DATCP Docket: 22-R-05
Clearinghouse Rule:
Preliminary Rule Draft
9/7/2022
STATE OF WISCONSIN
DEPARTMENT OF AGRICULTURE, TRADE AND CONSUMER PROTECTION
PROPOSED ORDER OF THE DEPARTMENT OF AGRICULTURE, TRADE AND CONSUMER PROTECTION ADOPTING RULES
PROPOSED ORDER
The Wisconsin Department of Agriculture, Trade and Consumer Protection proposes an order to repeal ATCP 21.01 (15), ATCP 21.13 (3), ATCP 29.11 (1) (d), ATCP 29.11 (2) (a), ATCP 29.11 (2) (b), ATCP 29.11 (2) (c), ATCP 29.11 (3) (a), ATCP 29.11 (3) (b), ATCP 29.11 (3) (c), ATCP 29.11 (3m), ATCP 29.11 (6) (b); to amend ATCP 21.01 (8), ATCP 21.10, (title), ATCP 21.10 (1) (a) and (b), ATCP 21.10 (2) (a) and (b), ATCP 21.10 (3), ATCP 21.13 (2) (c), ATCP 29.10 (3) (c), ATCP 29.11 (2), ATCP 29.11 (3), ATCP 29.11 (5), ATCP 29.11 (6) (c), ATCP 29.11 (6) (d), ATCP 29.15 (4) (b), ATCP 29.20 (6) (b), ATCP 29.25 (5) (a), ATCP 35.04 (5) (b), ATCP 35.06 (3) (c), ATCP 35.20 (3), ATCP 35.22 (1) (a), ATCP 35.22 (1) (b), ATCP 35.22 (1) (c), ATCP 35.22 (2) (a), ATCP 35.22 (c), and ATCP 35.22 (2) (d); to create ATCP 29.20 (6) (c), relating to the removal of obsolete language and resolve statutory conflicts.
Analysis Prepared by the Department of Agriculture, Trade and Consumer Protection
Statutes Interpreted: ss. 93.07 (12), 93.07 (13), 94.01, 94.68 (2), 94.681, 94.685 (3), 94.703 (3), 94.704 (3), 94.73 (6), and 94.76, Stats. Statutory Authority: ss. 93.07 (1), 93.07 (12), 93.07 (13), 94.01, 94.68 (2), 94.681, 94.685 (3), 94.70, 94.703 (3), 94.704 (3), 94.73 (11), 94.76, 227.10 (3) and 227.11 (2) (a), Stats. Explanation of Agency Authority
The Department of Agriculture, Trade and Consumer Protection (department) has broad general authority, under s. 93.07 (1), Stats., to interpret laws under its jurisdiction. The department also has broad general authority, under ss. 93.07 (12) and (13), 94.01 (1), and 94.76 (1) Stats., to conduct surveys and inspections for the detection and control of injurious pests; and to make, modify, and enforce reasonable rules, including adoption of control measures necessary to prevent, suppress or control the introduction, establishment and spread of injurious pests. The department has broad authority under s. 94.70, Stats., to regulate the sale and/or distribution of pesticides within the state, and authority under, ss. 94.68 and 94.681, Stats., to process license applications and issue licenses to pesticide manufacturers and labelers, and to collect fees and surcharges for their products. The department also has authority under s. 94.685, Stats., regarding the licensing of, and collection of fees from, dealers and distributors of restricted-use pesticides. Authority for licensing of commercial pesticide application businesses, and licensing of individual commercial pesticide applicators, is given under ss. 94.703 and s. 94.704, Stats., respectively. Additional authority is specified in Wisconsin Statute sections 25.468. The department has authority under s. 227.10 (3), Stats. regarding prohibiting discrimination to revise gender-specific language. The department has broad authority under s. 94.73 (11), Stats., to promulgate rules to implement the Agricultural Chemical Cleanup Program (ACCP), and specifically under s. 94.73 (6), Stats., to specify amounts and formulas for reimbursements requested through the ACCP. The department is proposing to adopt these rules, under authority of s. 227.11 (2) (a) (intro.), Stats., by the permanent rulemaking process. Related Statutes and Rules
Chapter ATCP 21, Plant Inspection and Pest Control; ch. ATCP 29, Pesticide Use and Control; ch. ATCP 35, Agricultural Chemical Cleanup Program Plain Language Analysis
This rule is promulgated under s. 94.76 (1), Stats., which allows the department to issue such rules or orders or adopt such control measures which in its judgment may be necessary to prevent, suppress or control the introduction, spread or dissemination of honeybee diseases and pests in this state. This proposed rule makes adjustments to gendered references in ch. ATCP 35. This proposed rule resolves obsolete language and the conflicts with Wisconsin statutes.
The department identified portions of s. ATCP 21.10 as obsolete to the extent these portions use an obsolete common name for the live insect, Lymantria dispar, or “spongy moth,” and this proposed rule corrects this where used. The department identified portions of s. ATCP 21.13 are reportable as obsolete. Specifically, ATCP subsections 21.13 (2) (c) 1. -2., refer to outdated methods to certify that honeybees are European honeybees. Section ATCP 21.13 (3) is outdated because it requires a Varroa mite certification that hives are free of this pest. The department identified administrative code language in chs. ATCP 29 and ATCP 35 as obsolete or conflicting in our report filed with the Joint Committee for Review of Administrative Rules pursuant to s. 227.29, Stats. Section ATCP 29.10 (3) (c) 2. is unnecessary as it requires pesticide manufacturers and labelers applying for a license to include with an application a report that states the gross revenue of each pesticide product used in this state. 2017 Wisconsin Act 59 section 1260 removed this requirement from s. 94.68 (2) (bm), Stats. Sections ATCP 29.11, ATCP 29.15 (4), ATCP 29.20 (6), and ATCP 29.25 (5) conflict with ss. 94.681, 94.685 (3) (a) 2., 94.703 (3) (a) 2., and 94.704 (3) (a) 2., Stats., due to changes in license fees by 2017 Wisconsin Act 59 section 1285, 1289, 1290, and 1292, respectively. Section ATCP 35.22 conflicts with s. 94.73 (6) (b), (c), Stats., as 2017 Wisconsin Act 59 section 1302 increased the maximum eligible reimbursement costs for eligible sites under the Agricultural Chemical Cleanup Program. Summary of, and Comparison with, Existing or Proposed
Federal Statutes and Regulations
The department is unaware of any existing or proposed federal language that would affect the proposed rules technical changes.
Summary of Comments Received during Preliminary Comment Period
and at Public Hearing on Statement of Scope
