EmR0913 Hearings to consider an emergency rule revising s. ATCP 21.17, relating to the quarantines of Brown County and Kenosha County for emerald ash borer.

Wisconsin Administrative Register No. 645, 9/14/2009

Rule-Making Notices

Notice of Hearings

Agriculture, Trade and Consumer Protection

EmR0913

The State of Wisconsin Department of Agriculture, Trade and Consumer Protection (DATCP) announces that it will hold a public hearing on its emergency rule, revising s. ATCP 21.17 , Wis. Adm. Code, relating to the quarantines of Brown County and Kenosha County for emerald ash borer.

Hearing Information

Tuesday, September 29, 2009

10:30 a.m. to 12:30 p.m.

19600 75 th Street

Bristol, WI 53104-0550

Wednesday, September 30, 2009

10:30 a.m. to 12:30 p.m.

Agriculture & Extension Service Center, Room 161

1150 Bellevue St.

Green Bay, WI 54302

Hearing impaired persons may request an interpreter for this hearing. Please make reservations for a hearing interpreter by September 29, 2009, by writing to Jennifer Etter Goh, Division of Agricultural Resource Management, P.O. Box 8911, Madison, WI 53708-8911, telephone [phone]. Alternatively, you may contact the DATCP TDD at [phone]. The hearing facility is handicap accessible.

Appearances at the Hearing and Submission of Written Comments

DATCP will hold two public hearings at the times and places shown above. DATCP invites the public to attend the hearings and comment on the emergency rule. Following the public hearings, the hearing record will remain open until Friday, October 9, 2009 for additional written comments. Comments may be sent to the Division of Agricultural Resource Management at the address below, to [e-mail] or at:

https://apps4.dhfs.state.wi.us/admrules/public/home .

Copies of Emergency Rules

You may obtain a free copy of this emergency rule by contacting the Wisconsin Department of Agriculture, Trade and Consumer Protection, Division of Agricultural Resource Management, 2811 Agriculture Drive, P.O. Box 8911, Madison, WI 53708. You can also obtain a copy by calling [phone] or emailing [e-mail] . Copies will also be available at the hearing. To view the emergency rule online, go to:

https://apps4.dhfs.state.wi.us/admrules/public/Home .

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

This emergency rule creates quarantines for Brown County and Kenosha County for the emerald ash borer. Under this rule, the Department of Agriculture, Trade and Consumer Protection ("DATCP") quarantines Brown County and Kenosha County to mitigate the movement of emerald ash borer to other areas of Wisconsin and other states.

DATCP is adopting this temporary emergency rule pending the adoption of federal quarantines for Brown County and Kenosha 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) , 93.07 (12) , 94.01 and 227.24 , Stats.

Explanation of agency authority

The Wisconsin Department of Agriculture, Trade and Consumer Protection ("DATCP") has broad general authority, under s. 93.07 (1) , Stats., to adopt regulations to enforce laws under its jurisdiction. DATCP also has broad general authority, under ss. 93.07 (12) and 94.01 , Stats., to adopt regulations to prevent and control plant pest infestations. Emerald ash borer quarantines created by this rule are part of an overall state strategy to prevent and control plant pest infestations, including emerald ash borer infestations. DATCP is adopting this temporary emergency rule, under authority of s. 227.24 , Stats., pending the adoption of federal regulations on the same subject.

Background

The United States Department of Agriculture-Animal and Plant Health Inspection Services (APHIS) positively identified emerald ash borer in Brown County on July 24, 2009, and in Kenosha County on August 12, 2009. This emergency rule creates DATCP quarantines for Brown County and Kenosha County. A federal quarantine will be enacted approximately two to six weeks after a formal submission by the state plant regulatory official. Emerald ash borer is carried by untreated ash wood products. A two to six week delay until enactment of the federal quarantine leaves too much time for businesses or individuals to move potentially emerald ash borer infested material out of the county to areas of Wisconsin or other states that are not infested with emerald ash borer.

Emerald ash borer is an injurious exotic pest that now endangers Wisconsin's 750 million ash trees and ash tree resources. This insect has the potential to destroy entire stands of ash, and any incursion of emerald ash borer can result in substantial losses to forest ecosystems and urban trees, as well as the state's thriving tourism and timber industries. Efforts are currently underway in other states to eradicate emerald ash borer. Those efforts have proven to be costly, time-consuming, and not completely effective. In Michigan, emerald ash borer has caused an estimated $11.6 million in landscape industry and wood lot losses and approximately $2 million in lost nursery stock sales annually. The United States Department of Agriculture predicts the national urban impact from this pest could exceed $370 billion.

DATCP has plant inspection and pest control authority under s. 94.01 , Stats., to adopt rules establishing quarantines or other restrictions on the importation into or movement of plants or other materials within this state, if these measures are necessary to prevent or control the spread of injurious plant pests. A quarantine order may prohibit the movement of any pest, or any plant, pest host or pest-harboring material, which may transmit or harbor a pest.

Emergency rule content

Under this emergency rule, movement of all hardwood (non-coniferous) firewood of any type plus movement of any ash wood out of Brown County and Kenosha County is prohibited with certain exceptions. The emergency rule will do the following:

•   Create quarantines of emerald ash borer for Brown County and Kenosha County that prohibit the movement of all hardwood species of firewood, nursery stock, green lumber, and other material living, dead, cut or fallen, including logs, stumps, roots, branches and composted and uncomposted chips of the genus Fraxinus (Ash wood), out of the county.

•   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 spells out what a company can and cannot do with regulated articles.

Comparison with federal regulations

Under the federal Plant Protection Act, APHIS has responsibility for excluding, eradicating and controlling serious plant pests, including emerald ash borer. APHIS has instituted statewide quarantines on the movement of all ash wood for Illinois, Indiana and Ohio, in addition to the Lower Peninsula of Michigan. APHIS has also instituted quarantines for Ozaukee, Washington, Sheboygan, Fond du Lac, Vernon and Crawford Counties in Wisconsin. The quarantines include restrictions on the movement of any hardwood (non-coniferous) firewood.

Comparison with rules in adjacent states

Surrounding states where emerald ash borer has been identified (Illinois, Indiana, Ohio, Minnesota and Michigan) have state and federal quarantines that prohibit the movement of regulated articles out of quarantined areas. A regulated article can only move out of quarantined areas after it is certified by USDA or state officials.

Small Business Impact

This emergency rule may have an impact on persons or companies that deal in any hardwood firewood or ash materials in Brown County or Kenosha County. The affected businesses are all small businesses. This emergency rule restricts the sale or distribution of ash products plus any hardwood firewood from Brown County and Kenosha County to locations outside of Brown County and Kenosha County.

The business impact of this emergency rule depends on the number of nurseries that sell/distribute ash nursery stock outside the county, firewood producers/dealers that sell/distribute outside the county, saw mills that move untreated ash stock outside the county, and green wood waste that is moved outside the county.

Brown County has 21 and Kenosha County has 17 licensed nursery growers that could possibly be growing ash nursery stock. Those growers will not be able to sell ash nursery stock outside of the county during the quarantine. Thirteen known firewood dealers have been identified in Brown County and 18 known firewood dealers have been identified in Kenosha County. They would need to be certified under s. ATCP 21.20 to sell firewood outside of the county. To obtain certification a firewood dealer will have to pay an annual certification fee to DATCP of $50 and treat the firewood in a manner that insures it is free of emerald ash borer. There is one veneer mill in Brown County and up to three wood processing mills in Kenosha County that deal with ash. To sell ash wood products outside of their counties they will have to enter into a compliance agreement with DATCP or APHIS that authorizes movement of ash products outside of their counties only when there is assurance that the movement will not spread the emerald ash borer to other locations.

Small business regulatory coordinator

To provide comments or concerns relating to small business, please contact DATCP's small business regulatory coordinator, Keeley Moll, at the address above, by emailing to [e-mail] or by telephone at [phone].

Environmental Impact

This emergency rule will not have a significant impact on the environment.

Fiscal Estimate

DATCP will have additional workload related to enforcing the quarantines but it will be able to absorb the projected workload and costs within DATCP's current budget and with current staff. The presence of emerald ash borer may produce additional workload for local governments in Brown County and Kenosha County, but the quarantines will not themselves produce any local fiscal impact.

Notice of Hearing

Transportation

CR 09-070

NOTICE IS HEREBY GIVEN that pursuant to ss. 85.16 (1) , 227.11 (2) and 348.25 (3) , Stats., interpreting s. 348.17 (3) and (5) , Stats., the Department of Transportation will hold a public hearing to consider the repeal of Chapters Trans 267 and 268 , Wis. Adm. Code, relating to emergency agricultural transportation permits, and emergency energy conservation permits.

Hearing Information

October 19, 2009   Hill Farms State Transportation Bldg.
at 10:00 AM     Room 254, 4802 Sheboygan Avenue
    Madison, WI

An interpreter for the hearing impaired will be available on request for this hearing. Parking for persons with disabilities and an accessible entrance are available.

Agency Contact Person and Submission of Written Comments

The public record on this proposed rule making will be held open until close of business the day of the hearing to permit the submission of comments in lieu of public hearing testimony or comments supplementing testimony offered at the hearing. Any such comments should be submitted to Carson Frazier, Department of Transportation, Bureau of Vehicle Services, Room 253, P. O. Box 7911, Madison, WI 53707-7911. You may also contact Ms. Frazier by phone at [phone] or e-mail: [e-mail] .

Copies of Proposed Rule

To view the proposed amendments to the rule, view the current rule, and submit written comments via e-mail/internet, you may visit the following website: http://www.dot.wisconsin.gov/library/research/law/rulenotices.htm .

A copy of the rule may be obtained upon request from Carson Frazier, Department of Transportation, Bureau of Vehicle Services, Room 253, P. O. Box 7911, Madison, WI 53707-7911. You may also contact Ms. Frazier by phone at [phone] or e-mail: [e-mail] .

Analysis Prepared by the Wisconsin Department of Transportation

Statutes interpreted

Section 348.17 (3) and (5) , Stats.

Statutory authority

Sections 85.16 (1) , 227.11 (2) , and 348.25 (3) , Stats.

Explanation of agency authority

The Department is authorized to administer statutes and administrative rules related to vehicle weights, widths, heights and lengths. Prior to May 2006, the Department issued emergency declarations authorizing overweight loads of agricultural products during the Fall Harvest season. 2005 Wis. Act 364 , effective May 4, 2006, eliminated this authority and replaced it with a statutory seasonal overweight allowance for agricultural products. Chapter Trans 267 , which implemented emergency agricultural transportation permits is no longer needed. Although the Department has the authority to issue emergency energy conservation permits, it can do so only when the Governor declares an energy emergency pursuant to ss. 340.01(15s) and 348.17(3) , Stats. It has been the Department's practice to forego issuing energy emergency permits because it has relied on Emergency Executive Orders issued by the Governor to authorize oversize or overweight loads during energy emergencies. Because energy emergencies are declared by the Governor, pursuant to ss. 340.01(15s) and 348.17(3) , Stats., and 49 C.F.R. sections 390.23 and 390.25 , and because the Department has not issued separate energy emergency permits, Chapter Trans 268 is not needed.

Related statute or rule

Chapter 348 and s. 166.03 (1) (b) 1. , Stats., Chapters Trans 250 to 278 , Wis. Adm. Code, 49 C.F.R. sections 390.23 and 390.25 .

Plain language analysis

Chapter Trans 267 governs emergency agricultural transportation permits under s. 348.17(4) , Stats. Chapter Trans 268 governs emergency energy conservation permits under ss. 340.01(15s) and 348.17(3) , Stats. The scope statement for this rule making stated that the Department proposes to combine ch. Trans 267 into ch. Trans 268 and to incorporate provisions consistent with other overweight rules. However, as the Department has considered such changes, the Department has determined that in fact neither rule is any longer valid, and thus proposes to repeal both rules.

Chapter Trans 267 interprets s. 348.17 (4), Stats. 2005 Wis. Act 364 repealed s. 348.17 (4), Stats., and instead created s. 348.17 (5), Stats., allowing overweight transport of certain crops during certain time periods without requiring a permit. Ch. Trans 267 is no longer valid. Therefore, the Department proposes to repeal ch. Trans 267 .

Trans 268 governs emergency energy conservation permits under ss. 340.01 (15s) and 348.17 (3) , Stats. Section 348.17 (3) , Stats., states that during an energy emergency the Department of Transportation, after consulting with the Department of Administration, may waive the statutory divisible load limitation on overweight loads, and authorize, for up to 30 days, overweight operation within certain limits. An energy emergency is certified by executive order of the Governor.

Section 348.17 (3) , Stats., does not specifically state that the Department of Transportation may or shall require permits for overweight movement during an energy emergency. In practice, when the Governor has declared an energy emergency, the Department of Transportation has not required permits for overweight transport, but the statutory weight limitations specified in s. 348.17 (3) , Stats., have been considered the limitations under the gubernatorial emergency declaration. Since s. 348.17 (3) , Stats., will always govern and the Department has never required permits under ch. Trans 268 , the Department proposes to repeal ch. Trans 268 .

Comparison with federal regulations

No federal regulation covers the overweight permits addressed in these rules. Like all statutes and administrative rules governing overweight movement, these rules comply with federal law and regulation regarding operation on Interstate highways and other federal-aid highways.

Comparison with rules in adjacent states

Michigan:   Not applicable.

Minnesota:   Not applicable.

Illinois:   Not applicable.

Iowa:   Not applicable.

Summary of factual data and analytical methodologies

These two administrative rules no longer serve a purpose, as both are superseded by statute. Therefore, the Department proposes to repeal these two rules.

Analysis and supporting documentation used to determine effect on small businesses

Not applicable.

Small Business Impact

Repeal of these chapters has no effect on small business, since statutory language prevails.

The Department's Regulatory Review Coordinator may be contacted by e-mail at [e-mail] , or by calling [phone].

Fiscal Estimate

The Department estimates that there will be no fiscal impact on the liabilities or revenues of any county, city, village, town, school district, vocational, technical and adult education district, sewerage district, or federally-recognized tribes or bands.

The Department estimates that there will be no fiscal impact on state or private sector revenues or liabilities.

Text of Proposed Rule

SECTION 1. Chapters Trans 267 and 268 are repealed.