Rule-Making Notices (Hearing Notices)

rulemaking_notices Wisconsin Administrative Register No. 693, 9/30/2013

Rule-Making Notices

Notice of Hearing

Agriculture, Trade and Consumer Protection

rulemaking_notices EmR1315 EmR1315

The state of Wisconsin Department of Agriculture, Trade and Consumer Protection (DATCP) announces that it will hold a public hearing on its emergency rule, section ATCP 21.17, Wis. Adm. Code, relating to the quarantine of Dodge, Douglas, and Winnebago Counties for the emerald ash borer beetle.

DATCP will hold a public hearing at the time and place shown below.

Hearing Information

Date:   Friday, October 11, 2013
Time:   1:00 p.m.
Location:   Department of Agriculture, Trade and
  Consumer Protection
  Conference Room 266 (2nd Floor)
  2811 Agriculture Drive
  Madison, WI 53718

Hearing impaired persons may request an interpreter for this hearing. Please make reservations for a hearing interpreter by October 7, 2013, by writing to Barbara Stalker, 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 facility is accessible to disabled users.

Appearances at the Hearing, Copies of Proposed Rule, and Submittal of Written Comments

DATCP invites the public to attend the hearing and comment on the emergency rule. Following the public hearing, the hearing record will remain open until Friday, October 18, 2013, for additional written comments. Comments may be sent to the Division of Agricultural Resource Management at the address below to [e-mail] or at http://adminrules. wisconsin.gov.

You may obtain a free copy of this emergency 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 christopher.deegan@ wisconsin.gov. Copies will also be available at the hearing. To view the emergency rule online, please go to: http://adminrules.wisconsin.gov

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].

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

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

DATCP is adopting this temporary emergency rule pending the adoption of a federal regulation to quarantine Dodge, Douglas, and Winnebago counties. This 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.

Statutes interpreted

Sections 93.07 (12) and 94.01, Stats.

Statutory authority

Sections 93.07 (1), 93.07 (12), 94.01 and 227.24, Stats.

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 Dodge County at Riverside Park in Watertown on August 1, 2013, and from an ash tree at a private residence in Black Wolf township in Winnebago County on August 6, 2013. On August 13, 2013, APHIS confirmed the presence of EAB in a street tree from the City of Superior in Douglas County. This emergency rule creates a DATCP quarantine for Dodge, Douglas, and Winnebago counties. 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 Dodge, Douglas, and Winnebago counties, is prohibited with certain exceptions. The emergency rule will do the following:

•   Create quarantines for EAB for Dodge, Douglas, and Winnebago counties that prohibit 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 these counties 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 s. 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 Dodge, Douglas, and Winnebago counties. 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 Dodge, Douglas, and Winnebago counties. 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 Dodge, Douglas, and Winnebago counties to locations outside of these counties 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.

Dodge, Douglas and Winnebago counties have a total of 22 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 31 known firewood producers or dealers in Dodge, Douglas, and Winnebago counties. 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 seven lumber mills in Dodge, Douglas, and Winnebago counties 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.

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, Ohio, Pennsylvania, Virginia, and West Virginia, in addition to portions of Connecticut, Iowa, Kansas, Kentucky, Maryland, Massachusetts, Michigan, Minnesota, Missouri, New Hampshire, New York, North Carolina, and Tennessee. APHIS has also enacted quarantines for Brown, Kenosha, Racine, Walworth, Rock, Milwaukee, Waukesha, Jefferson, Ozaukee, Washington, Sheboygan, Fond du Lac, Trempealeau, La Crosse, Vernon, Sauk, and Crawford 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 Dodge, Douglas and Winnebago counties 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 Dodge County at Riverside Park in Watertown on August 1, 2013, and from an ash tree at a private residence in Black Wolf township in Winnebago County on August 6, 2013. On August 13, 2013, APHIS confirmed the presence of EAB in a street tree from the City of Superior in Douglas County. This emergency rule creates a Wisconsin Department of Agriculture, Trade and Consumer Protection (DATCP) quarantine for Dodge, Douglas and Winnebago counties. 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 emerald ash borer 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 quarantines for EAB for Dodge, Douglas and Winnebago counties that prohibit 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 these counties 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 Dodge, Douglas and Winnebago counties, 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: August 19, 2013

Notice of Hearing

Natural Resources

Fish, Game, etc., Chs. NR 1—

There is no clearinghouse or emergency rule number for this rule as neither the emergency rule nor the permanent rule have been filed.

(DNR # WM-11-13 and WM-24-13(E))

NOTICE IS HEREBY GIVEN that pursuant to sections 29.014, 29.041, and 227.11 (2) (a), Stats., interpreting sections 29.014, 29.041, and 29.192, Stats., the Department of Natural Resources will hold public meetings on revisions to Chapters NR 1, 10, 13, and 45, Wis. Adm. Code, relating to deer management, hunting, and implementation of the 2012 White-tailed Deer Trustee Report.

The hearings will be held October 22 through October 31 at each of the following locations at the following times:

October 22
Eagle River	Northland Pines HS Auditorium	1800 Pleasure Island Rd.	6 to 8 p.m.
Eau Claire	DNR Service Center Conf. Rm	1300 W. Clairemont Ave.	7 to 9 p.m.
Park Falls	Park Falls High School Auditorium	400 9th Street North	6 to 8 p.m.
Prairie du Chien	Prairie du Chien City Hall	214 East Blackhawk Ave.	7 to 9 p.m.
Richland Center	Richland County Courthouse Board Room	181 West Seminary St.	6 to 8 p.m.
Schofield	D.C. Everest Middle School Auditorium	9302 Schofield Ave.	7 to 9 p.m.
Superior	Superior Public Library	1530 Tower Ave.	6 to 8 p.m.
October 23
Black River Falls	BRF Middle School/Lunda Auditorium	1202 Pierce St.	7 to 9 p.m.
Burlington	Veterans Terrace — Stars and Stripes Room	589 Milwaukee Ave.	6 to 8 p.m.
Horicon	Horicon Marsh Education and Visitor Center	N7725 Hwy 28	6 to 8 p.m.
Plymouth	Plymouth High School	125 Highland Ave.	7 to 9 p.m.
Rhinelander	James Williams Middle School, Auditorium	915 Acacia Lane	6 to 8 p.m.
October 24
Green Bay	NWTC Room SC 132	2740 W. Mason St.	7 to 9 p.m.
Wautoma	Wautoma High School Cafeteria	514 S. Cambridge St.	7 to 9 p.m.
Hayward	Hayward High School, Auditorium	10320 Greenwood Ln.	6 to 8 p.m.
Portage	Law Enforcement Center	711 East Cook St.	6 to 8 p.m.
La Crosse	DNR Service Center Room B-19	3550 Mormon Coulee Rd.	7 to 9 p.m.
Mauston	Mauston High School Auditorium	800 Grayside Ave.	7 to 9 p.m.
October 29
Ashland	Northern Great Lakes Visitor Center	29270 County Hwy G	6 to 8 p.m.
Baldwin	DNR Service Center, Conference Room	890 Spruce St.	7 to 9 p.m.
Clintonville	Clintonville High School	64 West Green Tree Rd.	7 to 9 p.m.
Fitchburg	DNR Service Center - Gathering Waters CR	3911 Fish Hatchery Rd.	6 to 8 p.m.
Florence	Natural Resources Center Conference Room	55631 Forestry Dr.	7 to 9 p.m.
Grantsburg	Crex Meadows Wildlife Education & Visitors Center	102 E. Crex Avenue	7 to 9 p.m.
Janesville	DNR Service Center — Janesville	2514 Morse St.	6 to 8 p.m.
Medford	Medford High School Red - White Theater	1015 W. Broadway Ave.	6 to 8 p.m.
Pewaukee	Wildwood Lodge — Hudson Bay Room	N14 W24121 Tower Place	6 to 8 p.m.
October 30
Antigo	Antigo High School Auditorium	1900 10th Ave.	7 to 9 p.m.
Barron	Barron Cnty Government Cntr, Room 110	355 East Monroe Ave.	7 to 9 p.m.
Crivitz	Crivitz High School	400 South Ave.	7 to 9 p.m.
Dodgeville	DNR Service Center	1500 N. Johns St.	6 to 8 p.m.
Fountain City	Cochrane/Fountain City HS Auditorium	S2770 STH 35	7 to 9 p.m.
Oshkosh	Webster Stanley Middle School	915 Hazel St.	7 to 9 p.m.
October 31
Ladysmith	Ladysmith High School Auditorium	1700 E. Edgewood Ave.	6 to 8 p.m.
Darlington	Darlington Elementary School Auditorium	11630 Center Hill Rd.	6 to 8 p.m.

Appearances at Hearing

Pursuant to the Americans with Disabilities Act, reasonable accommodations, including the provision of informational material in an alternative format, will be provided for qualified individuals with disabilities upon request. Please call Scott Loomans at [phone] with specific information on your request at least 10 days before the date of the scheduled hearing.