Register 602A: Rule-Making Notices (Hearing Notices)

Wisconsin Administrative Register No. 602, 2/14/2006

Rule-making notices

Notice of Hearings

Agriculture, Trade and Consumer Protection

The State of Wisconsin Department of Agriculture, Trade and Consumer Protection (DATCP) announces that it will hold public hearings on a proposed rule that consolidates, reorganizes, and clarifies current rules related to animal diseases and movement. This rule also changes current rules related to aquaculture, poultry disease monitoring, Johne's disease control, intrastate movement of sheep and goats, and fairs and exhibitions, and makes other technical changes to the rules.

DATCP will hold five public hearings at the times and places shown below. DATCP invites the public to attend the hearings and comment on the proposed rule. Following the public hearings, the hearing record will remain open until Wednesday, March 22, for additional written comments. Comments may be sent to the Division of Animal Health at the address below or by e-mail to hearingcommentsAH@datcp.state.wi.us.

You may obtain a free copy of this rule by contacting the Wisconsin Department of Agriculture, Trade and Consumer Protection, Division of Animal Health, 2811 Agriculture Drive, P.O. Box 8911, Madison, WI 53708. You can also obtain a copy by calling (608) 224-4883 or emailing Melissa.mace@datcp.state.wi.us. Copies will also be available at the hearings. To view the proposed rule online, go to:

https://apps4.dhfs.state.wi.us/admrules/public/Home

To provide comments or concerns relating to small business, please contact DATCP's small business regulatory coordinator Keeley Moll at the address above, by emailing to Keeley.Moll@datcp.state.wi.us or by telephone at (608) 224-5039.

Hearing-impaired persons may request an interpreter for these hearings. Please make reservations for a hearing interpreter by October 22, 2004, by writing Melissa Mace, Division of Animal Health, 2811 Agriculture Drive, Madison, WI 53708-8911, telephone 608-224-4883. Alternatively, you may contact the DATCP TDD at 608-224-5058. Handicap access is available at the hearings.

Hearing Dates and Locations

Tuesday February 28, 2006

7 p.m. to 9 p.m.

Dept. of Natural Resources

West Central Region Headquarters

Room 158/185

1300 W. Clairemont Ave

Eau Claire, WI 54701

Wednesday, March 1, 2006

11 a.m. to 1 p.m.

University of Wisconsin Marathon County

Lecture Hall 180

518 South 7th Ave

Wausau, WI 54401

Wednesday, March 1, 2006

6 p.m. to 8 p.m.

Fox Valley Technical College

Room A161A

1825 North Bluemound Drive

Appleton, WI 54914

Monday, March 6, 2006

1 p.m. to 3 p.m. and 6 p.m. to 8 p.m.

Prairie Oak State Office Building

Board Room

2811 Agriculture Drive

Madison, WI 53708

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

This rule consolidates, reorganizes and clarifies Wisconsin's current animal health and disease control rules, so that the rules will be easier to read and understand. This rule does not significantly alter the substance of the current rules, except that this rule:

Provides more cost-effective disease monitoring options for small poultry producers who cannot easily participate in the national poultry improvement plan.

Adopts federal standards for voluntary Johne's disease testing and herd management, and expands producer eligibility for reimbursement of testing and herd management costs (based on the availability of federal funding).

Requires official individual identification of sheep and goats sold or moved within this state, consistent with federal standards (slaughter animals are exempt, if neutered or under 12 months old). This change will facilitate exports of Wisconsin sheep and goats.

Strengthens and clarifies disease control standards related to fairs and livestock exhibitions, including organized swap meets, which can spread serious disease if not properly managed. This rule clarifies the responsibilities of exhibition organizers and exhibitors.

Coordinates animal health rules with Wisconsin's new livestock premises identification law. For example, certificates of veterinary inspection must include livestock premises identification numbers if any. This rule does not expand current premises registration requirements or sanctions.

Modifies current regulations related to fish farms, fish imports and fish health. This rule eliminates the requirement of an annual health certification for fish farms. This rule streamlines and clarifies current fish import requirements, and creates a $50 fee for a fish import permit. DATCP must approve a fish health certificate before a person imports fish, or introduces fish to waters of the state, based on that health certificate.

Updates the current list of reportable diseases (deletes 4 diseases).

Makes minor technical changes in current rules related to farm-raised deer.

Makes minor updates and technical changes to other rules, as necessary.

Statutory Authority

Statutory Authority: ss. 93.07 (1) and (10), 95.18, 95.19, 95.197, 95.20, 95.22, 95.23, 95.25, 95.26, 95.27, 95.30, 95.32, 95.33, 95.35, 95.36, 95.37, 95.38, 95.41, 95.42, 95.43, 95.45, 95.46, 95.48, 95.49, 95.50, 95.51, 95.55, 95.57, 95.60, 95.65, 95.68, 95.69, 95.71, 95.715 and 95.72, Stats.

Statute Interpreted: s. 93.07 (10), 95.18, 95.19, 95.197, 95.20, 95.22, 95.23, 95.25, 95.26, 95.27, 95.30, 95.32, 95.33, 95.35, 95.36, 95.37, 95.38, 95.41, 95.42, 95.43, 95.45, 95.46, 95.48, 95.49, 95.50, 95.51, 95.55, 95.57, 95.60, 95.65, 95.68, 95.69, 95.71, 95.715 and 95.72, Stats.

DATCP has broad general authority to adopt rules interpreting statutes under its jurisdiction (see s. 93.07 (1), Stats.). DATCP is specifically authorized to adopt rules to protect the health of animals in this state, and to prevent, control and eradicate communicable diseases among animals.

Background

The Wisconsin department of agriculture, trade and consumer protection (“DATCP") administers Wisconsin's animal health and disease control programs, including programs to control diseases affecting domestic animals, humans and wild animals. DATCP does the following things, among others:

Monitors for disease outbreaks.

Regulates the import, sale and movement of animals to prevent the spread of serious diseases.

Regulates animal identification and tracking, vaccination, disease testing, records and reporting.

Regulates animal-related businesses, including animal markets, animal dealers, animal truckers, farm-raised deer herds and fish farms.

Certifies the disease status of animal herds or flocks, to facilitate sale, movement and export of animals.

Conducts disease investigations, issues quarantines, condemns animals affected with serious contagious diseases, and pays indemnities to owners of certain condemned animals (as provided by statute).

Serves as the state clearinghouse for certificates of veterinary inspection and other health certificates issued in connection with the import or movement of animals.

Responds to disease emergencies and bio-security threats.

Coordinates animal health programs with the United States department of agriculture, animal and plant health inspection service (“federal bureau").

DATCP has adopted extensive rules, under chs. ATCP 10 and 11, Wis. Adm. Code, related to animal disease and movement. These rules provide the foundation for Wisconsin animal disease control programs. This rule consolidates, reorganizes and clarifies the current rules, so that the rules will be easier to read and understand.

This rule does not significantly alter the substance of the current rules, except as noted below. This rule does not change current rules related to animal markets, dealers, or truckers (ch. ATCP 12, Wis. Adm. Code), except that this rule makes minor technical changes to those rules.

Key Rule Changes

Rule Reorganization

This rule consolidates current rules contained in chs. ATCP 10 (animal diseases) and ATCP 11 (animal movement) into a single new ch. ATCP 10 (animal diseases and movement). The new rule is organized by animal species. This will make it much easier for affected persons to find and understand the rules that apply to them. The redraft simplifies and clarifies current rules, eliminates redundant material, and improves internal consistency. This rule does not change the substance of the current rules, except as provided below.

New Options for Poultry Producers

This rule provides new, more cost-effective, disease monitoring options for small poultry producers. Current rules restrict the sale or movement of poultry or eggs for breeding, hatching or exhibition unless producers are enrolled in the national poultry improvement program. But the national program is designed mainly for large poultry operations, and may not be cost-effective for small operations. This rule provides more cost-effective alternatives for small producers. These voluntary alternatives may result in more disease monitoring and market access by small producers.

Under this rule, a flock owner who is not enrolled in the national poultry improvement program may nevertheless sell or move poultry for breeding, hatching or exhibition if the flock is enrolled as a Wisconsin tested flock or Wisconsin associate flock. A flock may be enrolled as a Wisconsin tested flock if the flock owner tests annually for pullorum, fowl typhoid and, in the case of turkeys, Mycoplasma gallisepticum. A flock may be enrolled as a Wisconsin associate flock if it consists entirely of birds obtained from a Wisconsin tested flock. There is no charge to enroll in either program. DATCP will issue certificates that flock owners can use to document enrollment.

State-Federal Consistency

This rule coordinates state disease testing and certification programs with federal programs, to ensure consistent state and federal standards where possible. These technical changes will eliminate conflicting regulatory requirements, and will have no adverse impact on Wisconsin producers. The technical changes will facilitate disease control and animal movement, and will have no adverse impact on disease control.

Johne's Disease; Voluntary Testing and Herd Management

Johne's disease is a serious and widespread disease that affects Wisconsin's dairy and cattle industries. The disease also affects goats. Wisconsin has a voluntary program for Johne's disease herd testing, herd classification and herd management. This rule changes the Wisconsin program, so that it will be consistent with federal program standards. This will help ensure the continued availability of federal funds.

Based on the availability of federal funds, this rule expands producer eligibility for reimbursement of costs related to voluntary Johne's disease testing and herd management. Under current state rules, a producer may claim reimbursement of testing costs only, and then only if the producer participates in the Johne's disease herd classification program. Under this rule, producers may also claim reimbursement of costs for herd risk assessments, herd management plans and herd vaccination.

A producer is eligible for cost reimbursement under this rule, regardless of whether the producer participates in Wisconsin's herd classification program for Johne's disease. Participation in the herd classification program is voluntary, but may facilitate sales of cattle under current state law. Under this rule, a producer who chooses to participate in the herd classification program must have a herd risk assessment and management plan (per federal standards).

This rule simplifies current standards for Johne's disease sample collection and testing (per federal standards), and gives participating producers more testing and management options. These changes may encourage more voluntary testing and herd management. This rule preserves the confidentiality of Johne's disease herd records, per current law.

Johne's Disease Reactors

Under current rules, an animal that tests positive for Johne's disease must be permanently identified as Johne's positive. This rule removes that requirement. The federal program does not require reactor identification, nor do a majority of other states.

Johne's Disease; Certified Veterinarians

Under this rule, DATCP may reimburse producers for Johne's disease herd risk assessments, herd management plans and vaccinations, but only if the work is done by veterinarians who complete training provided by DATCP.

Sheep and Goats; Identification

This rule requires official individual identification of sheep and goats sold or moved within this state, consistent with federal standards (slaughter animals are exempt, if neutered or under 12 months old). This change will facilitate exports of Wisconsin sheep and goats.

Fairs and Exhibitions; Disease Control

This rule strengthens and clarifies disease control standards related to fairs and exhibitions, including organized swap meets, which can spread serious diseases. This rule clarifies the responsibilities of exhibition organizers and exhibitors.

Under this rule, a “fair" means a state, county or district fair. An “exhibition" means an organized fair, swap meet, rodeo, trail ride, show or other organized event at which animals owned by different persons are brought together from different premises and exhibited on the same premises. An “exhibition" does not include any of the following:

An animal market or animal dealer premises (animal markets and dealers are currently regulated under ch. ATCP 12).

An exhibition operated by an institution accredited by the American association of zoological parks and aquariums.

A wild animal exhibition operated pursuant to a permit from the Wisconsin department of natural resources.

Under this rule, a person who exhibits an animal at a fair or exhibition must do all of the following:

Comply with current applicable requirements related to the movement and exhibition of animals (disease testing, etc.). This rule does not change current requirements.

Provide all of the following to the organizer of the fair or exhibition:

The exhibitor's name and address.

Identification of the animals exhibited, including number, type and description.

Documentation to show compliance with applicable animal health requirements related to animals shown at fairs or exhibitions (this rule does not change current requirements).

The livestock premises code, if any, of the premises from which the animals originate.

Under this rule, the organizer of a fair or exhibition must do all of the following:

Take reasonable steps to ensure that exhibitors comply with their disease control obligations (see above).

Review and keep copies of exhibitor information (see above). The organizer must keep copies for at least 5 years, and must make them available to the department for inspection and copying upon request.

Appoint a licensed veterinarian to do all of the following on behalf of the organizer, if the fair or exhibition lasts for more than 24 hours:

Conduct a daily inspection of the exhibited animals.

Review exhibitor information (see above).

Livestock Premises Codes

This rule coordinates animal health rules with Wisconsin's new livestock premises identification law. For example, certificates of veterinary inspection must include livestock premises codes, if any. This rule does not expand current premises registration requirements or sanctions.

Certificates of Veterinary Inspection

This rule updates and standardizes current requirements related to certificates of veterinary inspection. Under this rule:

All certificates are valid for 30 days (90-day validity for animals imported to fairs or exhibitions is eliminated).

Certificates must include livestock premises codes, if any.

A certificate must include relevant herd certification numbers, if the certificate represents an animal originates from a certified disease-free herd.

Fish Farms; Annual Health Certificate

Under current rules, fish farms in this state must file an annual health certificate with DATCP. A veterinarian or qualified inspector must issue the certificate, based on an inspection of the fish farm. This rule eliminates the annual health certificate requirement, which will save an average of $200 per year for each fish farm operator.

Fish Imports

This rule modifies current requirements related to live fish imports to this state. Under current rules and this rule, a DATCP import permit is required (there are limited exceptions). DATCP must grant or deny an import permit within 30 days after DATCP receives a complete application.

Under current rules, an import permit expires on December 31 of the year in which it is issued. Under this rule, an import permit expires one year from the date on which it is issued, unless DATCP specifies an earlier expiration date in the import permit. Under current rules, there is no fee for a fish import permit. This rule sets a fee of $50 per import permit.

Under current rules, a health certificate issued by a qualified fish health inspector must accompany every import shipment. Under this rule, the health certificate must also be included with the import permit application. DATCP must approve the health certificate before it issues the import permit. DATCP may set an import permit expiration date that conforms to the expiration date of the health certificate.

Under current rules and this rule, a health certificate must be based on one of the following:

An inspection of the fish farm from which the import shipment originates. Under this rule, this type of health certificate expires one year after it is issued (unless DATCP specifies an earlier expiration date). The health certificate must include the name and address of the fish farm operator, the name and address of the fish farm, and the fish farm's livestock premises code if any.

An inspection of the import shipment itself. Under this rule, this type of health certificate expires 30 days after it is issued (unless DATCP extends the expiration date). The health certificate must describe the source and contents of the inspected shipment.

This rule clarifies that a person may not import fish or fish eggs based on an expired health certificate.

Fish Introduced into Waters of the State

Under current rules, no person may introduce fish or fish eggs to waters of the state unless a qualified fish health inspector issues a health certificate for those specific fish or fish eggs, or for the fish farm from which they originate. A fish farm health certificate, if any, must be issued no earlier than January 1 of the year prior to the year in which the fish are introduced into waters of the state.

This rule changes current rules related to fish health certificates required for the introduction of fish or fish eggs into waters of the state, so that those rules are consistent with rules for health certificates related to fish imports. Under this rule:

DATCP must approve the health certificate before the person introduces the fish or fish eggs into waters of the state. DATCP must grant or deny approval within 30 days after the health certificate is filed with DATCP. If the fish or fish eggs are being imported from another state, DATCP may grant approval when it issues an import permit for those fish or fish eggs (see above).

The health certificate must be based on one of the following:

An inspection of the fish farm from which the fish or fish eggs originate. This type of health certificate expires one year after it is issued (unless DATCP specifies an earlier expiration date). The health certificate must include the name and address of the fish farm operator, the name and address of the fish farm, and the fish farm's livestock premises code if any.

An inspection of the fish or fish eggs. This type of health certificate expires 30 days after it is issued (unless DATCP extends the expiration date). The health certificate must describe the inspected fish or fish eggs, and must identify the source from which they originate.

A person may not introduce fish or fish eggs to waters of the state based on an expired health certificate.

Fish Health Certificate Forms

Under current rules, a fish health certificate must be issued on a form provided by DATCP. The form may specify information to be included in the health certificate. This rule clarifies that the form may require certain lab test results, to support the conclusions stated in the health certificate. Health certificate requirements are orders reviewable in contested case proceedings under ch. 227, Stats., unless they are adopted by rule.

Qualified Fish Health Inspectors

Under this rule, as under the current rule, fish health certificates must be issued by qualified fish health inspectors. This rule clarifies that the following individuals are considered qualified fish health inspectors unless disqualified by DATCP:

An individual who is currently certified by the American fisheries society as a fish health inspector or fish pathologist, and who has completed fish health inspection training approved by DATCP.

An individual who is currently authorized by a state to conduct official fish health inspections in that state, and who has completed a fish health inspection training program approved by DATCP.

A Wisconsin certified veterinarian who has completed a fish health inspection training program approved by DATCP.

For purposes of an action taken outside this state, any accredited veterinarian.

Under this rule, DATCP may disqualify a fish health inspector for cause, including violations of this rule or the issuance of unreliable health certificates. The state veterinarian may issue a disqualification notice on behalf of DATCP. The notice must specify the reason for disqualification.

Qualified Fish Health Laboratories

Fish health tests required under this rule must be performed by qualified laboratories. This rule clarifies that the following laboratories are considered qualified laboratories unless disqualified by DATCP:

A laboratory approved by the federal bureau for purposes of disease testing related to interstate movement of fish or fish eggs.

A laboratory approved by DATCP.

A federal or state veterinary diagnostic laboratory.

Under this rule, DATCP may disqualify a fish health laboratory for cause, including violations of this rule or unreliable test results. The state veterinarian may issue a disqualification notice on behalf of DATCP. The notice must specify the reason for disqualification.

Farm-Raised Deer

This rule modifies current rules related to farm-raised deer. Among other things, this rule does the following:

It requires persons collecting chronic wasting disease test samples to submit those samples for testing within 10 days after they are collected.

It clarifies and updates standards and procedures that apply under the (renamed) chronic wasting disease herd status program, including standards and procedures related to the suspension, revocation and reinstatement of enrollment.

It changes the deadline for reporting escaped farm-raised deer from 48 hours to 24 hours after the escape is discovered.

Circus, Rodeo and Menagerie Animals

This rule clarifies that imports of circus, rodeo and menagerie animals must comply with import requirements that apply to other animals of the same species, as well as any special requirements that apply to circus, rodeo and menagerie animals.

Reportable Diseases

This rule deletes, from the current list of diseases that must be reported to DATCP within 10 days, the following diseases:

Leptospirosis

Atrophic rhinitis of swine

Porcine reproductive and respiratory syndrome

Transmissible gastroenteritis (swine)

Technical Changes

This rule makes a large number of technical and drafting changes. These changes have little or no substantive impact.

Fiscal Impact

The rule changes will have no fiscal impact on local government, but it will have a slight fiscal impact on DATCP.

This rule will have little net impact on DATCP revenues or workload, except that this rule will cause a slight increase in workload under the aquaculture and poultry disease control programs.

This rule will expand reimbursement of producer costs for Johne's disease testing and herd management, but the increased reimbursement will be financed with federal funds.

This rule creates a $50 fee for a fish import permit. DATCP estimates that this fee will generate approximately $5,000 in program revenue to help support program activities related to fish farms, fish imports and fish health certification.

This rule requires DATCP, for the first time, to review and approve health certificates related to fish imports and the introduction of fish to waters of the state (current rules require health certificates but do not require DATCP approval). This increased workload will have an associated cost of $5,400 and will be handled by current staff.

DATCP will incur added staff and administrative costs to administer the new voluntary poultry flock certification program created by this rule. DATCP expects to absorb this additional workload with existing staff and appropriations. There is no fee for flock owners to enroll in the program.

Business Impact

This rule affects the following businesses, many of which are “small businesses:"

Poultry producers. This rule will help small poultry operators, and will have little or no effect on large operators. Current rules prohibit the sale or distribution of poultry or eggs, for breeding, hatching or exhibition, unless they originate from flocks enrolled in the national poultry improvement plan and meet disease-free classification standards under that plan. However, the national poultry improvement plan is primarily designed for large poultry operators, and may not be cost-effective for small operators. This rule provides cost-effective disease monitoring options that will provide greater market access for small operators.

Dairy, cattle and goat producers. This rule will assist dairy, cattle and goat producers by expanding reimbursement of producers costs for voluntary Johne's disease herd testing, herd risk assessment, herd management plans, and vaccination (current rules provide for reimbursement of testing costs only). Participation in the Johne's disease program is voluntary. This rule removes some existing barriers to participation, and provides more testing and management options for producers. This may encourage participation, and may help to control a very serious disease threat to the Wisconsin dairy and livestock industry.

Fish farm operators. This rule will streamline fish import regulations, to make them more workable and effective. This rule will create a modest $50 fee for a fish import permit, to facilitate better review of fish health certificates related to fish imports and fish stocking to waters of the state (the fee will affect only 2% of registered fish farms). This rule eliminates the current requirement for an annual health inspection of fish farms in this state, which will save every fish farm operator an average of $200 per year.

Sheep and goat owners. This rule requires official individual identification of sheep and goats that are sold or moved in commerce, consistent with standards under the federal scrapie control program. This may increase costs for some sheep and goat owners. However, it will facilitate interstate export of sheep and goats, and will provide better disease control and traceback. This rule allows for various forms of official individual identification, some of which can be easily applied by sheep and goat owners themselves at little or no cost.

Organizers and exhibitors at fairs and exhibitions. This rule clarifies and strengthens current animal health rules related to fairs and exhibitions, including events such as organized swap meets and trail rides. This rule clarifies the obligations of event organizers and exhibitors. Exhibitors must comply with current animal health rules related to fairs and exhibitions, and must document compliance to the event organizer. Organizers must keep a record of exhibited animals, and must review and keep a record of relevant animal health documentation. Events lasting over 24 hours must have an attending veterinarian. This rule will not have a significant impact on most fairs and exhibitions, except that it may affect certain events such as organized swap meets that may not be adhering to current rules related to fairs and exhibitions.

Farm-raised deer keepers. This rule makes minor technical changes to current rules related to farm-raised deer. The rule changes will have little if any impact on most farm-raised deer keepers.

Wisconsin certified veterinarians and their clients. This rule may affect veterinarians in the following ways:

It makes slight changes to current rules governing certificates of veterinary inspection (the changes should have little impact on veterinarians or their clients, but will improve animal health documentation).

It eliminates annual fish farm health certification requirements. This will save each fish farm operator an average of $200 per year. Veterinarians who perform certification inspections may experience some loss of income.

Persons who raise, ship and market animals. This rule consolidates, reorganizes and clarifies current animal health rules, so that the rules will be easier to read and understand. This will benefit everyone involved in raising, shipping and marketing animals. It will improve disease control, facilitate commerce, and promote efficient administration of animal health programs.

Under 2003 Wis. Act 145, DATCP and other agencies must adopt rules spelling out their rule enforcement policy for small businesses. DATCP has not incorporated a small business enforcement policy in this rule, but will propose a separate rule on that subject. DATCP will, to the maximum extent feasible, seek voluntary compliance with this rule. A complete Business Impact Analysis is attached.

Federal and Surrounding State Programs

Federal Programs

DATCP administers animal disease control programs in cooperation with the United States Department of Agriculture, Animal and Plant Health Inspection Service (“the federal bureau"). The federal bureau has well-established control programs for historically important diseases such as tuberculosis and brucellosis. Federal rules for these programs spell out standards for disease testing, disease control, international and interstate movement of animals, certifying the disease status of states, and certifying the disease status of individual herds.

The federal bureau operates national veterinary diagnostic laboratories, and coordinates multi-state responses to major disease epidemics. The federal bureau exercises disease control authority, including quarantine and condemnation authority, and provides funding for indemnity payments to certain owners of condemned animals. The federal bureau operates state and regional offices, and coordinates field operations with states.

The federal bureau has less well-developed programs for new or localized diseases, or emerging animal-based industries. States often take a lead role in developing programs to address new animal health issues and disease threats (farm-raised deer and fish diseases, for example), particularly if those issues or threats have a more local or regional focus. Wisconsin's program related to farm-raised deer is perhaps the leading program in the nation, and has provided the model for a proposed federal program.

The federal bureau may provide grant funding, regulatory incentives, or other assistance in support of state programs and regulation. For example, the federal bureau provides funding for voluntary Johne's disease testing and herd management, based on federal program standards. Under the federal scrapie program, the federal bureau permits easier interstate movement of sheep and goats from states that require official individual identification for intrastate movement.

States have independent authority to regulate animal health and movement, including imports from other states. However, states strive for reasonable consistency, based on standards spelled out in federal regulations. Where well-established federal standards and procedures exist, state disease control programs typically incorporate those federal standards. However, states may independently address new and emerging disease issues, especially if those issues have a state or regional focus and are not a priority for the federal bureau.

Surrounding State Programs

General

Surrounding state animal health programs are broadly comparable to those in Wisconsin, but vary in a variety of ways. Differences in disease regulations and control programs may reflect differences in animal populations, animal-based industries, and disease threats in the different states. Programs for historically important diseases, such as tuberculosis and brucellosis, tend to be fairly similar between states and are based on well-established federal standards. Programs for newer forms of agriculture, such as farm-raised deer and aquaculture, tend to be more variable.

Aquaculture

All of the surrounding states regulate aquaculture, to some degree:

Minnesota requires fish import permits, and licenses fish farms and fish dealers (annual license fees range from $70 to $210). Health certification is required for fish imports, but not for fish farms. Bait imports are prohibited.

Iowa requires fish import permits, and licenses fish farms (annual license fees range from $26 to $57). Health certification is required for fish imports, but not for fish farms.

Illinois licenses fish farms ($50 annual license) and fish dealers (annual license fee range from $10 to $100). An import permit and health certification is required for certain fish imports (salmonids). There is limited regulation of fish transport vehicles.

Michigan licenses fish farms (annual license fees range from $75 to $100). Health certification is required for fish imports.

Johne's Disease

All of the surrounding states (Illinois, Michigan, Iowa and Minnesota) have adopted a voluntary Johne's disease testing and herd management program, based on the federal program. Wisconsin is proposing a similar program under this rule.

Sheep and Goat Identification

All of the surrounding states (Illinois, Michigan, Iowa and Minnesota) require official individual identification of sheep and goats moved in intrastate commerce, consistent with standards specified in the federal scrapie program. Wisconsin is proposing equivalent identification requirements in this rule. This will permit freer export of Wisconsin sheep and goats.

Standards Incorporated by Reference

Pursuant to s. 227.21, Stats., DATCP will request permission from the attorney general and revisor of statutes to incorporate the following standards by reference in this rule, without reproducing the standards in full in this rule:

• “Uniform Program Standards for the Voluntary Bovine Johne's Disease Control Program," federal bureau publication 91-45-016 (November 2005).

• “Brucellosis Eradication: Uniform Methods and Rules," federal bureau publication 91-45-013 (October 1, 2003).

• “Brucellosis in Cervidae: Uniform Methods and Rules," federal bureau publication 91-45-16 (September 30, 2003).

• “Bovine Tuberculosis Eradication: Uniform Methods and Rules," federal bureau publication 91-45-011 (January 1, 2005).

• “Swine Brucellosis Control and Eradication: State-Federal-Industry Uniform Methods and Rules," federal bureau publication 91-55-042 (April, 1998).

• “Pseudorabies Eradication: State-Federal-Industry Program Standards," federal bureau publication 91-55-071 (November 1, 2003).

Copies of these standards will be on file with the department, the secretary of state and the revisor of statutes. Rule notes explain how readers may obtain copies of the standards.

Fiscal Effect

This rule creates a $50 fee for a fish import permit. DATCP estimates that this fee will generate approximately $5,000 in program revenue.

This rule requires DATCP, for the first time, to review and approve health certificates related to fish imports and the introduction of fish to waters of the state. (Current rules require health certificates but do not require DATCP approval). This increased workload will have an associated cost of $5,400 in staff salary and administrative expenses. DATCP will absorb this workload with current staff. Revenues generated will be used to offset additional costs to the program.

This rule will allow poultry flocks to obtain a testing status other than participation in the national poultry improvement plan. Flock owners will submit proof of adequate testing and other information to the department for review and approval to receive their status. DATCP will incur costs for staff and administrative expenses. However, DATCP will absorb these costs with existing staff and appropriations.

Business Impact Analysis - See PDF for diagram

Rule Subject: Animal Diseases and Movement

Adm. Code Reference: ATCP 10-12

Rules Clearinghouse #: Not yet assigned

DATCP Docket #: 04-R-10

Provides more cost-effective disease monitoring options for small poultry producers who cannot easily participate in the national poultry improvement plan.

Updates the current list of reportable diseases (deletes 4 diseases).

Makes minor technical changes in current rules related to farm-raised deer.

Makes minor updates and technical changes to other rules, as necessary.

Business Impact

This rule will have a generally positive impact on business. This rule will have few, if any, negative impacts on business. Negative impacts, if any, will be limited. This rule affects the following businesses in the following ways (many of these businesses are “small businesses"):

Under this rule, a flock owner who is not enrolled in the national poultry improvement program may nevertheless sell or move poultry for breeding, hatching or exhibition if the flock is enrolled as a Wisconsin tested flock or Wisconsin associate flock. A flock may be enrolled as a Wisconsin tested flock if the flock owner tests the flock annually for pullorum, fowl typhoid and, in the case of turkeys, Mycoplasma gallisepticum. A flock may be enrolled as a Wisconsin associate flock if it consists entirely of birds obtained from a Wisconsin tested flock. There is no charge to enroll in either program. DATCP will issue certificates that flock owners can use to document enrollment.

Dairy, cattle and goat producers. This rule will assist dairy, cattle and goat producers by expanding reimbursement of producers costs for voluntary Johne's disease herd testing, herd risk assessment, herd management plans, and vaccination (current rules allow reimbursement of testing costs only). Participation in the Johne's disease program is voluntary. This rule removes some existing barriers to participation, and provides more testing and management options for producers. This may encourage participation, and may help to control a very serious disease threat to the Wisconsin dairy and livestock industry.

In order to be eligible for cost reimbursement, herd owners must have a herd risk assessment and management plan that meet federal standards. However, this will not be a significant burden because:

Over half of the herds currently enrolled in the Johne's disease program already have approved herd risk assessments and management plans.

This rule provides for reimbursement of costs to prepare herd risk assessments and management plans.

Herd risk assessments and management plans, if followed, will improve herd health and productivity.

This rule sets maximum reimbursement amounts for laboratory testing fees, but expands reimbursement for other activities including herd risk assessment, herd management plans and vaccination. This will be a net plus for participating herd owners.

This rule changes reimbursement procedures, so that DATCP can reimburse herd owner costs in a timelier manner. Currently, herd owners may wait over a year for reimbursements.

This rule removes the requirement for Johne's disease reactors to be permanently identified. This requirement is difficult to enforce and it devalues animals at slaughter. Other states have been removing this requirement as well.

This rule preserves the confidentiality of Johne's disease herd records, per current law.

Fish farm operators. This rule eliminates the current requirement for an annual health inspection of fish farms in this state, which will save every fish farm operator an average of $200 per year.

This rule streamlines fish import regulations, to make them more workable and effective. This rule establishes a modest $50 fee for a fish import permit, to facilitate better review of fish health certificates related to fish imports (the fee will affect only 2% of registered fish farms). In many cases, DATCP issues permits that cover multiple shipments from an inspected source.

Under this rule, permits expire one year from the date of issuance, rather than on a calendar year basis. DATCP may shorten permit expiration dates, and may set those dates to correspond to health certificate expiration dates. This will avoid confusion, but may require additional permits in some cases. The change will have a limited effect on importers.

Under current rules, qualified veterinarians or fish health inspectors must issue fish health certificates for fish imports and stocking to waters of the state. Under this rule, the fish health certificates must also be pre-approved by DATCP. This may delay the import or stocking process in a few limited cases. But most import and stocking operations will not be adversely affected, and delays if any will be short (DATCP has a maximum of 30 days to approve).

This rule requires fish health inspectors and laboratories to report all test results for certain diseases, not just positive test results. This will not impose a significant burden, and will provide better statewide information on disease testing and test findings.

Sheep and goat owners. This rule requires official individual identification of sheep and goats that are sold or moved in commerce, consistent with standards under the federal scrapie control program. This may increase costs for some sheep and goat owners. However, it will facilitate interstate export of sheep and goats, and will provide better disease control and trace back. This rule allows for various forms of official individual identification, some of which can be easily applied by sheep and goat owners themselves at little or no cost.

Farm-raised deer keepers. This rule makes minor technical changes to current rules related to farm-raised deer. The rule changes will have little if any impact on most farm-raised deer keepers.

Wisconsin certified veterinarians and their clients. This rule may affect veterinarians in the following ways:

It expands reimbursement of veterinary costs related to Johne's disease testing, herd management and vaccination, but only if the services are provided by specially trained veterinarians. The reimbursement will be very beneficial for veterinarians and their clients, but veterinarians must complete training to qualify. Any veterinarian may take the brief (less than one day) required training course offered by DATCP. There is a $200 cost for initial certification and $100 for the renewal certification that is required every 3 years. Training is currently financed by federal grant funds, so there is no cost to veterinarians.

It eliminates annual fish farm health certification requirements. This will save each fish farm operator an average of $200 per year. Veterinarians who perform annual fish farm health inspections may experience some loss of income.

Steps to Assist Small Business

Many of the businesses affected by this rule are “small businesses." For the most part, this rule does not make special exceptions for “small businesses," because disease is no respecter of business size. However, this rule does include provisions that are specifically designed to benefit small poultry producers (see above).

This rule includes many provisions that will benefit large and small businesses alike. For example, this rule:

Expands current reimbursement of Johne's disease testing and herd management costs (dairy, beef and goat herds), and makes program participation more attractive.

Eliminates current annual fish harm health inspection requirement (this will save every fish farm approximately $200 per year).

Makes fish import permits more workable and flexible.

Provides cost-effective disease monitoring options for poultry producers, so that more producers (especially small producers) can get more market access.

Reorganizes and redrafts current rules, to make them easier to read and understand. The changes also make the rules more consistent and transparent.

Conclusion

This rule will help protect Wisconsin's major livestock industry from devastating disease threats. This rule will make it easier for livestock operators to read and understand the rules that apply to them.

This rule will generally benefit affected businesses, including “small businesses." Negative effects, if any, will be few and limited. This rule will not have a significant adverse effect on “small business," and is not subject to the delayed “small business" effective date provided in s. 227.22(2)(e), Stats.

Notice of Hearings

Agriculture, Trade and Consumer Protection

[CR 06-008]

The state of Wisconsin Department of Agriculture, Trade and Consumer Protection (DATCP) announces that it will hold public hearings on a proposed amendment to chapter ATCP 21, Wis. Adm. Code, relating to Plant Pest Import Controls and Quarantine.

DATCP will hold three public hearings at the times and places shown below. DATCP invites the public to attend the hearings and comment on the proposed rule. Following the public hearings, the hearing record will remain open until Monday, April 3, 2006 for additional written comments. Comments may be sent to the Division of Agricultural Resource Management at the address below, by email to: krista.lambrecht@datcp.state.wi.us

or online at:

https://apps4.dhfs.state.wi.us/admrules/public/Home

You may obtain a free copy of this rule by contacting the Wisconsin Department of Agriculture, Trade and Consumer Protection, Division of Agricultural Resource Management, 2811 Agriculture Drive, P.O. Box 8911, Madison, WI 53708. You can also obtain a copy by calling (608) 224-4594 or emailing krista.lambrecht@datcp.state.wi.us. Copies will also be available at the hearings. To view the proposed rule online, go to:

https://apps4.dhfs.state.wi.us/admrules/public/Home

Hearing impaired persons may request an interpreter for these hearings. Please make reservations for a hearing interpreter by February 21, 2006, by writing to Deb Bollig, Division of Agricultural Resource Management, P.O. Box 8911, Madison, WI 53708-8911, telephone (608) 224-4584. Alternatively, you may contact the DATCP TDD at (608) 224-5058. Handicap access is available at the hearings.

Hearing Dates and Locations:

Tuesday, February 28, 2006

6:00 p.m. to 8:00 p.m.

Marathon County Public Library

300 North First Street, 3rd Floor-Wausau Room

Wausau, WI 54403

Wednesday, March 1, 2006

6:00 p.m. to 8:00 p.m.

Lee Sherman Dreyfus Building

141 NW Barstow Street, Room 314

Waukesha WI 53187-0798

Thursday, March 2, 2006

6:00 p.m. to 8:00 p.m.

Department of Agriculture, Trade and Consumer Protection

2811 Agriculture Drive, Board Room (CR-106)

Madison, Wisconsin, 53718-6777

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

This rule regulates the import and movement of host materials that may spread infestations of Emerald Ash Borer, Asian Longhorn Beetle, Phytophthora ramorum (Sudden Oak Death, ramorum leaf blight or ramorum dieback) or Hemlock Woolly Adelgid. Each of these pests has been found in the United States, and each poses a major threat to Wisconsin's forest and urban landscapes. None of these pests has yet been found in Wisconsin.

This rule regulates imports of host materials, to Wisconsin, from known infested areas. If any of these pests is ever found in Wisconsin, this rule will also affect the movement of host materials from infested areas in this state. This rule is part of a coordinated federal-state framework to control serious plant pests. DATCP works with other agencies including the United States department of agriculture, animal and plant health inspection service (USDA-APHIS), to control serious plant pests.

Statutory Authority

Statutory Authority: ss. 93.07 (1) and (12) and 94.01, Stats.

Statutes Interpreted: ss. 93.07 (12) and 94.01, Stats.

The department of agriculture, trade and consumer protection (“DATCP") has general authority to adopt rules interpreting statutes under its jurisdiction (see s. 93.07(1), Stats.). DATCP is specifically authorized to adopt rules to prevent the introduction and spread of injurious plant pests, including plant diseases (see ss. 93.07(12) and 94.01(1), Stats.).

Background

This rule regulates the import and movement of certain host materials from areas infested with Emerald Ash Borer, Asian Longhorned Beetle, Phytophthora ramorum or Hemlock Woolly Adelgid. Regulated host materials vary, depending on the pest in question, but include things like nursery stock, firewood, untreated lumber and mulch.

Rule Contents

Emerald Ash Borer

Emerald Ash Borer, Agrilus planipennis Fairmaire, is a wood-boring beetle that attacks and eventually kills ash trees. Ash is a major urban and forest tree species in Wisconsin. An estimated 628 million ash trees in this state are at risk of destruction by Emerald Ash Borer.

Emerald Ash Borer, which is native to Asia, has been found in 3 states and one Canadian province. Thirty-nine counties in Michigan, 9 counties in Ohio, and 2 counties in Indiana have infestations (20 counties in Michigan and one in Ohio are considered “generally infested"). An infestation was recently found, for the first time, in the Upper Peninsula of Michigan. As many as 14 million ash trees have already died as a result of infestations in Michigan, Ohio and Indiana.

Emerald Ash Borer can be spread by the movement of ash host materials, including firewood, nursery stock, trees, logs, bark chips, and any lumber or wood with bark attached. This rule prohibits the import or intrastate movement of ash host materials from infested areas designated by USDA-APHIS, unless a pest control official inspects the materials and certifies that they are free of Emerald Ash Borer.

USDA-APHIS publishes a list of infested areas in the Code of Federal Regulations (CFR), and updates the CFR listing as necessary. This rule regulates the import or movement of host materials from infested areas that are currently listed in the CFR, or that may be listed in the future.

Asian Longhorned Beetle

The Asian Longhorned Beetle, Anoplophora glabripennis (Motschulsky), infests and kills several types of deciduous trees including maple, a highly important tree species in Wisconsin. The Asian Longhorned Beetle is a serious threat to Wisconsin's lumber, maple syrup, nursery, commercial fruit and tourism industries.

Infestations have caused the destruction of more than 10,000 trees in New York, New Jersey and Illinois (Cook County). Preemptive destruction of trees is the only known reliable method for controlling the Asian Longhorned Beetle.

This rule prohibits the import or intrastate movement of host materials from infested areas designated by USDA-APHIS, unless a pest control official inspects the materials and certifies that they are free of Asian Longhorned Beetle. Host materials include:

Cut firewood of all non-coniferous species.

Nursery stock, logs, green lumber, stumps, roots, branches or debris from any of the following trees: maple, buckeye, mimosa, birch, hackberry, ash, sycamore, poplar, willow, mountain ash and elm.

Phytophthora ramorum

Since 1995, thousands of oaks in California and Oregon have died of Phytophthora ramorum (Werres et al., 2001), also known as Sudden Oak Death, ramorum leaf blight, and ramorum dieback. Phytophthora ramorum, the pathogen that causes these diseases, is harbored in a large number of different plant species. The pathogen is also found in soil in infested areas.

This rule restricts the import or intrastate movement of host materials from infested areas designated by USDA-APHIS, unless a pest control official inspects the materials and certifies that they are free of Phytophthora ramorum. Host materials include:

Nursery stock, unprocessed wood, and unprocessed wood and plant products (including bark chips, firewood, logs, lumber, mulch, wreaths, garlands and greenery) from species designated in this rule. The designated species include a large variety of different trees and plants, including for example: fir, maple, buckeye, heather, camellia, chestnut, hazelnut, wood fern, beech, ash, witch-hazel, holly, laurel, oak, tanoak, honeysuckle, Douglas fir, rhododendron, sumac, rose, raspberry, blackberry, huckleberry, willow, redwood, lilac, yew, poison ivy, viburnum, magnolia and sumac.

Soil and potted media.

Any other material that could reasonably harbor Phytophthora ramorum.

Hemlock Woolly Adelgid

Hemlock Woolly Adelgid, Adelges tsugae (Annand), is a serious pest that kills native and ornamental hemlock trees, an important Wisconsin resource. Infestations of Hemlock Woolly Adelgid currently exist in 17 states. DATCP rules currently limit the import and movement of Hemlock Woolly Adelgid host materials from infested areas identified in the current rules.

USDA-APHIS does not have a formal regulatory program for the Hemlock Woolly Adelgid, but the United States Forest Service maintains and updates a list of infested areas. Because the Forest Service does not publish its list in the Code of Federal Regulations (CFR), DATCP lists the infested areas in its rule (rather than by reference to the CFR).

The current DATCP rule is based on an outdated Forest Service list. This rule updates the current DATCP list to conform to the most recent Forest Service list. This rule makes no other changes to current DATCP rules.

Fiscal Impact

This rule will have little fiscal impact on Wisconsin state government in the short term, and no fiscal impact on local government. DATCP will incur some costs to provide information and education to affected businesses. However, DATCP expects to absorb those costs.

The attached fiscal estimate is based on the current distribution of the regulated pests, which have not been found in Wisconsin to date. There could be a much more dramatic fiscal impact on state government in the future, if any of the regulated pests is ever found in Wisconsin. However, that impact will largely result from the infestation itself, not this rule. This rule will help to prevent increased costs, by helping to prevent the introduction of pests to this state.

If an infestation is ever found in this state, DATCP may experience the following fiscal impacts with or without this rule:

Substantial costs and personnel demands for detection, monitoring and control efforts. Costs cannot be accurately predicted at this time, and will depend on the aggressiveness of the state's control effort. However, control programs could be comparable to the gypsy moth control program which currently costs Wisconsin approximately $3.6 million per year (including federal grant funds to Wisconsin, but not including direct federal services). Michigan reportedly hired at least 140 additional staff to control infestations of Emerald Ash Borer in that state.

Greatly increased demand for state inspection and certification of commodities (host materials) shipped from infested areas, to satisfy buyers that the commodities are free of relevant pests. DATCP can charge fees to cover its cost to perform requested inspections, but would need legislative authorization to hire additional inspectors. The number of inspection requests cannot be accurately predicted at this time. However, the number could be large, given the importance of the nursery, landscaping and forest-based industries in this state.

Increased costs for information and education.

If infestation occurs in this state, local governments may also experience dramatically increased costs related to dying trees and pest control. However, those costs will result from the infestation itself, and not from this rule. This rule will not, by itself, impose significant costs on local government. By helping to prevent the introduction and spread of serious pests, this rule will help to minimize local costs.

Business Impact

This rule will help protect Wisconsin industries, by helping to protect the resources on which they depend. This rule may have some adverse impact on some individual businesses, but that adverse impact is greatly outweighed (even for those businesses) by the protection that this rule affords.

None of the pests regulated by this rule have been detected in Wisconsin to date, so the initial impact of this rule will be limited to businesses that may be importing host materials from infested areas outside this state. The negative effects on those businesses will be small. The rule will help protect Wisconsin importers from pest infestations that could destroy their businesses.

If any of the regulated pests is ever found in this state, the infestation may have a major impact on affected businesses such as nursery growers and dealers, lumber mills, paper mills, firewood sellers, landscapers and loggers. Businesses in infested areas will incur added costs, and some may lose markets for their products. But those consequences will result from the infestation itself, with or without this rule. This rule may add some incremental costs for businesses in infested areas, but will protect businesses in other areas. It will also forestall a more general federal quarantine that could limit exports from the entire state (including exports from uninfested areas). A complete Business Impact Analysis is attached.

Environmental Impact

This rule will positively impact the environment by helping to prevent the introduction and spread of serious plant pests that threaten key tree species in Wisconsin. The primary environmental consequences of no action are increased risk of pest spread and elevated environmental risks from uncoordinated application of pesticides to limit damage from the emerald ash borer. Also, introductions of these pests would lead to changes in the composition and age structure of forests resulting from the no action alternative and could have long-term effects on the ecological relationships in the forested areas. A complete environmental assessment is attached.

Federal Regulations

USDA-APHIS regulates plant pests and diseases at the federal level. Wisconsin and other states work with USDA-APHIS to prevent the introduction and spread of plant pests and diseases.

States may regulate intrastate movement within their own territory, and may also restrict imports of host materials from infested areas in other states. States may act on their own authority (independent of USDA-APHIS), and may restrict imports and movement from infested areas other than those designated by USDA-APHIS. However, a coordinated federal-state program promotes consistent regulation of interstate commerce throughout the United States.

The federal-state regulatory scheme may vary, depending on the type of pest or disease. In the case of Emerald Ash Borer, Asian Longhorned Beetle and Phytophthora ramorum, it takes the following general form:

USDA-APHIS lists infested areas (such as counties) in the Code of Federal Regulations (CFR), and updates the list from time to time.

If a state fails to quarantine an infested area listed by USDA-APHIS in that state, USDA-APHIS may quarantine the entire state. The threat of a statewide federal quarantine is an incentive for state action. A statewide federal quarantine restricts exports from the entire state (not just infested areas), but does not affect the movement of materials within the state.

If a state quarantines infested areas that USDA-APHIS has listed for that state, USDA-APHIS also quarantines those areas (not the entire state). The state and federal quarantines restrict interstate and intrastate movement from the quarantined areas, but do not affect interstate exports from other parts of the state.

State and federal quarantines prohibit the movement of potential host materials (such as firewood and untreated lumber) from quarantined areas. State quarantines must meet federal standards, in order to be recognized by USDA-APHIS for federal quarantine purposes.

USDA-APHIS does not have a formal regulatory program for the Hemlock Woolly Adelgid, but the United States Forest Service maintains and updates a list of infested areas. DATCP lists infested areas in its current rule (rather than by reference to the CFR), because the Forest Service does not publish its list in the CFR. DATCP must modify its rule if it wishes to incorporate changes in the Forest Service list.

Regulation in Surrounding States

Emerald Ash Borer

Michigan regulates the import and movement of host materials from infested areas designated by USDA-APHIS. Thirty-nine counties are currently affected by state and federal quarantines.

Emerald Ash Borer has not been detected in any of the other states surrounding Wisconsin (Illinois, Iowa or Minnesota). None of those states has adopted regulations related to Emerald Ash Borer. However, Illinois has adopted a readiness plan, and Minnesota has implemented a detection program.

Asian Longhorned Beetle

Illinois is the only state, adjacent to Wisconsin, in which Asian Longhorned Beetle has been detected to date. Over 1,500 trees have been destroyed in Cook County since 1998 (tree destruction is the only effective method of control). Illinois and USDA-APHIS have established quarantines in Cook County. Quarantines prohibit the movement of host materials from the quarantined area.

The Asian Longhorned Beetle has not been detected in Iowa, Michigan or Minnesota. Those states have not adopted any regulations related to Asian Longhorned Beetle.

Phytophthora ramorum

Phytophthora ramorum has not been found in Michigan, Illinois, Iowa or Minnesota (only Illinois and Minnesota have implemented nursery inspection programs for the pathogen). None of the states surrounding Wisconsin has adopted regulations related to Phytophthora ramorum.

Hemlock Woolly Adelgid

Wisconsin is one of five states that currently regulate the import and movement of Hemlock Woolly Adelgid host materials. The other states are Michigan, Maine, New Hampshire and Vermont. Michigan, like Wisconsin, has large populations of native hemlock. Michigan successfully eradicated its only finding of Hemlock Woolly Adelgid to date (an isolated nursery finding).

Minnesota and Illinois have no large populations of native hemlock, and Iowa has no native hemlock. None of those states regulates the import or movement of Hemlock Woolly Adelgid host materials.

Business Impact Analysis - See PDF for diagram

Rule Subject: Plant Pest Import Controls and Quarantines

Adm. Code Reference: ATCP 21

Rules Clearinghouse #: Not yet assigned

DATCP Docket #: 04-R-09

Rule Description

This rule is designed to prevent and limit the spread of these pests, by regulating imports of host materials, to Wisconsin, from known infested areas. If any of these pests is ever found in Wisconsin, this rule will also affect the movement of host materials from infested areas in this state.

Businesses Affected

This rule affects a variety of businesses such as nursery growers and dealers, lumber mills, paper mills, firewood sellers, landscapers and loggers. This rule applies to large and small businesses alike. The Department of Agriculture, Trade and Consumer Protection (“DATCP") estimates that 50-60% of the affected businesses are “small businesses."

This rule is designed to prevent the introduction and spread of Emerald Ash Borer, Asian Longhorned Beetle, Phytophthora ramorum and Hemlock Woolly Adelgid. These pests pose a grave threat to Wisconsin forest and urban landscapes. This rule will help protect Wisconsin industries, by helping to protect the resources on which they depend. This rule may have some adverse impact on some individual businesses, but that adverse impact is greatly outweighed (even for those businesses) by the protection that this rule affords.

If any of the regulated pests is ever found in this state, the infestation may have a major impact on affected businesses. Businesses in infested areas will incur added costs, and some may lose markets for their products. But those consequences will result from the infestation itself, with or without this rule.

This rule may add some incremental costs for businesses in infested areas, but will protect businesses in other areas. It will also forestall a more general federal quarantine that could limit exports from the entire state (including exports from uninfested areas).

Key Rule Provisions

This rule includes the following key provisions:

Emerald Ash Borer

This rule prohibits the import or intrastate movement of host materials from infested areas designated by USDA-APHIS in the Code of Federal Regulations (CFR), unless a pest control official inspects the materials and certifies that they are free of Emerald Ash Borer. Host materials include:

Ash trees.

Ash limbs, branches and roots.

Ash logs, slabs or untreated ash lumber with bark attached.

Cut firewood of all non-coniferous species.

Ash chips and ash bark fragments (both composted and uncomposted) larger than one inch in diameter.

Asian Longhorned Beetle

Cut firewood of all non-coniferous species.

Nursery stock, logs, green lumber, stumps, roots, branches or debris from any of the following trees: maple, horse chestnut, mimosa, birch, hackberry, ash, sycamore, poplar, willow, mountain ash and elm.

Phytophthora ramorum

This rule restricts the import or intrastate movement of host materials from infested areas designated by USDA-APHIS in the Code of Federal Regulations (CFR), unless a pest control official inspects the materials and certifies that they are free of Phytophthora ramorum. Host materials include:

Soil and potted media.

Any other material that could reasonably harbor Phytophthora ramorum.

Hemlock Woolly Adelgid

DATCP rules currently limit the import and movement of Hemlock Woolly Adelgid host materials from infested areas identified in the current rules. The current DATCP rule is based on an outdated Forest Service list. This rule updates the current DATCP list to conform to the most recent Forest Service list. This rule makes no other changes to current DATCP rules.

Effects on Businesses

Asset Protection and Loss Prevention

This rule is designed to protect Wisconsin forest and landscape resources, on which many Wisconsin businesses rely. The rule will help prevent or delay pest infestations that would deprive Wisconsin businesses of key raw materials and markets, and drive up business costs in a variety of ways.

Pest infestation costs are difficult to predict, and may depend on the nature, timing, location, scope and spread of the infestation. However, the pests regulated by this rule would likely be at least as destructive as the gypsy moth, which currently infests large portions of Wisconsin. The gypsy moth infestation has cost Wisconsin businesses an estimated $48,000 in 2005, and the cost will continue to grow over time. This rule is designed to prevent or delay business costs of this sort.

Costs to Comply

None of the pests regulated by this rule have been detected in Wisconsin to date, so the initial impact of this rule will be limited to businesses that may be importing host materials from outside this state. Importers may not import host materials from infested areas in other states, unless a pest control official in the state of origin inspects the materials and certifies that they are free of the relevant pest.

This may increase costs or limit supply options for some materials. However, there are many alternative supply options at this time, so this rule is expected to have a very limited impact on Wisconsin businesses in the short term. In any case, this rule merely duplicates and reinforces existing federal rules related to interstate movement. It also protects Wisconsin importers from pest infestations that could destroy their businesses.

This rule may have a larger impact on in-state business if any of the regulated pests is ever found in this state. The rule could then affect a variety of in-state businesses including nursery growers and dealers, lumber mills, paper mills, firewood sellers, landscapers and loggers. Businesses would not be able to move host materials from infested areas unless a state inspector first inspected the materials and certified that they were pest free. There is a flat fee of $50 for an inspection certificate.

Businesses in infested areas would likely incur added costs, and could lose some markets for their products. However, those consequences would result from the infestation itself, with or without this rule. This rule might add some incremental costs, but would provide a mechanism by which commerce could continue subject to regulation. The rule would protect businesses and forest resources in other areas of the state, and would forestall more general federal quarantines that could limit exports from the entire state (including exports from non-infested areas).

Wisconsin importers affected by this rule must make sure that import shipments from infested areas have been properly inspected and certified. This rule does not impose additional recordkeeping requirements, and does not require affected businesses to hire additional professional services or pest experts. But with or without this rule, businesses would benefit from increased knowledge of plant pest threats. DATCP will work with affected industries to provide helpful information and education.

Small Business Impact

Approximately 50-60% of the businesses affected by this rule are small businesses. Because none of the regulated pests has yet been found in this state, only a small percentage of these businesses (those importing host materials from outside this state) will be affected by this rule in the short term. The effect, even for those businesses, will be minimal.

This rule may have a larger impact on small in-state business if any of the regulated pests is ever found in this state. Businesses would not be able to move host materials from infested areas unless a state inspector first inspected the materials and certified that they were pest free (see inspection charges above). Small businesses would need to comply, just like large businesses.

Small businesses in infested areas would likely incur added costs, and could lose some markets for their products. However, those consequences would result from the infestation itself, with or without this rule. This rule might add some incremental costs, but would provide a mechanism by which commerce could continue subject to regulation.

Steps to Assist Small Business

This rule will help, not harm, small businesses in this state. This rule will not have a significant adverse economic impact on small business. An exemption for small business would undermine the effectiveness of the rule in preventing the introduction and spread of harmful pests. DATCP will provide information and education to help small businesses recognize pest threats, and protect their businesses from those threats. DATCP will also provide training and assistance related to compliance with this rule.

Conclusion

This rule will help protect Wisconsin industries, by helping to protect the resources on which they depend. This rule may impose additional costs on some businesses, including small businesses, but the costs are minimal, and are greatly outweighed (even for those businesses) by the protection that this rule affords. Most costs would result from the pest infestations themselves, and not from this rule.

Assumptions Used in Arriving at Fiscal Estimate

This rule will be administered by the Division of Agricultural Resource Management of the Department of Agriculture, Trade and Consumer Protection. The following estimate is based on the cost for administering and enforcing conditions for the movement of regulated items at risk of spreading or introducing plant pests under state or federal law. The financial impact is based on the current status and distribution of emerald ash borer, Asian longhorned beetle and Phytophthora ramorum. Administration and enforcement of the import controls imposed by this rule will involve minimal additional costs to DATCP in terms of notifying affected industries; it may be possible to absorb the costs within the agency's budget. The department will present information through development of written material, press releases, and cooperative efforts with affected industries. Ongoing duties would be to monitor industry compliance with the rule. Industry compliance is already monitored for other sections of ch. ATCP 21 and this new section would be a small addition.

Long - Range Fiscal Implications

If an infestation is ever found in this state, DATCP may experience substantial costs and personnel demands for detection, monitoring and control efforts. Costs may vary, depending on the nature and scope of the infestation, and cannot be accurately predicted at this time. Increased cost would be generated with or without this rule.

Environmental Assessment of Proposed Rule

Rule Subject: Import controls and quarantine for Emerald Ash Borer, Asian Longhorned Beetle, Phytophthora ramorum and Hemlock Woolly Adelgid.

Administrative Code Reference: ATCP 21

Rules Clearinghouse #: Not yet assigned

DATCP Docket #: 04-R-09

Purpose and Content of Proposed Rule

This rule regulates the import and movement of host materials that may spread infestations of Emerald Ash Borer, Asian Longhorn Beetle, Phytophthora ramorum or Hemlock Woolly Adelgid. Each of these pests has been found in the United States, and each poses a major threat to Wisconsin's forest and urban landscapes. None of these pests has yet been found in Wisconsin. This rule is designed to prevent and limit the spread of these pests, by regulating imports of host materials, to Wisconsin, from known infested areas. If any of these pests is ever found in Wisconsin, this rule will also affect the movement of host materials from infested areas in this state.

This rule will protect the environment by preventing the infestation and loss of tree species in Wisconsin. This rule includes the following key provisions:

Emerald Ash Borer

Ash trees.

Ash limbs, branches and roots.

Ash logs, slabs or untreated ash lumber with bark attached.

Cut firewood of all non-coniferous species.

Ash chips and ash bark fragments (both composted and uncomposted) larger than one inch in diameter.

Asian Longhorned Beetle

Cut firewood of all non-coniferous species.

Phytophthora ramorum

Nursery stock, unprocessed wood, and unprocessed wood and plant products (including bark chips, firewood, logs, lumber, mulch, wreaths, garlands and greenery) from species designated in this rule. The designated species include a large variety of different trees and plants, including for example: fir, maple, buckeye, heather, camellia, chestnut, hazelnut, wood fern, beech, ash, witch hazel, Christmas berry, California holly, laurel, oak, tanoak, honeysuckle, Douglas fir, rhododendron, sumac, rose, raspberry, blackberry, blueberry, willow, coast redwood, Lilac, yew, poison ivy and poison oak.

Soil and potted media.

Any other material that could reasonably harbor Phytophthora ramorum.

Hemlock Woolly Adelgid

Who is Affected, and How?

The rule could affect a variety of in-state businesses, including nursery growers and dealers, lumber mills, paper mills, firewood sellers and dealers, landscapers and loggers. However, because none of the pests regulated by this rule have been detected in Wisconsin to date, the initial impact of this rule will be limited to businesses that may be importing host materials from outside this state. If any of the regulated pests is ever found in this state, this rule may have a larger impact on in-state business. These businesses would not be permitted to move host materials from infested areas unless a state inspector first inspected the materials and certified that they were pest free. DATCP estimates that 50-60% of the businesses affected by this rule are “small businesses."

Costs to Comply

This rule will add costs for some affected businesses. Affected businesses may incur costs related to:

Inspection and certification. Businesses would not be able to move host materials from infested areas unless a state inspector first inspected the materials and certified that they were pest free.

The current inspection certificate charge is $50.

Businesses in infested areas would likely incur added costs, and could lose some markets for their products. Those consequences would result from the infestation itself, with or without this rule. This rule might add some incremental costs, but would provide a mechanism by which commerce could continue subject to regulation. The rule would protect businesses and forest resources in other areas of the state, and would forestall more general federal quarantines that could limit exports from the entire state (including exports from uninfested areas).

Small Business Impact

Approximately 50-60% of the businesses affected by this rule are small businesses. Only a small fraction, 10% at most, of these nurseries, landscapers, firewood producers and dealers, mulch producers and dealers, loggers, lumber mills, paper mills, wood manufacturers, and wood recycling or disposal facilities request an inspection certificate to ship or move host plant materials interstate or internationally. The 168 nursery growers, representing about 10% of the total number of nurseries in the state, would be the most affected by this rule. The current $50 cost for a plant health certificate would apply to businesses exporting host materials out of an infested area.

Small businesses in infested areas, like large businesses, would likely incur added costs, and could lose some markets for their products. However, those consequences would result from the infestation itself, with or without this rule. This rule might add some incremental costs, but would provide a mechanism by which commerce could continue subject to regulation. An exemption for small business would undermine the effectiveness of the rule in preventing the introduction and spread of harmful pests. This rule will not have a significant adverse economic impact on small business. Therefore, it is not subject to the delayed small business effective date provision in s. 227.22 (2) (e), Stats.

Farmers

Farmers will not be directly affected by this rule.

General Public

This rule will positively impact the general public, by helping to prevent the introduction and spread of serious plant pests that threaten key urban and residential tree species in Wisconsin. If enacted, this rule would help to minimize the impact of the plant pests on the public, to lessen damage and losses that could result in reductions in private property value when tree removal is mandated.

Environmental Impact

Economic Effects

This rule will prevent the economic effects that would be caused by an infestation. The cost of tree removal and the subsequent lowering of property values would be significant.

Social and Cultural Effects

This rule will not have significant social or cultural effects, except that it will help to prevent the disruption of local communities that can result from urban tree removal. Further it will help to protect black ash which is a sacred material used by Wisconsin Indian Tribes for making baskets.

Alternatives to this Rule

No Action

Under the no action alternative, DATCP would not implement measures to prevent the import and movement of Emerald Ash Borer, Asian Longhorn Beetle, Phytophthora ramorum or Hemlock Woolly Adelgid. Left unchecked, these pests would spread throughout Wisconsin and the U.S., having severe environmental and economic impacts. In the case of Emerald Ash Borer it is certain that all affected ash trees would die or lose commercial value within just a few years.

The absence of control or containment measures would lead to an increase in Emerald Ash Borer, Asian Longhorn Beetle, Phytophthora ramorum or Hemlock Woolly Adelgid populations, and an increase in long-term, continuing costs for detection and removal of infested host plants. Local business owners and area residents could attempt to control damage from infestations by removing the infested trees or plants from their properties.

In addition, the spread of these pests would lead to loss of valuable ornamental and commercial trees, loss of associated forest products, and private or uncoordinated use of pesticides to control the pest with associated adverse impacts to the environment. The wide distribution of host plants for these pests suggests the danger of spread across much of the country with increases in damage and losses commensurate with the spread. The damage and losses to commercial trees would lower the value and production of timber and tree products such as lumber used in the production of furniture.

Lastly, control measures would likely be taken by USDA-APHIS if DATCP does not act; those actions would not be under DATCP's control and would likely results in a statewide quarantine.

Modify Rule Provisions

Under this alternative, DATCP would enact import control and quarantine to restrict the movement of firewood, green lumber, and other living, dead, cut or fallen material, including nursery stock, logs, stumps, roots, and branches from any host trees. These materials may be moved within the quarantine area but would be restricted from moving outside the area.

Controversial Public Issues

DATCP does not anticipate major public controversy related to this rule. However, some industry members may express concern about possible increased costs for inspections or limited markets. The controversial issues would be certain in the absence of this rule and the associated necessity of tree removal.

This rule will improve protection for the public at large.

Conclusion

This rule will have a positive effect on the environment, and will not have any significant negative effects. This rule may increase costs for some businesses, including small businesses, but the costs are minimal, are greatly outweighed (even for those businesses) by the protection that this rule affords. There are no preferable alternatives to this rule. This rule is not a “major action significantly affecting the quality of the environment," for purposes of s. 1.11, Stats. No environmental impact statement is required under s. 1.11, Stats. or ch. ATCP 3, Wis. Adm. Code.

Notice of Hearing

Labor and Industry Review Commission

[CR 05-092]

NOTICE IS HEREBY GIVEN That pursuant to ss. 103.04 (2), Stats., and interpreting ss. 40.65 (2), 102.18 (3) and (4), 106.52 (4), 106.56 (4), 108.09 (6), 108.10 (2) and (3), 111.39 (5) (a), 303.07 (7) and 303.21 of the statutes, the Wisconsin Labor and Industry Review Commission will hold a public hearing at Room B103 of the GEF I State Office Building, 201 East Washington Avenue, in the City of Madison, Wisconsin, on the 8th day of March, 2006, at 10:30 a.m., to consider the repeal, amendment and recreation of rules relating to the procedures applicable to review of decisions by the commission.

Analysis Prepared by Labor and Industry Review Commission

The proposed rules update and reorganize chs. LIRC 1 to 4 to clarify provisions relating to when, where and how petitions for commission review may be filed, to create a provision allowing petitions for review to be filed electronically through the commission's website in unemployment insurance and workers compensation cases, to clarify provisions relating to use of hearing transcripts, synopses and summaries of evidence, and to make other minor corrective changes in its rules of procedure.

Text of Rule

Section 1. LIRC 1.01 is amended to read:

LIRC 1.01 General. The labor and industry review commission has jurisdiction for review of cases arising under ss. 40.65 (2), 66.191, 1981 Stats., 102.18 (3) and (4), 106.52 (4), 106.56 (4), 108.09 (6), 108.10 (2) and (3), 111.39 (5) (a), 303.07 (7) and 303.21, Stats.

Section 2. LIRC 1.015 is created to read:

LIRC 1.015 Definitions. (1) In chapters LIRC 1 to 4, “commission" means the Wisconsin labor and industry review commission.

(2) In chapters LIRC 1 to 4, “department" means the Wisconsin department of workforce development.

Section 3. LIRC 1.02 (intro.) is amended to read:

LIRC 1.02 Petitions for commission review; appeal period. All petitions for commission review shall be received, or, in unemployment compensation, received or postmarked, filed within 21 days from the date of mailing of the administrative law judge's findings and decision or order, except as provided under this section. “Received" means physical receipt. A mailed petition postmarked on or prior to the last day of an appeal period, but received on a subsequent day is not a timely appeal, except in unemployment compensation. All petitions shall be in writing. The last day of an appeal period shall be that the petition may be filed on the next business day if the last day for filing 21st day falls on any of the following:

Section 4. LIRC 1.025 is repealed and recreated to read:

LIRC 1.025 Petitions for review; filing. (1) Petitions for review may be filed by mail or personal delivery. A petition for review filed by mail or personal delivery is deemed filed only when it is actually received by the commission or by the division of the department to which the petition is mailed, except that petitions for review in unemployment insurance cases under s. 108.09 or 108.10, Stats. which are filed by mail or personal delivery are deemed filed when received or postmarked as provided for in s. LIRC 2.015.

(2) Except as provided for in subs. (3) and (4), petitions for review may not be filed by e-mail or by any other method of electronic data transmission.

(3) Petitions for review may be filed by facsimile transmission. A petition for review transmitted by facsimile is not deemed filed unless and until the petition is received and printed at the recipient facsimile machine of the commission or of the division of the department to which the petition is being transmitted. The party transmitting a petition by facsimile is solely responsible for ensuring its timely receipt. The commission is not responsible for errors or failures in transmission. A petition for review transmitted by facsimile is deemed filed on the date of transmission recorded and printed by the facsimile machine on the petition.

(4) Except in the case of petitions for review in fair employment and public accommodations cases under s. 106.52 or 111.39 (5), Stats., petitions for review may be filed electronically through the internet website of the commission, at the page found at:
http://www.dwd.state.wi.us/lirc/petition.htm.

Successful filing of a petition for review electronically through the internet website of the commission will result in a display on the petitioner's internet browser of a message confirming that the petition has been successfully filed. A petition for review transmitted electronically through the website of the commission is not deemed filed unless and until the confirmation message is displayed. The commission is not responsible for errors in transmission that result in failure of a petition to be successfully filed electronically through the website of the commission. A petition for review filed electronically through the internet website of the commission is deemed filed on the date of filing stated on the commission's electronic record of the filing.

(5) Petitions for review may not be filed by telephone.

Section 5. LIRC 1.04 is repealed and recreated to read:

LIRC 1.04 Record used for review. Review by the commission shall be based on the record of the case including the evidence previously submitted at hearing before the department. The record of the hearing may be in the form of a written synopsis or a transcript, and may include an audio recording of the hearing. The form of the record of the hearing which the commission uses in its review shall be determined as follows:

(1) Except as provided in subs. (2) through (5) of this section, the commission shall base its review on a written synopsis of the testimony taken at the hearing. The synopsis shall be prepared by the department, by the commission, or by an outside contractor, from an audio recording of the hearing or from notes taken at the hearing by the administrative law judge. In those cases any party may obtain a copy of the synopsis as provided for in s. LIRC 1.045.

(2) The commission shall base its review on a transcript of the hearing rather than a synopsis if a transcript was prepared and was used by the administrative law judge in deciding the case. In such cases any party may obtain a copy of the transcript as provided for in s. LIRC 1.045.

(3) Except in unemployment insurance cases, the commission shall base its review on a transcript of the hearing rather than a synopsis if a party timely requests the commission in writing to conduct its review on the basis of a transcript, the party certifies in such request that it has ordered preparation of a transcript at the party's own expense, and the party thereafter files a copy of the transcript with the commission and serves a copy of the transcript on all other parties. To be timely under this subsection, a request must be made no later than 14 days after the requesting party's receipt from the commission of written confirmation that a petition for commission review has been filed.

(4) The commission shall base its review on a transcript of the hearing rather than a synopsis if a party shows to the commission that the synopsis is not sufficiently complete and accurate to fairly reflect the relevant and material testimony and other evidence taken. In those cases the commission shall direct the preparation of a transcript at its own expense and provide a copy of the transcript to each party without charge.

(5) On its own motion, the commission may base its review on a transcript of the hearing in addition to a synopsis. In those cases the commission shall direct the preparation of a transcript at its own expense and provide a copy of the transcript to each party without charge.

(6) A transcript used pursuant to subs. (2) to (5) shall be prepared by an independent court reporter or transcriptionist and shall include a certification by the court reporter or transcriptionist that the transcript is an original, verbatim transcript of the proceedings.

(7) On its own motion, the commission may base its review on an audio recording of the hearing in addition to a synopsis or transcript.

Section 6. LIRC 1.045 is amended to read: LIRC 1.045 Obtaining copy of record. A party in a case before the commission may request the commission to provide a copy of the synopsis or transcript of the testimony, exhibits received at the hearing, or other documents in the file materials. The commission shall furnish the materials copies upon request but may charge a fee for photocopying of 20 cents per page. Upon proper showing of financial inability to pay for photocopying, the commission may waive the fee.

Section 7. LIRC 2.01 is repealed and recreated to read: LIRC 2.01 Petitions for review; where filed. (1) Except as provided in subs. (2) and (3), a petition for commission review of an appeal tribunal decision under s. 108.09 or 108.10, Stats., shall be filed with any of the following:

(a) The division of unemployment insurance of the department, at any of the following locations:

1. The Madison hearing office, at 1801 Aberg Ave., Suite A, P.O. Box 7975, Madison, Wisconsin 53707-7975 (FAX: 608-242-4813).

2. The Milwaukee hearing office, at 819 N. 6th St., Rm. 382, Milwaukee, Wisconsin 53203-1606 (FAX: 414-227-4264).

3. The Eau Claire hearing office, at 715 S. Barstow St., Suite 1, Eau Claire, Wisconsin 54701-3880 (FAX: 715-836-1360).

4. The Fox Valley hearing office, at 926 Westhill Blvd., Appleton, Wisconsin 54914 (FAX: 920-832-5434).

5. The central administrative office of the division's bureau of legal affairs, at P.O. Box 8942, Madison, Wisconsin 53708 (FAX: 608-266-8221).

(b) The commission, at its office at 3319 West Beltline Highway, P.O. Box 8126, Madison, Wisconsin 53708 (FAX: 608-267-4409).

(2) A petition filed by an interstate claimant may be filed at one of the locations in sub. (1) or with a qualified employee of the agent state in which the interstate claimant files his or her claim.

(3) A petition by the department shall be filed only at the office of the commission.

Section 8. LIRC 2.015 is amended to read:

LIRC 2.015 Timeliness of petitions. For purposes of s. 108.09 (6) (a), Stats., “received or postmarked" means the words “received" and “postmarked" have the following meanings:

(1) If the petition is personally delivered, the petition is “received" when the division of unemployment insurance of the department or the commission physically receives the petition.

(2) If the petition is mailed and bears only a United States postal service postmark, the petition is “postmarked" on the date of that postmark.

(3) If the petition is mailed and bears both a United States postal service postmark and a private meter mark, the petition is “postmarked" on the date of the United States postal service postmark.

(4) If the petition is mailed and bears only a private meter mark, the petition is “postmarked" on the date of that mark.

(5) If the petition is mailed and bears no mark, or bears an illegible mark, the petition is “postmarked" 2 business days prior to the date the petition was physically received by the division of unemployment insurance of the department or the commission.

(6) If the petition is sent using a delivery service other than the United States postal service, and bears a delivery service mark which is the equivalent of a United States postal service postmark, the petition is “postmarked" on the date of that delivery service mark.

(7) If the petition is sent using a delivery service other than the United States postal service, and does not bear a delivery service mark which is the equivalent of a United States postal service postmark, or bears an illegible delivery service mark, the petition is “postmarked" 2 business days prior to the date the petition was physically received by the division of unemployment insurance of the department or the commission.

Section 9. LIRC 2.03 is repealed.

Section 10. LIRC 2.04 is repealed.

Section 11. LIRC 3.01 is repealed and recreated to read:

LIRC 3.01 Petitions for review; where filed. A petition for commission review of the findings or order of a department administrative law judge under s. 102.18, Stats., shall be filed with any of the following:

(1) The worker's compensation division of the department, at any of the following locations:

(a) 201 East Washington Avenue, P.O. Box 7901, Madison, Wisconsin 53707 (FAX: 608-267-0394).

(b) 819 North Sixth Street, Milwaukee, Wisconsin 53203 (FAX: 414-227-4012).

(2) The commission, at its office at 3319 West Beltline Highway, P.O. Box 8126, Madison, Wisconsin 53708 (FAX: 608-267-4409).

Section 12. LIRC 3.02 is repealed.

Section 13. LIRC 3.04 is amended to read:

LIRC 3.04 Compromise settlements. Compromise settlements of worker's compensation claims are solely within the jurisdiction of the worker's compensation division, department of workforce development, according to governed by s. 102.16, Stats., and s. DWD 80.03. Under s. 102.18 (4) (d), Stats., if a compromise is reached while a case is pending commission review, the compromise shall be submitted to the commission, and the commission shall remand the case to the worker's compensation division of the department for consideration of the compromise. If the compromise is not approved, the party who filed the petition for commission review may reinstate its petition by notifying the commission. Under s. 102.24 (2), Stats., if a compromise is reached while a case is pending court review of a commission order, remand shall be to the commission and the commission shall then remand the case to the department for consideration of the compromise.

Section 14. LIRC 4.01 is amended to read:

LIRC 4.01 Petitions for commission review; where filed. A petition for commission review of the findings and order of a department administrative law judge under s. 106.52 or 111.39 (5), Stats., shall be received within 21 days from the date of mailing of the findings and order to the parties by filed with the equal rights division of the department at any of the following locations:

(1) The equal rights division, 819 North Sixth Street, Milwaukee, Wisconsin 53203 , or (FAX: 414-227-4981).

(2) The central administrative office of the equal rights division, at 201 East Washington Avenue, P.O. Box 8928, Madison, Wisconsin 53708 (FAX: 608-267-4592).

Section 15. LIRC 4.02 is repealed.

Fiscal Estimate

Assumptions Used in Arriving at Fiscal Estimate

Repeal of LIRC 2.04 eliminates fees of $1.00 per page ($25 minimum) for a transcript prepared by or for the Commission and substitutes a 20 cents per page photocopying fee under LIRC 1.045. Based on averaging and estimating fees collected for transcripts requested in recent years, the loss in fees would amount to approximately $1100 to $1200 per year.

Estimate: 20 transcripts per year

70 pages ($70)

$1400 minus 20 cents per page offset for photocopying ($250) = $1120

Initial Regulatory Flexibility Analysis

The commission's rules of procedure affect small businesses when they are parties to cases pending before the commission. The proposed rule changes primarily serve to clarify existing procedural rules. The changes in procedure made by the proposed rules will create an additional method by which a petition for review may be filed, and reduce the charge for obtaining copies of certain documents. These changes are not anticipated to have any significant effect on small businesses.

Notice of Hearing

Revenue

[CR 05-117]

Notice is hereby given that, pursuant to ss. 71.04 (8) (c) and 71.25 (10) (c), Stats., and interpreting ss. 71.04 (8) (b) and (c) and 71.25 (10) (b) and (c), Stats., the Department of Revenue will hold a public hearing at the time and place indicated below, to consider the repeal and recreation and creation of rules relating to the computation of the apportionment fraction by multistate public utilities and telecommunications companies.

Hearing Information

The hearing will be held at 9:00 A.M. on Monday, February 27, 2006, in the Events Room (1st floor) of the State Revenue Building, located at 2135 Rimrock Road, Madison, Wisconsin.

Handicap access is available at the hearing location.

Comments on the Rule

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 shown below no later than March 6, 2006, and will be given the same consideration as testimony presented at the hearing.

Contact Persons

Small Businesses: Others:

Tom Ourada Dale Kleven

Department of Revenue Department of Revenue

Mail Stop 624-A Mail Stop 6-40

2135 Rimrock Road 2135 Rimrock Road

P.O. Box 8933 P.O. Box 8933

Madison, WI 53708-8933 Madison, WI 53708-8933

Telephone (608) 266-8875 Telephone (608) 266-8253

Email tourada@dor.state.wi.us Email dkleven@dor.state.wi.us

Analysis by the Department of Revenue

Statutes interpreted: ss. 71.04 (8) (b) and (c) and 71.25 (10) (b) and (c), Stats.

Statutory authority: ss. 71.04 (8) (c) and 71.25 (10) (c), Stats.

Explanation of agency authority: The net business income of public utilities and telecommunications companies requiring apportionment shall be apportioned pursuant to rules of the department of revenue.

Related statute(s) or rule(s): ss. 71.04 (4), (4m), (5), (6), and (7) and 71.25 (6), (6m), (7), (8), and (9), Stats., ss. 71.04 (5), (6), and (7) and 71.25 (7), (8), and (9), 2001 Stats., and s. Tax 2.39.

Plain language analysis: This proposed rule order prescribes the method to be used for apportioning the apportionable income of the following business entities:

• interstate public utilities, other than telecommunications companies, and

• interstate telecommunications companies.

Section 1. The special apportionment formula for interstate public utilities, other than telecommunications companies, is being eliminated. For taxable years beginning before 2006, the three factors will be equally weighted in the apportionment formula. The phase-in of the single sales factor apportionment formula will apply to public utilities, other than telecommunications companies.

Section 2. Interstate telecommunications companies will compute their property, payroll, and sales factors under the 2001 statutes and rules. The three factors will be equally weighted in the apportionment formula. Gross receipts from the use of computer software and from services will continue to be included in the numerator of the sales factor based on the location of the income-producing activity. The phase-in of the single sales factor apportionment will not apply to telecommunications companies.

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 rule.

Comparison with rules in adjacent states:

Illinois does not have a special apportionment formula for interstate public utilities and telecommunications companies. Their apportionment formula consists solely of a sales factor. Sales of tangible personal property are sourced on a destination basis. Sales of services are attributed to the state where the income-producing activity occurred. If the income-producing activity occurred in more than one state, the sale is attributed to the state with the greater costs of performance.

Iowa does not have a special apportionment formula for interstate public utilities and telecommunications companies. The apportionment formula consists solely of a sales factor. Sales of tangible personal property are sourced on a destination basis. Sales of services are sourced where the benefit of the service is received. In the case of the transportation of electricity, “traffic units" are used to determine where the benefit is received. Rules prescribe where the benefit is received for services provided by telecommunications companies.

Michigan does not have a special apportionment formula for interstate public utilities and telecommunications companies. The apportionment formula consists of a three-factor formula with sales weighted 90%, and property and payroll each weighted 5%. Sales of tangible personal property are sourced on a destination basis. Sales of services are sourced where the income-producing activity occurred. If the income-producing activity occurred in more than one state, the sale is attributed to the state with the greater costs of performance.

Minnesota does not have a special apportionment formula for interstate public utilities and telecommunications companies. The apportionment formula consists of a three-factor formula with sales weighted 75%, and property and payroll each weighted 12.5%. Sales of tangible personal property are sourced on a destination basis. Sales of services are sourced where the benefit of the service is received, where the service was ordered, or where the service was billed, depending on the circumstances.

Summary of factual data and analytical methodologies: 2003 Wisconsin Act 37 changed the apportionment formula used by multistate businesses for determining the income taxable by Wisconsin. As a result of this legislation, single sales factor apportionment will be phased in for most businesses, including any public utility that owns or operates any plant, equipment, property, franchise, or license for the production, transmission, sale, delivery, or furnishing of electricity, water, or steam, the rates of charges for goods or services of which have been established or approved by a federal, state, or local government or governmental agency. The phase-in of single sales factor apportionment begins for taxable years beginning on January 1, 2006. 2003 Act 37 also provides that multistate telecommunications companies are to apportion their income under rules of the Department of Revenue. 2005 Wisconsin Act 25 changed how gross receipts from the use of computer software and from services are sourced for purposes of the apportionment formula. Receipts from the use of computer software are sourced to the location where the software is used. Receipts from services are sourced where the benefit of the service is received. The change in the sourcing rules first applies to taxable years beginning January 1, 2005. Telecommunications companies have requested that in addition to excluding them from single sales factor apportionment as provided by 2003 Act 37, the rule would exclude them from the special sourcing rules for gross receipts from the use of computer software and from services. In consultation with telecommunications company personnel, the department developed language and used it to create this proposed rule order.

Analysis and supporting documents used to determine effect on small business: The department has prepared a fiscal estimate regarding this proposed rule order. It was determined that there is not a significant fiscal effect on small business.

Anticipated costs incurred by private sector: This proposed rule order does not have a significant fiscal effect on the private sector.

Effect on small business: This proposed rule order does not have a significant fiscal effect on small business.

Agency contact person: Please contact Dale Kleven at (608) 266-8253 or dkleven@dor.state.wi.us, if you have any questions regarding this proposed rule order.

Place where comments are to be submitted and deadline for submission: Comments may be submitted to the contact person shown below no later than one week after the public hearing on this proposed rule order is conducted. Information as to the place, date, and time of the public hearing will be published in the Wisconsin Administrative Register.

Dale Kleven

Department of Revenue

Mail Stop 6-40

2135 Rimrock Road

P.O. Box 8933\

Madison, WI 53708-8933

Text of Rule

SECTION 1. Tax 2.50 is repealed and recreated to read:

Tax 2.50 Apportionment of apportionable income of interstate public utilities. (1) SCOPE. A public utility that is engaged in business both in and outside this state shall apportion its apportionable income as provided in this section. Nonapportionable income shall be allocated as provided in s. 71.25 (5) (b) 1., Stats.

(2) DEFINITIONS. In this section:

(a) “Payroll factor" means the payroll fraction computed under s. 71.04 (6) or 71.25 (8), Stats., and s. Tax 2.39.

(b) “Property factor" means the property fraction computed under s. 71.04 (5) or 71.25 (7), Stats., and s. Tax 2.39.

(c) “Public utility" means any business entity that owns or operates any plant, equipment, property, franchise, or license for the production, transmission, sale, delivery, or furnishing of electricity, water, or steam the rates of charges for goods or services of which have been established or approved by a federal, state, or local government or governmental agency.

(d) “Sales factor" means the sales fraction computed under ss. 71.04 (4m) and (7) or 71.25 (6m) and (9), Stats., and s. Tax 2.39.

(3) APPORTIONMENT FORMULA COMPUTATION. For taxable years beginning after December 31, 2004, a public utility that does business in and outside this state shall determine its net income for state franchise or income tax purposes as provided in this section. The public utility shall first deduct from its total net income its nonapportionable income, less related expenses. Nonapportionable income shall be allocated as provided in s. 71.25 (5) (b) 1., Stats. The public utility shall apportion its remaining net income to this state as follows:

(a) For taxable years beginning before January 1, 2006, apportionable income shall be apportioned using an apportionment fraction obtained by taking the arithmetical average of the sales factor, property factor, and payroll factor.

(b) For taxable years beginning after December 31, 2005, and before January 1, 2007, apportionable income shall be apportioned using an apportionment fraction composed of the sales factor, representing 60% of the fraction, the property factor representing 20% of the fraction, and the payroll factor representing 20% of the fraction.

(c) For taxable years beginning after December 31, 2006, and before January 1, 2008, apportionable income shall be apportioned using an apportionment fraction composed of the sales factor representing 80% of the fraction, the property factor representing 10% of the fraction, and the payroll factor representing 10% of the fraction.

(d) For taxable years beginning after December 31, 2007, apportionable income shall be apportioned using an apportionment fraction composed of the sales factor.

Note: The provisions of s. Tax 2.50 first apply for taxable years beginning on January 1, 2005.

Note: Section Tax 2.50 interprets ss. 71.04 (8) (b) and (c) and 71.25 (10) (b) and (c), Stats.

SECTION 2. Tax 2.502 is created to read:

Tax 2.502 Apportionment of apportionable income of interstate telecommunications companies. (1) SCOPE. A telecommunications company that is engaged in business both in and outside this state shall apportion its apportionable income as provided in this section. Nonapportionable income shall be allocated as provided in s. 71.25 (5) (b) 1., Stats.

(2) DEFINITIONS. In this section:

(a) “Payroll factor" means the payroll fraction computed under s. 71.04 (6) or 71.25 (8), 2001 Stats., and s. Tax 2.39.

(b) “Property factor" means the property fraction computed under s. 71.04 (5) or 71.25 (7), 2001 Stats., and s. Tax 2.39.

(d) “Telecommunications company" means any business entity that owns or operates any plant, equipment, property, franchise, or license for the transmission of communications the rates of charges for goods or services of which have been established or approved by a federal, state, or local government or governmental agency.

(3) APPORTIONMENT FORMULA COMPUTATION. For taxable years beginning after December 31, 2004, a telecommunications company that does business in and outside this state shall determine its net income for state franchise or income tax purposes as provided in this section. The telecommunications company shall first deduct from its total net income its nonapportionable income, less related expenses. Nonapportionable income shall be allocated as provided in s. 71.25 (5) (b) 1., Stats. The telecommunications company shall apportion its remaining net income to this state using an apportionment fraction obtained by taking the arithmetical average of the property factor, payroll factor, and sales factor.

Note: The provisions of s. Tax 2.502 first apply for taxable years beginning on January 1, 2005.

Note: Section Tax 2.502 interprets ss. 71.04 (8) (b) and (c) and 71.25 (10) (b) and (c), Stats.

Initial Regulatory Flexibility Analysis

This proposed rule order does not have a significant economic impact on a substantial number of small businesses.