Nearly all states have chemigation laws, including Illinois, Michigan and Minnesota. EPA has minimum standards in place for states that do not have their own regulations, such as Iowa. Minnesota's chemigation regulations are more stringent than Wisconsin's and require applicators obtain a chemigation permit annually before chemigating. This rule updates Wisconsin's chemigation laws to reflect emerging industry practices.
Urban pesticide misting systems are an emerging application method. Surrounding states have existing regulations that govern the use of these systems (including label, drift, and pesticide applicator certification requirements), although they do not apply only to this specific type of application. Wisconsin's proposed requirements to monitor windspeed and prevent time-delayed applications complement label requirements and will help ensure applicators avoid serious pesticide use violations and help protect human and companion animal health.
Natural Areas Certification
None of the surrounding states has a separate certification category for natural areas applications. Surrounding states include these applicators in the turf and landscape category, which is what is proposed in this rule. Surrounding states also include these applicators in the field and vegetable crop category, when the natural areas are in a grassland-type setting.
Bait Station Labeling
Many states are considering modifying their bait station requirements in response to EPA's new rodenticide regulations. Iowa does not require bait station labeling but does require notification to the Department of Agriculture prior to use of certain hazardous rodenticides, which is more stringent than what this rule proposes. Minnesota, Illinois and Michigan do not require exterior labeling of bait stations at this time. Other states, including California, New York and Tennessee, require exterior labeling of rodenticide bait stations similar to what Wisconsin is proposing.
Electronic Information
Surrounding states allow electronic transmittal of information between commercial application businesses and customers, as Wisconsin is proposing.
Fiscal Impact
This rule will not have a significant state or local fiscal impact.
Economic Impact Analysis
This rule was developed in consultation with an advisory committee that included a diverse cross-section of affected industry, consumers, and government officials. The advisory committee did not find that this rule will adversely affect in a material way the economy, a sector of the economy, productivity, jobs or the overall economic competitiveness of the state. The committee endorsed the provisions of this rule, which are designed to update, clarify and modernize the existing rule. The department does not anticipate any significant expenses imposed upon the regulated community as a result of these changes.
Business Impact
This rule updates current rules related to pesticide use and control. This rule modifies and clarifies existing rule language to facilitate understanding, compliance, and efficiency. This rule also protects human health and the environment.
This rule may have minimal compliance costs for affected pesticide applicators, pesticide application businesses, or the general public. However, this rule will not have a significant effect on local markets, on the sale or distribution of pesticide products, or on the overall economy of this state.
Pesticide applicators choosing to obtain natural area certification may experience minimal additional costs every five years to purchase a new training manual ($45). Many commercial application businesses cover the cost of the training manual for their employees. The average cost per year for the manual is $9. The restoration of natural areas is considered to be a growth area for business and may positively impact pesticide businesses through increased revenue.
Pesticide application businesses may experience cost savings as a result of clarifying existing regulations, improving regulatory consistency and modifying administrative requirements, including the ability to provide certain notices and submit certain permit applications by electronic means.
Businesses that are not currently labeling their bait stations may have some minimal economic costs to comply with the bait station labeling requirement. Costs may include purchasing stickers or another bait station labeling system (e.g. “luggage tags") and personnel time to fill out the label. Businesses will have a number of cost-effective ways to meet this requirement, including the ability to design their own or choose from among a wide-variety of labeling systems.
Businesses should not have any direct costs to comply with the non-agricultural chemigation and urban pesticide misting system requirements. Few, if any, pesticide application businesses in Wisconsin currently are known to be using these application systems. If pesticide application businesses do decide to sell these systems in the future, costs to comply with these regulations could be included in the initial cost of the system.
Because Ch.
ATCP 33, Wis. Adm. Code was revised in 2006, many businesses are already in compliance with the spill containment and sump requirements. Those businesses not required to comply with Ch.
ATCP 33 may have some minor costs to comply if a spill containment surface fails and a repair would be inadequate. If a new spill containment surface is required, and the facility is not already regulated under Ch.
ATCP 33, Wis. Adm. Code., there will be some incremental costs to comply with the proposed requirements, which now prohibit some materials (e.g. asphalt) that were previously allowed. These materials are now prohibited because they have been prone to failure and unable to contain spills.
To provide comments or concerns relating to small business, please contact DATCP's small business regulatory coordinator Keeley Moll at the address above, by emailing to
keeley.moll@wisconsin.gov, or by telephone at (608)224-5039.
Environmental Assessment
The majority of these rule changes are administrative in nature and are not expected to affect the environment. These administrative changes include the removal of the administrative rule licensing requirements for veterinarians and animal technicians due to a recent law change, clarifying an administrative rule note describing the worker protection standard (which is set by federal regulations), harmonizing this rule with Ch.
ATCP 33 (Bulk Storage of Pesticides and Fertilizers), enabling more efficient communication between pesticide application businesses and customers and a more efficient permit application process, removing duplicative recordkeeping requirements, and removing obsolete rule provisions, including references to past fee holidays and veterinary clinic permits (already deleted in statute). The substance of these rule changes will not directly affect the natural environment but may reduce duplicative recordkeeping and the unnecessary use of paper by pesticide businesses and the department.
The addition of the turf and landscape pesticide applicator certification category to include natural areas may have a positive environmental impact because it facilitates the rehabilitation or preservation of natural areas. Expertise by pesticide applicators could lead to a reduction in the harm to native plants during the removal of (non-native) invasive plants, which ensures that the adverse effects to these natural areas are minimized.
This rule updates the regulations on chemigation to include non-agricultural chemigation systems and urban pesticide misting systems (a type of non-agricultural chemigation system). While these systems are not widely used in Wisconsin at this time, underground irrigation systems and urban pesticide misting systems are being installed more frequently in residential settings in many states (often to control mosquitoes). Chapter
ATCP 29 already includes regulations on agricultural chemigation systems, such as backflow prevention devices to prevent contamination of groundwater by pesticides. This proposed rule will extend those environmental protections to non-agricultural chemigation systems that may use underground irrigation systems. Reasonable regulations on these systems are needed to prevent harm to humans, non-target wildlife species, and groundwater (drinking water) contamination.
The proposed rule also will require exterior labeling of bait stations. Bait stations often contain highly toxic rodenticides, which can be deadly to children, pets, and non-target wildlife if accidentally ingested. Bait station labeling will maintain a more safe environment by ensuring veterinarians, homeowners, and others will have the information they need to respond rapidly and appropriately if non-target animals or individuals accidently ingest pesticides from bait stations.
This proposed rule updates the current rules related to spill containment and the repair of spill containment surfaces. This rule is expected to protect the public, soil and groundwater from pesticide contamination.
Notice of Hearing
Revenue
NOTICE IS HEREBY GIVEN that, pursuant to section
71.255 (6) (bm) 4., Stats., the Department of Revenue will hold a public hearing to consider permanent rules revising sections
Tax 2.60 and
2.61, relating to pre-2009 net business loss carryforwards.
Hearing Information
The hearing will be held:
Date: Monday, February 13, 2012
Time: 9:00 A.M.
Location: State Revenue Building
Events Room
2135 Rimrock Road
Madison, WI 53713
Handicap access is available at the hearing location.
Appearances at the Hearing and Submittal of Written Comments
Interested persons are invited to appear at the hearing and may make an oral presentation. It is requested that written comments reflecting the oral presentation be given to the department at the hearing. Written comments may also be submitted to the contact person listed below no later than February 13, 2012, and will be given the same consideration as testimony presented at the hearing.
Dale Kleven
Department of Revenue
Mail Stop 6-40
2135 Rimrock Road
P.O. Box 8933
Madison, WI 53708-8933
Telephone: (608) 266-8253
Analysis by the Department of Revenue
Statutes interpreted
Statutory authority
Explanation of agency authority
Section
71.255 (6) (bm) 4., Stats., requires the department to promulgate rules to administer the provisions of
2011 Wisconsin Act 32 concerning the treatment of pre-2009 net business loss carryforwards under combined reporting.
Related statute or rule
There are no other applicable statutes or rules.
Plain language analysis
This proposed rule prescribes the method that members of the same combined group must use to share net business losses with other members of the same commonly controlled group for net business losses incurred prior to January 1, 2009, and not fully used before January 1, 2012, for purposes of s.
71.255 (6) (bm), Stats. It also provides clarity regarding the 15 year and 20 year net business loss carryforwards for purposes of ss.
71.26 (4) (a) and
(b) and
71.45 (4) (a) and
(b), Stats.
Summary of, and comparison with, existing or proposed federal regulation
There is no existing or proposed federal regulation that is intended to address the activities to be regulated by the proposed rule.
Comparison with rules in adjacent states
Illinois is the only adjacent state that allows net business loss carryforwards to be shared among combined group members. Michigan and Minnesota have combined reporting laws but do not allow the sharing of net business loss carryforwards among other companies in the combined group.
Illinois has its own unique regulations relating to the net business loss carryforward statute, including: IL Regs. 100.2310, 100.2330, 100.2340, 100.2350, and 100.5270.
Summary of factual data and analytical methodologies
The department has created this proposed rule order to comply with the statutory requirement to administer the changes under
2011 Wisconsin Act 32 to the treatment of pre-2009 net business loss carryforwards under combined reporting. No other data was used in the preparation of this proposed rule order or this analysis.
Analysis and supporting documents used to determine effect on small business
As explained above, this proposed rule is created to administer changes in Wisconsin's income and franchise tax laws. As the rule itself does not impose any significant financial or other compliance burden, the department has determined that it does not have a significant effect on small business.
Initial Regulatory Flexibility Analysis
This proposed rule order does not have a significant economic impact on a substantial number of small businesses.
Anticipated Costs Incurred by Private Sector
This proposed rule does not have a significant fiscal effect on the private sector.
Effect on Small Business
This proposed rule does not have a significant effect on small business.
Text of Rule
SECTION 1. Tax 2.60 (2) (Lm) is created to read:
Tax 2.60 (2) (Lm) “Pre-2009 net business loss carryforward" has the meaning given to "pre-2009 net business loss carry-forward" in s.
71.255 (6) (bm) 1., Stats.
SECTION 2. Tax 2.61 (9) (intro.), (a) (intro.) and 1., and (b) (intro.) are amended to read:
Tax 2.61 (9) (intro.) A combined group member may carry forward its net business loss as provided in ss.
71.26 (4) and
71.45 (4), Stats. A net business loss carryforward is an attribute of the separate corporation rather than of the combined group. However, s.
71.255 (6) (b) and (bm), Stats., provides that a combined group member may share all or a portion of its net business loss carryforward with the other members of its combined group if certain conditions are met. This subsection explains which net business loss carryforwards are sharable, how to compute the sharable amount, and how to apply the shared losses. The following rules apply:
(a) (intro.) A combined group member may share its net business loss carryforward incurred in a taxable year beginning on or after January 1, 2009 with other combined group members to the extent that all of the following conditions are met:
1. The net business loss originated in a taxable year beginning on or after January 1, 2009 and is attributable to combined unitary income included in a combined report.
(b) (intro.) A combined group member's net business loss carryforward incurred in a taxable year beginning on or after January 1, 2009 that cannot be shared with other combined group members includes amounts attributable to the following:
SECTION 3. Tax 2.61 (9) (b) 1. is repealed
SECTION 4. Tax 2.61 (9) (b) 2. and 3. are renumbered 2.61 (9) (b) 1. and 2.
SECTION 5. Tax 2.61 (9) (c) is repealed and recreated to read:
Tax 2.61 (9) (c) Order of carryforwards. A combined group member shall apply net business loss carryforwards in the following order:
1. Net business loss carryforwards incurred by that same member in taxable years beginning before January 1, 2009, in the order that the underlying net business losses were incurred.
2. Sharable and non-sharable net business loss carryforwards under par. (d) incurred in taxable years beginning on or after January 1, 2009, in the order that the underlying net business losses were incurred. If the net business loss carryforward to be used consists of both a sharable amount and a non-sharable amount incurred in the same taxable year, the amount of sharable and non-sharable carryforward used shall be determined on a pro rata basis according to the amount of each type of carryforward available from that year.
3. For loss carryforwards shared in a taxable year that begins after December 31, 2011, pre-2009 net business loss carryforwards under par. (dm).
Example: Combined Group EFG consists of Member E, Member F, and Member G. E has the following loss carryforwards:
