The proposed rules establish criteria for classifying invasive species, and then list or identify specific invasive species into 2 specific categories (prohibited and restricted) according to those criteria (giving consideration to recommendations from the Wisconsin Council on Invasive Species). The rules prohibit or restrict the transportation (including importation), possession, transfer (including sale) and introduction of invasive species that are listed or identified as “prohibited", with certain exceptions. “Restricted" invasive species are also subject to a conditional ban on transportation, transfer and introduction, but not possession (except for fish and crayfish), with certain exceptions. The rules also allow transportation, possession, transfer or introduction for research, education, identification, control or disposal, or for other specified purposes when authorized by a department permit.
Transportation, possession, transfer and introduction without a permit are not prohibited if the department determines that the transportation, possession, transfer or introduction was incidental or unknowing, and was not due to the person's failure to take reasonable precautions. However, the rules ban transportation of items or host materials that may carry any invasive species and that are subject to a quarantine by the department, the Wisconsin Department of Agriculture, Trade and Consumer Protection (DATCP) or the United States Department of Agriculture Animal and Plant Health Inspection Service (USDA APHIS), regardless of whether the transportation was incidental or unknowing.
The rules authorize the department to enter property for the purpose of inspection, sampling and control of prohibited invasive species and allow the department to order persons who own, control or manage property where prohibited invasive species are present to implement approved control measures. If a control order is not complied with and the department undertakes control measures, the rules allow for cost-recovery by the department for the expenses it incurred. In contrast, “restricted" species are not subject to any control requirements, except that persons who grow restricted plant species at a nursery are required to destroy them if the nursery closes.
General preventative measures are also required by the rules, without being specific as to species. These rules limit certain common activities that may function as pathways for the inadvertent introduction or spread of invasive species, unless a permit to engage in the activity has been issued by the department. These include conditional requirements to drain all water from boats, boat trailers, equipment and containers upon their removal from the water; a ban on the transport of live fish and fish eggs away from the water; and restrictions on the transport on public highways of boats, trailers and equipment with aquatic plants or animals attached.
Criteria and procedures for permit application, issuance, administration and revocation are detailed in the rules.
Finally, the rules set out the procedures or mechanisms available to the department under the statutes for enforcement of the rules and of permits issued under the rules.
Comparison with federal regulations
There are no directly comparable federal regulations that address the activities regulated by the proposed rule.
Comparison of rules in adjacent states
Minnesota. Minnesota has invasive species regulations that make it unlawful to possess, import, purchase, transport, or introduce these species except under a permit for disposal, control, research, or education. Minnesota also has a regulated and unlisted species regulation that states “Regulated and unlisted invasive species are legal to possess, sell, buy, and transport, but they may not be introduced into a free-living state, such as being released or planted in public waters." Minnesota's classifications include aquatic plants, fish, invertebrates, mammals and birds. The invasive species laws are similar in scope to Wisconsin's proposed rules, minus the inclusion of terrestrial plants.
Iowa. Iowa has a noxious weed law similar to Wisconsin, but includes many more plant species (25+). The Iowa Noxious Weeds and Iowa Weed Law is rather involved, including roads and railroad regulations, removal and cost issues.
Illinois. Illinois has a noxious weed law similar to Wisconsin's noxious weed law. It defines noxious weed “as any plant which is determined by the State Director of Agriculture, the Dean of the College of Agriculture of the University of Illinois and the Director of the Agricultural Experiment Station at the University of Illinois, to be injurious to public health, crops, livestock, land or other property."
Michigan. Michigan has a noxious weed law similar to Wisconsin, but lists many more species. They also have a law titled Transgenic and Nonnative Organisms which lists prohibited and restricted aquatic plants, fish and insects. It seems similar to the proposed rule, again, minus the terrestrial plants.
Summary of factual data and analytical methodologies
The department and the Wisconsin Council on Invasive Species (Council) have been working over the last 2 years to develop rules to classify and regulate invasive species. The Research Subcommittee of the Council developed a detailed set of criteria for assessing the species to be classified. The criteria include:
a) Potential economic, environmental or human health impacts of the species
b) Current presence, distribution and abundance in the state
c) Potential for establishment and spread
d) Control potential
e) Socio-economic impacts of the species, both positive and negative
Department staff, with input from the Council and others, developed the lists of species to be assessed based on these criteria. Summaries were written of the available literature on each of those species, specifically with regard to the assessment criteria. These literature summaries were reviewed by land managers and species specialists. Species Assessment Groups (SAGs) were developed to assess the species and to make recommendations to the Council. The SAGs, which were comprised of experts in their respective fields and stakeholder groups, used the criteria for species selection to advise the Council on the placement of species in specific categories. Separate SAGs have been developed for specific categories including:
a) aquatic plants and algae
b) woody plants
c) terrestrial herbaceous plants
d) fish and aquatic invertebrates
e) terrestrial vertebrates
f) terrestrial invertebrates and forest pests
The Council met in October, 2007 and discussed the SAGs' recommendations. For a few species the Council revised the classification recommended by the SAGs. For most species, it agreed with the SAG recommendations
Analysis and supporting documentation used to determine effect on small business
The Wisconsin Council on Invasive Species' Research Committee identified economics as a criterion for species classifications. Therefore, the literature reviews conducted for each species include socio-economic effects. The category includes: positive aspects the species has on the economy/society; potential socio-economic effects of restricting use or requiring control; direct and indirect socio-economic effects of plant; increased cost to sectors caused by the plant; and effects on human health. The data collected varies greatly by species and is generally qualitative as quantitative data is difficult to acquire.
Most invasive species with high economic importance to agriculture or other businesses are not being proposed for classification or regulation at this time. Department staff has been consulting with industry groups to assess potential impacts of the proposed rules on businesses and ways to minimize any adverse impacts. Permits and exemptions will be allowed for the 2 regulated categories of invasive species (prohibited and restricted).
Species Assessment Groups were established to advise the Council on the classification of invasive species. These groups included representatives of industries affected by the species and those potentially affected by any regulations limiting the use of these species. During the Species Assessment Group meetings, economics were addressed for most species. For instance, in the woody plants group, decisions were in large part based on the number of nurseries that grow a particular plant and how much income they produce from a particular plant or its cultivars. If the number of nurseries that grow a plant was very low or none, the decision was easier to come to consensus on. For example, for the variegated cultivar of Porcelain berry, it was stated that there is only one known Wisconsin grower. That grower makes $500 per year on the plant and had already stated that it won't bother them if the plant is prohibited.
For some plant species, certain cultivars that are not known to be invasive will be exempted from restrictions. For species that are proposed for the prohibited or restricted listing, permits are available for persons or businesses that have a valid use for the species that can minimize its potential spread. One example is the Asian bittersweet, which is not widely sold as an ornamental, but there are several cut flower farms that have large acreages of this plant for cutting and selling as cut stems. These businesses will be able to apply for permits to continue their activities with some limitations to minimize spread of the seeds.
Initial Regulatory Flexibility Analysis
The proposed rule may have an impact on small businesses. The initial regulatory flexibility analysis is as follows:
Types of small businesses affected
Nursery growers, nursery dealers, garden centers, seed dealers, floriculture growers and retailers will no longer be allowed to grow or sell listed species, unless there is an exception or the business has a permit from the Department. Landscape architects, landscapers and others will no longer be allowed to purchase and plant listed species. Utilities, mowing contractors and others who conduct vegetation maintenance or construction activities may need to modify their practices to prevent the inadvertent spread of listed species. Restoration consultants, vegetation managers and landscape contractors may benefit from this rule. Businesses that transport, possess and transfer raw wood products such as pulp and paper mills, sawmills and firewood dealers may be affected by quarantine rules. Movement of raw, untreated products out of quarantined areas will be restricted. Treatment of raw wood products or restrictions on timing of movement out of a quarantined area may be required.
Description of reporting and bookkeeping procedures required
Permit holders must keep a current, correct and complete record of all permit activities. Permit records may be inspected and copies by the Department at any time. Copies of records must be provided to the Department upon request. Persons who wish to transport, possess or give away a prohibited invasive species for the purpose of identification, control or disposal without a permit must report the location of origin of prohibited invasive species to the Department. Reports must be submitted within 30 days of the person taking possession and must include contact and property owner information, type and detailed location of the species, the purpose for transporting, possessing or giving away the invasive species, and the final disposition of the invasive species.
Description of professional skills required
Professional skills required to comply with the rule include the ability to identify and distinguish listed invasive species from other species.
Small business regulatory coordinator
Environmental Analysis
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
Summary
This estimate focuses on the fiscal effect resulting from implementing ch.
NR 40, as distinguished from the effect associated with the underlying authorizing statutory language. This rule will be implemented across several Department programs, including Bureaus in the Divisions of Land, Forestry, Enforcement and Science, and Water. The Department's costs associated with implementing NR 40 are primarily associated with the permitting, site inspection, monitoring and technical assistance activities inherent in the rule. The Department estimates the workload associated with these tasks across the Department to roughly equal the equivalent of 2.00 FTE and $120,000 annually in salary related costs. In addition, the Department assumes it will incur $40,000 annually to supply public informational and educational materials regarding the requirements of the rule.
State fiscal effect
Increased costs. May not be possible to absorb within agency's budget. Estimated net annualized fiscal impact: $160,000.
Local fiscal effect
None
Fund sources affected
SEG
Long-range fiscal implications
None
Notice of Hearing
Transportation
NOTICE IS HEREBY GIVEN that pursuant to ss.
227.11 (2) (a),
343.02 (1),
343.10,
343.20 and
351.07, Stats., and interpreting ss.
227.11 (2) (a),
343.10,
343.20 and
351.07, Stats., the Department of Transportation will hold a public hearing to consider the amendment of Chapter
Trans 117, Wisconsin Administrative Code, relating to the occupational licensing program.
Hearing Information
August 15, 2008 Room 144-B
10:30 a.m. Hill Farms State Transportation Bldg.
4802 Sheboygan Avenue
Madison, Wisconsin
An interpreter for the hearing impaired will be available on request for this hearing. Please make reservations for a hearing interpreter at least 10 days prior to the hearing.
Parking for persons with disabilities and an accessible entrance are available.
Submission of Written Comments, Agency Contact Person, and Copies of Proposed Rule
The public record on this proposed rule making will be held open until close of business the day of the hearing to permit the submission of comments in lieu of public hearing testimony or comments supplementing testimony offered at the hearing. Any such comments should be submitted to Rhonda Alley, Wisconsin Department of Transportation, Compliance and Restoration Section, 4802 Sheboygan Avenue, Room 301, P. O. Box 7983, Madison, WI 53707-7983. You may also contact Ms. Alley by phone at (608) 264-7002 or e-mail:
rhonda.alley@dot.state.wi.us. A copy of the rule may be obtained upon request from the Wisconsin Department of Transportation, Division of Motor Vehicles, Room 351, Hill Farms State Transportation Building, 4802 Sheboygan Avenue, Madison, WI 53707, telephone (608) 266-2237.
Analysis Prepared by the Wisconsin Department of Transportation
Statutes interpreted
Statutory authority
Explanation of agency authority
DMV is statutorily charged with responsibility for administering the state's driver licensing system. This rule making is related to the issuance of restricted (“occupational") driver licenses to drivers whose operating privileges are suspended or revoked.
Related statute or rule
Plain language analysis
This amendment codifies DMV's longstanding administrative practices related to statutorily required waiting periods following the revocation or suspension of operating privileges.
A recent Waukesha County case involving a repeat drunk driver who sought an occupational license during the minimum mandatory waiting period for a license specified in s.
343.30 (1q) (a) 4., Stats., made the Department aware of the fact that the current administrative rule does not discuss statutory minimum waiting periods for licensing. The proceeding illustrated a need to explain the Department's procedures with regard to application of the minimum waits for occupational licensing in the administrative rule.
Counsel from the Department of Justice recommended codifying this interpretation with other occupational licensing regulations.
What Are Occupational License Waiting Periods? Generally, drivers whose licenses are suspended or revoked can apply to DOT for a restricted license (“occupational license") that permits limited operation of a motor vehicle for up to 12 hours per day, not to exceed 60 hours per week. The licenses specify the area in which the driver may operate motor vehicles, the times at which they may drive, the purpose for which they may drive, such as work or homemaker duties.
Each revocation or suspension imposed by the Department or a court has an occupational license waiting period associated with it. By default, s.
343.10(2)(a)4., Stats., provides that a person must wait 15 days from the beginning of the revocation period before becoming eligible for an occupational license. But, where a different provision of law provides for a different shorter or longer waiting period, that period applies in lieu of the 15-day default. s.
343.10(2)(a)4., Stats. For example, persons whose licenses are suspended under the administrative suspension law do not have to wait at all. s.
343.305(8)(d), Stats. Persons who refuse chemical testing must wait 30, 90, or 120 days depending on the number of prior alcohol offenses the person committed prior to the refusal. Federal law essentially requires Wisconsin to impose one-year minimum waiting periods on drivers who have committed more than 2 alcohol offenses in a 5-year period. s.
343.31 (3) (bm) 3.,
4. and
5., Stats., 23 U.S.C. s. 164. Convicted drunk drivers who are not subject to the federal requirement face escalating occupational license periods of up to 90 days.
The waiting period for an occupational license begins on the date the revocation or suspension is imposed and ends after the waiting period has elapsed. Where an appeal or other judicial activity, such as the reopening of a conviction, stays a suspension or revocation, any statutorily required waiting period is also stayed. If the conviction is upheld or reinstated, the Department reimposes the suspension or revocation and the waiting period picks up where it stopped. For example, if 10 days passed between the time a suspension was imposed and the time of appeal, upon re-entry of the conviction, DMV would re-impose the suspension or revocation, and impose the remaining portion of the required waiting period.
Sometimes drivers are convicted of multiple offenses at or near the same time. The offenses may or may not have been one incident or occurrence. Regardless, DMV applies the same occupational license waiting period rules. If the revocation or suspension periods begin simultaneously or nearly simultaneously, the waiting periods may run concurrently. If for some reason, however, the revocations or suspensions begin at different times, the driver will be subject to a waiting period for each revocation or suspension.
In some circumstances, DOT shortens a revocation or suspension because the driver has previously been suspended or revoked under different laws regulating the behavior that led to the driver's arrest. For example, a driver might be administratively suspended, revoked for refusing chemical tests, and convicted of operating while intoxicated as a result of one arrest. If the driver had one prior conviction for an alcohol-related offense (an offense countable under s.
343.307(1), Stats.) that occurred more than 5 years prior to his arrest for this second offense. The driver would face a 6-month suspension for the administrative suspension, a 2-year revocation for the refusal, and a 12 to 18 month revocation for the OWI conviction. No waiting period would be imposed for the administrative suspension. s.
343.305(8)(d), Stats. A 60-day wait would be imposed for the OWI conviction. s.
343.31(3)(bm)3., Stats. Finally, a 90-day wait would be imposed for the refusal revocation. s.
343.305(10)(b)3., Stats. If the court convicted the person of the refusal and OWI at the same time, their occupational license waiting periods would run simultaneously. If the convictions occur at different times, however, the statutorily required waiting period would be imposed for each revocation. While the refusal revocation would be reduced by the “time served" under the OWI revocation in accordance with s.
343.305 (10) (g), Stats., the driver would have to wait until “[a]fter the first 90 days of the revocation period" passes to obtain an occupational license. s.
343.305 (10) (b) 3., Stats. Nothing in s.
343.305 or
343.30 (1q), Stats., permits occupational license waiting periods to be reduced by other occupational license waiting periods in the same manner that revocation periods are reduced.
Can a Court Waive or Change an Occupational License Waiting Period? No. Court involvement in occupational license decision making is administrative not judicial. State v. Marcus, 259 Wis. 543 (1951); State v. Mollet,
67 Wis. 2d 574 (1975). Both WisDOT and the courts are bound to follow the licensing requirements of s.
343.10, Stats., including the mandatory minimum wait requirements for occupational licensing. Courts can waive or change any
discretionary decision made by DMV in the licensing process under the procedure set forth in s.
343.10(4), Stats., but statutorily mandated requirements may not be set aside by DMV or a court.
Statutory Inconsistency. In the process of drafting this rule making, the Department discovered that an obsolete statutory reference to CDL occupational licenses remains in s.
351.07(1m), Stats. The issuance of CDL occupational licenses is now prohibited by federal law.
49 CFR 383.73(a)(3); 383.71(a)(7);
49 CFR 384.210. Wisconsin law was changed to conform to this federal requirement in
2003 Wis. Act 33. Section 2541 of that Act amended the existing s.
343.10(2)(c) to remove Department authority to issue occupational licenses permitting operation of commercial motor vehicles. At some point, the Department suggests the obsolete and ineffective language of s. 351.07(1m), Stats., be formally repealed.
Comparison with federal regulations
23 U.S.C. s. 164 provides for “sanctioning" states that do not adopt certain strict driver licensing statutes affecting drunk drivers. One requirement imposed under this statute is that states may not issue occupational licenses to persons who drive drunk twice in any 5-year period until the person has had their operating privileges completely revoked for a full year. Wisconsin's current statutes have been determined to comply with this requirement.
