Statutes interpreted
Sections 94.645 (2) and (3), 94.67, 94.676, 94.69 (1), 94.703, 94.704, and 94.705 , Stats.
Statutory authority
Sections 93.07 (1), 94.69 (1), and 94.705 (2), Stats.
Rule content
This rule updates administrative rules relating to pesticide use and control. Some of the key changes include the following:
Veterinary Clinics Applying Pesticides
2009 Wis. Act 139 repealed a statutory provision that required veterinary clinics to have an annual DATCP permit to use, repackage or prescribe pesticides as part of a veterinary treatment. This rule modifies current rules to reflect that statutory change. This rule also clarifies that veterinarians and certified veterinary technicians are not required to have an individual commercial applicator license in order to use a pesticide as part of a veterinary treatment.
Applying Pesticides to Natural Areas; Applicator Certification
Under current rules, commercial pesticide applicators must be certified for competence in relevant application categories. This rule expands the current turf and landscape category to include applications to natural areas. Applicators applying pesticides to natural areas must have relevant knowledge related to the restoration and maintenance of natural areas and the treatment of common pests affecting natural areas.
Pesticide Mixing and Loading Sites; Spill Containment
DATCP recently updated its rules in Ch. ATCP 33 related to fertilizer and pesticide bulk storage. This rule updates related pesticide rules in Ch. ATCP 29 to make them consistent with Ch. ATCP 33, including construction and maintenance standards for pesticide mixing and loading sites. The updated standards include standards related to construction materials, sumps, catch basins, spill containment and cleanup.
Urban Pesticide Misting System
Under the existing rule, chemigation systems generally are defined as systems that mix pesticides with irrigation water and apply the pesticide irrigation water mixture to plants. These types of pesticide application systems must meet certain standards and posting requirements. Existing standards and posting requirements apply to chemigation systems used in either agricultural or nonagricultural settings.
New forms of non-agricultural chemigation systems are being installed at residential and commercial sites for the purpose of controlling pests such as mosquitoes. These urban pesticide misting systems are considered to be a type of chemigation but do not use irrigation water and are not used to apply water to lands, crops or plants. These chemigation systems disperse a mixture of pesticides and water into the air in the form of a mist to kill or control pests such as mosquitoes. In this rule, the definition of “non-agricultural chemication system" includes urban pesticide misting systems and establishes standards and posting requirements specifically for these systems.
Perimeter Barrier Applications
This rule creates a definition for “perimeter barrier applications" and establishes that these are pesticide applications made on or within ten feet of a building or structure to discourage pests. The rule also clarifies the notification requirements for these applications.
Worker Protection Provisions
Under the existing rule and in a Note to s. ATCP 29.61, Wis. Adm. Code, DATCP summarized worker protection requirements established by the United State Environmental Protection Agency (EPA) that are on the labels of pesticides or simply referenced on other pesticide labels. Some of the requirements in the Note are outdated. In this rule, DATCP notifies persons that worker protection requirements established by the EPA may be obtained at an EPA internet site or that DATCP will provide, upon request, a summary of those requirements.
Electronic Notifications
Many of the notification requirements throughout the rule require written notification to customers. In this proposed rule, DATCP is explicitly permitting the use of electronic notifications if the customer agrees to that method of notification. DATCP is also allowing persons to apply for special pesticide permits via electronic methods in order to decrease the time it takes to submit, review and issue these permits. DATCP is also clarifying the rules related to the landscape registry to allow explicitly for electronic registration and publication.
Pesticide Bait Stations
Many bait stations used by commercial applicators containing a pesticide to control rodents are not labeled or have labeling that becomes unreadable due to being outside and exposed to the elements. The concern is that human or non-target species exposure to unknown products may delay timely medical assistance. This rule establishes labeling requirements for bait stations containing a pesticide to control rodents and used by commercial pesticide applicators. The exterior of the bait stations must be labeled with the company responsible for maintaining the bait station and the EPA registration number of the pesticide(s) in the bait station. This information must be readily accessible and remain legible while the bait station is in service.
Other Changes
The rule makes a number of other minor drafting changes designed to update, clarify and correct current rules, including deleting outdated time frames and fee changes.
Federal and Surrounding State Programs
Federal programs
The EPA regulates pesticides at the federal level under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) and through the use of pesticide product labels. The EPA has delegated authority to Wisconsin to enforce federal pesticide regulations and to assure proper use and handling of pesticides in this state. EPA recently established new regulations related to bait stations for ten rodenticides.
Surrounding state programs
Surrounding states, including Michigan, Minnesota, Illinois and Iowa are also delegated authority by EPA to enforce federal pesticide regulations. Each state also has state-specific pesticide regulations, similar to Wisconsin's. The state-specific regulations must be at least as stringent as EPA's, but may be more or less stringent than Wisconsin's, depending on the topic.
Chemigation
Nearly all states have chemigation laws, including Illinois, Michigan and Minnesota. EPA has minimum standards in place for states that do not have their own regulations, such as Iowa. Minnesota's chemigation regulations are more stringent than Wisconsin's and require applicators obtain a chemigation permit annually before chemigating. This rule updates Wisconsin's chemigation laws to reflect emerging industry practices.
Urban pesticide misting systems are an emerging application method. Surrounding states have existing regulations that govern the use of these systems (including label, drift, and pesticide applicator certification requirements), although they do not apply only to this specific type of application. Wisconsin's proposed requirements to monitor windspeed and prevent time-delayed applications complement label requirements and will help ensure applicators avoid serious pesticide use violations and help protect human and companion animal health.
Natural Areas Certification
None of the surrounding states has a separate certification category for natural areas applications. Surrounding states include these applicators in the turf and landscape category, which is what is proposed in this rule. Surrounding states also include these applicators in the field and vegetable crop category, when the natural areas are in a grassland-type setting.
Bait Station Labeling
Many states are considering modifying their bait station requirements in response to EPA's new rodenticide regulations. Iowa does not require bait station labeling but does require notification to the Department of Agriculture prior to use of certain hazardous rodenticides, which is more stringent than what this rule proposes. Minnesota, Illinois and Michigan do not require exterior labeling of bait stations at this time. Other states, including California, New York and Tennessee, require exterior labeling of rodenticide bait stations similar to what Wisconsin is proposing.
Electronic Information
Surrounding states allow electronic transmittal of information between commercial application businesses and customers, as Wisconsin is proposing.
Fiscal Impact
This rule will not have a significant state or local fiscal impact.
Economic Impact Analysis
This rule was developed in consultation with an advisory committee that included a diverse cross-section of affected industry, consumers, and government officials. The advisory committee did not find that this rule will adversely affect in a material way the economy, a sector of the economy, productivity, jobs or the overall economic competitiveness of the state. The committee endorsed the provisions of this rule, which are designed to update, clarify and modernize the existing rule. The department does not anticipate any significant expenses imposed upon the regulated community as a result of these changes.
Business Impact
This rule updates current rules related to pesticide use and control. This rule modifies and clarifies existing rule language to facilitate understanding, compliance, and efficiency. This rule also protects human health and the environment.
This rule may have minimal compliance costs for affected pesticide applicators, pesticide application businesses, or the general public. However, this rule will not have a significant effect on local markets, on the sale or distribution of pesticide products, or on the overall economy of this state.
Pesticide applicators choosing to obtain natural area certification may experience minimal additional costs every five years to purchase a new training manual ($45). Many commercial application businesses cover the cost of the training manual for their employees. The average cost per year for the manual is $9. The restoration of natural areas is considered to be a growth area for business and may positively impact pesticide businesses through increased revenue.
Pesticide application businesses may experience cost savings as a result of clarifying existing regulations, improving regulatory consistency and modifying administrative requirements, including the ability to provide certain notices and submit certain permit applications by electronic means.
Businesses that are not currently labeling their bait stations may have some minimal economic costs to comply with the bait station labeling requirement. Costs may include purchasing stickers or another bait station labeling system (e.g. “luggage tags") and personnel time to fill out the label. Businesses will have a number of cost-effective ways to meet this requirement, including the ability to design their own or choose from among a wide-variety of labeling systems.
Businesses should not have any direct costs to comply with the non-agricultural chemigation and urban pesticide misting system requirements. Few, if any, pesticide application businesses in Wisconsin currently are known to be using these application systems. If pesticide application businesses do decide to sell these systems in the future, costs to comply with these regulations could be included in the initial cost of the system.
Because Ch. ATCP 33, Wis. Adm. Code was revised in 2006, many businesses are already in compliance with the spill containment and sump requirements. Those businesses not required to comply with Ch. ATCP 33 may have some minor costs to comply if a spill containment surface fails and a repair would be inadequate. If a new spill containment surface is required, and the facility is not already regulated under Ch. ATCP 33, Wis. Adm. Code., there will be some incremental costs to comply with the proposed requirements, which now prohibit some materials (e.g. asphalt) that were previously allowed. These materials are now prohibited because they have been prone to failure and unable to contain spills.
To provide comments or concerns relating to small business, please contact DATCP's small business regulatory coordinator Keeley Moll at the address above, by emailing to keeley.moll@wisconsin.gov, or by telephone at (608)224-5039.
Environmental Assessment
The majority of these rule changes are administrative in nature and are not expected to affect the environment. These administrative changes include the removal of the administrative rule licensing requirements for veterinarians and animal technicians due to a recent law change, clarifying an administrative rule note describing the worker protection standard (which is set by federal regulations), harmonizing this rule with Ch. ATCP 33 (Bulk Storage of Pesticides and Fertilizers), enabling more efficient communication between pesticide application businesses and customers and a more efficient permit application process, removing duplicative recordkeeping requirements, and removing obsolete rule provisions, including references to past fee holidays and veterinary clinic permits (already deleted in statute). The substance of these rule changes will not directly affect the natural environment but may reduce duplicative recordkeeping and the unnecessary use of paper by pesticide businesses and the department.
The addition of the turf and landscape pesticide applicator certification category to include natural areas may have a positive environmental impact because it facilitates the rehabilitation or preservation of natural areas. Expertise by pesticide applicators could lead to a reduction in the harm to native plants during the removal of (non-native) invasive plants, which ensures that the adverse effects to these natural areas are minimized.
This rule updates the regulations on chemigation to include non-agricultural chemigation systems and urban pesticide misting systems (a type of non-agricultural chemigation system). While these systems are not widely used in Wisconsin at this time, underground irrigation systems and urban pesticide misting systems are being installed more frequently in residential settings in many states (often to control mosquitoes). Chapter ATCP 29 already includes regulations on agricultural chemigation systems, such as backflow prevention devices to prevent contamination of groundwater by pesticides. This proposed rule will extend those environmental protections to non-agricultural chemigation systems that may use underground irrigation systems. Reasonable regulations on these systems are needed to prevent harm to humans, non-target wildlife species, and groundwater (drinking water) contamination.
The proposed rule also will require exterior labeling of bait stations. Bait stations often contain highly toxic rodenticides, which can be deadly to children, pets, and non-target wildlife if accidentally ingested. Bait station labeling will maintain a more safe environment by ensuring veterinarians, homeowners, and others will have the information they need to respond rapidly and appropriately if non-target animals or individuals accidently ingest pesticides from bait stations.
This proposed rule updates the current rules related to spill containment and the repair of spill containment surfaces. This rule is expected to protect the public, soil and groundwater from pesticide contamination.
Notice of Hearing
Revenue
NOTICE IS HEREBY GIVEN that, pursuant to section 71.255 (6) (bm) 4., Stats., the Department of Revenue will hold a public hearing to consider permanent rules revising sections Tax 2.60 and 2.61, relating to pre-2009 net business loss carryforwards.
Hearing Information
The hearing will be held:
Date:   Monday, February 13, 2012
Time:   9:00 A.M.
Location:   State Revenue Building
  Events Room
  2135 Rimrock Road
  Madison, WI 53713
Handicap access is available at the hearing location.
Appearances at the Hearing and Submittal of Written Comments
Interested persons are invited to appear at the hearing and may make an oral presentation. It is requested that written comments reflecting the oral presentation be given to the department at the hearing. Written comments may also be submitted to the contact person listed below no later than February 13, 2012, and will be given the same consideration as testimony presented at the hearing.
Dale Kleven
Department of Revenue
Mail Stop 6-40
2135 Rimrock Road
P.O. Box 8933
Madison, WI 53708-8933
Telephone: (608) 266-8253
Analysis by the Department of Revenue
Statutes interpreted
Sections 71.255 (6) (bm), 71.26 (4) (a) and (b), and 71.45 (4) (a) and (b), Stats.
Statutory authority
Section 71.255 (6) (bm) 4., Stats.
Explanation of agency authority
Section 71.255 (6) (bm) 4., Stats., requires the department to promulgate rules to administer the provisions of 2011 Wisconsin Act 32 concerning the treatment of pre-2009 net business loss carryforwards under combined reporting.
Related statute or rule
There are no other applicable statutes or rules.
Plain language analysis
This proposed rule prescribes the method that members of the same combined group must use to share net business losses with other members of the same commonly controlled group for net business losses incurred prior to January 1, 2009, and not fully used before January 1, 2012, for purposes of s. 71.255 (6) (bm), Stats. It also provides clarity regarding the 15 year and 20 year net business loss carryforwards for purposes of ss. 71.26 (4) (a) and (b) and 71.45 (4) (a) and (b), Stats.
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Links to Admin. Code and Statutes in this Register are to current versions, which may not be the version that was referred to in the original published document.