Rule-Making Notices (Hearing Notices)

rulemaking_notices Wisconsin Administrative Register No. 700, 4/14/2014

Rule-Making Notices

Notice of Hearing

Agriculture, Trade and Consumer Protection

rulemaking_notices EmR1407 EmR1407

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 21.10, Wis. Adm. Code, relating to the quarantine of Iowa County for the gypsy moth.

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

Hearing Date and Location

Date:   Tuesday, April 29, 2014
Time:   1:00 p.m.
Location:   Department of Agriculture, Trade and
  Consumer Protection
  Conference Room 211 (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 April 21, 2014, by writing to Barbara Stalker, also at the address above, or by calling [phone]. Alternatively, you may contact the DATCP TDD at [phone]. The hearing facility is accessible to disabled users.

Place Where Comments are to be Submitted and Deadline for Submission

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 Monday, May 12, 2014, for additional written comments. Comments may be sent to the Division of Agricultural Resource Management at the address below, to [e-mail] or online at http://adminrules.wisconsin.gov.

Copies of Rule and Comments Relating to Small Business

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 53708-8911. You can also obtain a copy by calling [phone] or emailing [e-mail]. 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 businesses, please contact DATCP's small business regulatory coordinator, Keeley Moll, at the same address above, or by emailing [e-mail] or by calling [phone].

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

This emergency rule creates a quarantine for Iowa County for the gypsy moth (“GM"). Under this rule, the Department of Agriculture, Trade and Consumer Protection (“DATCP") quarantines Iowa County to restrict the movement of GM from generally infested areas to other areas of Wisconsin and to other states.

DATCP is adopting this temporary emergency rule pending the adoption of a parallel federal regulation to quarantine Iowa County. 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) and (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. Under s. 94.01, Stats., DATCP may 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. 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

Gypsy moth is a highly destructive insect pest of approximately 500 species of trees and shrubs. This insect has the potential to defoliate entire stands of forest, shade, and commercial trees such as nursery stock and Christmas trees. Any infestation of GM can result in substantial losses both to forest ecosystems and to urban trees, as well as to Wisconsin's vital tourism and timber industries. In the United States, GM has defoliated an estimated 30 million forest hectares since 1970, and has cost millions of dollars annually in losses to the timber and nursery industries and local municipalities.

DATCP conducts annual trapping surveys for Lymantria dispar, the gypsy moth (GM). The 2013 survey in Iowa County showed that current and projected GM populations there have reached the threshold level to trigger implementation of further regulatory measures. Over the last three years, multiple trap sites in Iowa County have caught over 100 individual moths, with an average trap count of 28 in 2013. These counts represent a five-fold increase from 2011. The survey data indicate that reproducing populations of GM now exist at significant levels in Iowa County and that eradication is not feasible. These findings support the need for a quarantine to limit movement and to prevent the artificial spread of this infestation.

This emergency rule creates a DATCP quarantine for Iowa County. Gypsy moth quarantines created by this rule are part of an overall state strategy to prevent and control plant pest infestations, including GM infestations. A parallel federal quarantine will be enacted approximately six to eight weeks after a formal submission by the state plant regulatory official.

Emergency rule content

Under this emergency rule, movement of all logs, timbers, and firewood of any type, plus movement of any woody nursery stock or Christmas trees out of Iowa County is prohibited with certain exceptions. The emergency rule will do the following:

•   Create a quarantine for GM for Iowa County that prohibits the movement of all trees, woody shrubs, cut Christmas trees, logs, pulpwood, slabwood, firewood or wood chips out of Iowa County or any contiguous GM quarantined counties.

•   Prohibit any common carrier from transporting any used outdoor household item out of Iowa County or any contiguous GM quarantined counties.

•   Provide an exemption for articles that have been inspected and certified by a pest control official or trained inspector and are accompanied by a written certificate issued by that official or inspector.

•   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 21.10 and 7 CFR 301.45, 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 and dealers operating in Iowa County. Based on previous and ongoing work with Wisconsin's gypsy moth and firewood certification programs, DATCP staff also identified known sawmills, loggers, 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 nursery stock, hardwood firewood or timber materials in Iowa County. The affected businesses are all small businesses. This emergency rule restricts the sale or distribution of nursery trees, Christmas trees, timber, and raw wood products plus any hardwood firewood from Iowa 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/distribute nursery stock or Christmas trees outside these counties, 2) firewood producers/dealers that sell/distribute outside these counties, 3) loggers and sawmills that move untreated timber or raw wood products outside these counties, and 4) untreated wood waste (e.g. brush, chips or mulch) that is moved outside these counties.

Iowa County has a total of 14 licensed nursery growers and dealers that could possibly transport nursery stock. Those growers will not be able to move or sell nursery stock outside of the quarantine area without a compliance agreement with DATCP or U.S. Department of Agriculture – Animal and Plant Health Inspection Service (“APHIS") that authorizes movement of nursery stock outside of the quarantine only when there is assurance that the movement will not spread GM to non-quarantined locations.

There are also an estimated eight known firewood dealers in Iowa 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 regulated insect pests.

There are an estimated 15 lumber mills in Iowa County and an estimated 12 other tree service/wood processing facilities that may also deal with woody material. These businesses also will have to enter into a compliance agreement to transport logs, timber or raw wood products outside of the quarantine area.

Businesses with compliance agreements can self-inspect regulated articles moved from quarantine areas. State or Federal officials will provide inspection and certification services to businesses without compliance agreements at no additional cost. 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 negative impact on the environment. By reducing the spread of gypsy moth, this emergency rule is expected to have a net positive impact on Wisconsin's forested environments and treescapes.

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 GM. APHIS has instituted statewide quarantines on the movement of all regulated materials for Connecticut, Delaware, Maryland, Massachusetts, Michigan, New Hampshire, New Jersey, New York, Pennsylvania, Rhode Island and Vermont in addition to portions of Illinois, Indiana, Maine, Ohio, Virginia, and West Virginia. APHIS has also enacted quarantines for Adams, Ashland, Bayfield, Brown, Calumet, Clark, Columbia, Dane, Dodge, Door, Florence, Fond du Lac, Forest, Green Lake, Iron, Jackson, Jefferson, Juneau, Kenosha, Kewaunee, Langlade, Lincoln, Manitowoc, Marathon, Marinette, Marquette, Menominee, Milwaukee, Monroe, Oconto, Oneida, Outagamie, Ozaukee, Portage, Price, Racine, Rock, Sauk, Shawano, Sheboygan, Vilas, Walworth, Washington, Waukesha, Waupaca, Waushara, Winnebago, and Wood Counties in Wisconsin. The quarantines include restrictions on the movement of firewood.

Surrounding state programs

Surrounding states where GM has been identified (Illinois, Indiana, 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 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 Iowa County for Gypsy Moth
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 1. ⍽ Increase Costs       3. ⍽ Increase Revenues ⍽ Permissive ⍽ Mandatory     ⍽ Permissive ⍽ Mandatory 2. ⍽ Decrease Costs       4. ⍽ Decrease Revenues ⍽ Permissive ⍽ Mandatory     ⍽ Permissive ⍽ Mandatory			5. Types of Local Gov. Unit Affected: ⍽ Towns ⍽ Villages ⍽ Counties ⍽ Cities ⍽ Other: County Drainage Boards ⍽ School Districts ⍽ WTCS Districts
Fund Source Affected: ⍽ GPR ⍽ FED ⍽ PRO ⍽ PRS ⍽ SEG ⍽ SEG-S			Affected Ch. 20 Appropriations:
Assumptions Used in Arriving at Fiscal Estimate The Wisconsin Department of Agriculture, Trade and Consumer Protection (DATCP) conducts annual trapping surveys for Lymantria dispar, the gypsy moth (GM). The 2013 survey in Iowa County showed that current and projected GM populations there have reached the threshold level to trigger implementation of further regulatory measures. This emergency rule creates a DATCP quarantine for Iowa County. A parallel federal quarantine will be enacted approximately six to eight weeks after a formal submission by the state plant regulatory official. GM is a highly destructive insect pest of approximately 500 species of trees and shrubs. This insect has the potential to defoliate entire stands of oak, cherry, maple and other hardwoods, and any incursion of GM can result in substantial losses both to forest ecosystems and to urban trees, as well as to Wisconsin's vital tourism and timber industries. In the United States, GM has defoliated an estimated 30 million forest hectares since 1970, and has cost millions of dollars annually in losses to the timber and nursery industries and local municipalities. 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 GM for Iowa County that prohibits the movement of all trees, woody shrubs, cut Christmas trees, logs, pulpwood, slabwood, firewood or wood chips out of Iowa County or any contiguous GM quarantined counties. • Prohibit any common carrier from transporting any used outdoor household item out of Iowa County or any contiguous GM quarantined counties. • Provide an exemption for articles that have been inspected and certified by a pest control official or trained inspector and are accompanied by a written certificate issued by that official or inspector. • 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 GM may produce additional workload for local governments in Iowa County, but the quarantine itself will not produce any local fiscal impact.
Long - Range Fiscal Implications DATCP has over two decades of experience in surveying and regulating GM infestations in Wisconsin. While potential GM population spikes may cause the agency to experience substantial one-time costs and personnel demands for providing regulatory oversight and working with affected industries, in general DATCP does not expect that future costs for regulation will differ significantly from current allocated budgets.
Agency Prepared by (Name & Phone No.): DATCP / Christopher Deegan (608-224-4573)		Authorized Signature:			Date: February 21, 2014

Notice of Hearing

Children and Families

Early Care and Education, Chs. 201—252

rulemaking_notices CR 14-030 CR 14-030