Rule Type
Emergency.
Statutory Authority
Preliminary Objectives
An emergency rule authorized by this statement of scope will create county or multi-county or township or multi-township quarantines for an exotic plant pest in counties and townships where the pest is detected. Any emergency rule authorized by this scope statement will be submitted to the governor for approval pursuant to s.
227.24 (1) (e),
1g., Stats., each time the department finds that a quarantine area for an exotic plant pest is required. The authorization to draft an emergency rule creating a quarantine area pursuant to this statement of scope will expire on the first day following the twelfth month of publication of this statement of scope pursuant to s.
227.135 (3), Stats., and a new statement of scope must be approved and published pursuant to ss.
227.135 (2) and
(3), Stats., to continue the authorization of emergency rulemaking related to exotic pest quarantines.
A rule authorized by this statement of scope will do the following:
• Create county or multi-county or township or multi-township quarantines in which an exotic pest is detected. The quarantine will prohibit the movement of all articles potentially harboring the damaging pest. These regulated articles would likely include: firewood, nursery stock, green lumber, and other woody material living, dead, cut or fallen, including logs, stumps, roots, branches and composted and uncomposted chips in the cases of Emerald Ash Borer (EAB), Asian Longhorned Beetle (ALB), Hemlock Woolly Adlegid (HWA) or Thousand Cankers Disease (TCD), as examples.
• 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.
Preliminary Policy Analysis
DATCP has authority under s.
93.07 (12), Stats. to conduct surveys and inspections for the detection and control of pests injurious to plants, and to make, modify, and enforce reasonable rules needed to prevent the dissemination of pests. DATCP also has plant inspection and pest control authority under s.
94.01, Stats. DATCP may by rule impose restrictions on the importation or movement of serious plant pests, or items that may spread serious plant pests.
In recent years the rate of arrival of new exotic plant pests to the United States has increased significantly. Some of the exotic pests which have already invaded our country include Emerald Ash Borer (EAB), Asian Longhorned Beetle (ALB), Hemlock Woolly Adlegid (HWA), Thousand Cankers Disease (TCD) and Gypsy Moth (GM). The annual cost of these invasive forest insects to local governments is estimated at more than $2 billion; residential property value loss due to exotic forest pests averages $1.5 billion per year nationally. To date, EAB and GM have infested Wisconsin. EAB is an exotic pest that endangers Wisconsin's 770 million ash trees and ash tree resources. This insect has the potential to destroy entire stands of ash, including up to 20% of Wisconsin's urban street trees and residential landscaping trees, and may result in substantial losses to forest ecosystems. The insect can cause great harm to state lands and to the state's tourism and timber industries. At this time, EAB has been identified in eighteen states including Wisconsin, and two Canadian provinces. Fifteen Wisconsin counties are currently quarantined to restrict the movement of ash wood in order to prevent the spread of EAB.
This emergency rule is necessary to create a timely quarantine of the counties or townships, and possibly bordering counties or townships, with new exotic plant pest detections until a federal quarantine is enacted. The federal quarantine will take effect up to six months after a formal submission by the state plant regulatory official.
Current and Proposed Federal Legislation and Comparison to Proposed Rule
In order to limit the spread of exotic plant pests, the Animal and Plant Health Inspection Service of the United States Department of Agriculture (APHIS) has imposed quarantines for EAB in 18 states, ALB in 4 states, and GM in 18 states. Including Wisconsin, six states plus Canada have imposed an external quarantine for HWA, and fourteen states have done the same for TCD. DATCP rules currently prohibit movement of regulated plant articles from any federally quarantined area except under authorized conditions. This proposed rule is consistent with current state and federal rules.
Entities Affected
According to the American Forest and Paper Association (June 2011), Wisconsin is first in the nation in forestry jobs, employing over 56,000 workers and annually shipping forest industry products valued over $16.2 billion. Each year the agricultural industry also produces $1.38 billion of corn grain, and $511 million in soybeans. Additionally, Wisconsin leads the nation in snap bean production ($61 million annually) and ranks third in potato production ($293 million annually). Wisconsin apple orchards produce an annual yield of $28 million. This emergency rule could have an impact on persons or companies that deal in any agricultural crop or forest product from the quarantined counties or townships to locations outside of the quarantined counties.
The Wisconsin Department of Tourism reports that travelers to Wisconsin spent a total of $9.9 billion in 2011. Tourism directly sustains an estimated 128,000 jobs, or 5.5% of total employment in the state. Should Wisconsin's forests, parks, and recreational areas be significantly damaged by an exotic plant pest, our tourism industry could also suffer substantially.
Nurseries, firewood producers/dealers, saw mills and farmers that sell or distribute articles potentially harboring the damaging exotic plant pest would all be impacted. In order to sell regulated products outside of a quarantined county, veneer mills and wood processors will have to enter into a compliance agreement with DATCP or APHIS. The agreement authorizes movement of products outside the quarantine only when there is assurance that the movement will not spread the plant pest to other locations. Licensed nursery growers will not be able to sell regulated nursery stock outside of the quarantined counties. Firewood dealers would need to be certified to sell firewood outside of the quarantined counties. Farmers would be required to treat with an approved treatment option, should one exist, before movement out of the quarantine. Grain elevators could enter into compliance agreements with DATCP or APHIS.
Policy Alternatives
If DATCP does nothing, potentially infested wood or agricultural products will be allowed to move freely and the department will not be able to regulate its movement. The department would have no regulatory authority in the counties with new exotic plant pest finds, raising the potential of a more rapid spread of an exotic invasive plant pest.
Statutory Alternatives
At this time there are no existing or proposed statutory alternatives.
Staff Time Required
DATCP estimates that it will use approximately 0.1 FTE staff time to develop these rules. This includes time required for investigation and analysis, rule drafting, preparing related documents, holding public hearings, and communicating with affected persons and groups. DATCP will use existing staff to develop this rule.
DATCP Board Authorization
DATCP may not begin drafting a rule until the Governor and the Board of Agriculture, Trade and Consumer Protection approves this scope statement. The Board may not approve this scope statement any sooner than 10 days after this scope statement is published in the Wisconsin Administrative Register. The scope statement may not be published in the administrative register until DATCP has received written approval of the scope statement from the Governor. Before the department may publish an emergency rule, it must receive written approval of the proposed emergency rule from the Governor.
Agriculture, Trade and Consumer Protection
This statement of scope was approved by the governor on November 8, 2012.
Rule No.
Relating to
Reclaiming or recycling refrigerant from mobile air conditioners, and various minor and technical rule changes.
Rule Type
Permanent. (Revisions)
Description of the Objective of the Rule
Chapter
ATCP 136 prohibits the sale or purchase of refrigerants in containers holding less than 15 pounds of refrigerant. This prohibition is sometimes informally referred to as “the small can ban." Since the passage of
2011 Wisconsin Act 187, however, this rule is now in direct conflict with s.
100.45 (5e) (b), Stats. DATCP intends to amend Ch.
ATCP 136 to resolve this conflict.
Chapter
ATCP 136 also requires persons who recover or recycle refrigerant or any substance used as a substitute for a refrigerant to use equipment that meets industry standards referenced in the rule. On March 29, 2011, the United States Environmental Protection Agency (“EPA") updated the Federal Register (77 FR 47768) to include HFO-1234yf as an acceptable substitute for ozone-depleting refrigerants. DATCP intends to amend the rule to reference the industry standards for equipment used to recover or recycle HFO-1234yf.
DATCP regulates sales of a number of products through its Weights & Measures program in the following existing Administrative Rule Chapters: ATCP 90 – Fair Packaging and Labeling; ATCP 91 – Selling Commodities by Weight, Measure or Count; and ATCP 92 - Weights and Measures. In addition, existing Ch.
ATCP 113 prohibits sellers of gasoline from misrepresenting the octane rating or other qualities of the gasoline.
DATCP proposes to make minor, technical changes to these rules to keep them current and consistent with statutory language and standards from organizations such as the National Institute of Standards and Technology (NIST) and the Society of Automotive Engineers (SAE).
Description of Existing Policies Relevant to the Rule and of New Policies Proposed to be Included in the Rule, and an Analysis of Policy Alternatives; the History, Background and Justification for the Proposed Rule
History and background. Chapter
ATCP 136 interprets and implements s.
100.45, Stats. Together, the statute and rule regulate mobile air conditioners. The legislature originally enacted the statute in 1989 and the department promulgated Ch.
ATCP 136 in 1990.
Section
100.45, Stats., prohibits the sale of mobile air conditioners that contain ozone-depleting refrigerants (defined by reference to EPA rules), prohibits the sale of ozone-depleting refrigerants in containers of less than 15 pounds, and regulates servicing of mobile air conditioners and trailer refrigeration equipment. Section
100.45, Stats., requires DATCP to promulgate rules administering the statute, identify approved recovery and recycling equipment, and issue registration certificates to mobile air conditioner and trailer refrigeration technicians.
Chapter
ATCP 136 specifies registration requirements for businesses that install or service mobile air conditioners or trailer refrigeration equipment, registration requirements for technicians, minimum training requirements for registered technicians, regulations relating to equipment and practices for the recovery and recycling of used refrigerants.
The regulations related to recycling of used refrigerants prohibit a person from recovering or recycling a refrigerant unless that person uses equipment that meets certified standards identified in the rule. The EPA, as part of its Significant New Alternatives Policy Program under section 612 of the Clean Air Act Amendments, evaluates alternatives to ozone-depleting substances and regularly updates lists of acceptable and non-acceptable substances in the Federal Register. On March 29, 2011, the EPA added HFO-1234yf to its list of acceptable alternatives to ozone-depleting refrigerants under 77 FR 47768. Subsequently, the Society of Automotive Engineers has published standards for equipment that may be used for removing and recycling HFO-1234yf.
Chapter
ATCP 90 regulates fair packaging and labeling for a variety of products. It conforms to the federal standards adopted under the Fair Packaging and Labeling Act and the Nutrition Labeling and Education Act.
Chapter
ATCP 91 regulates the selling of commodities by weight, measure or count. Generally, it requires that liquids be sold by liquid measure, and non-liquids be sold by weight.
Chapter
ATCP 92 regulates weighing and measuring of products. It establishes a system for testing scales, meters, and other devices used in the delivery a wide variety of commodities.
Chapter
ATCP 113 prohibits sellers of gasoline from representing that gasoline is of higher octane value than its actual octane rating, as measured by ASTM standards.
Proposed policies. DATCP proposes to replace the provision in Ch.
ATCP 136 that bans all refrigerants in containers of 15 pounds or less with a less restrictive ban that would apply only to ozone-depleting refrigerants. This change will bring the rule into alignment with recent changes to the existing state statute.
DATCP proposes to update portions of Ch.
ATCP 136 that refer to products approved by EPA or standards specified by the Society of Automotive Engineers to allow for the new HFO-1234yf refrigerant. DATCP may also make other minor technical revisions to Ch.
ATCP 136, but these other revisions would not represent any change in existing policy.
DATCP proposes to make technical changes to Chs.
ATCP 90,
91,
92, and
113. These changes are technical in nature (mostly to keep these rules in conformance with NIST standards) and do not represent any change in existing policies.
Policy Alternatives. Do nothing. If the department does not alter the existing rule, the small can ban will be unenforceable because it conflicts with a Wisconsin statute. Equipment standards for repairing cars equipped with currently used auto refrigerants would not be current. Several references to national standards would not accurately identify the most recent versions of those standards.
Statutory Authority for the Rule (Including the Statutory Citation and Language)
Sections
93.07 (1),
97.09 (1) and
(4),
97.42 (4) (j),
98.03 (2),
98.07 (3) and
(4),
98.16 (4),
98.18 (2),
98.224 (4),
98.245 (9),
100.20 (2), and
100.45 (5) (a) and
(e), Stats.
Section 93.07 Department duties. It shall be the duty of the department:
(1) REGULATIONS. To make and enforce such regulations, not inconsistent with law, as it may deem necessary for the exercise and discharge of all the powers and duties of the department, and to adopt such measures and make such regulations as are necessary and proper for the enforcement by the state of Chs.
93 to
100, which regulations shall have the force of law.
(1) Definitions and standards of identity, composition, quality and fill of container for foods, and amendments thereto, now or hereafter adopted under the federal act or this chapter are definitions and standards of identity, composition, quality and fill of container under s.
97.03. However, when such action will promote honesty and fair dealing in the interest of consumers, the department may amend, stay or reject such federal regulations or make rules establishing definitions and standards of identity, composition, quality and fill of container for foods where no federal regulations exist, or which differ from federal regulations.
(4) The department may, by rule, establish and enforce standards governing the production, processing, packaging, labeling, transportation, storage, handling, display, sale, including retail sale, and distribution of foods that are needed to protect the public from the sale of adulterated or misbranded foods.
Section 97.42 Compulsory inspection of animals, poultry and carcasses.
(4) Rule. The department may issue reasonable rules requiring or prescribing any of the following:
(j) Any other rules reasonably necessary to the administration and enforcement of this section.
Section 98.03 State standards; specifications and tolerances.
(2) The department may issue rules governing the construction, installation and use of commercial weights and measures and prescribing tolerances therefor. The specifications, tolerances and regulations for commercial weighing and measuring devices issued by the national institute of standards and technology shall apply in this state except as modified by such rules.
Section 98.07 Declaration of quantity.
(3) With respect to commodities packaged prior to sale, the department shall issue rules permitting reasonable variations from declared quantity which unavoidably occur in good packaging and distribution practices.
(4) In order to prevent consumer deception, the department shall prescribe, by rule, standards for determining and declaring weight, measure, or count, including the conspicuousness of quantity declarations.
Section 98.16 Vehicle scale operators; scale installation and testing.
(4) Rules. The department shall promulgate rules to regulate the construction, operation, testing, and maintenance of vehicle scales, including a rule specifying the amount of the fee under sub. (2) (cm) 1. The department may promulgate rules to adjust fees and surcharges under subs. (2) (cm) 2. and (2m) (a) and (b) and to impose a testing surcharge upon a vehicle scale operator if the operator fails to file a vehicle scale test report as required by a rule promulgated by the department under this subsection.
Section 98.18 Installing and servicing weights and measures.
(2) Rules. The department may promulgate rules to establish license fees under sub. (1h) and to regulate the installation, servicing, testing and certification of weights and measures. The rules may include record-keeping and reporting requirements.
Section 98.224 Vehicle tank meters.
(4) Rules (a) The department shall promulgate rules that establish all of the following:
1. License fee and surcharge amounts under sub. (2) (c).
2. Standards for the testing, reporting, and record keeping required under sub. (3).
(b) The department may promulgate rules that establish standards for the construction, operation, and maintenance of vehicle tank meters.
Section 98.245 Liquefied petroleum gas sales.
(9) Rules (a) The department shall promulgate rules that establish all of the following:
1. License fee and surcharge amounts under sub. (7m) (c).
2. Standards for the testing, reporting, and record keeping required under sub. (8).
(b) The department may promulgate rules that establish standards for the construction, operation, and maintenance of liquefied petroleum gas meters.
Section 100.20 Methods of competition and trade practices.
(2) (a). The department, after public hearing, may issue general orders forbidding methods of competition in business or trade practices in business which are determined by the department to be unfair. The department, after public hearing, may issue general orders prescribing methods of competition in business or trade practices in business which are determined by the department to be fair.
Section 100.45 Mobile air conditioners.
(5) Department duties. The department shall do all of the following:
(a) Promulgate rules for the administration of this section including establishing all of the following:
