Rule-Making Notices (Hearing Notices)

Wisconsin Administrative Register No. 622, 10/14/2007

Rule-Making Notices

Notice of Hearings

Agriculture, Trade and Consumer Protection

[CR 07-085]
(Reprinted from 9/30/07 Wis. Adm. Register}

The State of Wisconsin Department of Agriculture, Trade and Consumer Protection (DATCP) announces that it will hold public hearings on a proposed rule affecting s. ATCP 21.20, Wis. Adm. Code, relating to voluntary certification of firewood dealers.

DATCP will hold two public hearings at the times and places shown below. DATCP invites the public to attend the hearing and comment on the proposed rule. Following the public hearings, the hearing record will remain open until November 2, 2007 for additional written comments. Comments may be sent to the Division of Agricultural Resource Management at the address below, to [e-mail] or at https://apps4.dhfs.state. wi.us/admrules/public/home.

Hearing impaired persons may request an interpreter for this hearing. Please make reservations for a hearing interpreter by October 12, 2007, by writing to Deb Bollig, Division of Agricultural Resource Management, P.O. Box 8911, Madison, WI 53708-8911, telephone [phone]. Alternatively, you may contact the DATCP TDD at [phone]. The hearing facilities are handicap accessible.

Copy of Rule

You may obtain a free copy of this hearing draft 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 [phone] or emailing [e-mail]. Copies will also be available at the hearing. To view the hearing draft 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 [e-mail] or by telephone at [phone].

Hearing Information

October 16, 2007

1:00 p.m. to 3:00 p.m.

DNR Service Center

4301 Rib Mountain Road

Wausau, WI 54401

October 18, 2007

1:00 p.m. to 3:00 p.m.

Dept. of Agriculture, Trade and Consumer Protection

2811 Agriculture Drive, Board Room (CR-106)

Madison, Wisconsin, 53718-6777

Analysis Prepared by Dept. of Agriculture, Trade and Consumer Protection

This hearing draft rule creates a voluntary certification program for firewood dealers. Under this rule, the Department of Agriculture, Trade and Consumer Protection (“DATCP") may certify firewood dealers who agree to treat firewood according to rule standards to eliminate potential infestations of Emerald Ash Borer and other pests. A firewood dealer is not required to be certified under this rule in order to sell firewood in this state.

Statutory authority

Sections 93.06 (1p), 93.07 (1), 93.07 (12) and 94.01, Stats.

Statutes interpreted

Sections 93.06 (1p), 93.07 (12) and 94.01, Stats.

Explanation of agency authority

The Wisconsin Department of Agriculture, Trade and Consumer Protection (“DATCP") has broad general authority, under s. 93.07 (1), Stats., to interpret laws under its jurisdiction. DATCP has broad general authority, under ss. 93.06 (1p), 93.07 (12) and 94.01, Stats., to adopt regulations to prevent and control plant pest infestations. The voluntary certification program created by this rule is part of an overall state strategy to prevent and control plant pest infestations, including Emerald Ash Borer infestations.

Background

Emerald Ash Borer and other major pests are carried by firewood. The Wisconsin Department of Natural Resources (DNR) has adopted rules, under NR 45, to restrict the entry of firewood into Wisconsin state parks. The DNR rules prohibit, in state parks, firewood originating from outside this state or more than 50 miles from the state park unless the firewood originates from a firewood dealer who is certified by DATCP.

Rule content

This rule creates a DATCP program for certification of firewood dealers. Firewood dealers certified under this rule may supply firewood to Wisconsin state parks. The certification program would be open to all firewood dealers in the state, regardless of whether they supply firewood to Wisconsin state parks. Certified firewood dealers must comply with this rule. A firewood dealer is not required to be certified under this rule in order to sell firewood in this state. A certified firewood dealer may sell or distribute firewood acquired from an out of state source but must apply the treatment required to be certified at the dealer's premises in Wisconsin. Certification does not authorize firewood imports from quarantined areas that are currently prohibited under ch. ATCP 21, Wis. Adm. Code.

Under this rule, DATCP may annually certify a firewood dealer. An annual certification expires on December 31 of each year. A firewood dealer is not required to be certified in order to sell or distribute firewood in this state. There is a $50 charge for certification. The authority for the department to charge the fee is in s. 93.06 (1m) and (1q), Stats. Certification permits a firewood dealer to supply firewood to Wisconsin state parks, pursuant to NR 45.04(1)(g).

DATCP may certify a firewood dealer if all of the following apply:

•   The firewood dealer submits a complete application that complies with this rule.

•   DATCP inspects all of the business premises identified in the certification application and determines, based on that inspection, that the firewood dealer is equipped to fulfill all of the representations included in the certification application.

A certification application must include all of the following:

•   The correct legal name of the firewood dealer, and any trade names under which the firewood dealer sells or distributes firewood in this state.

•   The address of the firewood dealer's business headquarters.

•   The address of every business location from which the firewood dealer sells or distributes firewood in this state.

•   The approximate annual volume of firewood that the firewood dealer sells or distributes in this state, including the approximate annual volume sold or distributed from each business location.

•   The sources from which the firewood dealer obtains firewood for sale or distribution in this state. The application shall include the name and address of each person, if any, from whom the firewood dealer procures cut firewood.

A certification application must also include the following statement (the firewood dealer must notify DATCP if, at any time before or after the firewood dealer is certified, the statement is no longer accurate):

Firewood the applicant sells or distributes in this state intended to meet the requirements of NR 45.04 (1) (g) is treated at the premises of the firewood dealer in at least one of the following ways prior to sale or distribution:

1. Each piece of firewood is heated to a temperature at least 160° F. (71.1° C.) at the center of the piece, and is maintained at that temperature for at least 75 minutes.

2. All bark, and additional wood to a depth of at least ½ inch beneath the bark, is removed from each piece of firewood.

3. The firewood is stored on the firewood dealer's premises for at least 2 years before it is sold or distributed in this state.

4. The firewood is fumigated with a registered fumigant pesticide, according to the pesticide label, to kill all insect pests that may inhabit the firewood.

5. The firewood is treated in a manner approved, in writing, by the Wisconsin Department of Agriculture, Trade and Consumer Protection, to kill all insect pests that may inhabit the firewood."

DATCP must grant or deny a certification application within 60 business days after DATCP receives a complete application. DATCP may withdraw a certification if the applicant materially misrepresents any information in the application, or fails to honor any of the commitments made in the application. A certification does not constitute a warranty, by the department, that firewood is free of pests.

Comparison to federal regulations

Under the federal Plant Protection Act, the Animal and Plant Health Inspection Service of the United States Department of Agriculture (USDA-APHIS) has responsibility for excluding, eradicating and controlling serious plant pests, including the Emerald Ash Borer. USDA-APHIS has instituted statewide quarantines on the movement of ash wood for Illinois, Indiana, Pennsylvania and Ohio, in addition to the Lower Peninsula of Michigan. These quarantines include restrictions on the interstate movement of any hardwood (non-coniferous) firewood, and are in addition to the regulations adopted by each state related to the movement of firewood. Firewood cannot be moved from a quarantined area unless it is accompanied by an APHIS certificate that shows the firewood to be free of infested wood.

Comparison to adjacent states

Surrounding states where EAB has been identified (Illinois, Indiana, Ohio, Pennsylvania and Michigan) have state and federal quarantines that prohibit the movement of regulated articles, including all hardwood firewood, out of quarantined areas. Firewood can only move out of quarantined areas after it is certified by USDA. Other surrounding states, such as Minnesota and Iowa, are conducting information and education campaigns about the danger of moving firewood and are considering regulatory options for dealing with firewood movement.

Fiscal Impact

There are thousands of firewood dealers in Wisconsin, but few of them will have a strong incentive to be certified under this rule. DATCP assumes that, at least initially, certification will be attractive mainly for large firewood dealers who can afford to implement the firewood treatment regimen required for certification.

Certification may be especially attractive for large firewood dealers who wish to supply firewood to Wisconsin state parks. DNR state park rules prohibit firewood originating from outside the state or more than 50 miles from the state park, unless the firewood dealer is certified under this rule.

DATCP projects approximately one day of staff time to process each certification application and to inspect the firewood dealer's business premises. DATCP will incur inspector travel costs, but will attempt to minimize those costs by integrating inspections with other inspections. DATCP does not plan to do routine follow-up inspections, but may conduct occasional random inspections of certified firewood dealers.

DATCP assumes that approximately 30 firewood dealers will apply for certification for calendar year 2007. The $50 annual certification fee will offset a portion of DATCP's expenses related to the operation of the firewood certification program. DATCP will absorb the remaining expenses.

Business Impact

This rule will not have a significant impact on firewood dealers. This rule does not require firewood dealers to be certified, nor does it restrict the sale or distribution of firewood by uncertified dealers. This rule creates a voluntary certification program, which may benefit some firewood dealers. Those dealers who choose to be certified will pay a $50 fee for certification

DNR state park rules prohibit firewood originating outside this state or more than 50 miles away, unless the firewood dealer is certified by DATCP. This rule will allow certified firewood dealers to supply firewood to state parks throughout the state, regardless of the firewood dealer's distance from the park. This rule will primarily benefit large firewood dealers who can afford to implement the firewood treatment regimen required for certification. This rule does not authorize or prohibit imports of firewood from outside this state. Current DATCP rules under ATCP 21.17 prohibit imports of firewood from areas which the U.S. department of agriculture has formally designated as being infested with certain wood pests, such as Emerald Ash Borer.

Environmental Impact

This rule will not have a significant impact on the environment. This rule does not restrict the sale or movement of firewood in this state. This rule will allow some firewood in state parks that would otherwise be prohibited by DNR rules, but only if the wood comes from a certified dealer who agrees to treat the wood to destroy plant pests such as Emerald Ash Borer. DATCP will inspect at least annually to verify that the firewood dealer has the necessary facilities and equipment to honor the agreement.

Notice of Hearing

Commerce

(Chs. Comm 5 and 18)

[CR 07-089]

NOTICE IS HEREBY GIVEN that pursuant to ss. 101.02 (15) (j), 101.17, 101.19 (1) (k), and 101.981 to 101.986, Stats., the Department of Commerce will hold a public hearing on proposed rules under chapters Comm 5 and 18 relating to licensing of elevator contractors and installers.

Hearing Information

The public hearing will be held as follows:

Date and Time:	Location:
October 29, 2007 - Monday	Conference Room 3C, Thompson Commerce Center
10:00 a.m.	201 West Washington Ave.
	Madison, WI

Interested persons are invited to appear at the hearing and present comments on the proposed rules. Persons making oral presentations are requested to submit their comments in writing. Persons submitting comments will not receive individual responses. The hearing record on this proposed rulemaking will remain open until November 12, 2007, to permit submittal of written comments from persons who are unable to attend the hearing or who wish to supplement testimony offered at the hearing. Written comments should be submitted to Larry Swaziek, at the Department of Commerce, P.O. Box 2689, Madison, WI 53701-2689, or Email at [e-mail].

This hearing is held in an accessible facility. If you have special needs or circumstances that may make communication or accessibility difficult at the hearing, please call [phone] or [phone] (TTY) at least 10 days prior to the hearing date. Accommodations such as interpreters, English translators, or materials in audio tape format will, to the fullest extent possible, be made available upon a request from a person with a disability.

Analysis Prepared by Department of Commerce

Statutes interpreted

Sections 101.19 (1) (k), 101.981 to 101.986, Stats., as created by 2005 Wisconsin Act 456, and sections 101.02 (15) (j) and 101.17, Stats.

Statutory authority

Sections 101.19 (1) (k), 101.981 to 101.986, Stats., as created by 2005 Wisconsin Act 456, and sections 101.02 (15) (j) and 101.17, Stats.

Related statute or rule

Section 101.02 (1) and (15), Stats.

Explanation of agency authority

Under the authority of ss. 101.17 and 101.982, Stats. as affected by 2005 Wisconsin Act 456, the Department has the authority to promulgate rules for the inspection, installation and maintenance of elevators, escalators and lift devices. The Department also has the authority to develop licensing requirements for a number of new elevator categories created under the new law for inspection, installation and maintenance of elevators, escalators and lift devices.

Summary of proposed rules

The revisions to chapters Comm 5 and 18 are in response to 2005 Wisconsin Act 456 relating to the regulation of elevators, escalators and lift devices. The following is a summary of the major rule changes to these chapters:

•   Repeal sections Comm 5.37, Comm 5.38, Comm 5.383, Comm 5.385 and Comm 5.387 as created by the emergency rule date June 1, 2007. The permanent licensing requirements are included in this rule package.

•   Establish a definition for “conveyance", which exempts residential conveyances, material lift and hoists. Other definitions including “lift", “material hoist" and “personnel hoist" are included to be consistent with national, industry-wide safety standards. [Comm 5.003]

•   Modify the tables relating to fees and terms of credentials to reflect the new elevator and lift categories established under the law. [Tables 5.02 and 5.06]

•   Create licensing requirements for elevator contractors, elevator mechanics, elevator mechanics-restricted, elevator apprentices, elevator apprentices-restricted and elevator helpers as authorized under the law. [Comm 5, subchapter X]

•   Change the current elevator inspector “certification" terminology to “licensure" to be consistent with the law. [Comm 5.64, and Comm 18]

•   Reorganize Comm 18 subchapters II, III and IV to clarify owner and elevator contractor responsibilities (subchapter II), combine the plan review and inspection requirements, and modify the certification requirements for consistency with the law (subchapter III) and create requirements that address municipal enforcement of chapter Comm 18 (subchapter IV). [Comm 18, Subchapters II, III and IV]

•   Rename the application form to “permit application" to reflect the change in the law. The requirements for submission of the application have not changed. [Comm 18.1007 and 18.1013]

Comparison with federal regulations

There are no existing or proposed federal regulations that address or impact the activities to be regulated by this rule.

Comparison with adjacent states

An Internet-based search of adjacent states' rules found the following regulations:

•   Michigan licenses elevator contractors and elevator journeypersons.

•   Minnesota licenses elevator contractors.

•   Illinois has enacted laws and rules similar to the provisions under 2005 Wisconsin Act 456 with regard to licensing.

•   Iowa does not license elevator contractors or installers.

Summary of factual data and analytical methodologies

In developing the rules the Department reviewed the language of 2005 Wisconsin Act 456 in conjunction with current legislative proposals that would affect provisions of the Act. The Department's review and assessment process involved the participation of the Conveyance Safety Code Council. The members of that Council represent many stakeholders involved in the conveyance industry, including manufacturers, inspectors, building contractors and the general public as users of the conveyances. (A listing of the Conveyance Safety Code Council is provided at the end of this analysis.)

Analysis and supporting documents used to determine effect on small business

The Department utilized the Conveyance Safety Code Council to gather information on potential impacts in complying with both the technical and administrative requirements of the codes. The proposed license fees reflect the cost of administering licenses and are similar to license fees for other trades such as electricians and plumbers. The proposed licensing process is also similar to the licensing procedures for other various trades currently addressed under chapter Comm 5.

Affect on small business

The Department believes the rules will not increase the effect on small businesses over that imposed by Wisconsin Act 456. An economic impact report has not been required pursuant to s. 227.137, Stats.

Council Members and Representation

  Conveyance Safety Code Council

Kevin Kraemer   Building Contractors

Jesse Kaysen     Public Member

Kelvin Nord     Labor

Paul Rosenberg   Architectural Design or Elevator
    Consulting Profession

Andrew Zielke     Elevator Manufacturers

Larry Swaziek     Secretary of Commerce Designee

Dan Meneguin     Employee of Commerce/Inspection

Copy of Rules

The proposed rules and an analysis of the proposed rules are available on the Internet at the Safety and Buildings Division Web site at www.commerce.wi.gov/SB/. Paper copies may be obtained without cost from Roberta Ward, at the Department of Commerce, Program Development Bureau, P.O. Box 2689, Madison, WI 53701-2689, or Email at [e-mail], or at telephone [phone] or [phone] (TTY). Copies will also be available at the public hearing.

Environmental Analysis

NOTICE IS HEREBY GIVEN that the Department has considered the environmental impact of the proposed rules. In accordance with chapter Comm 1, the proposed rules are a Type III action. A Type III action normally does not have the potential to cause significant environmental effects and normally does not involve unresolved conflicts in the use of available resources. The Department has reviewed these rules and finds no reason to believe that any unusual conditions exist. At this time, the Department has issued this notice to serve as a finding of no significant impact.

Initial Regulatory Flexibility Analysis

Types of small businesses that will be affected by the rules.

The proposed rules implement mandates imposed by 2005 Wisconsin Act 456. The department estimates that there are approximately 40 elevator contractors, 500 elevator mechanics and 500 apprentices/helpers that would be impacted by the legislation. The department believes the rules will not increase the effect on small business over that imposed by the Act.

Reporting, bookkeeping and other procedures required for compliance with the rules.

The rules do not create any new reporting or bookkeeping procedures.

Types of professional skills necessary for compliance with the rules.

The law mandates that no person may engage in the business of installing or servicing conveyances, such as elevators, escalators and platform lifts unless they are licensed by the department. To obtain a license an applicant must demonstrate knowledge and skill related the installation or servicing of conveyances through experience, training or examination.

Will the rules have a significant economic impact on small businesses?

No.

Small business regulatory coordinator

The small business regulatory coordinator for the Department of Commerce is Carol Dunn, who may be contacted at telephone [phone], or Email at [e-mail].

Fiscal Estimate

The department estimates that there are approximately 40 elevator contractors, 500 elevator mechanics and 500 apprentices/helpers that would be impacted by the legislation. The Department estimates the revenues generated by charging the licensing fees for elevator contractors and installers will be approximately $28,500 annually.

The increase in workload due to the new licensing requirements will be performed with existing staff.

Notice of Hearing

Natural Resources

(Environmental Protection-Air Pollution Control, Chs. NR 400—)

[CR 07-088]

NOTICE IS HEREBY GIVEN that pursuant to ss. 285.11 (1) and (2) (a) and 285.27 (4), Stats., interpreting s. 285.27 (2) and (4), Stats., the Department of Natural Resources will hold a public hearing on the creation of s. NR 462.015, Wis. Adm. Code, relating to national emission standards for hazardous air pollutants for industrial, commercial and institutional boilers and process heaters and potentially affecting small business. The proposed rule stays implementation of ch. NR 462.

The federal National Emission Standard for Hazardous Air Pollutants for industrial, commercial and institutional boilers and process heaters (Boiler MACT) was promulgated by the U.S. Environmental Protection Agency on September 13, 2004 with a compliance date set for September 13, 2007. On July 30, 2007, the D.C. Circuit Court of Appeals issued a mandate vacating the Boiler MACT. The compliance date for existing sources under the now vacated federal rule is no longer valid at the federal level. However, since the Department promulgated a similar standard in ch. NR 462 as required by s. 285.27 (2) (a), Stats., the Boiler MACT requirements remain in Wisconsin's rules.

NOTICE IS HEREBY FURTHER GIVEN that pursuant to ss. 227.24, 285.11 (1) and (2) (a) and 285.27 (4), Stats., interpreting s. 285.27(2) and (4), Stats., the Department of Natural Resources will hold a public hearing on Natural Resources Board Emergency Order No. AM-38-07(E) relating to national emission standards for hazardous air pollutants for industrial, commercial and institutional boilers and process heaters and potentially affecting small business. This emergency order took effect on September 13, 2007. This order stayed the implementation of ch. NR 462.

Hearing Information

NOTICE IS HEREBY FURTHER GIVEN that the hearing will be held on:

October 26, 2007   Room G09

Friday     GEF #2 Office Building

at 1:30 p.m.     101 South Webster Street

    Madison

NOTICE IS HEREBY FURTHER GIVEN that pursuant to the Americans with Disabilities Act, reasonable accommodations, including the provision of information material in an alternative format, will be provided for qualified individuals with disabilities upon request. Please call Robert Eckdale at [phone] or by e-mail at [e-mail] with specific information on your request at least 10 days before the date of the scheduled hearing.

Submission of Written Comments

Written comments on the emergency rule and the proposed rule may be submitted via U.S. mail to Mr. Roger Fritz, Bureau of Air Management, P.O. Box 7921, Madison, WI 53707 or by e-mail to [e-mail]. Comments may be submitted until November 2, 2007. Written comments whether submitted electronically or by U.S. mail will have the same weight and effect as oral statements presented at the public hearing.

Copy of Rule

The emergency rule, proposed rule and supporting documents, including the fiscal estimate may be viewed and downloaded and comments electronically submitted at the following Internet site: http://adminrules.wisconsin.gov. (Search this Web site using the Natural Resources Board Order No. AM-37-07.) If you do not have Internet access, a personal copy of the emergency rule, proposed rule and supporting documents, including the fiscal estimate may be obtained from Robert Eckdale, Bureau of Air Management, P.O. Box 7921, Madison, WI 53707 or by calling [phone].

Initial Regulatory Flexibility Analysis

NOTICE IS HEREBY FURTHER GIVEN that pursuant to s. 227.114, Stats., the proposed rule may have an impact on small businesses. The initial regulatory flexibility analysis is as follows:

Types of small businesses affected

Any small business which is a major source of hazardous air pollutants and has a solid fuel fired boiler or process heater.

Description of reporting and bookkeeping procedures required

Not applicable to the proposed stay in the implementation of the rule.

Description of professional skills required

An environmental scientist or environmental engineer with knowledge of organic hazardous air pollutant emissions, halogenated solvent cleaning operations, performance testing, air pollution control technologies, compliance strategies and environmental regulations would have the professional skills necessary to ensure compliance with ch. NR 462.

Environmental Analysis

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

Fiscal Estimate

This proposal requires no action by local units of government, and the Department assumes there will be no fiscal impact on local government.

The Department also assumes that staying the implementation of Ch. NR 462 will have no state fiscal effect. However, section 112(j) of the federal Clean Air Act (42 U.S.C. 7412(j)(2)) may apply to the Boiler Maximum Achievable Control Technology (MACT) vacatur. Section 112(j)(2) requires requires permitting authorities to issue case-by-case MACT determinations when the US EPA has failed to promulgate a MACT for an identified source category such as boilers. However, there is no available guidance from US EPA on the implementation of s. 112(j) for sources previously affected by the federal boiler MACT, and as a result it is currently unclear whether the Department will perform these reviews. If the Department were required to perform the case-by-case reviews, it might do so for up to 59 facilities. The Department assumes that each s. 112(j) determination would take approximately 40 hours for the permit review. If the Department were in fact required to perform the case-by-case review, the additional workload would be absorbed in the agency's budget by redirecting existing staff.

Staying implementation of ch. NR 462 would have no direct adverse fiscal impact on the private sector. Without ch. NR 462 as the DNR determination under s. 112(j), affected facilities would need to prepare and submit a permit application. Because s. 112(j) is an existing federal requirement, the Department's proposed action does not impose additional costs on the private sector.