Scope Statements
Agriculture, Trade and Consumer Protection
This statement of scope was approved by the governor on November 8, 2011.
The Department of Agriculture, Trade and Consumer Protection (DATCP) gives notice, pursuant to 227.135, Stats., that it proposes to adopt an emergency administrative rule as follows:
Exotic Plant Pest Emergency Rule
Administrative Code Reference
Revises Chapter ATCP 21, Wis. Adm. Code
Statutory Authority
Sections 93.07 (1), 93.07 (12), 94.01 and 227.24, Stats.
Preliminary Objectives
An emergency rule authorized by this statement of scope will create county or multi-county or township or multi-township quarantines for an exotic plant pest in counties and townships where the pest is detected. Any emergency rule authorized by this scope statement will be submitted to the governor for approval pursuant to section 227.24 (1) (e) 1g each time the department finds that a quarantine area for an exotic plant pest is required. The authorization to draft an emergency rule creating a quarantine area pursuant to this statement of scope will expire on the first day following the twelfth month of publication of this statement of scope pursuant to section 227.135 (3) and a new statement of scope must be approved and published pursuant to sections 227.135 (2) and (3) to continue the authorization of emergency rulemaking related to exotic pest quarantines.
A rule authorized by this statement of scope will do the following:
  Create county or multi-county or township or multi-township quarantines in which an exotic pest is detected. The quarantine will prohibit the movement of all articles potentially harboring the damaging pest. These regulated articles would likely include: hardwood species of firewood, nursery stock, green lumber, and other material living, dead, cut or fallen, including logs, stumps, roots, branches and composted and uncomposted chips in the cases of Emerald Ash Borer (EAB), Asian Longhorned Beetle (ALB), Hemlock Woolly Adlegid (HWA), or Thousand Cankers Disease (TCD), as examples.
  Provide an exemption for items that have been inspected and certified by a pest control official and are accompanied by a written certificate issued by the pest control official (some products, such as nursery stock, cannot be given an exemption).
  Provide an exemption for businesses that enter into a state or federal compliance agreement. The compliance agreement spells out what a company can and cannot do with regulated articles.
Preliminary Policy Analysis
DATCP has authority under s. 93.07 (12), Stats., to conduct surveys and inspections for the detection and control of pests injurious to plants, and to make, modify, and enforce reasonable rules needed to prevent the dissemination of pests. DATCP also has plant inspection and pest control authority under s. 94.01, Stats. DATCP may by rule impose restrictions on the importation or movement of serious plant pests, or items that may spread serious plant pests.
In recent years the rate of arrival of new exotic plant pests to the United States has increased significantly. Some of the exotic pests which have already invaded our country include Emerald Ash Borer (EAB), Asian Longhorned Beetle (ALB), Hemlock Woolly Adlegid (HWA), Thousand Cankers Disease (TCD) and Gypsy Moth. The cost of these exotic forest insects to local governments is estimated at more than $2 billion per year and residential property value loss due to exotic forest pests averages $1.5 billion a year nationally. So far, EAB and the Gypsy Moth have made it into Wisconsin. EAB is an exotic pest that endangers Wisconsin's 770 million ash trees and ash tree resources. This insect has the potential to destroy entire stands of ash, including up to 20% of Wisconsin's urban street trees and residential landscaping trees, and can result in substantial losses to forest ecosystems. The insect can cause great harm to state lands, and to the state's tourism and timber industries. Currently, EAB has been identified in 15 states, including Wisconsin, and two Canadian provinces. Eleven Wisconsin counties have been quarantined to restrict the movement of ash wood in order to prevent the spread of EAB.
This emergency rule is necessary to create a timely quarantine of the counties or townships, and possibly bordering counties or townships with new exotic plant pest detections until a federal quarantine is enacted. The federal quarantine will take effect up to six months after a formal submission by the state plant regulatory official.
Current and Proposed Federal Legislation and Comparison to Proposed Rule
In order to limit the spread of exotic plant pests, the Animal and Plant Health Inspection Service of the United States Department of Agriculture (USDA-APHIS) has imposed quarantines for EAB in 15 states, ALB in 4 states, Gypsy Moth in 18 states, and external quarantines for HWA in 6 states, including Wisconsin and TCD in 9 states, including Wisconsin. DATCP rules currently prohibit movement of regulated plant articles from any federally quarantined area, except under authorized conditions. This proposed rule is consistent with current state and federal rules.
Entities Affected
According to the American Forest and Paper Association's June report, Wisconsin is number one among states in forestry jobs, employing 56,533 workers and in economic value of wood and paper products shipped at a combined total of $16,201,241,000. On top of that, each year the agricultural industry produces $1.38 billion of corn grain, and 1.6 million acres of soybeans, valued at more than $511 million. Additionally, Wisconsin leads the nation in snap bean production ($61 million, annually) and ranks third in potato production ($293 million). Wisconsin apple orchards produce a yield of $28 million. This emergency rule could have an impact on persons or companies that deal in any agricultural crop or forest product from the quarantined counties or townships to locations outside of the quarantined counties.
The Wisconsin Department of Tourism reported that Wisconsin travelers spent an estimated total of $12.303 billion in 2010. Those staying in cabins/cottages/condominiums spent $651 million while those camping in Wisconsin spent $656 million. Those visiting just for the day or passing through Wisconsin spent $813 million. If Wisconsin were to loose it's forests to an exotic plant pest, the tourism industry would also suffer substantial losses.
Nurseries, firewood producers/dealers, saw mills and farmers that sell/distribute articles potentially harboring the damaging exotic plant pest would all be impacted. In order to sell regulated wood products outside of their counties, veneer mills and wood processors will have to enter into a compliance agreement with DATCP or APHIS that authorizes movement of products outside of their counties only when there is assurance that the movement will not spread the exotic plant pest to other locations. Licensed nursery growers will not be able to sell regulated nursery stock outside of the quarantined counties. Firewood dealers would need to be certified to sell firewood outside of the quarantined counties. Farmers would be required to treat with an approved treatment option, should one exist, before movement out of the quarantine. Grain elevators could enter into compliance agreements with DATCP or APHIS.
Policy Alternatives
If DATCP does nothing, potentially infested wood or agricultural crops will be allowed to move freely and the department will not be able to regulate its movement. The department would have no regulatory authority in the counties with new exotic plant pest finds, raising the potential of a more rapid spread of an exotic injurious plant pest.
Statutory Alternatives
None at this time.
Staff Time Required
DATCP estimates that it will use approximately 0.1 FTE staff time to develop these rules. This includes time required for investigation and analysis, rule drafting, preparing related documents, holding public hearings, and communicating with affected persons and groups. DATCP will use existing staff to develop this rule.
Datcp Board Authorization
DATCP may not begin drafting a rule until the governor and the Board of Agriculture, Trade and Consumer Protection approves this scope statement. The Board may not approve this scope statement sooner than 10 days after this scope statement is published in the Wisconsin Administrative Register. The scope statement may not be published in the Administrative Register until DATCP has received written approval of the scope statement from the governor. Before the department may publish an emergency rule, it must receive written approval of the proposed emergency rule from the governor.
Children and Families
Early Care and Education, Chs. DCF 201-252
This statement of scope was approved by the governor on November 15, 2011.
To create Chapter DCF 205, relating to a child care quality rating system.
Policy Analysis
The proposed rules will implement the department's child care quality rating system known as Youngstar. The rules will include the following topics:
  The provider application process.
  Participation requirements for providers.
  The availability of training, technical assistance, and micro-grants to assist providers with improving the quality of their program.
  The process used to evaluate providers and assign a rating.
  The process for providers to appeal an assigned rating.
Statutory Authority
Section 48.659, Stats., provides that the department shall provide a child care quality rating system that rates the quality of the child care provided by a child care provider who is licensed under s. 48.65, Stats., and receives reimbursement under s. 49.155, Stats., for the child care provided or that volunteers for a rating.
Section 49.155 (6) (e) 1. and 3., Stats., as created by 2011 Wisconsin Act 32, provides that beginning on July 1, 2012, the department may modify a child care provider's reimbursement rate on the basis of the provider's quality rating, as described in the quality rating plan submitted by the department under 2009 Wisconsin Act 28, section 9108 (7f). Section 9108 (7f) (a) 1. provides that the plan shall include various options for the design of the rating system. All of those options shall require the department to include in the rating system child care providers certified under s. 48.651, Stats.
Section 227.11 (2) (a) (intro.), Stats., expressly confers rule-making authority on each agency to promulgate rules interpreting the provisions of any statute enforced or administered by the agency if the agency considers it necessary to effectuate the purpose of the statute.
Entities that may be Affected by the Rule
Child care providers.
Summary of Federal Requirements
Staff Time Required
Links to Admin. Code and Statutes in this Register are to current versions, which may not be the version that was referred to in the original published document.