Rule-Making Notices (Hearing Notices)

The primary issues with current trap net placement are navigational safety and user conflict. Nets must be clearly marked according to regulations, but excessive use of this area creates confusion about the exact placement and orientation of individual nets and makes navigation through the area potentially hazardous. Given that the area is the only ingress or egress from Chequamegon Bay and a popular sport fishing and recreational boating corridor, the risks can be significant. Also, in each of the last two seasons, commercial fishers setting nets in this area have experienced acts of vandalism to their nets with repair costs ranging into the thousands of dollars. Out of concern for these issues, the department decided to seek a rule change.

Analysis and supporting documents used to determine effect on small business or in preparation of an economic impact analysis

The rule addresses the number and placement of trap nets in the Restricted Use Area. There would be no implementation costs for the department.

This rule would increase navigational safety and likely expand safe fishing and boating opportunities for the charter fishers and recreational anglers. Commercial fishers may need to reduce the number or alter placement of trap nets in the Restricted Use Area, but the rule is not expected to significantly impact their ability to harvest fish from this area according to applicable laws and statutes.

Minimal economic impact is anticipated as a result of this rule change. Fishing effort may be redistributed to other areas, possibly requiring additional travel for some fishers, but no quota or fishing effort changes are expected. No significant economic impacts are expected for commercial fishers. The department is proposing a balanced approach that protects the navigational safety of the recreational fishing and boating public and the economic needs of commercial fishers. Based on public input received during the economic impact analysis comment period, there would be a positive economic benefit for some fishing related small businesses, such as charter fishing businesses.

Effect on Small Business

The proposed rule change would impact state-licensed commercial fishers, charter fishers, and recreational anglers. Minimal impact is expected for businesses or business associations. No additional compliance or reporting requirements will be imposed on small businesses as a result of these rule changes. The department will conduct an economic impact analysis prior to rule implementation.

The rule will be enforced by department conservation wardens under the authority of ch. 29, Stats., through routine patrols and investigations of citizen complaints.

Pursuant to ss. 227.114 and 227.137, Stats., it is anticipated that the proposed rules will have minimal economic impact on small businesses. The Department conducted an economic impact analysis by contacting businesses, business and fishing associations, local governmental units, and individuals. The Department determined that this rule would not adversely affect in a material way the economy, a sector of the economy, productivity, jobs, or the overall economic competitiveness of this state. The Department's Small Business Regulatory Coordinator may be contacted at [e-mail] or by calling [phone].

Environmental Impact

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.

Agency Contact Persons

Kate Strom Hiorns

Department of Natural Resources

P.O. Box 7921

Madison, WI 53707-7921

Telephone: [phone]

Email: [e-mail]

Peter Stevens

Department of Natural Resources

141 S. Third Street

Bayfield, WI 54814

Telephone: [phone] Ext: 12

Email: [e-mail]

STATE OF WISCONSIN DEPARTMENT OF ADMINISTRATION DOA-2049 (R03/2012)	Division of Executive Budget and Finance 101 East Wilson Street, 10th Floor P.O. Box 7864 Madison, WI 53707-7864 FAX: [phone]
ADMINISTRATIVE RULES Fiscal Estimate & Economic Impact Analysis

1. Type of Estimate and Analysis
⍽ Original   X Updated   ⍽ Corrected
2. Administrative Rule Chapter, Title and Number
Chapter NR 25, Commercial Fishing — Outlying Waters
3. Subject
This rule will revise ch. NR 25, Wis. Adm. Code, to define the number and placement of trap nets for commercial fishing activity in the Restricted Use Area of Lake Superior, which is bounded by the Bayfield Ferry line, a line between Houghton Point and Long Island Point, and a line between Long Island Point and the southernmost point on Madeline Island.
4. Fund Sources Affected			5. Chapter 20, Stats. Appropriations Affected
⍽ GPR   ⍽ FED   ⍽ PRO   ⍽ PRS   ⍽ SEG   ⍽ SEG-S
6. Fiscal Effect of Implementing the Rule
X No Fiscal Effect ⍽ Indeterminate	⍽ Increase Existing Revenues ⍽ Decrease Existing Revenues		⍽ Increase Costs ⍽ Could Absorb Within Agency's Budget ⍽ Decrease Cost
7. The Rule Will Impact the Following (Check All That Apply)
⍽ State's Economy ⍽ Local Government Units		X Specific Businesses/Sectors ⍽ Public Utility Rate Payers X Small Businesses (if checked, complete Attachment A)
8. Would Implementation and Compliance Costs Be Greater Than $20 million? ⍽ Yes   X No
9. Policy Problem Addressed by the Rule
Commercial fishers may currently place trap nets in the Restricted Use Area, described above, for the taking of whitefish or herring from June 1 to August 15. Currently, the only limit on how many nets an individual fisher or all fishers combined may place in this small area is the total number of trap nets allowed per commercial licensee, which is 10, and distance restrictions limiting the proximity of adjacent trap nets. Over the last two years, there have been complaints received from sport/recreational anglers about a proliferation of trap nets within this area. The primary issues with current trap net placement are navigational safety and user conflict. Nets must be clearly marked according to regulations, but excessive use of this area creates confusion about the exact placement and orientation of individual nets and makes navigation through the area potentially hazardous. Given that the area is the only ingress or egress from Chequamegon Bay and a popular sport fishing and recreational boating corridor, the risks can be significant. Also, in each of the last two seasons, commercial fishers setting nets in this area have experienced acts of vandalism to their nets with repair costs ranging into the thousands of dollars. Out of concern for these issues, the department decided to seek a rule change. The rule would: limit commercial fishers to using a single trap net per commercial license in the Restricted Use Area to address concerns about high trap net density in the Area; exclude trap nets from a “zone of safe passage" within the Restricted Use Area to address safety concerns with recreational boaters and anglers; and clarify a mandate that nets be rendered inoperable by the close of the special season in the Restricted Use Area and be physically removed within three days. This clarifies a recent point of confusion regarding timely removal of trap nets following the season closure in the Restricted Use Area.
10. Summary of the businesses, business sectors, associations representing business, local governmental units, and individuals that may be affected by the proposed rule that were contacted for comments.
For comments on the economic impact of the rule, the department contacted the Wisconsin Conservation Congress, the Wisconsin Wildlife Federation, the Great Lakes Indian Fish and Wildlife Commission, Wisconsin Association of Lakes, WI Federation of Great Lakes Sport Fishing Clubs, WI Council of Sport Fishing Organizations, Musky Clubs Alliance of Wisconsin, Inc., Salmon Unlimited, Sturgeon for Tomorrow, Trout Unlimited - WI Council, Walleyes for Tomorrow, WI Bass Federation, Izaak Walton League-Wisconsin Division, Lake Michigan Fisheries Forum, WI Commercial Fisheries Association, American Fisheries Society-Wisconsin Chapter, Natural Resources Foundation of WI, Gathering Waters, River Alliance of Wisconsin, UW Sea Grant, League of WI Municipalities, WI Towns Association, WI Counties Association, NE WI Great Lakes Sport Fishermen, Great Lakes Sport Fishermen of Milwaukee, and the Lake Michigan and Lake Superior Commercial Fishing Boards.
11. Identify the local governmental units that participated in the development of this EIA.
The open comment period was conducted during August 2013. No local governments requested to participate in the development of the EIA.
12. Summary of Rule's Economic and Fiscal Impact on Specific Businesses, Business Sectors, Public Utility Rate Payers, Local Governmental Units and the State's Economy as a Whole (Include Implementation and Compliance Costs Expected to be Incurred)
The proposed rule change would have a minimal economic impact on state-licensed commercial fishers, charter fishers, and sport/recreational anglers. Minimal impact is expected for businesses or business associations. No additional reporting requirements will be imposed on small businesses as a result of these rule changes. This rule does not directly affect public utility rate payers or local governmental units. The department received five comments during the economic impact analysis comment period (August 1-15): 1- Jeff Bodin, commercial fishing small business owner, stated that the rule will change nothing because tribal commercial fishing nets would move into the area instead. (The department determined that although this is possible, tribal commercial fishing trap nets are not currently placed in this area, nor do any tribal fishers fish trap nets anywhere at this time. Therefore, they currently do not present impediments to navigational safety. Tribal fishers are subject to tribal regulations and therefore would not be required to follow the boundary changes in this rule proposal. However, Bad River and/or Red Cliff bands could agree to adopt the State's boundary changes pursuant to the State-Tribal Agreement.) 2- Darryl Fenner, D's Superior Fishing Charters (Washburn, WI), stated that he has a small charter fishing business located on the Chequamegon Bay of Lake Superior and the rule change would result in no compliance costs to his business, but it would have an economic and safety benefit. Mr. Fenner's letter also included: The high number and density of commercial trap nets in the Restricted Use Area (RUA) during June 1-August 15 does not allow him to charter fish in a significant portion of the RUA, and effectively separates fishing in Chequamegon Bay from other areas of Lake Superior. He said net density is high, with nets oriented in all directions, making it impossible to charter fish or sport fish through this area. Marker buoys, net flags, netting, and ropes criss-cross the area. One entanglement of charter fishing gear may result in significant loss of gear, costing hundreds to thousands of dollars and a ruined charter fishing experience for his clients. He said the number and density of trap nets require additional travel time and expense for each charter fishing trip. Due to location and density, each charter fishing trip must start outside the RUA or result in net entanglement. He said this doubles his daily fuel costs, and by raising charter fishing rates to cover those costs he has fewer trips booked. With few or no nets in the RUA, he said he could charter fish closer to the Washburn/Bayfield area, resulting in lower rates and more days booked as well as increased business for the local economy and improved income for his business. Limiting the number and placement of trap nets within the RUA would allow some charter fishing within the proposed "safe passage area" however it is likely trap nets will surround this area, again making it impossible to charter or sport fish there. Removal of all netting within the RUA would be a better choice for the area economy. … Additional restrictions on the number, size, and location of trap and gill nets are necessary to allow the sport fisherman a fair chance at harvest of the fishing resource. Boater safety is a serious concern with the current number and density of trap nets within the RUA. He said the net markers are difficult to see during the day, and nearly impossible to see at night. The safe passage area may be a small improvement, but will likely result in trap nets placed around the perimeter of the area, again resulting in a safety hazard. He said the entire RUA should be a safe passage area. 3- Mark R. Johnson, on behalf of the Apostle Islands Sportfisherman's Association, (Ashland, WI) stated that the AISA supports the proposed rule as a first step in rebalancing sportfishing and commercial interests. He also listed a number of concerns regarding commercial netting including: 1) nets are placed in popular fishing areas creating a safety hazard, 2) sportfisherman are choosing not to fish the area over concerns about net entanglement, 3) each entanglement costs sportfisherman ~$100 in equipment, 4) Apostle Islands and Chequamegon Bay provide a shelter from weather but not nets, 5) nets obstruct recreational boat traffic as well as fisherman, 6) all businesses benefit from sportfishing and many jobs are created;commercial fishing benefits a few and creates few jobs, 7) when sportfishing is poor the entire area suffers. Further, he expressed the AISA's displeasure at the limited 15 day comment period. He stated more groups would comment if the period were longer and that many groups do not meet in the summer. 4- Robert S. Gowdy, Washburn, WI, stated that he has lived in Washburn and fished Chequamegon Bay for 23 years. His comments were focused on navigational safety of the area rather than any economic impact. He said that the nets are poorly marked in the RUA and are placed directly in the path known locally as "salmon alley." He stated: "If safety is a top priority for the state, I believe nets should not be placed anywhere inside the boundaries shown on the map." 5- Cliff Halvorson, on behalf of Halvorson Fisheries (Cornucopia, WI), stated their opposition to the proposed rule. He stated that the rule was unfair as the “zone of safe passage" disproportionately impacted Halvorson Fisheries nets and would take “money out of his pocket." He stated that these nets had been in place for a number of years and had never been an issue before and that recreational traffic can travel right over the deeper nets with no risk of entanglement. He stated that the current half-mile required separation between commercial trap nets should be more than sufficient to ensure safe navigation. He repeatedly reiterated his strong opposition to this measure and intention to continue to actively oppose it. (The department determined the proposed location and size of the “zone of safe passage" is necessary to minimize navigation hazards to recreational boaters and fisherman. It was determined that a route through the middle of the channel would provide the safest passage through deepest water with no other known navigational obstructions. Of the seven trap nets Halvorson Fisheries have permitted in the RUA, a maximum of two would be impacted by the proposed location of the “zone of safe passage.")
13. Benefits of Implementing the Rule and Alternative(s) to Implementing the Rule
This rule would increase navigational safety and likely expand safe fishing and boating opportunities for the charter fishers and recreational anglers. Commercial fishers may need to reduce the number or alter placement of trap nets in the Restricted Use Area, but the rule is not expected to significantly impact their ability to harvest fish from this area according to applicable laws and statutes. Minimal economic impact is anticipated as a result of this rule change. Fishing effort may be redistributed to other areas, possibly requiring additional travel for some fishers, but no quota or fishing effort changes are expected. No significant economic impacts are expected for commercial fishers. The department is proposing a balanced approach that protects the navigational safety of the recreational fishing and boating public and the economic needs of commercial fishers. Based on public input, there would be a positive economic benefit for some fishing related small businesses, such as charter fishing businesses.
14. Long Range Implications of Implementing the Rule
As noted, this rule would increase navigational safety and likely expand safe fishing and boating opportunities for the charter fishers and recreational anglers.
15. Compare With Approaches Being Used by Federal Government
There is no existing or proposed federal regulation that would govern commercial fishing in Wisconsin's waters of Lake Superior.
16. Compare With Approaches Being Used by Neighboring States (Illinois, Iowa, Michigan and Minnesota)
Trap nets are not used in Minnesota waters of the Great Lakes. The State of Michigan has uniform trap net marking requirements for all of its Great Lakes Waters (parts of Lakes Superior, Michigan, Huron, and Erie). The Michigan Department of Natural Resources and Environment has the authority to limit trap netting by individual license holders if and when conflicts arise. Pursuant to that authority the MI DNRE prohibits trap nets during June, July, and August in one area near Tawas on Lake Huron.
17. Contact Name				18. Contact Phone Number
Peter Stevens, Lake Superior Fisheries Field Unit Supervisor				[phone] Ext: 12

This document can be made available in alternate formats to individuals with disabilities upon request.

ATTACHMENT A

1. Summary of Rule's Economic and Fiscal Impact on Small Businesses (Separately for each Small Business Sector, Include Implementation and Compliance Costs Expected to be Incurred)

Commercial fishers may need to reduce the number or alter placement of trap nets in the Restricted Use Area, but the rule is not expected to significantly impact their ability to harvest fish from this area according to applicable laws and statutes.

2. Summary of the data sources used to measure the Rule's impact on Small Businesses

Minimal economic impact is anticipated as a result of this rule change. Fishing effort may be redistributed to other areas, possibly requiring additional travel for some fishers, but no quota or fishing effort changes are expected.

3. Did the agency consider the following methods to reduce the impact of the Rule on Small Businesses?

X Less Stringent Compliance or Reporting Requirements ⍽ Less Stringent Schedules or Deadlines for Compliance or Reporting ⍽ Consolidation or Simplification of Reporting Requirements ⍽ Establishment of performance standards in lieu of Design or Operational Standards ⍽ Exemption of Small Businesses from some or all requirements ⍽ Other, describe:

4. Describe the methods incorporated into the Rule that will reduce its impact on Small Businesses

The department's main concern is to increase navigational safety and expand safe fishing and boating opportunities. The rule was written to ensure commercial fishers' economic needs were included.

5. Describe the Rule's Enforcement Provisions

The rule will be enforced by department conservation wardens under the authority of ch. 29, Stats., through routine patrols and investigations of citizen complaints.

6. Did the Agency prepare a Cost Benefit Analysis (if Yes, attach to form)

⍽ Yes X No

Notice of Hearing

Natural Resources

Environmental Protection — Air Pollution Control,
Chs. NR 400—

rulemaking_notices CR 13-070 CR 13-070

(DNR # AM-21-12)

NOTICE IS HEREBY GIVEN that pursuant to ss. 227.16, 227.17, and 285.11, Wis. Stats, the Department of Natural Resources, hereinafter the Department, will hold a public hearing to consider the proposed changes to chs. NR 400, 405, 408, and 410, related to consistency with federal major source permit review requirements and clean-up of rules related to the former indirect source program on the date and at the time and location listed below.

The proposed revisions relate to issues for State Implementation Plan approvability, and the State Implementation Plan developed under s. 285.11 (6), Stats., will be revised. The Department will also be accepting comment at this hearing on the submittal to the U.S. Environmental Protection Agency of final rules promulgated under this rulemaking as part of a revision to Wisconsin's State Implementation Plan.

Hearing Information

Date:   Tuesday, November 5, 2013
Time:   1:00 to 2:00 p.m.
Locations:   Natural Resources Building
  101 S. Webster St.
  Room 713
  Madison, WI 53703

Appearances at Hearing

Reasonable accommodations, including the provision of informational material in an alternative format, will be provided for qualified individuals with disabilities upon request. Contact Robert Eckdale in writing at the Department of Natural Resources, Bureau of Air Management (AM/7), 101 S. Webster St., Madison, WI 53703; by email to [e-mail]; or by calling [phone]. A request must include specific information and be received at least 10 days before the date of the scheduled hearing.

Availability of the proposed rules and the fiscal estimate and Economic Impact Analysis

The proposed rule and supporting documents, including the fiscal estimate and economic impact analysis, may be viewed and downloaded from the Administrative Rules System Website at https://health.wisconsin.gov/admrules/public/Rmo?nRmoId=13843. If you do not have internet access, a printed copy of the proposed rule and supporting documents, including the fiscal estimate and economic impact analysis, may be obtained free of charge by contacting Robert Eckdale, Department of Natural Resources, Bureau of Air Management (AM/7), 101 S. Webster St., Madison, WI 53703, or by calling [phone].

Submitting Comments

Comments on the proposed rule must be received on or before November 8, 2013. Written comments may be submitted by U.S. mail, fax, email, or through the internet and will have the same weight and effect as oral statements presented at the public hearing. Written comments and any questions on the proposed rules should be submitted to:

Gail Good

Department of Natural Resources

Bureau of Air Management (AM/7)

101 S Webster St.

Madison, WI 53703

Phone: [phone]

Fax: [phone]

E-mail: [e-mail]

Internet: Use the page for this rulemaking on the Administrative Rules System Website (requires registration to comment) at: https://health.wisconsin.gov/admrules/public/Rmo?nRmoId=13843.

Analysis Prepared by the Department

Statutes interpreted

Section 285.11 (1) and (6), Stats. The State Implementation Plan developed under s. 285.11 (6), Stats., is revised.

Statutory authority

Sections 227.11 (2) (a), 285.11 (1), (16), and (17), and 285.60 (11) (b), Stats.

Explanation of agency authority

Section 227.11 (2) (a), Stats., gives state agencies general rule-making authority. Section 285.11 (1), Stats., gives the Department the authority to promulgate rules implementing and consistent with, ch. 285, Stats. Section 285.11 (6), Stats., requires the Department to develop a plan for the prevention, abatement, and control of air pollution. The plan must conform with the Clean Air Act and is necessary for new source review implementation. Section 285.11 (16), Stats., requires the Department to promulgate rules that may limit the classification of a major source to specified air contaminants. Section 285.11 (17), Stats., requires the Department to promulgate rules, consistent with the federal Clean Air Act, that modify the term `modification' as it relates to specific categories of stationary sources. Section 285.60 (11) (b), Stats., establishes that the Department may not require a permit for an indirect source under ch. 285, Stats.

Related statute or rule

There are no related statutes that are not identified above.

Plain language analysis

The objective of this rule package is to revise language in chs. NR 400, 405, and 408 to maintain consistency with federal requirements and definitions. Additionally, sections of chs. NR 400 and 410 need to be repealed due to the repeal of ch. NR 411.

In May 2006, the Department requested approval by the U.S. Environmental Protection Agency (USEPA) of rules promulgated by Wisconsin to incorporate federal New Source Review Reform requirements as a revision to the State Implementation Plan (SIP). The USEPA approved the SIP revisions, but subsequently requested changes to language in chs. NR 405 and 408. The changes pertain to the fuel use prohibition that is part of the definition of “major modification."

Section NR 405.02 (25i) defines “Regulated NSR air contaminant" and specifically identifies volatile organic compounds as a precursor for ozone. USEPA has requested inclusion of nitrogen oxides (NOx) in the definition for clarification purposes. Similarly, USEPA requires, through its 2008 New Source Review Rule, explicit identification of NOx and sulfur dioxide (SO2) as precursors to particulate matter with a diameter of 2.5 micrometers or less (PM2.5) within the definition of “Regulated NSR air contaminant." The Department has also amended the definition of “Regulated NSR air contaminant" in s. NR 408.02 (29m) to specifically address precursor pollutants in nonattainment areas. Additionally, the Department will amend the definitions of PM2.5 and particulate matter with a diameter of 10 micrometers or less (PM10) to address a USEPA-identified SIP deficiency. The definitions as currently written do not specifically mention condensables as required in the federal 2008 New Source Review Rule.

On April 27, 2011, the Joint Committee for Review of Administrative Rules (JCRAR) adopted a motion under s. 227.26 (2) (d), Stats., suspending ch. NR 411. Subsequent passage of legislation introduced by JCRAR in support of the suspension (see 2011 Wisconsin Act 121), resulted in the repeal of ch. NR 411. The primary purpose of ch. NR 411 had been to control carbon monoxide emissions from indirect sources through conditions established in construction and operation permits. Therefore, the Department proposes to repeal rules whose only purpose is in support of ch. NR 411. Rules proposed for repeal include ss. NR 400.02 (101) and (106), and 410.03 (3). Section NR 400.02 (101) and (106) define `modified indirect source' and `new indirect source' respectively. Section NR 410.03 (3) establishes fees for the application and issuance of permits to construct or modify an indirect source.

Summary of, and comparison with, existing or proposed federal statutes and regulations

In a letter dated June 17, 2009, the USEPA notified the Department that the definition of the term “major modification" in s. NR 405.02 was inadequate because it failed to identify permits issued under federal authority. Wisconsin's Prevention of Significant Deterioration (PSD) program was approved into its SIP on June 28, 1999. Before that, PSD construction permits were issued under federal authority. When s. NR 405.02 (21) (b) (5) was written, the references to federal authority were inadvertently omitted. Because the federal citations were omitted from the rule, USEPA identified that in a very limited situation, the current state definition would allow a source to make a change to use a different fuel or raw material without undergoing major new source permit review for the change, even though the change could be prohibited under a federal permit. The Department will amend this definition to ensure that it is consistent with USEPA rule and policy and recognizes all federally-issued permits. The Department is likewise amending the definition of “major modification" at s. NR 408.02 (20) for nonattainment area new source review.

The alternative to this rule action is to keep the rules as they are, which USEPA has already identified as an inconsistency with federal rules. However, in a Federal Register filed June 15, 2012, USEPA disapproved narrow portions of the SIP pertaining to permit requirements in chs. NR 405 and 408 that would be addressed with this rulemaking. In the Federal Register, USEPA stated that they are under obligation to promulgate a Federal Implementation Plan (FIP) addressing the disapproved portions of the SIP within 2 years. The Federal Register states that the FIP will not be promulgated if Department rectifies the deficiencies within the 2-year timeframe.

The clarifications of NOx as a precursor to ozone and NOx and SO2 as precursors to PM2.5, as well as the clarification of accounting for PM2.5 and PM10 condensables as a portion of PM2.5 and PM10 emissions are not policy changes nor do they change how Department currently implements chs. NR 405 and 408 requirements. On June 15, 2012, USEPA disapproved a narrow portion of Wisconsin's SIP for the 1997 ozone National Ambient Air Quality Standard pertaining to air construction permitting. This was done because NOx was not explicitly identified as a precursor to ozone as part of PSD permit program requirements. The final disapproval triggered a requirement that USEPA promulgate a FIP addressing the deficiency no later than 2 years from the date of disapproval. USEPA published a proposed disapproval of Wisconsin's submittal on December 18, 2012, because the submittal did not meet the 2008 PM2.5 SIP requirements. Specifically, the revisions submitted did not explicitly define the precursors of PM2.5, nor did they contain the prescribed language to ensure that gases that condense to form particulate matter (PM), known as condensables are regulated as part of PM2.5 and PM of less than 10 micrometer (PM10) emissions. Final disapproval to portions of the SIP relating to identifying precursors of PM2.5 will also result in the promulgation of a FIP unless the deficiencies are addressed.

Not repealing sections of chs. NR 400 and 410 in response to the repeal of ch. NR 411 by the legislature would potentially create confusion and perpetuate an inconsistency with Department rules.

Comparison with similar rules in adjacent states (Illinois, Iowa, Michigan, and Minnesota)

Illinois and Minnesota are delegated states, so they are directly implementing the federal program and not implementing their programs through a State Implementation Plan (SIP), as Wisconsin does. Iowa and Michigan, similar to Wisconsin, are SIP approved states, so they are also implementing a federal program, but through their own state rules and regulations. It is the goal of SIP-approved states to implement federal programs in accordance with the regulations set out in federal code. The majority of this rule package addresses changes necessary to comply with federal regulations. Those changes not dictated by federal regulations are associated with the repeal of fees related to the indirect source program which no longer exists in Wisconsin, thereby addressing a current internal inconsistency.

Summary of factual data and analytical methodologies used and how any related findings support the regulatory approach chosen

The Department did not use any factual data or analytical methodologies in developing the proposed rules. The changes proposed in this rule package are based on deficiencies in the rules identified by the USEPA and a comparison of the current state rules to the federal rules.

Analysis and supporting documents used to determine the effect on small business or in preparation of an economic impact analysis

The proposed changes to the new source permit review programs only affect major sources which typically do not include small businesses. The proposed changes related to the former indirect source permit program will not have any effect on small businesses since the indirect permit program has been repealed and the proposed changes are of a clean-up nature only. The Department did not use existing documentation in determining the effect on small business or in preparation of the economic impact analysis.

Effect on Small Business (Initial Regulatory Flexibility Analysis)

The Department does not believe that the proposed rule revisions will have an economic impact on small businesses.

The Small Business Regulatory Coordinator may be contacted at [e-mail], or by calling [phone].

Environmental Analysis

The Department has made a preliminary determination that adoption of the proposed rules would not involve significant adverse environmental effects and would not need an environmental analysis under ch. NR 150, Wis. Adm. Code. However, based on comments received, an environmental analysis may be prepared before proceeding. This analysis would summarize the Department's consideration of the impacts of the proposal and any reasonable alternatives.

Fiscal Estimate and Economic Impact Analysis Summary

The Department believes the proposed rules will have no fiscal effect. The changes being proposed either amend rules to match current practice and maintain consistency with federal requirements and definitions, or eliminate definitions and fees for a program no longer used in Wisconsin.

The Department solicited information and advice on the economic impacts of the proposed rules from those who potentially could be affected or who might likely be interested. Most responders to the solicitation indicated that they had no input because they believe the proposed rules will have no economic impact on them. One responder felt there was economic benefit from the proposed rules and asked the Department to quantify that benefit. Additionally, the commenter felt that the proposed rules addressed broader policy issues whose economic benefits should be analyzed. The Department does not believe the proposed rules provide economic benefit. The economic benefit from the repeal of ch. NR 411 occurred when the chapter was repealed through legislative action and is not due to the clean-up of related rules proposed. Testimony, including an estimate of the costs associated with the indirect source permit program, was given at the time of the legislative action. The portions of the rule package associated with the major new source review program found in chs. NR 405 and 408 are amendments to ensure that the rules align with current Department practice as well as USEPA policy and do not represent changes in implementation. The economic impact analysis speaks to the economic impacts of the proposed rules, not the underlying statutes that give the Department authority for rulemaking. There were no revisions to the Economic Impact Analysis.

Agency Contact Person

Gail Good

P.O. Box 7921

Madison, WI 53707-7921

Telephone: [phone]

E-mail: [e-mail]

STATE OF WISCONSIN DEPARTMENT OF ADMINISTRATION DOA-2049 (R03/2012)	Division of Executive Budget and Finance 101 East Wilson Street, 10th Floor P.O. Box 7864 Madison, WI 53707-7864 FAX: [phone]
ADMINISTRATIVE RULES Fiscal Estimate & Economic Impact Analysis

1. Type of Estimate and Analysis
X Original   ⍽ Updated   ⍽ Corrected
2. Administrative Rule Chapter, Title and Number
Chapters NR 400 Air Pollution Control Definitions, NR 405 Prevention of Significant Deterioration, NR 408 Construction Permits for Direct Major Sources in Nonattainment Areas, and NR 410 Air Permit, Emission, and Inspection Fees.
3. Subject
Proposed rules relating to consistency with federal major source permit review requirements and clean-up of rules related to the former indirect source permit program.
4. Fund Sources Affected			5. Chapter 20, Stats. Appropriations Affected
⍽ GPR   ⍽ FED   ⍽ PRO   ⍽ PRS   ⍽ SEG   ⍽ SEG-S
6. Fiscal Effect of Implementing the Rule
X No Fiscal Effect ⍽ Indeterminate	⍽ Increase Existing Revenues ⍽ Decrease Existing Revenues		⍽ Increase Costs ⍽ Could Absorb Within Agency's Budget ⍽ Decrease Cost
7. The Rule Will Impact the Following (Check All That Apply)
⍽ State's Economy ⍽ Local Government Units		X Specific Businesses/Sectors ⍽ Public Utility Rate Payers ⍽ Small Businesses (if checked, complete Attachment A)
8. Would Implementation and Compliance Costs Be Greater Than $20 million? ⍽ Yes   X No
9. Policy Problem Addressed by the Rule
The DNR is proposing to amend definitions in chs. NR 400, 405, and 408, Wis. Adm. Code, related to the major new source permit review program for both attainment and nonattainment areas. Definitions proposed to be amended include PM2.5 emissions, PM10 emissions, major modification, and regulated New Source Review (NSR) air contaminant. These changes do not represent a policy problem, but are being proposed in response to deficiencies identified by the U.S. Environmental Protection Agency (EPA), and are necessary to maintain approval of the state implementation plan. The DNR is also proposing to repeal several rule provisions whose purpose was in support of an indirect source permit program. This permit program was previously implemented through ch. NR 411, which was repealed through legislative action. The provisions include several definitions and permit fees in chs. NR 400 and 410, Wis. Adm. Code, respectively. These proposed changes do not represent a policy problem, but are appropriate since the purpose of the rules affected was only related to ch. NR 411.
10. Summary of the businesses, business sectors, associations representing business, local governmental units, and individuals that may be affected by the proposed rule that were contacted for comments. The businesses that were contacted for comment were all those listed as major sources by the WDNR. Additionally, Wisconsin Manufacturers and Commerce, Wisconsin Paper Council, and the Wisconsin Utilities Association were contacted.
11. Identify the local governmental units that participated in the development of this EIA.
None
12. Summary of Rule's Economic and Fiscal Impact on Specific Businesses, Business Sectors, Public Utility Rate Payers, Local Governmental Units and the State's Economy as a Whole (Include Implementation and Compliance Costs Expected to be Incurred)
The proposed changes to the new source review program are being made to ensure consistency with federal regulations and implementation policy governing this permit program. DNR believes that the proposed rule changes will not have an economic impact on any of the entities listed or on the state's economy as a whole. Two companies responded to the request for input to say that they had no input because they believed the proposed rule changes would not have an economic impact on them. The proposed repeal of rules related to the former indirect source permit program will have no economic impact since the requirements to obtain such a permit have already been repealed.
13. Benefits of Implementing the Rule and Alternative(s) to Implementing the Rule
The alternative to this rule action is to keep the rules as they are which U.S. EPA has already identified as an inconsistency with the major source permit program. In the Federal Register, U.S. EPA stated that they are under obligation to promulgate a Federal Implementation Plan (FIP) addressing the disapproved portions of the associated state implementation plan within 2 years. The Federal Register states that the FIP will not be promulgated if DNR rectifies the deficiencies within the 2 year timeframe. Not repealing sections of chs. NR 400 and 410 in response to the repeal of NR 411 by the legislature would potentially create confusion and perpetuate an inconsistency with DNR rules.
14. Long Range Implications of Implementing the Rule
The proposed rule changes to the new source review program do not represent changes in operation by WDNR, so there are no long term implications. The proposed rule changes to the indirect source fee structure are of a clean-up nature and also have no long term implications.
15. Compare With Approaches Being Used by Federal Government
The purpose of the proposed changes related to the major source permit program is to ensure state rules are consistent with federal regulations. The federal government does not have regulations for an indirect source permit program.
16. Compare With Approaches Being Used by Neighboring States (Illinois, Iowa, Michigan and Minnesota)
Illinois and Minnesota are states delegated by the U.S. EPA to implement the federal air pollution program, so they are directly implementing the federal program. Iowa and Michigan, similar to Wisconsin, are SIP-approved states, so they are also implementing a federal program, but through their own state rules and regulations. It is the goal of SIP-approved states to implement federal programs in accordance with federal regulations. The majority of this rule package addresses changes necessary to comply with federal regulations. Those changes not dictated by federal regulations are associated with the repeal of fees related to the indirect source program which is no longer existing in Wisconsin, thereby addressing a current internal inconsistency.
17. Contact Name				18. Contact Phone Number
Gail Good				[phone]