Rule-Making Notices (Hearing Notices)

Explanation of statutory authority

DATCP has broad general authority, under s. 93.07 (1), Stats., to adopt regulations to enforce laws under its jurisdiction. DATCP also has broad general authority under ss. 93.07 (12) and 94.01, Stats., to adopt regulations to prevent and control plant pest infestations. Emerald ash borer quarantines created by this rule are part of an overall state strategy to prevent and control plant pest infestations, including EAB infestations. DATCP is adopting this temporary emergency rule under authority of s. 227.24, Stats., pending the adoption of federal regulations on the same subject.

Background

The United States Department of Agriculture — Animal and Plant Health Inspection Service (“APHIS") positively identified EAB in Dane County near Warner Park in the City of Madison on November 22, 2013. This emergency rule creates a DATCP quarantine for Dane County. A Federal quarantine will be enacted approximately six to eight weeks after a formal submission by the state plant regulatory official. EAB is carried and spread by untreated ash wood products. A six week delay until enactment of the federal quarantine leaves too much time for businesses or individuals to move potentially EAB infested material out of the county to areas of Wisconsin or other states that are not infested with EAB.

EAB is an injurious exotic pest that now endangers Wisconsin's 750 million ash trees and ash resources. This insect has the potential to destroy entire stands of ash, and any incursion of EAB can result in substantial losses both to forest ecosystems and to urban trees, as well as the state's vital tourism and timber industries. The emerald ash borer has killed over fifty million trees in the Midwest and has cost several hundred million dollars in losses to the woodlot, nursery, landscape industries and municipalities. APHIS predicts the national urban impact alone from this pest may exceed $370 billion.

DATCP has plant inspection and pest control authority under s. 94.01, Stats., to adopt rules establishing quarantines or other restrictions on the importation into, or movement of, plants or other materials within this state, if these measures are necessary to prevent or control the spread of injurious plant pests. A quarantine order may prohibit the movement of any pest, or any plant, pest host or pest-harboring material, which may transmit or harbor a pest.

Emergency rule content

Under this emergency rule, movement of all hardwood (non-coniferous) firewood of any type, plus movement of any ash wood out of Dane County, is prohibited with certain exceptions. The emergency rule will do the following:

•   Create a quarantine for EAB for Dane County that prohibits the movement of all hardwood species of firewood, nursery stock, green lumber, and other material living, dead, cut or fallen, including logs, stumps, roots, branches and composted and uncomposted chips of the genus Fraxinus (Ash wood), out of this county or any contiguous EAB quarantined counties.

•   Provide an exemption for items that have been inspected and certified by a pest control official and are accompanied by a written certificate issued by the pest control official (some products, such as nursery stock, cannot be given an exemption).

•   Provide an exemption for businesses that enter into a state or federal compliance agreement. The compliance agreement describes in detail what a company can and cannot do with regulated articles.

Summary of factual data and analytical methodologies

Data for this analysis was obtained from DATCP nursery license records, local business directories and field surveys of the wood products industry (e.g. timber, lumber, firewood) in the area. This analysis was based on the regulatory language of ATCP 21.17 and 7 CFR 301.53, on the observations of DATCP nursery inspectors, and on conversations with stakeholders in the nursery and other timber-related industries.

Analysis and supporting documents used to determine effect on small business

DATCP searched its nursery license database to obtain current records for licensed nursery growers operating in Dane County. Based on previous and ongoing work with Wisconsin's Gypsy Moth and firewood certification programs, DATCP staff also identified known saw mills, wood products companies and firewood industry concerns. Finally, online Yellow Pages business listings were also searched to find related tree nursery, timber, firewood and tree service companies.

Business Impact

This emergency rule may have an impact on persons or companies that deal in any hardwood firewood or ash materials in Dane County. The affected businesses are all small businesses. This emergency rule restricts the sale or distribution of ash trees, ash wood products, and any hardwood firewood from Dane County to locations outside of this county or any contiguously quarantined counties, and to neighboring states.

The business impact of this emergency rule depends on the number of 1) nurseries that sell or distribute ash nursery stock outside these counties, 2) firewood producers/dealers that sell or distribute outside these counties, 3) sawmills that move untreated ash stock (green lumber) outside these counties, and 4) untreated wood waste (e.g. ash brush, chips or mulch) that is moved outside these counties.

Dane County has a total of 61 licensed nursery growers that could possibly be growing ash nursery stock. Those growers will not be able to move or sell ash nursery stock outside of the quarantine area, though discussions with the Wisconsin Nursery Association indicate that few, if any, nurseries continue to sell ash trees. There are also 35 known firewood producers or dealers in Dane County. Firewood dealers would need to be certified under s. ATCP 21.20 to sell or move firewood outside of the quarantine area. To obtain certification a firewood dealer pays a $50 annual certification fee to DATCP and treats the firewood in a manner that ensures it is free of EAB. There are three lumber mills in Dane County and an estimated 20 other tree service/wood processing facilities that may also deal with ash. To transport ash wood products outside of the quarantine area they will have to enter into a compliance agreement with DATCP or APHIS that authorizes movement of ash products outside of the quarantine only when there is assurance that the movement will not spread EAB to non-quarantined locations. Certification and compliance agreements will require some additional recordkeeping on the part of those businesses.

Initial Regulatory Flexibility Analysis

Rule description

This emergency rule creates a quarantine for Dane County for emerald ash borer (“EAB"). Under this rule, the Department of Agriculture, Trade and Consumer Protection (“DATCP") quarantines Dane County to mitigate the movement of EAB to other areas of Wisconsin and other states.

DATCP is adopting this temporary emergency rule pending the adoption of a federal regulation to quarantine Dane County. The emergency rule will take effect immediately upon publication in the official state newspaper, and will remain in effect for 150 days. The Legislature's Joint Committee for Review of Administrative Rules may extend the emergency rule for up to 120 additional days.

The United States Department of Agriculture – Animal and Plant Health Inspection Service (“APHIS") positively identified EAB in Dane County near Warner Park in Madison on November 22, 2013. This emergency rule creates a DATCP quarantine for Dane County. A Federal quarantine will be enacted approximately six to eight weeks after a formal submission by the state plant regulatory official. EAB is carried and spread by untreated ash wood products. A six week delay until enactment of the federal quarantine leaves too much time for businesses or individuals to move potentially EAB infested material out of the county to areas of Wisconsin or other states that are not infested with EAB.

Key rule provisions

This rule includes the following key provisions:

•   Creates a quarantine for EAB for Dane County that prohibits the movement of all hardwood species of firewood, nursery stock, green lumber, and other material living, dead, cut or fallen, including logs, stumps, roots, branches, and composted and uncomposted chips of the genus Fraxinus (Ash wood), out of Dane County or any contiguous EAB quarantined counties.

•   Provides an exemption for items that have been inspected and certified by a pest control official and are accompanied by a written certificate issued by the pest control official (some products, such as ash nursery stock, cannot be given an exemption).

•   Provides an exemption for businesses that enter into a state or federal compliance agreement. The compliance agreement describes in detail what a company can and cannot do with regulated articles.

Small business affected

This emergency rule may have an impact on persons or companies that deal in any hardwood firewood or ash materials in Dane County. The affected businesses are all small businesses. This emergency rule restricts the sale or distribution of ash trees and ash wood products plus any hardwood firewood from Dane County to locations outside of the county or any contiguously quarantined counties, and neighboring states.

The business impact of this emergency rule depends on the number of 1) nurseries that sell/distribute ash nursery stock outside these counties, 2) firewood producers/dealers that sell/distribute outside these counties, 3) sawmills that move untreated ash stock (green lumber) outside these counties, and 4) untreated wood waste (e.g. ash brush, chips, or mulch) that is moved outside these counties.

Dane County has a total of 61 licensed nursery growers that could possibly be growing ash nursery stock. Those growers will not be able to move or sell ash nursery stock outside of the quarantine area, though discussions with the Wisconsin Nursery Association indicate that few, if any, nurseries continue to sell ash trees. There are also an estimated 35 known firewood dealers in Dane County. Firewood dealers would need to be certified under s. ATCP 21.20 to sell or move firewood outside of the contiguous quarantine area. To obtain certification, a firewood dealer pays a $50 annual certification fee to DATCP and treats the firewood in a manner that ensures it is free of EAB. There are three lumber mills in Dane County and an estimated 20 other tree service/wood processing facilities that may also deal with ash. To transport ash wood products outside of the quarantine area they will have to enter into a compliance agreement with DATCP or APHIS that authorizes movement of ash products outside of the quarantine only when there is assurance that the movement will not spread EAB to non-quarantined locations.

Reporting, bookkeeping and other procedures

Nursery growers will not have any additional reporting or record-keeping requirements. Wood products industries (e.g. firewood producers or saw mills) who enter into a compliance agreement shall keep records of all regulated product movement that leaves the contiguous quarantine area.

Professional skills required

No additional professional skills are required.

Accommodation for small business

DATCP recognizes that every small business is different. DATCP will work with individual businesses to meet the requirements of the quarantine while accommodating the unique character of the individual business. Therefore compliance agreements will be designed to satisfy the regulations with minimal negative effects to the business.

Conclusion

This rule will help affected businesses in Dane County to move ash wood and material without moving EAB to areas free from EAB. This will in turn help to protect the resources on which the businesses depend. This rule may impose additional costs on some businesses, including small businesses, depending on the nature of their reliance on ash trees or ash wood products. The department works closely with each affected business to minimize any costs and these costs are outweighed by the protection of Wisconsin's ash resource.

Environmental Impact

This emergency rule will not have a significant impact on the environment.

Federal and Surrounding State Programs

Federal Programs

Under the federal Plant Protection Act, APHIS has responsibility for excluding, eradicating and controlling serious plant pests, including EAB. APHIS has instituted statewide quarantines on the movement of all ash wood for Illinois, Indiana, Missouri, Ohio, Pennsylvania, Virginia, and West Virginia, in addition to portions of Connecticut, Iowa, Kansas, Kentucky, Maryland, Massachusetts, Michigan, Minnesota, New Hampshire, New York, North Carolina, and Tennessee. APHIS has also enacted quarantines for Brown, Kenosha, Racine, Walworth, Rock, Milwaukee, Waukesha, Jefferson, Ozaukee, Washington, Dodge, Sheboygan, Fond du Lac, Winnebago, Trempealeau, La Crosse, Vernon, Sauk, Crawford, and Douglas Counties in Wisconsin. The quarantines include restrictions on the movement of any hardwood (non-coniferous) firewood.

Surrounding State Programs

Surrounding states where EAB has been identified (Illinois, Indiana, Iowa, Minnesota, and Michigan) have state and federal quarantines that prohibit the movement of regulated articles out of quarantined areas. A regulated article can only move out of quarantined areas after it is certified by USDA or state officials.

DATCP Contact

Questions and comments (including hearing comments) related to this rule may be directed to:

Brian Kuhn or Christopher Deegan

Department of Agriculture, Trade and Consumer Protection

P.O. Box 8911

Madison, WI 53708-8911

Telephone [phone] or [phone]

E-Mail: [e-mail] or [e-mail]

FISCAL ESTIMATE DOA-2048 (R 10/94) X ORIGINAL ⍽ UPDATED ⍽ CORRECTED ⍽ SUPPLEMENTAL				LRB or Bill No. / Adm. Rule No. Ch. ATCP 21
				Amendment No. (If Applicable)
Subject: Emergency Rule for Quarantine of Dane County for Emerald Ash Borer
Fiscal Effect State: X No State Fiscal Effect Check below only if bill makes a direct appropriation or affects a sum sufficient appropriation. ⍽ Increase Existing Appropriation ⍽ Increase Existing Revenues ⍽ Decrease Existing Appropriation ⍽ Decrease Existing Revenues ⍽ Create New Appropriation			⍽ Increase Costs – May be possible to absorb within agency's budget? ⍽ Yes ⍽ No ⍽ Decrease Costs
Local: X No local government costs			5. Types of Local Gov. Unit Affected: ⍽ Towns ⍽ Villages ⍽ Counties ⍽ Cities ⍽ Other: County Drainage Boards ⍽ School Districts ⍽ WTCS Districts
1. ⍽ Increase Costs ⍽ Permissive ⍽ Mandatory 2. ⍽ Decrease Costs ⍽ Permissive ⍽ Mandatory	3. ⍽ Increase Revenues ⍽ Permissive Mandatory 4. ⍽Decrease Revenues ⍽ Permissive Mandatory
Fund Source Affected: ⍽ GPR ⍽ FED ⍽ PRO ⍽ PRS ⍽ SEG ⍽ SEG-S			Affected Ch. 20 Appropriations:
Assumptions Used in Arriving at Fiscal Estimate The United States Department of Agriculture – Animal and Plant Health Inspection Service (APHIS) positively identified Emerald Ash Borer (EAB) in Dane County near Warner Park in Madison on November 22, 2013. This emergency rule creates a Wisconsin Department of Agriculture, Trade and Consumer Protection (DATCP) quarantine for Dane County. A federal quarantine will be enacted approximately six to eight weeks after a formal submission by the state plant regulatory official. EAB is carried and spread by untreated ash wood products. A six week delay until enactment of the federal quarantines leaves too much time for businesses or individuals to move potentially EAB-infested material out of these counties to areas of Wisconsin or other states that are not infested with EAB. EAB is an injurious exotic pest that now endangers Wisconsin's 750 million ash trees and ash resources. This insect has the potential to destroy entire stands of ash, and any incursion of EAB can result in substantial losses both to forest ecosystems and to urban trees, as well as the state's vital tourism and timber industries. The emerald ash borer has killed over fifty million trees in the Midwest and has cost several hundred million dollars in losses to the woodlot, nursery, landscape industries and municipalities. APHIS predicts the national urban impact alone from this pest may exceed $370 billion. DATCP has plant inspection and pest control authority under s. 94.01, Stats., to adopt rules establishing quarantines or other restrictions on the importation into or movement of plants or other materials within this state, if these measures are necessary to prevent or control the spread of injurious plant pests. A quarantine order may prohibit the movement of any pest, or any plant, pest host or pest-harboring material which may transmit or harbor a pest. The proposed rule will do the following: •Create a quarantine for EAB for Dane County that prohibits the movement of all hardwood species of firewood, nursery stock, green lumber, and other material living, dead, cut or fallen, including logs, stumps, roots, branches and composted and uncomposted chips of the genus Fraxinus (Ash wood), out of Dane County or any contiguous EAB quarantined counties. •Provide an exemption for items that have been inspected and certified by a pest control official and are accompanied by a written certificate issued by the pest control official. •Provide an exemption for businesses that enter into a state or federal compliance agreement. The compliance agreement describes in detail what a company can and cannot do with regulated articles. This rule will be administered by DATCP. DATCP will have additional workload related to enforcing the quarantine but it will be able to absorb the projected workload and costs within DATCP's current budget and with current staff. The presence of EAB may produce additional workload for local governments in Dane County, but the quarantine itself will not produce any local fiscal impact.
Long - Range Fiscal Implications If multiple infestations are found in this state, DATCP may experience substantial costs and personnel demands for providing regulatory oversight and working with affected industries. Costs may vary, depending on the nature and scope of the infestations, and cannot be accurately predicted at this time.
Agency Prepared by (Name & Phone No.): DATCP / Christopher Deegan (608-224-4573)		Authorized Signature:			Date: November 26, 2013

Notice of Hearing

Agriculture, Trade and Consumer Protection

rulemaking_notices CR 13-104 CR 13-104

(DATCP DOCKET # 13-R-03 )

The Wisconsin Department of Agriculture, Trade and Consumer Protection (DATCP) announces that it will hold public hearings on a proposed rule to revise Chapter ATCP 82, relating to milk haulers.

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.

Hearing Information

Date:   Wednesday, January 15, 2014
Time:   10:00 a.m. to 12:00 p.m.
Location:   Room 129
  Eau Claire State Office Building
  718 West Clairemont Avenue
  Eau Claire, Wisconsin 54701

Date:   Thursday, January 16, 2014
Time:   9:00 a.m. to 11:30 a.m.
Location:   Room 090 (Training Room)
  Department of Agriculture, Trade and
  Consumer Protection
  2811 Agriculture Drive
  Madison, Wisconsin 53718

Date:   Friday, January 17, 2014
Time:   10:00 a.m. to 12:00 p.m.
Location:   Room 152B
  200 N. Jefferson Street
  Green Bay, Wisconsin 54301

Hearing impaired persons may request an interpreter for this hearing. Please make reservations for a hearing interpreter by January 3, 2014, by writing to Sandra Cleveland, Division of Food Safety, P.O. Box 8911, Madison, Wisconsin 53708-8911; or by emailing [e-mail]; or by telephone at [phone]. Alternatively, you may contact the DATCP TDD at [phone]. The hearing facility is handicap accessible.

Place where Comments are to be Submitted and Copies of the Rule

Following the public hearings, the hearing record will remain open until January 31, 2014 for additional written public comments. Comments may be sent to the Division of Food Safety at the address below, or to [e-mail], or to http://adminrules.wisconsin.gov.

You can obtain a free copy of this hearing draft rule and related documents including the economic impact analysis by contacting the Wisconsin Department of Agriculture, Trade and Consumer Protection, Division of Food Safety, 2811 Agriculture Drive, P.O. Box 8911, Madison, Wisconsin 53708. You can also obtain a copy by calling Sandra Cleveland at [phone] or by emailing [e-mail]. Copies will also be available at the hearing. To view the hearing draft rule online, go to: http://adminrules.wisconsin.gov.

Comments or concerns relating to small business may also be addressed to DATCP's small business regulatory coordinator Keeley Moll at the address above, or by email to [e-mail], or by telephone at [phone].

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

Chapter ATCP 82 (Milk Haulers) regulates bulk milk tanker licensing, construction, maintenance, cleaning, and sanitizing requirements; bulk milk weigher and sampler requirements, and mandatory procedures for collecting milk from dairy farms and delivering milk to a dairy plant and collecting milk samples for testing. This rule revision will align Wisconsin's regulations with the Food and Drug Administration's (FDA) Pasteurized Milk Ordinance (PMO) by allowing bulk milk weighers and samplers to collect partial loads of milk.

Statutes interpreted

Section 97.21, Stats., (Milk haulers and milk distributors).

Statutory authority

Sections 93.07 (1), 97.09 (4), and 97.21 (6), Stats.

Explanation of statutory authority

DATCP has broad general authority, under s. 93.07 (1), Stats., to adopt rules to implement programs under its jurisdiction. DATCP also has general authority under s. 97.09 (4), Stats., to adopt rules specifying standards to protect the public from the sale of adulterated or misbranded foods. The department has specific authority to promulgate rules related to milk haulers under s. 97.21 (6), Stats., which allows the department to establish rules related to: fees and regulations for bulk milk tanker operators and milk distributors; standards for the construction, maintenance, and sanitary operation of bulk milk tankers, milk distribution vehicles, and milk distribution facilities; the design, installation, cleaning, and maintenance of equipment and utensils; personnel sanitation; storage and handling of milk and fluid milk products; identification of bulk milk tankers and milk distribution vehicles; and record keeping.

Related statutes and rules

Wisconsin's milk haulers are governed by ch. 97, Stats. (Food Regulation). Milk haulers and milk distributors are regulated under s. 97.21, Stats., (Milk haulers and milk distributors). Chapter 82, Wis. Adm. Code, interprets ch. 97, Stats., as it relates to milk haulers and milk distributors.

Plain language analysis

The dairy industry is an important part of Wisconsin's economy. Wisconsin ranks second nationally in milk production and has 10,900 licensed dairy farms. Milk is shipped from each of these farms in a licensed bulk milk tanker (approximately 4,000 in Wisconsin) to one of more than 400 licensed dairy plants in the state or to a licensed dairy plant in another state. Safe and sanitary handling of milk throughout the collection and transportation process is critical for protecting the quality of milk produced in this state. Accurate measurement of collected milk and proper sampling of milk for analysis help ensure fair payment and milk safety, respectively.

The following proposed rule changes are needed to maintain Wisconsin's reputation for its world class dairy products by ensuring that inspection practices are aligned with the Food and Drug Administration's (FDA's) Grade “A" Pasteurized Milk Ordinance (PMO). The PMO establishes minimum standards for Grade “A" dairy products. Wisconsin dairy producers and bulk milk weighers and samplers must meet state regulatory standards equivalent to or more stringent than those in the PMO to be allowed to ship Grade “A" milk in interstate commerce. The PMO standards are established by the National Conference on Interstate Milk Shipments (NCIMS), which consists of voting representatives from dairy regulatory agencies in each state.

Partial collections of milk from bulk milk tanks

The rule proposes adopting a provision of the PMO that allows bulk milk weighers and samplers to make partial collections of milk from bulk tanks on dairy farms under certain conditions. Currently, ch. ATCP 82 essentially requires bulk milk weighers and samplers to empty a bulk milk tank each time they collect milk from the farm. The regulation states that no milk can be added to the bulk milk tank until after the tank has been emptied. The original intent of the regulation was to ensure that a dairy producer's bulk tank was regularly cleaned and sanitized and to ensure that collection-to-collection transfers of illegal drug residues did not occur, which could result in increased financial losses to dairy producers forced to dump multiple loads of milk.

Despite these worthwhile intentions, the requirement prohibiting partial collection of milk from a bulk tank is outdated. Farm sanitation methods have improved since Wisconsin's rule was first adopted. Frequent testing can allow dairy plants to quickly address problems related to bulk tank cleanliness and drug residues. As the number of dairy farms has decreased, farms have become larger, and per cow milk production has risen, many farms have purchased larger or additional bulk tanks, thereby creating new challenges for managing milk collection. On other farms, milk production increases have outpaced the expansion of milk tank volume, which also creates milk collection challenges. Allowing partial collection of milk from bulk tanks will provide industry with the flexibility needed to manage milk collection from farms more efficiently. In the long run, increased flexibility for collection of milk may result in fewer trips required to haul milk, with associated fuel savings, and less wear and tear on roadways.

The PMO allows partial collection of milk provided that certain practices are used to maintain the quality of milk. The proposed rule adopts these practices, which include a requirement that the bulk tank is emptied, cleaned and sanitized within 72 hours and that an acceptable temperature-recording device is installed and operating on the tank. To ensure proper regulatory oversight of partial collections of milk, the proposed rule also requires a bulk milk weigher and sampler to record when a partial pickup is made and when the bulk tank is emptied.

Bulk milk tanker grade “A" permit reciprocity