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 Adelgid (HWA), Thousand Cankers Disease (TCD) and Gypsy Moth (GM). The national annual cost of these invasive forest insects to local governments is estimated at over $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. To focus on one specific example, 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 twenty-four states including Wisconsin, and two Canadian provinces. Thirty-six Wisconsin counties are currently quarantined to restrict the movement of ash wood in order to prevent the spread of EAB.
Proposed policies
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 eight weeks or longer after a formal submission by the state plant regulatory official. 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. Some examples of current plant pests of concern include Emerald Ash Borer (EAB), Asian Longhorned Beetle (ALB), Hemlock Woolly Adelgid (HWA) or Thousand Cankers Disease of Walnut (TCD).
• 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 (depending on the specific pest, 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.
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.
3. Statutory Authority for the Rule (Including the Statutory Citation and Language)
93.07 Department duties. It shall be the duty of the department:
(1) 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.
(12) To conduct surveys and inspections for the detection and control of pests injurious to plants, make, modify, and enforce reasonable rules needed to prevent the dissemination of pests, declare and manage emergencies related to the detection and control of pests injurious to plants, provided such declaration does not supersede the authority of the chief state forester under s.
23.114 or the department of natural resources under s.
26.30, and suggest methods of control.
94.01 Plant inspection and pest control authority. In the conduct of survey and inspectional programs for the detection, prevention and control of pests, the department may impose quarantines or such other restrictions on the importation into or movement of plants or other material within the state as necessary to prevent or control the dissemination or spread of injurious pests.
4. Estimate of the Amount of Time that State Employees Will Spend to Develop the Rule and Other Resources Necessary to Develop the Rule
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.
5. Description of all Entities that may be Impacted by the Rule
According to the American Forest and Paper Association (December 2012), Wisconsin is first in the nation in forestry jobs, employing over 53,000 workers and annually shipping forest industry products valued over $17.7 billion. Our agricultural industry also annually produces over $1.3 billion in corn grain, and over $510 million in soybeans. Additionally, in 2013 Wisconsin led the nation in cranberry production ($190 million) and ranked third in potato production ($270 million). Wisconsin apple orchards produced a yield of $19.3 million in 2013. 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 $10.8 billion in 2013. Tourism directly sustains an estimated 185,500 jobs, or 7.8% 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. Other producers and farmers would be required to treat regulated products 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.
6. Summary and Preliminary Comparison of any Existing or Proposed Federal Regulation that is Intended to Address the Activities to be Regulated by the 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 twenty-four states, ALB in three states, and GM in eighteen states. Including Wisconsin, six states plus Canada have imposed an external quarantine for HWA, and sixteen 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.
7. Anticipated Economic Impact
DATCP expects the rule to have minimal economic impact statewide and minimal to moderate economic impact locally.
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.
Contact Person
Brian Kuhn, Director Bureau of Plant Industry; Phone (608) 224-4590
Agriculture, Trade and Consumer Protection
This statement of scope was approved by the governor on November 7, 2014.
Rule No.
Relating to
Fertilizer mislabeling.
Rule Type
Permanent.
1. Description of the Objective of the Rule
This proposed revision is limited to reviewing whether administrative rule s.
ATCP 40.14 (“ATCP 40.14"), which concerns labeling requirements for the nutrient contents of fertilizer, should be modified or updated. In particular, the current formula in s.
ATCP 40.14 to determine the “economic value" of fertilizer nutrients will be reviewed. DATCP may also propose other modifications to ATCP 40.14 resulting from that review.
Fertilizer product labels must provide minimum guarantees of certain nutrients if those nutrients are represented as part of that fertilizer product. Section
ATCP 40.14 provides criteria to establish whether a fertilizer's nutrient content falls below the label guarantees for those nutrients. If the criteria in the rule are not met, then the fertilizer is deemed mislabeled.
2. 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
Background and history
Under current law, DATCP is authorized to regulate the manufacture, distribution, and labeling of fertilizer.
See Wis. Stat. ss.
94.64 to
94.645. Fertilizer is considered to be “any substance, containing one or more plant nutrients, which is used for its plant nutrient content and which is designed for use or claimed to have value in promoting plant growth .
…"
See Wis. Stat. s.
94.64 (1) (f). Administrative rules implementing fertilizer regulation are found in subchapter II of Wis. Admin. Code ch.
ATCP 40.
Currently, s.
ATCP 40.14 (titled “Fertilizer content deficiencies") identifies the criteria used to determine whether a fertilizer product label properly states the nutrient content of the product. Under one criterion,
fertilizer is mislabeled if, based on a sample collected and tested as specified in the rule, “[t]he
economic value of primary nutrients actually present is less than 98% of the
economic value of the amounts guaranteed, where the
economic value is calculated according to sub. (3)."
See ss.
ATCP 40.14 (1) (c). (Emphasis added.) The economic value formula provided in s.
ATCP 40.14 (3) states
:
Economic value = {[total nitrogen (N) guarantee] x 2} +
{[total phosphate (P205) guarantee] x
2} + soluble potash (K2O) guarantee}
The multipliers in the economic value formula are based on wholesale costs of nitrogen, phosphate, and potash, which may have changed since the formula was established in the 1970s and therefore could require revision.
Justification and policies
Some fertilizer industry representatives have suggested that either the economic value formula or the percentage listed in s.
ATCP 40.14 (1) (c), or both, need review.
DATCP may examine whether the existing economic value formula accurately represents wholesale prices of these nutrients. DATCP may also examine whether “98% of the economic value of the amounts guaranteed" or another percentage should be used in the formula. DATCP may also review the other criteria described in s.
ATCP 40.14 to determine whether the nutrient content in the fertilizer falls below the fertilizer label's percentage guarantees of those nutrients.
DATCP may consider combinations of the above alternatives or consider other alternatives.
Additionally, DATCP may review s. ATCP. 40.14 as a whole to determine if modifications or updates are needed. DATCP will seek input from the fertilizer industry, interested consumers, and the public at large to determine what, if any, changes are needed to address fertilizer mislabeling. DATCP may amend other rules that are directly impacted by a change to s.
ATCP 40.14, if any.
Policy Alternatives
If this scope statement is approved, DATCP expects to look at various alternatives when reviewing the current fertilizer mislabeling rule, as described above. If DATCP does nothing, then DATCP will be unable to explore any concerns relating to mislabeling that have been posed by some members of the fertilizer industry.
3. Statutory Authority for the Rule (Including the Statutory Citation and Language)
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.
94.64 Fertilizer.
* * *
(9) Rules. The department may promulgate rules:
* * *
(b) Regulating the sale and labeling of fertilizer, including warning or caution statements or directions for use in connection with the labeling of fertilizer.
(c) Governing methods of sampling, testing, examining and analyzing fertilizer.
(d) Prescribing tolerances for deficiencies found in percentages of plant nutrient guaranteed to be present.
* * *
(f) Establishing standards of identity and purity for fertilizer materials.
4. Estimate of the Amount of Time that State Employees Will Spend to Develop the Rule and of Other Resources Necessary to Develop the Rule
DATCP estimates that it will use approximately 0.5 FTE staff to develop this rule. That includes time required for investigation and analysis, rule drafting, preparing related documents, coordinating advisory committee meetings, holding public hearings and communicating with affected persons and groups. DATCP will use existing staff to develop this rule.
5. Description of all entities that may be impacted by the rule
Fertilizer manufacturers and labelers. This rule revision may change the criteria currently being used to establish whether the nutrient contents of fertilizer meets the fertilizer's label guarantees of those nutrients and could include modification of the economic value formula. While this rule revision will not affect any nutrient percentage guarantees that the fertilizer industry makes on fertilizer labels, it may reduce the instances in which tested fertilizer products fail to meet existing labeling criteria in s.
ATCP 40.14.
Consumers of fertilizer products. This rule revision may benefit fertilizer product consumers because the criteria that ensure accurate labeling of guaranteed amounts of nutrient content in fertilizer products will be reexamined and updated if needed.
6. Summary and Preliminary Comparison of any Existing or Proposed Federal Regulation that is Intended to Address the Activities to be Regulated by the Rule
There is no significant federal regulation of fertilizers, although there is a long history of regulation by states.
7. Anticipated economic impact
DATCP expects the proposed rule revision to have minimal to no negative economic impact statewide or locally.
DATCP Board Authorization
DATCP may not begin drafting this rule revision until the Board of Agriculture, Trade and Consumer Protection (Board) approves this scope statement. The Board may not approve this scope statement sooner than 10 days after this scope statement is published in the Wisconsin Administrative Register. If the Board takes no action on the scope statement within 30 days after the scope statement is presented to the Board, the scope statement is considered approved. Before DATCP holds public hearings on this rule, the Board must
approve the hearing draft. The Board must also approve the final draft rule before the department adopts the rule.
Contact Person
Amy Basel, Feed and Fertilizer Program Supervisor, DATCP; Phone (608) 224-4541.
Controlled Substances Board
This statement of scope was approved by the governor on November 12, 2014.
Rule No.
Relating to
Scheduling suvorexant as a schedule IV controlled substance.
Rule Type
