registrant is not required to obtain a registration certificate from DATCP.

* The individual completes a home-canning safety course, or follows a written recipe (including ingredients and canning procedures) that reliably ensures the safety of each home-canned product.

* The individual discloses to potential buyers, by means of a sign or placard, that the canned products “are homemade in a kitchen that has not been subject to state inspection."

* Each canned product is properly labeled to include all of the following:

-The name and address of the individual who canned the product.

-The date on which the product was canned.

-The following statement: “This product was made in a home not subject to state licensing or inspection."

-A list of ingredients in descending order of prominence (major ingredients must be of vegetable or fruit origin). The list must include the common name of any ingredient that originates from milk, eggs, fish, crustacean shellfish, tree nuts, wheat, peanuts or soybeans.

* The individual keeps a complete written record of every batch of canned product.

-The batch record must include the name of the product, the product recipe (including procedures and ingredients), the amount of the product batch canned and sold, the canning and sale dates, the sale location, gross sales receipts, the results of any pH test conducted on the product, and the disposition of any product not sold.

-The individual must keep the record for at least 2 years after the individual sells or otherwise disposes of the product, and must make that record available to DATCP for inspection and copying upon request.

Maple Sap Processed For Sale To Other Processors

Under this proposed rule, a person who processes maple sap to produce maple syrup or concentrated maple sap for sale to another processor for further processing is exempt from licensing under s. 97.29, Stats., if all of the following apply:

* The person receives less than $5,000 from those sales in a license year.

* The person registers annually with DATCP. There is no cost to register, and the registrant is not required to obtain a registration certificate from DATCP.

* The person keeps a written record of each sale, retains that record for at least 2 years, and makes the record available to DATCP for inspection and copying upon request. The record must include the name and address of the purchaser, the date of sale, the amount of maple syrup or concentrated maple sap sold, and the sale price.

Comparison with federal regulations

There is no federal law that addresses these issues or compels DATCP to adopt this rule.

Comparison with rules in surrounding states

Illinois:

Illinois has no laws related to home-processed foods. All food processed for sale to the public in Illinois must be processed in a licensed facility.

Iowa:

In Iowa, individuals may annually process up to $20,000 in potentially-hazardous baked goods (including soft pies and bakery products with a custard or cream filling) at a licensed “home food establishment" for sale on the premises (the bakery goods may be consumed elsewhere). Individuals may sell non-potentially hazardous home-baked goods at a farmers' market, without a license. Canning and processing of low acid or acidified foods must be done in a licensed commercial establishment.

Minnesota:

Minnesota exempts a person from licensing as a food processor if the person produces less than $5,000 of non-potentially hazardous food or less than $5,000 of home-canned acidified food. Home-canned acidified foods may only be sold at community or social events or farmers' markets in Minnesota. A point-of-sale placard and the product label must disclose that the product was produced in an unlicensed and uninspected home setting. The product label must also disclose the name and address of the processor and the date the goods were processed. Wisconsin's new law (2009 Act 101) was influenced by Minnesota's law.

Michigan:

Michigan enacted a Cottage Food Law in July 2010 that allows individuals to manufacture and store certain types of foods in an unlicensed home kitchen. Only non-potentially hazardous foods may be manufactured in a home kitchen under this law. Potentially hazardous and canned foods must be manufactured in licensed food processing facilities. The Cottage Foods may only be sold directly to a consumer at farmers' markets, farm stands, roadside stands and similar venues. Cottage foods cannot be sold over the internet, by mail order or for wholesale distribution. Each packaged product must be labeled and contain the statement: Made in a home kitchen not inspected by the Michigan Department of Agriculture. Gross sales are limited to no more than $15,000 per household.

Data and analytical methodologies

This proposed rule is not based on any specialized data or analytical methodologies. Portions of this rule (such as pH requirements for home-canned food sold to the public) are based on well-established food science and public health principles.

Fiscal Estimate

DATCP currently licenses and inspects food processing plants under s. 97.29, Stats., This emergency rule exempts certain persons from the need to obtain a food processing plant license. These persons include: (1) a person who cans or otherwise processes certain homemade foods and sells them at farmers' markets, community or social events but receives no more than $5,000 in retail sales of these foods in a license year; and (2) a maple syrup processor that sells evaporated maple sap or syrup for further processing and receives no more than $5,000 in a license year. For purposes of this fiscal estimate, DATCP makes the following assumptions (DATCP does not have any data to document these "best guess" assumptions):

1. About 100 home canners will begin to sell their home-canned products at community or social events or farmers' markets in response to the license exemption under this rule. Few, if any, currently licensed food processing plants will qualify for the exemption or drop their current licenses.

2. About 25 maple sap processors will qualify for a license exemption under this rule. Expected revenue loss is less than $2,400.

Impact of the rule on state government

This emergency rule will have minimal fiscal impact on state government. Revenue losses will be less than $2,400 and will be offset by reduced inspection costs. DATCP will incur some costs to implement the license exemptions and provide public information. DATCP estimates that it will need to reassign 0.1 FTE from other work, and will incur $1,000 in added expense. DATCP expects to absorb these costs within its current budget.

Impact of the rule on local governments

This rule will not have any fiscal impact on local governments.

Fiscal Impact

This rule will not have a significant fiscal impact on the state of Wisconsin or on local governments.

Small Business Impact

This proposed rule implements 2009 Wis. Act 101, which removes license requirements for certain home-canners who wish to sell their products to the public at community or social events, farmers' markets and farm roadside stands. The food safety standards in this rule will help protect the public from serious food safety hazards (including botulism) that may be associated with improperly home-canned products. The prevention of food safety problems promotes public confidence and benefits the entire food industry, including home-canners.

This proposed rule may encourage some home-canning hobbyists to sell their home-canned products at community or social events, at farmers' markets, or at their own farm roadside stands. That may have an adverse competitive impact on licensed canners who currently supply those sales outlets, although the adverse effect is likely to be minimal. Larger food canning businesses that supply canned food for the mass consumer market will not be significantly affected by this emergency rule.

This proposed rule also exempts certain small maple sap processors from licensing under s. 97.29. The exemption will relieve those processors from unnecessary licensing costs and compliance burdens, while ensuring adequate food safety protection.

Environmental Impact

This rule will not have any significant environmental impact.

Agency Contact Person

Questions and comments related to this proposed rule may be directed to:

Debbie Mazanec

Department of Agriculture, Trade and Consumer Protection

P.O. Box 8911

Madison, WI 53708-8911

Telephone [phone]

E-Mail: [e-mail]

Notice of Hearing

Agriculture, Trade and Consumer Protection

CR 10-120

The Wisconsin Department of Agriculture, Trade and Consumer Protection (DATCP) announces that it will hold a public hearing on rules relating to new accountability measures for economic development grants and loans under Chapter ATCP 161, required by ss. 93.07 (18) (b) 6. and 7., Stats. (created by 2007 Wisconsin Act 125).

Hearing Information

DATCP will hold the public hearing at the time and location shown below:

Tuesday, December 2, 2010

9:00 a.m. to 12:00 p.m.

WI Department of Agriculture, Trade and Consumer Protection

Board Room, 1st Floor

2811 Agriculture Drive

Madison, WI 53718

Hearing impaired persons may request an interpreter for this hearing. Please make reservations for a hearing interpreter by November 17, 2010 by writing to Linda Merriman Hitchman, Division of Agricultural Market Development, P.O. Box 8911, Madison, WI 53708-8911, [e-mail], telephone [phone]. Alternatively, you may contact the DATCP TDD at [phone]. Handicap access is available at the hearings.

Submittal of Written Comments

DATCP invites the public to attend the hearing and comment on the rules. Following the hearing, the hearing record will remain open until Monday, December 6, 2010 for additional written comments. Comments may be sent to the Division of Agricultural Development at the address below, by email to [e-mail].

To provide comments or concerns relating to small business, you may also contact DATCP's small business regulatory coordinator Keeley Moll at the address above, or by emailing to [e-mail] or by telephone at [phone].

Copies of Proposed Rule

You may obtain free copies of the proposed permanent rule by contacting the Wisconsin Department of Agriculture, Trade and Consumer Protection, Division of Agricultural Market Development, 2811 Agriculture Drive, P.O. Box 8911, Madison, WI 53708. You may also obtain copies by calling [phone] or emailing [e-mail]. Copies will also be available at the hearing. To view the proposed rule online, go to: http://AdminRules.Wisconsin.gov/.

Analysis Prepared by the Department of Agriculture, Trade and Consumer Protection

This rule implements s. 93.07 (18) (b) 6. and 7., Stats. (created by 2007 Wisconsin Act 125) which require new accountability measures related to state economic development grants and loans. Under s. 93.07 (18) (b) 6. and 7., Stats., the department of agriculture, trade and consumer protection (DATCP) must adopt rules to do all of the following (other agencies that make economic development grants and loans must adopt similar rules):

* Require persons receiving more than $100,000 in economic development grants or loans to submit verified statements to DATCP, and make supporting documentation available for DATCP inspection.

* Establish procedures that will allow DATCP to withhold payments to, recover funds from, or impose financial penalties on grant or loan recipients who submit false information to DATCP or fail to honor the terms of a grant or loan contract. The new procedures must include contract provisions that will allow DATCP to impose penalties on grant or loan recipients who fail to honor contract obligations.

Statutes interpreted

Sections 93.07 (18) (b) 6. and 7., Stats.

Statutory authority

Sections 93.07 (1) and 93.07 (18) (b) 6. and 7., Stats.

Explanation of statutory authority

DATCP has general authority, under s. 93.07 (1), Stats., to interpret laws under its jurisdiction. Sections 93.07 (18) (b) 6. and 7., Stats., require DATCP to adopt certain rules imposing accountability measures related to state economic development grants and loans. This rule implements that statutory mandate.

Related statute(s) or rule(s)

2007 Act 125 also requires the departments of commerce, natural resources, tourism and transportation, the UW system, the Wisconsin technical college system, and the Wisconsin housing and economic development authority to adopt rules that are similar to this rule. DATCP also has existing contract rules for agricultural diversification and development grants (ATCP 161.07) and “buy local" grants (ATCP 161.46).

Plain language analysis

This rule requires the following accountability provisions in each contract for a DATCP economic development grant or loan:

  For a grant or loan of $100,000 or more, a provision requiring the grant or loan recipient to give DATCP a verified statement signed by a certified public accountant (CPA) and a director or principal officer of the grant or loan recipient.

  Provisions allowing DATCP to withhold payments to, recover funds from, or impose financial penalties on grant or loan recipients who submit false information to DATCP or fail to honor the terms of the grant or loan contract.

Comparison with federal regulations

Federal statutes under 31 USC 6304 require contracts for many federal grants.

Many federal grant programs have regulations to ensure grant accountability, including regulations related to grant contracts, contract performance, financial accountability, and remedies for noncompliance.

Administering agencies may deny, suspend or terminate payments to grant recipients who fail to comply with grant contract terms.

If a grant recipient makes false or misleading statements to obtain a grant or benefit, the agency may collect civil forfeitures and assessments that are well in excess of the fraudulently-obtained grant or benefit payments.

Comparison with rule(s) surrounding states

Minnesota:

Minnesota requires recipients of state economic development grants to enter into grant contracts. Recipients may be required to report on the use of funds, and may be required to repay grant funds if they fail to comply with contract terms. Minnesota, like Wisconsin, requires more detailed reports from persons receiving large grants.

Michigan:

Michigan requires certain persons receiving economic development grants (including tax credits for job promotion) to enter into grant contracts, submit verified statements, and report on fund use and benefits. Funding can be reduced or terminated, and recipients can be required to repay funds, for certain reasons.

Illinoi:s

Illinois requires recipients of state economic development grants to enter into grant contracts. Recipients may be required to report on the use of funds, and may be required to repay grant funds if they fail to comply with contract terms. Minnesota, like Illinois, requires more detailed reports from persons receiving large grants.

Iowa:

Iowa requires recipients of state economic development grants to enter into grant contracts. Recipients may be required to report on the use of funds, and may be required to repay grant funds if they fail to comply with contract terms.

Data and analytical methodologies

This rule does not rely on any special data or analytical methodologies. Rule standards and requirements are largely dictated by state law, but also implement practices developed by DATCP under its existing grant and loan programs. These practices are similar to practices used by the federal government, other states and the private sector.

Fiscal Estimate

Background:

This rule implements s. 93.07 (18) (b) 6. and 7., Stats., created by 2007 Wisconsin Act 125, which require new accountability measures related to state economic development grants and loans. In accordance with the provisions of s. 93.07 (18) (b) 6. and 7., Stats., this rule requires the following accountability provisions in each contract for a DATCP economic development grant or loan (other agencies that make economic development grants and loans must adopt similar rules):

For a grant or loan of $100,000 or more, a provision requiring the grant or loan recipient to give DATCP a verified statement signed by a certified public accountant (CPA) and a director or principal officer of the grant or loan recipient.

Provisions allowing DATCP to withhold payments, to recover funds from, or impose financial penalties on grant or loan recipients who submit false information to DATCP or fail to honor the terms of the grant or loan contract.

DATCP currently requires each recipient of an economic development grant or loan to enter into a contract that contains provisions similar to those that s. 93.07 (18) (b) 6. and 7., Stats., requires DATCP to adopt by rule. DATCP will make the necessary modifications to the contract language it currently uses to incorporate the required procedures into each grant and loan contract. DATCP legal, financial and program staff currently conduct procedures to withhold payments to, recover funds from, or impose financial penalties on grant and loan recipients as required by the rule. There will be no additional costs created by these administrative activities.

Agency Contact Person

Questions and comments related to this rule may be directed to:

Linda Merriman Hitchman

Department of Agriculture, Trade and Consumer Protection

P.O. Box 8911

Madison, WI 53708-8911    

Telephone [phone]

E-Mail: Linda.MerrimanHitchman@.wisconsin.gov

Notice of Hearing

Natural Resources

Fish, Game, etc., Chs. 1 —

CR 10-123

DNR# IS-49-10 (E) and IS -47-10

NOTICE IS HEREBY GIVEN that pursuant to ss. 23.27 (3) (b) and 227.11 (2) (a), Stats., the Department of Natural Resources will hold public hearings on permanent and emergency rules to revise Chapter NR 40, Wis. Adm. Code, related to white-nose syndrome management. The hearings will be held concurrently with hearings to list the fungus, Geomyces destructans, as a prohibited invasive species in s. NR 40.04 (2), Wis. Adm. Code, and hearings to list four cave bat species as threatened in s NR 27.03 (3), Wis. Adm. Code.

Hearing Information

The hearings will begin at 11:00 am at the locations listed below. Following a brief informational presentation, public comments and statements will be accepted.

Monday, November 29, 2010

Green Bay State Office Building

Room 618

200 North Jefferson Street

Green Bay, WI 54301

Monday, November 29, 2010

The Pyle Center

Room 315

702 Langdon Street

Madison, WI 53706

Monday, November 29, 2010

Division of State Facilities

Eau Claire State Office Building

Room 139

718 W Clairemont Avenue

Eau Claire, WI 54701

Monday, November 29, 2010

UW Marathon County

Room 218

518 S. 7th Avenue

Wausau, WI 54401

Pursuant to the Americans with Disabilities Act, reasonable accommodations, including the provision of informational material in an alternative format, will be provided for qualified individuals with disabilities upon request. Please call Rori Paloski at [phone] with specific information on your request at least 10 days before the date of the scheduled hearing.

Copies of Rule and Submittal of Written Comments

The proposed rule and fiscal estimate may be reviewed and comments electronically submitted at the following Internet site: http://adminrules.wisconsin.gov. Written comments on the proposed rule may be submitted via U.S. mail to Ms. Stacy Rowe, Bureau of Endangered Resources, P.O. Box 7921, Madison, WI 53707 or by email to [e-mail]. Comments must be submitted by 4:00 p.m. on November 29, 2010. Written comments whether submitted electronically or by U.S. mail will have the same weight and effect as oral statements presented at the public hearings. A personal copy of the proposed rule and fiscal estimate may be obtained from Ms. Rowe.

Analysis Prepared by the Department of Natural Resources

Plain language analysis

Chapter NR 40, Wis. Adm. Code, establishes a classification system for invasive species and regulates those in the prohibited and restricted categories. It also establishes preventive measures that when followed, will help minimize the spread of invasive species into or within Wisconsin. In a previous emergency rule, the department listed Geomyces destructans as a prohibited invasive fungus species. Geomyces destructans has been identified as the fungus that causes white nose syndrome (WNS) in cave bats. Because the department has little if any control over the natural movements of bats, the main focus in WNS management is on limiting the anthropogenic spread of G. destructans.

This Order adds provisions to ss. NR 40.04 and 40.07 relating to early detection and prevention of the spread of WNS due to anthropogenic activities, as follows:

1. For purposes of early detection, with permission or pursuant to an inspection warrant, department staff may access caves and mines in order to monitor, survey, and inspect for the presence of Geomyces destructans.

2. Equipment, gear, clothing and other objects may not be brought or placed into or near a cave or mine if they have been in or near a cave or mine located outside of Wisconsin.

3. Equipment, gear, clothing and other objects that have been in or near a cave or mine in the state must be decontaminated following department-approved WNS decontamination protocols before they can be brought into another state cave or mine.

4. All equipment, gear, clothing and other objects that have been in or near a cave or mine in Wisconsin must be decontaminated immediately upon exit.

5. All equipment, gear, clothing and other objects that will be or have come in contact with bats (including, but not limited to nets, traps, weighing tubes, bat bags, wing punches, rulers, clothing, gloves, electronic equipment and exclusion materials) and all individuals handling bats must be decontaminated prior to and immediately after contact.

6. With permission or pursuant to an inspection warrant, the department may install and properly maintain, at no cost to the owner, physical barriers to limit access to any cave or mine by either individuals or bats.

The Order also adds key definitions and sets out authority for the department to grant written exemptions from the new decontamination requirements if it would not allow WNS to be transported to other locations.

Related statute(s) or rule(s)

Related statutes or rules include but are not limited to the following provisions which, to varying degrees, may apply to the identification, classification, control or other regulation of species that are invasive, or to conduct that may result in the introduction or spread of invasive species:

Statutory section   Title [or subject]

15.347 (18)   Invasive species council.

23.093   Carp control research.

23.235   Nuisance weeds.

23.24   Aquatic plants.

26.20 (4)   [Railroad right-of-way annual weed       removal]

26.30   Forest insects and diseases; department       jurisdiction; procedure.

27.019 (7) (c)   [County rural planning – highways - only   native plantings allowed]

27.05 (5) and (7)   [County authority to manage plants       and control weeds in county waters, parks   and county lands]

29.011   Title to wild animals.

29.047   Interstate transportation of game.

29.053   Specific open and closed seasons.

29.055   Wild animals; possession in closed season   or in excess of bag limit.

29.057   Wild animals; possession in open season.

29.089   Hunting on land in state parks and state fish   hatcheries.

29.091   Hunting or trapping in wildlife refuge.

29.192   Regulation of takings of certain wild       animals.

29.301   General restrictions on hunting.

29.307   Hunting with aid of aircraft prohibited.

29.314   Shining animals.

29.327   Regulation of waterfowl blinds.

29.331   Trapping regulation.

29.334   Hunting and trapping; treatment of wild       animals.

29.335   Feeding wild animals for nonhunting       purposes.

29.337   Hunting and trapping by landowners and       occupants.

29.354   Possession of game birds and animals.

29.407   Transportation of fish.

29.414   Erection of barriers to exclude rough fish.

29.417   Permit to take rough fish.

29.421   Removal of rough fish.

29.424   Control of detrimental fish.

29.509   Bait dealer license.

29.516   Fishing with nets and setlines.

29.601   Noxious substances.

29.604   Endangered and threatened species         protected.

29.614   Scientific collector permit.

29.627   Domestic fur–bearing animal farms.

29.701   Propagation of fish; protected wild         animals.

29.705   Propagation of fish; removal of fish.

29.733   Natural waters used in fish farms.

29.734   Barriers required for fish farms.

29.735   Importation of fish.

29.736   Stocking of fish.

29.737   Permit for private management.

29.738   Private fishing preserves.

29.741   Food in the wild for game birds.

29.875   Disposal of escaped deer or elk.

29.885   Removal of wild animals.

29.887   Wildlife control in urban communities.

29.924   Investigations; Searches.

29.927   Public nuisances.

29.931   Seizures.

29.934   Sale of confiscated game and objects.

30.07   Transportation of aquatic plants and       animals; placement of objects in navigable   waters.

30.1255   Report on control of aquatic nuisance       species.

59.70 (17) and (18)   [County funds, equipment, fees for       pest and weed control, plant or animal       diseases.]

66.0407   Noxious weeds. [local governments]

66.0517   Weed commissioner. [local governments]

66.0627   Special charges for current services.       [charges for weed elimination]

84.07 (3)   [DOT highway patrol officers to destroy       noxious weeds on highways]

93.07   Department duties. [Dept. of Agriculture,       Trade and Consumer Protection - pests]

94.01   Plant inspection and pest control authority.

94.02   Abatement of pests.

94.03   Shipment of pests and biological control       agents; permits.

94.10   Nursery stock; inspection and licensing.

94.38   Agricultural and vegetable seeds;         definitions.

94.41   Prohibitions. [Sale or distribution of       noxious weed seed]

94.45   Powers and authority of the department.

94.46   Stop sale; penalties; enforcement.

94.69   Pesticides; rules.

94.76   Honeybee disease and pest control.

146.60   Notice of release of genetically engineered   organisms into the environment.

169.04   Possession of live wild animals.

169.06   Introduction, stocking, and release of wild   animals.

169.07   Exhibition of live wild animals.

169.08   Propagation of wild animals.

169.10   Sale and purchase of live wild animals.

169.11   Harmful wild animals.

169.36   Record–keeping and reporting         requirements.

182.017   Transmission lines; privileges; damages.       [utility weed control along transmission       lines]

281.17 (2)   [DNR to supervise chemical treatment of       waters for the suppression of         nuisance–producing organisms that are not   regulated by the program established under   s. 23.24 (2).]

237.10   Rapide Croche lock [Fox River lamprey       barrier]

Comparison with federal regulations

None known.

Comparison with rules in adjacent states

The department is not aware of any other states or provinces that have taken similar actions.

Data and analytical methodologies

Bats affected with WNS were first observed in 2006 at a single cave near Albany, New York. WNS has since been found in 14 states and 2 Canadian provinces, spreading up to 800 miles in the last year. Mortality rates of affected colonies reach 100%. WNS has been linked to the death of over one-million bats since 2007 and threatens to cause the extinction of several bat species in the near future. According to a Consensus Statement issued at the WNS Emergency Science Strategy Meeting in May 2009, white-nose syndrome “… has caused the most precipitous decline of North American wildlife in recorded history." Last spring, the disease was detected within 225 miles of Wisconsin's southern border and 300 miles from the northern border. That means a WNS-infected cave is now located within the 280-mile dispersal range of Wisconsin little brown bats. Based on the disease's current location and known rate of spread, we anticipate the detection of WNS in Wisconsin as early as January, 2011.

Hibernating bats are susceptible to WNS. Those infected tend to show a white fungal growth on their face, arms, legs, wings, and/or tail caused by the newly isolated and named fungus, Geomyces destructans. Infected bats exhibit atypical behavior such as daytime activity during winter hibernation, which rapidly depletes stored energy reserves. Wing damage and emaciation are also common.

To date, nine species of cave bats are affected by WNS, including the federally endangered Indiana bat, which historically was found in Wisconsin. All Wisconsin cave bats, which include the little brown bat (Myotis lucifugus), northern long-eared bat (Myotis septentrionalis), eastern pipistrelle (Perimyotis subflavus), and big brown bat (Eptesicus fuscus), are among the species fatally affected by WNS. Consequently, Wisconsin's cave bat population as a whole is threatened by this devastating disease. The little brown bat is Wisconsin's most common bat species and because this species has seen the greatest mortality rate due to WNS, Wisconsin anticipates significant impacts to its cave bat populations when WNS begins to affect Wisconsin bats. Research published in the journal Science (August 2010) states “…we expect a 99% chance of regional extinction of little brown myotis within the next 16 years."

Research conducted at the United States Geological Survey (USGS) Wildlife Health Center has shown that G. destructans is transferred from bat to bat, and a multi-agency project demonstrated bats can develop white nose syndrome (WNS) through infection directly from an affected cave environment, in the absence of infected bats.

There is also evidence of human transfer of G. destructans from site to site and/or bat via contaminated equipment, gear or clothing. There have been long-distance jumps in the spread of WNS, beyond the distance bats would likely transmit the disease. These “jump" sites have been frequently-visited caves, often with small bat populations. The U.S. Geological Survey, National Wildlife Health Center has detected G. destructans fungal spores in cave sediment, demonstrating persistence of the fungus in the absence of bats. The New York Department of Environmental Conservation, Wildlife Pathology Unit has isolated G. destructans fungal spores on equipment and clothing after exiting an affected cave.

Even in the face of incomplete information, general epidemiological principles should be used to inform the WNS investigation and response. All available evidence indicates that WNS is caused by an infectious agent and can therefore potentially be spread by all known modes of disease transmission, including direct contact, inhalation, ingestion, fomites (inanimate objects), and human or animal vectors. Wildlife diseases such as WNS spread rapidly when there is high prevalence of pathogen(s), efficient chains of transmission, abundant susceptible hosts, and/or environments that allow pathogen persistence without a host. Regardless of the infectious agent (fungus, bacterium, or virus), universal precautions should be implemented. Universal precautions are procedures and guidelines designed to reduce incidence of disease by both preventing infections and breaking chains of transmission.

These rules were developed with the assistance of the Bureaus of Endangered Resources and Legal Services. Department of Justice opinion was also sought and confirmed the need to put the proposed actions into rule. The department has also recently met with stakeholders, including mine and commercial cave owners to discuss WNS and possible management options. All known cave and mine owners in Wisconsin were contacted this year as well to provide background information on WNS and cave management.

Analysis and supporting documents used to determine effect on small business or in preparation of economic impact report

None.

Small Business Impact

The rule is not expected to have a significant adverse effect on a substantial number of small businesses. Therefore, under s. 227.19 (3m), Stats., a final regulatory flexibility analysis is not required. The rule may have favorable effects on a number of businesses by preventing the introduction or limiting the spread of WNS, thereby preserving the agricultural, economic and environmental benefits associated with healthy bat populations.

There are approximately 120 known bat hibernacula in Wisconsin, and approximately 12 of these are public caves. In addition, less than 20 of the caves and mines in Wisconsin are routinely caved. Affected constituencies include commercial caves and mines, active underground mines, private cave and mine owners, recreational cavers, agriculture and forest industries, and conservation organizations. Concerns will likely include how the proposed rules will affect current activities. Many of these potential concerns may be addressed through cost-sharing, technical support, and education provided by the department. Examples include: cost-sharing for installation of bat gates or other physical barriers, cost-sharing for conservation actions, providing cave closure signage and decontamination protocols, and providing locations of caves that may be used for recreational caving activities (where bats are known to have been excluded). Agriculture industries, forest industries and conservation organizations would be negatively affected by not attempting to control or slow the spread of WNS.

The cost of decontamination will be minimal. The cost of excluding bats at a cave with high human visitation would be $100-$500. The department is seeking funds to cover these costs. The cost of caving gear typically ranges from $125-$750. Very few sites in Wisconsin require vertical climbing gear. The cost of signage at caves and mines would be $0 because the department will provide the signs.

Under the proposed rules, the department may ask any person who owns, controls, or manages property where a cave or mine may be present to install and properly maintain physical barriers to limit access to the cave or mine by either individuals or bats, in accordance with a plan approved by the department. The department is seeking funding to assist with the installation of barriers, and therefore cost to those parties who install such barriers should be negligible. Additionally, commercial caves will have the option to exclude bats from their cave(s) with the help of the department, allowing them to remain open for tourism, and resulting in no loss of tourism dollars. Finally, the department will work with active mines to develop control plans that will not hinder mining operations.

Under current ch. NR 40, the department may ask any person who owns, controls, or manages property where a prohibited species is present to control the prohibited species in accordance with a plan approved by the department. While a person who owns, controls, or manages property where a prohibited species is present is responsible for controlling the prohibited species that exists on the property, the department will seek funds to assist in the control of prohibited species.

The department will normally follow an informal, stepped enforcement process in order to obtain compliance with invasive species rules. This involves informal discussions between department staff and the individual, landowner or company, notifying the person of potential violations and providing guidance on how to comply with the rules. Notices of non-compliance may follow if necessary. If formal enforcement is necessary, ch. NR 40 will be enforced by department conservation wardens, county district attorneys, and circuit courts through the use of citations and civil or criminal complaints. Civil and criminal enforcement may also be carried out by department referral of violations to the Wisconsin Attorney General, with prosecution and abatement actions in the circuit courts. Criminal enforcement will be limited to intentional violations. Finally, violations of the permits issued under ch. NR 40 also may be enforced by administrative permit revocation proceedings.

Pursuant to s. 227.114, Stats., it is not anticipated that the proposed rule will have an economic impact on small businesses. The department's Small Business Regulatory Coordinator may be contacted at [e-mail] or by calling [phone].

Environmental Analysis

The department has made a preliminary determination that this action does not involve significant adverse environmental effects and does not need an environmental analysis under ch. NR 150, Wis. Adm. Code. However, based on the comments received, the department may prepare an environmental analysis before proceeding with the proposal. This environmental review document would summarize the department's consideration of the impacts of the proposal and reasonable alternatives.

Fiscal Estimate

Assumptions used in arriving at fiscal estimate

State Fiscal Estimate:

The proposed rule package will require time by DNR staff to prepare the rule and administer rule hearings. Endangered Resources staff, as well as other Department staff, may see an increase in time associated with the changes to bat management, especially in the decontamination of equipment and in monitoring. It is assumed there will not be a significant increase in staff time, and that this time can be covered by existing appropriations.

Local Fiscal Estimate:

Minimal impact to the few local governments that own caves or mines.

Private Fiscal Impacts:

It is assumed there will be negligible costs associated with this rule. Private landowners with caves may experience some costs associated with restricting cave access, such as posting signs, or with time associated with contractors monitoring on their property, but all potential cost impacts are assumed to be minimal.

The department will also seek funds to assist in the design, installation, and maintenance of physical barriers at all caves.

State fiscal effect

Indeterminate. Increase Costs — May be possible to absorb within agency's budget.

Local government fiscal effect

Indeterminate.

Agency Contact

Stacy Rowe, Bureau of Endangered Resources

101 S. Webster Street, ER/6

P.O. Box 7921

Madison, WI 53707-7921

Phone: [phone]

Email: [e-mail]

Amended Notice of Hearings

(See Register dated October 14, 2010 for original)

Natural Resources

Fish, Game, etc., Chs. NR 1—

EmR 1037, CR 10-114

DNR# ER-37-10(E) and ER-35-10

NOTICE IS HEREBY GIVEN that pursuant to ss. 23.09 (2), 29.604, 227.11 (2) and 227.24, Stats., the Department of Natural Resources will hold public hearings on the emergency and permanent rule proposals to list four cave bat species as threatened in s. NR 27.03 (3), Wis. Adm. Code. The hearings will be held concurrently with hearings to list the fungus, Geomyces destructans, as a prohibited invasive species in s. NR 40.04 (2), Wis. Adm. Code.

Hearing Information

The hearings will begin at 11:00 am at the locations listed below. Following a brief informational presentation, public comments and statements will be accepted.

Tuesday, October 26, 2010

Glaciers Edge and Gathering Waters Rooms

DNR South Central Region Headquarters

3911 Fish Hatchery Road

Fitchburg, WI 53711

Monday, November 29, 2010

Green Bay State Office Building

Room 618

200 North Jefferson Street

Green Bay, WI 54301

Monday, November 29, 2010

The Pyle Center

Room 315

702 Langdon Street

Madison, WI 53706

Monday, November 29, 2010

Division of State Facilities

Eau Claire State Office Building

Room 139

718 W Clairemont Avenue

Eau Claire, WI 54701

Monday, November 29, 2010

UW Marathon County

Room 218

518 S. 7th Avenue

Wausau, WI 54401

Pursuant to the Americans with Disabilities Act, reasonable accommodations, including the provision of informational material in an alternative format, will be provided for qualified individuals with disabilities upon request. Please call Stacy Rowe at [phone] with specific information on your request at least 10 days before the date of the scheduled hearing.

Copies of Rule and Submittal of Written Comments

The proposed rule and fiscal estimate may be reviewed and comments electronically submitted at the following Internet site: http://adminrules.wisconsin.gov. Written comments on the proposed rule may be submitted via U.S. mail to Ms. Stacy Rowe, Bureau of Endangered Resources, P.O. Box 7921, Madison, WI 53707 or by email to [e-mail]. Comments must be submitted by 4:00 p.m. on November 29, 2010. Written comments whether submitted electronically or by U.S. mail will have the same weight and effect as oral statements presented at the public hearings. A personal copy of the proposed rule and fiscal estimate may be obtained from Ms. Rowe.

Analysis Prepared by the Department of Natural Resources

Plain language analysis

The proposed changes to Ch. NR 27, Wis. Admin. Code, will add the four cave bat species in Wisconsin to the Wisconsin threatened species list. The four species include the little brown bat (Myotis lucifugus), big brown bat (Eptesicus fuscus), northern long-eared bat ( Myotis septentrionalis), and eastern pipistrelle (Perimyotis subflavus).

Related statute(s) or rule(s)

Section 29.604 (3), Wis. Stats., requires the department to establish an endangered and threatened species list. Chapter NR 27, Wis. Admin. Code, provides the list of endangered and threatened species.

Comparison with federal regulations

Although several species of cave bats are listed federally by the United States Fish and Wildlife Service (USFWS), we are not aware of any listings that have occurred specifically due to white-nose syndrome. However, USFWS has received a petition to list two cave bat species due to white-nose syndrome and is in the process of reviewing the petition.

Comparison with adjacent states

Vermont, New York and Massachusetts are in the process of listing several cave bat species due to white-nose syndrome. The Minnesota Department of Natural Resources has recently proposed the little brown bat (Myotis lucifugus) and big brown bat (Eptesicus fuscus) as species of special concern because of the eminent threat of white-nose syndrome in the state. The other two species of cave bats in Minnesota, northern long-eared bat (Myotis septentrionalis) and eastern pipistrelle (Perimyotis subflavus) are already listed as species of special concern in Minnesota.

Data and analytical methodologies

The proposed emergency rule is related to the addition of Wisconsin's four cave bat species to the state's threatened species list. The four species include the little brown bat (Myotis lucifugus), big brown bat (Eptesicus fuscus), northern long-eared bat (Myotis septentrionalis), and eastern pipistrelle (Perimyotis subflavus).

The proposed rule change seeks to provide protection to Wisconsin cave bat species, which face the imminent threat of white-nose syndrome. White-nose syndrome has spread across 14 states and two Canadian provinces in the last three years, spreading up to 800 miles per year. Mortality rates of affected bat colonies reach 100%. The disease was located last spring within 225 miles of Wisconsin's southern border and 300 miles from the northern border. Because the known dispersal distance of the little brown bat is 280 miles, an affected cave is now located within the dispersal range of Wisconsin little brown bats. Based on the current location and known rate of spread of the disease, we anticipate the presence of white-nose syndrome in Wisconsin as early as January 2011.

Wisconsin has one of the highest concentrations of cave bat hibernacula in the Midwest and large numbers of cave bats from neighboring states hibernate in Wisconsin. Consequently, Wisconsin's cave bat population, and those of surrounding states, is threatened by this devastating disease. All Wisconsin bat species are among the species fatally affected by the white-nose syndrome.

Cave bats were assessed for changes in population condition using the following triggers established by the Bureau of Endangered Resources:

1.   Significant change in the Natural Heritage Inventory State Rank since 1997

2.   Significant change in the Natural Heritage Inventory Global Rank since 1997

3.   Change in United States Endangered Species Act status since 1997

4.   Is there a need for immediate protection (i.e., new threat)

5.   Change in other statuses, e.g., International Union for Conservation of Nature (IUCN), Convention on International Trade in Endangered Species (CITES)

6.   New data on population condition available

7.   Recommended for listing/delisting since 1997

8.   Taxonomic change

9.   For currently listed species, have recovery goals been met

All four cave bat species met triggers #1 and #4, and the little brown bat also met trigger #7 (recommended for listing by stakeholders), therefore indicating the need for the emergency rule change.

Listing these species before white-nose syndrome has been detected in Wisconsin will allow the department time to work collaboratively with stakeholders to ensure that appropriate conservation measures are developed and in place. Because of the speed of white-nose syndrome, the department would not have time to develop appropriate conservation measures if listing was delayed until after white-nose syndrome was detected in Wisconsin.

Analysis and supporting documents used to determine effect on small business or in preparation of economic impact report:

None.

Small Business Impact

Affected constituencies include commercial caves and mines, private cave and mine owners, recreational cavers, wildlife rehabilitators, animal control operators, the agricultural industry, the conservation community, wind utilities, WI Department of Transportation (WDOT) and homeowners. Concerns will likely include how listing the bats will affect current activities. Many of these potential concerns will be addressed through a broad incidental take permit/authorization and voluntary agreements so that the listing does not have a significant economic impact on a substantial number of small businesses.

A broad incidental take permit/authorization would be created, as provided for under s. 29.604, Wis. Stats. The broad incidental take permit/authorization would allow for the incidental taking of state listed cave bats that may occur as a result of specific public health concerns, bat removals, building demolitions, forestry activities, bridge demolitions, miscellaneous building repairs and wind energy development projects (see the “Broad Incidental Take Permit/Authorization for Cave Bats" attachment for more information). Some take of bats may still occur as a result of these activities, however take will be minimized by following specific minimization measures, and the department has concluded that the projects covered under this permit are not likely to jeopardize the continued existence and recovery of the state population of these bats or the whole plant-animal community of which they are a part; and has benefit to the public health, safety or welfare that justifies the action. This incidental take permit/authorization is only needed when a bat is present or suspected to be present (e.g., Natural Heritage Inventory report of bats in the area, evidence of bat presence).

Pursuant to s. 227.114, Stats., it is not anticipated that the proposed rule will have a significant economic impact on small businesses. The department's Small Business Regulatory Coordinator may be contacted at [e-mail] or by calling [phone].

Environmental Analysis

The department has made a preliminary determination that this action does not involve significant adverse environmental effects and does not need an environmental analysis under ch. NR 150, Wis. Adm. Code. However, based on the comments received, the department may prepare an environmental analysis before proceeding with the proposal. This environmental review document would summarize the department's consideration of the impacts of the proposal and reasonable alternatives.

Agency Contact

Erin Crain, EIM Section Chief

P.O. Box 7921

101 South Webster Street, ER/6

Madison, WI 53707-7921

Phone: [phone]

Email: [e-mail]

Amended Notice of Hearings

(See Register dated October 14, 2010 for original)

Natural Resources

Fish, Game, etc., Chs. NR 1—

EmR 1036, CR 10-115

DNR # IS-42-10(E) and IS-41-10

NOTICE IS HEREBY GIVEN that pursuant to ss. 23.09 (2), 23.22, 227.11 (2) and 227.24, Stats., the Department of Natural Resources will hold public hearings on the emergency and permanent rule proposals to list the fungus, Geomyces destructans, as a prohibited invasive species in s. NR 40.04 (2), Wis. Adm. Code. The hearings will be held concurrently with hearings to list four cave bat species as threatened in s NR 27.03 (3), Wis. Adm. Code.

Hearing Information

The hearings will begin at 11:00 am at the locations listed below. Following a brief informational presentation, public comments and statements will be accepted.

Tuesday, October 26, 2010

DNR South Central Region Headquarters

Glaciers Edge and Gathering Waters Rooms

3911 Fish Hatchery Road

Fitchburg, WI 53711

Monday, November 29, 2010

Green Bay State Office Building

Room 618

200 North Jefferson Street

Green Bay, WI 54301

Monday, November 29, 2010

The Pyle Center

Room 315

702 Langdon Street

Madison, WI 53706

Monday, November 29, 2010

Division of State Facilities, Eau Claire State Office Building

Room 139

718 W Clairemont Avenue

Eau Claire, WI 54701

Monday, November 29, 2010

UW Marathon County

Room 218

518 S. 7th Avenue

Wausau, WI 54401

Pursuant to the Americans with Disabilities Act, reasonable accommodations, including the provision of informational material in an alternative format, will be provided for qualified individuals with disabilities upon request. Please call Ms. Rowe at [phone] with specific information on your request at least 10 days before the date of the scheduled hearing.

Copies of Rule and Submittal of Written Comments

The proposed rule and fiscal estimate may be reviewed and comments electronically submitted at the following Internet site: http://adminrules.wisconsin.gov. Written comments on the proposed rule may be submitted via U.S. mail to Ms. Stacy Rowe, Bureau of Endangered Resources, P.O. Box 7921, Madison, WI 53707 or by email to [e-mail]. Comments must be submitted by 4:00 p.m. on November 29, 2010. Written comments whether submitted electronically or by U.S. mail will have the same weight and effect as oral statements presented at the public hearings. A personal copy of the proposed rule and fiscal estimate may be obtained from Ms. Rowe.

Analysis Prepared by the Department of Natural Resources

Plain Language Analysis

The proposed changes to ch. NR 40, Wis. Adm. Code, will add the fungus, Geomyces destructans, to the list of prohibited invasive species, allowing the department to effectively manage its spread and limit human transport.

Existing rules ban the transportation (including importation), possession, transfer (including sale) and introduction of invasive species that are listed or identified as “prohibited", with certain exceptions. Transportation, possession, transfer and introduction without a permit are exempt if the department determines that the transportation, possession, transfer or introduction was incidental or unknowing, and was not due to the person's failure to take reasonable precautions. Existing rules authorize the department to enter property with the permission of the owner or person in control of the property and, if permission cannot be obtained, to seek an inspection warrant from the Circuit Court. Entry is only for the purpose of inspection, sampling or control of prohibited invasive species.

The current rules also allow the department to enter into consent orders with persons who own, control or manage property where prohibited invasive species are present to implement approved control measures, and to issue unilateral orders for control purposes unless the person was not responsible for the presence of the prohibited invasive species. If a control order is not complied with and the department undertakes control measures, the current rules allow for cost-recovery by the department for the expenses it incurred.

Related statute(s) or rule(s)

Related statutes or rules include but are not limited to the following provisions which, to varying degrees, may apply to the identification, classification, control or other regulation of species that are invasive, or to conduct that may result in the introduction or spread of invasive species:

Statutory section   Title [or subject]

15.347 (18)   Invasive species council.

23.24   Aquatic plants.

29.011   Title to wild animals.

29.604   Endangered and threatened species         protected.

29.614   Scientific collector permit.

29.885   Removal of wild animals.

29.924   Investigations; Searches.

30.07   Transportation of aquatic plants and       animals; placement of objects in navigable   waters.

94.01   Plant inspection and pest control authority.

94.02   Abatement of pests.

94.03   Shipment of pests and biological control       agents; permits.

94.69   Pesticides; rules.

169.04   Possession of live wild animals.

169.06   Introduction, stocking, and release of wild   animals.

169.07   Exhibition of live wild animals.

169.08   Propagation of wild animals.

169.10   Sale and purchase of live wild animals.

169.11   Harmful wild animals.

Comparison with federal regulations

We are not aware of any existing or proposed federal regulations that would list the fungus, Geomyces destructans, as an invasive species.

Comparison with rule(s) in adjacent states

Wisconsin appears to be unique in taking the approach of listing the fungus, Geomyces destructans, as an invasive species; we are not aware of any other states or provinces that have taken similar actions. We don't know of any other states that have a similar mechanism—an invasive species rule— for listing the fungus. We are also not aware of any existing or proposed federal regulations that would list the fungus, Geomyces destructans, as an invasive species.

Data and analytical methodologies

White-nose Syndrome (WNS) is a disease responsible for unprecedented mortality in cave hibernating bats and is identified by the white fungus (Geomyces destructans) that grows on the nose, ears, and muzzle and/or wing membrane. Infected bats exhibit atypical behavior, such as daytime activity during winter hibernation, which rapidly depletes stored energy reserves. Wing damage and emaciation are also common.

WNS has been documented in fourteen states and two Canadian provinces and is spreading rapidly from the first affected sites (up to 800 miles per year). The speed at which WNS is spreading necessitates immediate action on the part of the department to list the white-nose fungus as a prohibited invasive species. Based on the current location and known rate of spread of the disease, it is likely that WNS will reach Wisconsin as early as January 2011.

This rule was developed with the assistance of the Bureaus of Endangered Resources and Legal Services and with input from the Wisconsin Council on Invasive Species (Council). The Bureau of Endangered Resources prepared an Issue Brief for the Council, which provided background on white-nose syndrome, the extent and serious nature of the threat of the disease to Wisconsin's cave bats, and the need for listing Geomyces destructans as a prohibited invasive species.

Analysis and supporting documents used to determine effect on small business or in preparation of economic impact report

None.

Small Business Impact

Affected constituencies include commercial caves and mines, private cave and mine owners, recreational cavers, property owners, the agricultural industry, and the conservation community. Concerns will likely include how listing the fungus will affect current activities. Many of these potential concerns may be addressed through cost-sharing, technical support, and education provided by the department. Examples include: reviewing proposed research proposals and issuance of scientific research licenses, cost-sharing for installation of bat gates and other conservation actions, providing cave closure signage and decontamination protocols, and providing locations of caves that may be used for recreational caving activities (where bats are known to have been excluded).

Under NR 40, the department may ask any person who owns, controls, or manages property where a prohibited species is present to control the prohibited species in accordance with a plan approved by the department. While a person who owns, controls or manages property where a prohibited species is present is responsible for controlling the prohibited species that exists on the property, the department will seek funds to assist in the control of prohibited species. Therefore, conducting control measures will not necessarily result in a cost to commercial cave operators. Additionally, commercial caves will have the option to exclude bats from their cave(s) with the help of the department, allowing them to remain open for tourism, and resulting in no loss of tourism dollars.

Under s. 227.19 (3m), Wis. Stats., a final regulatory flexibility analysis is not required.

Pursuant to s. 227.114, Stats., it is not anticipated that the proposed rule will have a significant economic impact on small businesses. The department's Small Business Regulatory Coordinator may be contacted at [e-mail] or by calling [phone].

Environmental Analysis

The department has made a preliminary determination that this action does not involve significant adverse environmental effects and does not need an environmental analysis under ch. NR 150, Wis. Adm. Code. However, based on the comments received, the department may prepare an environmental analysis before proceeding with the proposal. This environmental review document would summarize the department's consideration of the impacts of the proposal and reasonable alternatives.

Agency Contact

Erin Crain, EIM Section Chief

P.O. Box 7921

101 South Webster Street, ER/6

Madison, WI 53707-7921

Phone: [phone]

Email: [e-mail]

Notice of Hearing

Natural Resources

Air Pollution Control, Chs. NR 400—

CR 10-119

DNR# AM-34-05

NOTICE IS HEREBY GIVEN that pursuant to ss. 227.16 and 227.17, Stats, the Department of Natural Resources, hereinafter the Department, will hold a public hearing on proposed amendments to Chapters NR 400, 410, 411, and 484, relating to the indirect source air management permit program on the date and at the time and location listed below.

Hearing Information

The Department of Natural Resources will hold a public hearing at the time and place shown below:

Thursday November 18, 2010

at 1:00 PM

Natural Resources State Office Building

Room 713

101 S. Webster Street

Madison, WI 53703

Live interactive satellite connections to this hearing will also be provided in the following locations:

DNR Southeast Region Headquarters

Rooms 140-141

2300 North Dr. Martin Luther King Jr. Drive

Milwaukee, WI 53212

DNR Northeast Region Headquarters

Lake Michigan Room

2984 Shawano Avenue

Green Bay, WI 54313

DNR West Central Region Headquarters

Paddlefish Conference Room

1300 W Clairemont Avenue

Eau Claire, WI 54701

Reasonable accommodations, including the provision of informational material in an alternative format, will be provided for qualified individuals with disabilities upon request. Contact Robert B. Eckdale in writing at the Department of Natural Resources, Bureau of Air Management (AM/7), 101 S Webster, Madison, WI 53707; by E-mail to [e-mail] ; or by calling [phone]. A request must include specific information and be received at least 10 days before the date of the scheduled hearing.

Availability of the proposed rules and fiscal estimate

The proposed rule and supporting documents, including the fiscal estimate, may be viewed and downloaded from the Administrative Rules System Web site which can be accessed through the link provided on the Proposed Air Pollution Control Rules Calendar at http://www.dnr.state.wi.us/air/rules/calendar.htm . If you do not have Internet access, a printed copy of the proposed rule and supporting documents, including the fiscal estimate, may be obtained free of charge by contacting Robert Eckdale, Department of Natural Resources, Bureau of Air Management (AM/7), 101 S. Webster St, Madison, WI, 53703, or by calling 608.266.2856.

Submittal of Written Comments

Comments on the proposed rule must be received on or before November 29, 2010. Written comments may be submitted by U.S. mail, fax, E-mail, or through the Internet and will have the same weight and effect as oral statements presented at the public hearing. Written comments and any questions on the proposed rules should be submitted to:

Mike Friedlander

Department of Natural Resources

Bureau of Air Management (AM/7)

101 S Webster St, Madison, WI 53703

Phone:   [phone]

Fax:   [phone]

E-mail:   [e-mail]

Internet:   Use the Administrative Rules System Web site accessible through the link provided on the Proposed Air Pollution Control Rules Calendar at http://dnr.wi.gov/air/rules/calendar.htm

Analysis Prepared by the Department of Natural Resources

Statute interpreted

Section 285.60. (10), Stats.

Statutory authority

Section 227.11 (2) (a), 285.11 (1), 285.60 (6) Stats.

Explanation of agency authority

Section 285.11, Stats. gives the Department the authority to promulgate air pollution rules. Section 285.60, Stats., gives the Department the authority to regulate indirect sources by requiring construction and operation permits. Section 285.60 (6) Stats. gives the Department the authority to exempt types of sources from any requirement, if the potential emissions from the sources do not present a significant hazard to public health, safety, or welfare or to the environment.

Related statute or rule

Chapter NR 406 describes a general permit process and criteria for the construction, reconstruction, replacement, relocation or modification of stationary sources in accordance with s. 285.60(3), Stats.

Plain language analysis

The proposed rule revision will allow a general construction permit option for most indirect sources, providing industry and the Department with a streamlined approach to permitting. The proposed general construction permit option will eliminate carbon monoxide modeling as a requirement for most indirect source permit applications and will eliminate the screening level analysis for roadway capacity expansion projects. Indirect sources may still request a standard indirect source permit with carbon monoxide modeling. The proposed rule revision will eliminate the requirement for indirect source operational permits and focus control measures toward diesel and particulate matter emissions. The basis for permit exemptions is proposed to change from total vehicle capacity to total impervious surface dedicated to parking and maneuver. The proposed rule revision includes an exemption option for sources that agree to adopt superior environmental performance through the Green Tier program. Green Tier is based on a collaborative system of contracts and charters crafted jointly by participating businesses and the DNR. These contracts and charters streamline environmental requirements while advancing new environmental technologies.

Comparison with federal regulation

There is no existing or proposed federal regulation for permitting indirect sources.

Comparison with similar rules in adjacent states

Illinois, Iowa, Michigan, and Minnesota do not have similar rules. Minnesota had an indirect source permit program, but the program was discontinued on July 1, 2001 in response to budget cuts.

Data and analytical methodologies used and how any related findings support the regulatory approach chosen

Technological advances in automobile pollution control equipment and cleaner burning gasoline have significantly reduced carbon monoxide emissions. New health effects information for diesel emissions and fine-particles pollution suggest a different priority for the indirect source permit program.

Indirect source permit applicants were surveyed to determine the average permit processing time and total cost. The survey results were used as a means to define the time and cost savings associated with a streamlined permit process. Indirect source permit holders report the current permit process, from preparing to receiving final permit, requires nearly 8 months and costs between $30,000 - $40,000, excluding legal fees.

Analysis and supporting documents used to determine effect on small business or in preparation of economic impact report

No analysis or supporting documentation was developed as most indirect source permit applicants are large scale developers, not small businesses.

Small Business Impact

Indirect source permit applicants tend to be large scale developers, therefore the impact on small business is not considered to be applicable.

The Small Business Regulatory Coordinator may be contacted at [e-mail] , or by calling [phone].

Environmental Analysis

The Department has made a preliminary determination that adoption of the proposed rules would not involve significant adverse environmental effects and would not need an environmental analysis under ch. NR 150, Wis. Adm. Code. However, based on comments received, an environmental analysis may be prepared before proceeding. This analysis would summarize the Department's consideration of the impacts of the proposal and any reasonable alternatives.

Fiscal Estimate Summary

A revised rule will save businesses and developers about $270,000 annually in permit fees and project analysis related costs. The cost for an indirect source air permit with environmental assessment is $8,250. In addition, the cost to develop an indirect source permit application, including consultant fees, traffic modeling, and documentation can total between $30,000 - $40,000. In an average year, Air Management processes 9 indirect source air permits, so the total business cost is approximately 9 X $30,000 = $270,000. Since legal fees are not factored into this estimate, the true savings are likely to be substantially greater than the estimate.

The adoption of a general construction permit framework will result in reduced sate costs, but also reduced revenue related to the current indirect source permit revenue. Reduced revenues occur because the proposed rule applies the general permit fee structure, eliminates the environmental assessment requirement for most indirect source permit applications, and eliminated the screening level analysis for roadway projects.

Assumptions for annual reduce revenues

9 indirect source permits – permit fees under current rule = $74,250

9 indirect source permits – permit fees under proposed rule = $13,500

Reduced costs to the sate occur due to the elimination of the screening level analysis for highway projects. Surveys of consultants indicate that the average cost associated with developing an indirect source permit exemption is $4,000. The $4,000 cost is paid by either Wisconsin municipalities or the Wisconsin Department of Transportation.

Assumptions for annual reduced costs

2 screening level analyses – consultant fees under current rule = $8,000

Agency Contact

Mike Friedlander, [phone], [phone] (fax), [e-mail]