Rule-Making Notices (Hearing Notices)

Notice of Hearings

Agriculture, Trade and Consumer Protection

rulemaking_notices EmR1424 EmR1424

The state of Wisconsin Department of Agriculture, Trade and Consumer Protection (DATCP) announces that it will hold a public hearing on its emergency rule, section ATCP 21.17, Wis. Admin. Code, relating to the quarantine of Columbia, Door, Grant, Green, Iowa, Lafayette, Monroe, and Richland Counties for the emerald ash borer beetle.

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

Hearing Information

Date:   Monday, October 27, 2014
Time:   1:00 p.m.
Location:   Department of Agriculture, Trade and
  Consumer Protection
  Conference Room 211 (2nd 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 October 22, 2014, by writing to Barbara Stalker, at the address above, or by telephone [phone]. Alternatively, you may contact the DATCP TDD at [phone]. The hearing facility is accessible to disabled users.

Appearances at the Hearing, Submission of Written Comments, and Copies of the Rule

DATCP invites the public to attend the hearing and comment on the emergency rule. Following the public hearing, the hearing record will remain open until Monday, November 10, 2014, for additional written comments. Comments may be mailed to the Wisconsin Department of Agriculture, Trade and Consumer Protection, Division of Agricultural Resource Management, P.O. Box 8911, Madison, WI 53708, emailed to [e-mail], or submitted online at http://adminrules. wisconsin.gov.

You may obtain a free copy of this emergency rule by mailing at request to the address above. You can also obtain a copy by calling [phone], or by emailing your request to [e-mail]. Copies will also be available at the hearing. To view the emergency rule online, please go to: 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, or by emailing to [e-mail] or by telephone at [phone].

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

This emergency rule creates quarantines for Columbia, Door, Grant, Green, Iowa, Lafayette, Monroe, and Richland Counties for the emerald ash borer beetle (“EAB"). Under this rule, the Department of Agriculture, Trade and Consumer Protection (“DATCP") quarantines Columbia, Door, Grant, Green, Iowa, Lafayette, Monroe, and Richland Counties to mitigate the risk of movement of emerald ash borer to other areas of Wisconsin and to other states.

DATCP is adopting this temporary emergency rule pending the adoption of a federal regulation to quarantine Columbia, Door, Grant, Green, Iowa, Lafayette, Monroe, and Richland Counties. This emergency rule will take effect immediately upon publication in the official state newspaper, and will remain in effect for 150 days. The Legislature's Joint Committee for Review of Administrative Rules may extend the emergency rule for up to 120 additional days.

Statutes interpreted

Sections 93.07 (12) and 94.01, Stats.

Statutory authority

Sections 93.07 (1), 93.07 (12), 94.01, and 227.24, Stats.

Explanation of statutory authority

DATCP has broad general authority, under s. 93.07 (1), Stats., to adopt regulations to enforce laws under its jurisdiction. DATCP also has broad general authority under ss. 93.07 (12) and 94.01, Stats., to adopt regulations to prevent and control plant pest infestations. Emerald ash borer quarantines created by this rule are part of an overall state strategy to prevent and control plant pest infestations, including EAB infestations. DATCP is adopting this temporary emergency rule under authority of s. 227.24, Stats., pending the adoption of federal regulations on the same subject.

Background

The United States Department of Agriculture – Animal and Plant Health Inspection Service (“APHIS") positively identified EAB in the village of Fish Creek, Door County on June 10, 2014. EAB was also identified in the city of Sturgeon Bay on June 19, 2014. APHIS subsequently identified EAB in Nelson Dewey State Park, Grant County, and in the Village of Oakdale, Monroe County, on July 11, 2014. On July 17, 2014, APHIS identified EAB in the Town of Lodi, Columbia County. While EAB has not yet been positively identified in the southwestern contiguous counties of Richland, Iowa, Lafayette and Green, these four counties are now completely surrounded by the current state and federal EAB quarantine. It is very likely that these counties already contain some level of EAB infestation, and there is little economic or ecological benefit to keeping them out of the quarantine.

This emergency rule creates a DATCP quarantine for Columbia, Door, Grant, Green, Iowa, Lafayette, Monroe and Richland Counties. A Federal quarantine will be enacted approximately six to eight weeks after a formal submission by the state plant regulatory official. EAB is carried and spread by untreated ash wood products. An eight-week delay until enactment of the federal quarantine leaves too much time for businesses or individuals to move potentially EAB infested material out of these eight counties to areas of Wisconsin or other states that are not infested with EAB.

EAB is an injurious exotic pest that now endangers Wisconsin's 750 million ash trees and ash resources. This insect has the potential to destroy entire stands of ash, and any incursion of EAB can result in substantial losses both to forest ecosystems and to urban trees, as well as the state's vital tourism and timber industries. The emerald ash borer has killed over fifty million trees in the Midwest and has cost several hundred million dollars in losses to the woodlot, nursery, landscape industries and municipalities. APHIS predicts the national urban impact alone from this pest may exceed $370 billion.

DATCP has plant inspection and pest control authority under s. 94.01, Stats., to adopt rules establishing quarantines or other restrictions on the importation or movement of plants or other materials into and within this state, if these measures are necessary to prevent or control the spread of injurious plant pests. A quarantine order may prohibit the movement of any pest, or any plant, pest host or pest-harboring material, which may transmit or harbor a pest.

Emergency Rule Content

Under this emergency rule, movement of all hardwood (non-coniferous) firewood of any type, plus movement of any ash wood out of Columbia, Door, Grant, Green, Iowa, Lafayette, Monroe, and Richland Counties, is prohibited with certain exceptions. The emergency rule will do the following:

•   Create a quarantine for EAB for Columbia, Door, Grant, Green, Iowa, Lafayette, Monroe, and Richland Counties that prohibits the movement of all 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 of the genus Fraxinus (Ash wood), out of these counties or any contiguous EAB quarantined counties.

•   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 describes in detail what a company can and cannot do with regulated articles.

Summary of factual data and analytical methodologies

Data for this analysis was obtained from DATCP nursery license records, local business directories and field surveys of the wood products industry (e.g. timber, lumber, firewood) in the area. This analysis was based on the regulatory language of ATCP 21.17 and 7 CFR 301.53, on the observations of DATCP nursery inspectors, and on conversations with stakeholders in the nursery and other timber-related industries.

Analysis and supporting documents used to determine effect on small business

DATCP searched its nursery license database to obtain current records for licensed nursery growers operating in Columbia, Door, Grant, Green, Iowa, Lafayette, Monroe and Richland Counties. Based on previous and ongoing work with Wisconsin's Gypsy Moth and firewood certification programs, DATCP staff also identified known saw mills, wood products companies and firewood industry concerns. Finally, online Yellow Pages business listings were also searched to find related tree nursery, timber, firewood and tree service companies.

Business Impact

This emergency rule may have an impact on persons or companies that deal in any hardwood firewood or ash materials in Columbia, Door, Grant, Green, Iowa, Lafayette, Monroe, and Richland Counties. The affected businesses are all small businesses. This emergency rule restricts the sale or distribution of ash trees, ash wood products, and any hardwood firewood from Columbia, Door, Grant, Green, Iowa, Lafayette, Monroe, and Richland Counties to locations outside of these counties or any contiguously quarantined counties.

The business impact of this emergency rule depends on the number of 1) nurseries that sell or distribute ash nursery stock outside these counties, 2) firewood producers/dealers that sell or distribute outside these counties, 3) sawmills that move untreated ash stock (green lumber) outside these counties, and 4) untreated wood waste (e.g. ash brush, chips or mulch) that is moved outside these counties.

Columbia, Door, Grant, Green, Iowa, Lafayette, Monroe, and Richland Counties have a total of 48 licensed nursery growers that could possibly be growing ash nursery stock. Those growers will not be able to move or sell ash nursery stock outside of the quarantine area, though discussions with the Wisconsin Nursery Association indicate that few, if any, nurseries continue to sell ash trees. There are also an estimated 66 known firewood producers or dealers in these eight counties. Firewood dealers would need to be certified under s. ATCP 21.20, Wis. Admin. Code, to sell or move firewood outside of the quarantine area. To obtain certification, an inspected firewood dealer pays a $50 annual fee to DATCP and treats the firewood in a manner that ensures it is free of EAB. There are 41 known lumber mills in these eight counties and an estimated 48 other tree service/wood processing facilities that may also deal with ash. To transport ash wood products outside of the quarantine area, they will have to enter into a compliance agreement with DATCP or APHIS that authorizes movement of ash products outside of the quarantine only when there is assurance that the movement will not spread EAB to non-quarantined locations. Certification and compliance agreements will require some additional recordkeeping on the part of those businesses.

Environmental impact

This emergency rule will not have a significant impact on the environment.

Federal and surrounding state programs

Federal programs

Under the federal Plant Protection Act, APHIS has responsibility for excluding, eradicating and controlling serious plant pests, including EAB. APHIS has instituted statewide quarantines on the movement of all ash wood for Illinois, Indiana, Iowa, Kentucky, Missouri, New Jersey, Ohio, Pennsylvania, Virginia ,and West Virginia, in addition to portions of Colorado, Connecticut, Georgia, Kansas, Maryland, Massachusetts, Michigan, Minnesota, New Hampshire, New York, North Carolina, and Tennessee. APHIS has also enacted quarantines for Brown, Kenosha, Racine, Walworth, Rock, Milwaukee, Waukesha, Jefferson, Dane, Ozaukee, Washington, Dodge, Sheboygan, Fond du Lac, Winnebago, Trempealeau, La Crosse, Vernon, Sauk, Crawford, and Douglas Counties in Wisconsin. The quarantines include restrictions on the movement of any hardwood (non-coniferous) firewood.

Surrounding state programs

Surrounding states where EAB has been identified (Illinois, Indiana, Iowa, Minnesota, and Michigan) have state and federal quarantines that prohibit the movement of regulated articles out of quarantined areas. A regulated article can only move out of quarantined areas after it is certified by USDA or state officials.

DATCP Contact

Questions and comments (including hearing comments) related to this rule may be directed to:

Brian Kuhn or Christopher Deegan

Department of Agriculture, Trade and Consumer Protection

P.O. Box 8911

Madison, WI 53708-8911

Telephone: [phone] or [phone]

E-Mail: [e-mail]
[e-mail]

Notice of Hearings

Natural Resources

Fish, Game, etc., Chs. NR 1—

rulemaking_notices EmR1418 EmR1418, EmR1419

(DNR #s WM-11-14(E) and WM-04-14(E))

NOTICE IS HEREBY GIVEN that pursuant to ss. 29.014, 29.041 and 227.11 (2) (a), and 227.24, Stats., interpreting ss. 29.014, 29.041 and 29.192, Stats., the Department of Natural Resources will hold public hearings on revisions to Chapter NR 10, Wis. Adm. Code, relating to the 2014 migratory game bird seasons and hunting regulations. Emergency rule order WM-11-14(E) related to teal and mourning dove hunting took effect upon publication in the official state paper on September 1, 2014. Emergency order WM-04-14(E) related to migratory bird hunting regulations took effect upon publication in the official state paper on September 11, 2014.

Hearing Information

Date:   Wednesday, October 29, 2014
Time:   1:00 p.m.
Location:   Natural Resources State Office Building
  (GEF-2)
  Room 608
  101 South Webster Street
  Madison, Wisconsin

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 Scott Loomans at [phone] with specific information on your request at least 10 days before the date of the scheduled hearing.

Copies of the Proposed Rule and Submission 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 Mr. Scott Loomans, Bureau of Wildlife Management, P.O. Box 7921, Madison, WI 53707 or by email to [e-mail]. Comments may be submitted until October 29, 2014. 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 Mr. Loomans.

Board Order WM-11-14(E) Related to Teal and Mourning Dove Hunting Seasons

Plain language analysis of WM-11-14(E) related to teal and mourning dove hunting seasons

Section 1 of this rule order establishes a seven day season beginning on September 1 and a six bird daily bag limit for a new, teal-only hunt. The teal-only season will occur prior to the youth duck season and the normal season for hunting all varieties of ducks.

Section 2 extends the mourning dove hunting season from the current 70 to 90 days.

Sections 3 and 4 establish that the hunting hours for teal during the teal-only season shall begin at 9:00 a.m. on the first day and sunrise on following days. Hunting will end at 7:00 p.m. each day. The hunting hours for other migratory birds such as mourning doves or Canada geese are not modified by these rules.

Summary of, and comparison with, existing or proposed federal regulations for WM-11-14(E) related to teal and mourning dove hunting seasons

Under international treaty and Federal law, migratory game bird seasons are closed unless opened annually via the U.S. Fish and Wildlife Service (USFWS) regulations process. As part of the Federal rule process, the USFWS proposes a duck harvest-management objective that balances hunting opportunities with the desire to achieve waterfowl population goals identified in the North American Waterfowl Management Plan (NAWMP). Under this harvest-management objective, the relative importance of hunting opportunity increases as duck populations approach the goals in the NAWMP. Thus, hunting opportunity would be maximized when the population is at or above goals.

The proposed modifications included in this rule order are consistent with these parameters and guidelines which are annually established by the USFWS in 50 CFR 20.

Comparison with rules in adjacent states for WM-11-14(E) related to teal and mourning dove hunting seasons

Since migratory bird species are managed under federal law, each region of the country is organized in a specific geographic flyway which represents an individual migratory population of migratory game birds. Wisconsin along with Minnesota, Michigan, Illinois and Iowa are members of the Mississippi Flyway. Each year the states included in the flyways meet to discuss regulations and guidelines offered to the flyways by the USFWS. The USFWS regulations and guidelines apply to all states within the Flyway and therefore the regulations in the adjoining states closely resemble the rules established in this rule order, and only differ slightly based on hunter desires, habitat and population management goals. However, these variations fall within guidelines and sideboards established by the USFWS.

Summary of factual data and analytical methodologies for WM-11-14(E) related to teal and mourning dove hunting seasons

The department annually promulgates emergency rules establishing the same year's migratory bird hunting regulations. The emergency rule is necessary because migratory game bird hunting is regulated by the United States Fish & Wildlife Service which offers a final season framework to Wisconsin within months of the possible opening days each year. This timeframe does not allow for promulgation of a permanent rule prior to the hunting season. The department has promulgated permanent rules in the past so that information related to zones, tagging requirements for geese, and other regulations remain relatively current. However, season dates and bag limits established in the administrative code reflect the prior season frameworks and the permanent rule often does not contain current information.

The species of primary interest to duck hunters, blue-winged teal, are an early migrating bird whose numbers may be low or declining in Wisconsin when the normal duck seasons begin at the end of September or early October. Many hunters are likely to appreciate the opportunity to hunt this species earlier during the fall season, possibly prior to migration, when they may be more abundant.

In the 1960s the US Fish and Wildlife Service (USFWS) allowed states to experiment with an early duck season that offered additional duck hunting days outside of the regular duck season framework. Hunters were restricted to shooting only teal; blue-winged and green-winged teal; but the focus in the Mississippi Flyway was primarily the early migrating blue-winged teal. This “experimental season" was intended to measure whether hunters could successfully distinguish between duck species and what the impact was on non-teal ducks. The results were mixed and after debate among state and federal agencies involved, the decision was made that the “production" states (WI, MN, MI, and IA) within the Mississippi Flyway would not be allowed an early teal season. However, when blue-winged teal seasons were high, “nonproduction" states would be offered an operational early teal season. “Production" refers primarily to whether a state is a major breeding area for mallards and other ducks.

The continental population of blue-winged teal has grown in recent years and a harvest assessment concluded that teal could sustain higher harvest beyond that incurred during the regular duck season and the existing early teal seasons. Following a series of meetings and recommendations among states and the USFWS, it was decided that the 4 production states would be offered a 3 year experimental teal season. It is very important to understand that this is an experimental season and that the results of the experiment will determine if a state is granted an operational early teal season. The USFWS requires states to observe hunter behavior in the field to observe whether they shoot at non-teal ducks during the teal only season. If the number of attempts to shoot non-teal ducks is too high then we will fail the experiment.

Based on the public input and staff analyses, the department proposes an early teal season in Wisconsin for 2014 that would begin on September 1 and continue through September 7. Only blue-winged and green-winged teal can be harvested. The daily bag limit would be 6 teal. Shooting hours on opening day begin at 9 am and close at 7 pm. Shooting hours from September 2 through 7 will begin at sunrise and close at 7 pm.

This rule would also extend the mourning dove hunting season. At the February, 2014 meeting of about 20 states that are part of the Eastern Dove Management Unit, a recommendation was approved to increase the dove hunting season from 70 to 90 days across the management unit. The additional 20 days will result in an increase in hunting opportunity that some hunters will appreciate. However, these days will be at a time of the year when many other hunting seasons are also open. As a result, the additional hunting opportunity may not result in a significant amount of hunting effort focused primarily on mourning doves.

Anticipated private sector costs for WM-11-14(E) related to teal and mourning dove hunting seasons

These rules, and the legislation which grants the department rule making authority, do not have a significant fiscal effect on the private sector. Additionally, no costs are associated with compliance to these rules.

Effects on small business for WM-11-14(E) related to teal and mourning dove hunting seasons

These rules are applicable to individual sportspersons and impose no compliance or reporting requirements for small businesses, and no design or operational standards are contained in the rule. Because this rule does not add any regulatory requirements for small businesses, the proposed rules will not have an economic impact on a substantial number of small businesses under s. 227.24 (3m), Stats.

Board Order WM-04-14(E) Related to Migratory Bird Hunting Regulations

Plain language analysis of WM-04-14(E) related to migratory bird hunting regulations