CR_10-110 Hearing to consider rules revising Ch. ATCP 30 creating a new atrazine prohibition area adjacent to the Lower Wisconsin River Valley in Sauk County, and expanding and joining two current atrazine prohibition areas north of Pardeeville in ...

This rule modifies Wisconsin's agricultural and vegetable seed rule. Among other things, this rule:

•   Establishes new rules related to seed labeling;

•   Modifies current rules related to standards of germination, analysis, sampling, inspection, and examination;

•   Establishes new rules related to native seeds;

•   Incorporates the fees for seed labeler licenses contained in s. 94.43 , Stats.

•   Makes other minor changes to update, clarify and correct current agricultural and vegetable seed rules.

The standards used for label contents, germination, weed seed and other tolerances as well as the definitions applicable to those standards that were included in the statute have changed substantially since the adoption of the seed law statutes. The primary effect of the rule is to update those standards and definitions to make them consistent with current practice throughout the U. S. and with the standards maintained by the Association of Official Seed Analysts. The standards proposed in this rule, like the statutes that exist through December 31, 2010 have the purpose of maintaining a fair marketplace for purchasers of agricultural seed and vegetable seed labeled, distributed, and sold in Wisconsin.

Comparison with federal regulations

The USDA-Agricultural marketing Service, Seed Regulatory and Testing Branch uses the published Association of Official Seed Analyst (AOSA) standards included in this rule for its regulatory work. The same seed rules are also used internationally and are published by the International Seed Trade Association.

Comparison with rules in adjacent states

Surrounding states have adopted the same AOSA published agricultural seed and vegetable seed standards as are included in this rule. The AOSA standards have been adopted by most states as the rules for testing seeds in their respective states. The AOSA's standards were developed to promote uniformity and accuracy in seed testing methods.

Data and analytical methodologies

DATCP consulted DNR, UWEX and the Association of Seed Analysts and worked with an advisory body made up of representatives of the Wisconsin seed industry and seed consumers in Wisconsin to develop the standards in the rule.

Environmental Impact

This rule will prohibit and restrict certain noxious weed seeds, some of which were previously prohibited or restricted under statute. The addition of new prohibited and restricted weed seeds may have a minor positive impact on the environment. The majority of the rule provisions have no environmental impact.

Small Business Impact

This rule updates current rules related to agricultural seeds and vegetable seeds. The primary purpose of this rule is to ensure a fair marketplace by establishing germination, labeling, examination, sampling, inspecting, and analysis standards that agricultural seeds and vegetable seeds sold in Wisconsin must meet. This rule establishes and updates these standards. The rule also establishes new standards for native seeds, a growing category of seeds not previously subject to regulation. Standards contained in the applicable statutes will be repealed as of January 1, 2011 and will be established in this rule. This rule also clarifies current seed rules, to facilitate understanding and compliance.

This rule will not have a significant impact on small businesses. This rule is expected to positively affect businesses by ensuring the all agricultural seed and vegetable seed producers, labelers, distributors, and wholesalers are using uniform standards for germination, labeling, analysis, testing, sampling, inspection and examination. The standards will ensure a fair agricultural seed and vegetable seed marketplace for businesses and consumers.

Fiscal Estimate

The proposed rule will have no fiscal impact on state or local government. Seed labeler license fees included in the proposed rule have already been created by statute. (See s. 94.43 , Stats.)

Agency Contact Person

Questions and comments related to this rule may be directed to:

Greg Helmbrecht

Dept. of Agriculture, Trade and Consumer Protection

P.O. Box 8911 , Madison, WI 53708-8911

Phone: [phone]

E-Mail: [e-mail]

Notice of Hearing

Agriculture, Trade and Consumer Protection

CR 10-110

The Wisconsin Department of Agriculture, Trade and Consumer Protection ("DATCP") announces that it will hold two public hearings on rules affecting Chapter ATCP 30 creating a new atrazine prohibition area adjacent to the Lower Wisconsin River Valley in Sauk County, and expanding and joining two current atrazine prohibition areas north of Pardeeville in Columbia County.

Hearing Information

DATCP will hold the public hearings at the times and locations shown below.

Tuesday, October 26, 2010

3:00 - 5:00 PM and 6:00 - 8:00 PM

Prairie du Sac Town Hall

S9903 Highway 12

Prairie du Sac, WI 53578

Wednesday, October 27, 2010

3:00 - 5:00 PM and 6:00 - 8:00 PM

Angie W. Cox Public Library

119 N. Main Street

Pardeeville, WI 53954

Hearing impaired persons may request an interpreter for these hearings. Please make reservations for a hearing interpreter by October 16, 2010 by writing to Claire Fried, Division of Agricultural Resource Management, P.O. Box 8911, Madison, WI 53708-8911, Claire.Fried@wi. gov , telephone [phone]. Alternatively, you may contact the DATCP TDD at [phone]. Handicap access is available at the hearings.

Submittal of Written Comments

DATCP invites the public to attend the hearings and comment on the rules. Following the hearings, the hearing record will remain open until November 12, 2010 for additional written comments. Comments may be sent to the Division of Agricultural Resource Management at the address below, by email to [e-mail] or online at https://health.wisconsin.gov/admrules/public/Home .

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

Copies of Proposed Rule

You may obtain free copies of the proposed 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 may also obtain copies by calling [phone] or emailing [e-mail] or you can view online at https://health.wisconsin.gov.admrules/ public/Home . Copies will also be available at the hearing.

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

In order to protect Wisconsin groundwater, the Department of Agriculture, Trade and Consumer Protection ("DATCP") administers rules that limit atrazine herbicide application rates throughout the state, and prohibit atrazine applications in areas where groundwater contamination levels attain or exceed state enforcement standards adopted by the Department of Natural Resources (DNR"). Based on new groundwater test data, this rule will add one new atrazine prohibition area in Sauk County, and expand and join two current atrazine prohibition areas in Columbia County.

Statutes interpreted

Sections 94.69 , 160.19 (2) , and 160.21 (1) , Stats.

Statutory authority

Sections 93.07 (1) , 94.69 (1) , 160.19 (2) , and 160.21 (1) , Stats.

Explanation of agency authority

DATCP has broad authority, under s. 93.07 (1) , Stats., to adopt rules to implement programs under its jurisdiction. DATCP has authority to adopt pesticide rules under s. 94.69 (1) , Stats. Under ss. 160.19 (2) and 160.21 (1) , Stats., DATCP must regulate pesticide use, as necessary, to prevent groundwater contamination and restore groundwater quality.

Related rules or statutes

Under the state groundwater law, ch. 160 , Stats., DATCP must regulate pesticide use as necessary to prevent groundwater contamination and restore groundwater quality. DATCP has adopted general rules for its groundwater protection program under ch. ATCP 31 , Wis. Adm. Code. DNR has adopted groundwater enforcement standards and preventive action limits for atrazine and its metabolites under ch. NR 140 , Wis. Adm. Code.

This rule is consistent with the state groundwater law (ch. 160 , Stats.) and DATCP's general groundwater protection rules (ch. ATCP 31 , Wis. Adm. Code), and is designed to attain compliance with the groundwater enforcement standards and preventive action limits specified by DNR rules (ch. NR 140 , Wis. Adm. Code).

Background

Atrazine is a widely used agricultural herbicide that has been found in groundwater throughout the state. Current DATCP rules under ch. ATCP 30 , Wis. Adm. Code, limit atrazine application rates throughout the state to ½ the current federal label rate. The current rules also prohibit the use of atrazine where atrazine contamination of groundwater has attained or exceeded the state groundwater enforcement standard under ch. NR 140 , Wis. Adm. Code. Current rules prohibit atrazine use in 101 designated areas, including major prohibition areas in the lower Wisconsin River Valley and much of Dane and Columbia counties.

Rule content

Based on new groundwater sampling data, this rule creates one new atrazine prohibition area in Sauk County and expands and joins two existing atrazine prohibition areas in Columbia County. The total statewide acreage of atrazine prohibition areas will increase by approximately 8,640 acres. By creating one new atrazine prohibition area in Sauk County and expanding and joining two existing atrazine prohibition areas in Columbia County, there will be no change to the total number of atrazine prohibition areas in Wisconsin, which remains at 101.

Within every prohibition area, atrazine applications are prohibited. Atrazine mixing and loading operations are also prohibited unless conducted over a spill containment surface that complies with s. ATCP 29.45 , Wis. Adm. Code.

Comparison with federal regulations

Pesticides and pesticide labels must be registered with the federal Environmental Protection Agency ("EPA"). Persons may not use pesticides in a manner inconsistent with the federal label.

The maximum atrazine application rate in Wisconsin is ½ of the maximum federal rate. However, the current federally-registered atrazine label suggests that atrazine should not be used on permeable soils with groundwater near the soil surface. Wisconsin has clearer, more definite restrictions on atrazine use, based on actual findings of groundwater contamination in this state.

The EPA recently announced that it will conduct a new evaluation of atrazine to assess any possible links between atrazine and cancer, as well as other health problems, such as premature births. The EPA may determine that new restrictions for the product are necessary, which will be reflected on product use labels. These rule changes are not anticipated to be affected by EPA's review and any subsequent actions.

Comparison with rules in adjacent states

Wisconsin atrazine regulations are stronger than those in adjacent states:

Iowa:

Iowa restricts atrazine application rates to 1/2 the federal label rate in 23 counties (7 with county-wide restrictions and 16 with restrictions in some townships).

Minnesota:

Minnesota has a program of voluntary use limitations when surface water or groundwater contamination exceeds a level of concern. This program suggests pesticide use restrictions or "best management practices" will reduce surface water or groundwater contamination.

Illinois and Michigan:

Illinois and Michigan have no atrazine regulations.

Summary of data and analytical methodologies

This rule is based on groundwater sample results for atrazine and atrazine metabolites obtained from the affected areas during the past year. Groundwater samples contained atrazine contamination in excess of 3.0 ug/L (the state enforcement standard established by DNR groundwater rules under ch. NR 140 , Wis. Adm. Code).

Preliminary contamination findings for the atrazine prohibition expansions were based on groundwater samples analyzed by the University of Wisconsin – Stevens Point. DATCP confirmed the existence of groundwater contamination, in excess of the state enforcement standard, based on DATCP analysis of groundwater samples collected by DATCP. DATCP collected and analyzed the samples using official collection and analytical methods.

Environmental Impact

This rule will not have any adverse environmental impacts, and will help to protect and restore groundwater quality in Sauk and Columbia counties. This rule is consistent with the state groundwater law, and with the overall protocol for atrazine regulations that has been in effect since 1991.

Small Business Impact

This rule will affect between 20 to 30 farmers in the new and expanded prohibition areas who currently use atrazine to control weeds in corn. Those farmers, who are "small businesses," will no longer be able to use atrazine. However, other effective weed control products are available, so the rule will not have a significant effect on the affected farmers. This rule may also have a slight effect on distributors and applicators of atrazine herbicides, crop consultants and equipment dealers, but the effect will not be significant.

This rule will not have a significant adverse impact on small business, and is not subject to the delayed small business effective date provided in s. 227.22(2)(e) , Stats.

Small business regulatory coordinator

Keeley Moll

Wisconsin DATCP

Division of Agricultural Resource Management,

2811 Agriculture Drive, P.O. Box 8911,

Madison, WI 53708

Email: [e-mail]

Telephone: [phone].

Fiscal Estimate

Administration and enforcement of this rule will involve some new costs for DATCP. Staff time will be needed to monitor compliance (0.1 FTE, costing approximately $7,800). Compliance monitoring will be coordinated with current compliance monitoring activities. Soil sampling and testing may be used to monitor compliance, and may require an estimated $2,000 in analytical services.

Total costs are estimated at $9,800. DATCP expects to absorb these costs within its current budget. There will be no additional costs to any other state agencies or local governments.

Agency Contact Person

Questions and comments related to this rule may be directed to:

Rick Graham, DATCP

P.O. Box 8911

Madison, WI 53708-8911

Telephone [phone]

E-Mail: [e-mail]

Notice of Hearing

Commerce

Financial Resources for Businesses and Communities, Chs. Comm 100—

CR 10-108

NOTICE IS HEREBY GIVEN that pursuant to section 560.205 (3) (d) of the Statutes, the Department of Commerce will hold a public hearing on proposed rules in Chapter Comm 129 , relating to tax credits for angel investments and early stage seed investments, and affecting small businesses.

Hearing Information

Date and Time:	Location:
Monday October 11, 2010 2:00 p.m.	Thompson Commerce Center Third Floor, Room 3B 201 West Washington Avenue Madison, WI

This hearing will be held in an accessible facility. If you have special needs or circumstances that may make communication or accessibility difficult at the hearing, please call Sam Rockweiler at [phone] or at Contact Through Relay at least 10 days prior to the hearing date. Accommodations such as interpreters, English translators, or materials in audio tape format will, to the fullest extent possible, be made available upon a request from a person with a disability.

Submittal of written comments

Interested persons are invited to appear at the hearing and present comments on the proposed rules. Persons making oral presentations are requested to submit their comments in writing, via e-mail. Persons submitting comments will not receive individual responses. The hearing record on this rulemaking will remain open until October 13, 2010 , to permit submittal of written comments from persons who are unable to attend the hearing or who wish to supplement testimony offered at the hearing. E-mail comments should be sent to [e-mail] . If e-mail submittal is not possible, written comments may be submitted to Sam Rockweiler, Department of Commerce, Division of Environmental and Regulatory Services, P.O. Box 14427, Madison, WI 53708-0427.

Copies of Proposed Rule

The proposed rules and an analysis of the rules are available on the Internet by entering "Comm 129" in the search engine at the following Web site:
https://health.wisconsin.gov/admrules/public/Home .

Paper copies may be obtained without cost from Sam Rockweiler at the Department of Commerce, Division of Environmental and Regulatory Services, P.O. Box 14427, Madison, WI 53707, or at [e-mail] , or at telephone [phone], or at Contact Through Relay. Copies will also be available at the public hearing.

Analysis Prepared by the Department of Commerce

Statutes interpreted

Section 560.205 (3) (d) , as modified by 2009 Wisconsin Act 265 .

Statutory authority

Sections 227.11 (2) (a) and 560.205 (3) (d) , Stats.

Explanation of agency authority

Section 227.11 (2) (a) of the Statutes authorizes the Department to promulgate rules interpreting the provisions of any Statute administered by the Department. Section 560.205 (3) (d) directs the Department to promulgate rules for administering the corresponding statutory requirements for angel investment tax credits and early stage seed investment tax credits.

Related statute or rule

Several statutes and other Departmental rules address tax incentives for business development in Wisconsin. For example, (1) sections 560.70 to 560.7995 of the Statutes and chapters Comm 100, 107, 112 and 118 address statewide tax-credit programs for job creation, capital investment, employee training and corporate headquarters; and (2) several other sections of chapter 560 and other Comm chapters address more-narrowly targeted business development incentives, such as for film productions, dairy manufacturing facilities, and fuel and electricity used in manufacturing.

Plain language analysis

The rules in this order would update this chapter to make it consistent with the portion of 2009 Wisconsin Act 265 that raises the yearly limits on tax credits for angel investments and for early stage seed investments, as regulated by the Department under section 560.205 of the Statutes.

Comparison with federal regulations

Neither the Department nor the Department of Revenue is aware of any existing or proposed federal regulation that applies these tax credits.

Comparison with rules in adjacent states

Minnesota:

Minnesota offers various tax credit programs, but none that are similar to the Early Stage Business Investment program in Wisconsin.

Iowa:

Iowa offers a University-Based Research Utilization Program to provide tax credits to businesses and university employees to promote the adoption of new technology developed at the state universities. Businesses must be utilizing technology based on patents awarded to Iowa State University, the University of Iowa, or the University of Northern Iowa and be less than 1 year old. Researchers who developed the intellectual property utilized by the business are also eligible for up to 10 percent of the businesses tax liability in individual income tax credits. Administrative rules for this program are available in the Iowa Administrative Code, 261-Chapter 63 . Further information is available through the Iowa Department of Economic Development Web site at www.iowalifechanging.com .

Illinois:

Illinois offers various tax credit programs, but none that are similar to the Early Stage Business Investment program in Wisconsin.

Michigan:

Michigan offers a High-Tech and High Wage MEGA Tax Credit program that provides tax credits to promote the development of high-tech businesses in traditional and emerging industries. A business is eligible for tax credits to offset their Michigan business tax liability. Tax credit amounts are based on job creation. There are no rules for the program, however guidelines can be found through the Michigan Economic Development Corporation's Web site at www.themedc.org .

Summary of factual data and analytical methodologies

The data and methodology for developing these rules were derived from and consisted of incorporating the criteria in 2009 Wisconsin Act 265 .

Analysis and supporting documents used to determine effect on small business

The primary document that was used to determine the effect of the rules on small business was 2009 Wisconsin Act 265 . This Act applies its private-sector requirements only to businesses and individuals for which a corresponding tax credit is desired.

Small Business Impact

The rules are not expected to impose significant costs or other adverse impacts on small businesses because the rules only address raising the yearly limits on tax credits for angel investments and for early stage seed investments.

Initial regulatory flexibility analysis

Types of small businesses that will be affected by the rules.

Businesses and individuals that choose to pursue tax credits for angel investments and early stage seed investments, as established under ss. 71.07 (5b) and (5d) , 71.28 (5b) , 71.47 (5b) , 76.638 , and 560.205 of the Statutes.

Reporting, bookkeeping and other procedures required for compliance with the rules.

The rules would not impose any new reporting, bookkeeping or other procedures on small businesses.

Types of professional skills necessary for compliance with the rules.

No new professional skills are necessary for compliance with the rules.

Rules have a significant economic impact on small businesses.

No.

Small business regulatory coordinator

Any inquiries for the small business regulatory coordinator for the Department of Commerce can be directed to Sam Rockweiler, as listed above.

Environmental Impact

The Department has considered the environmental impact of the proposed rules. In accordance with chapter Comm 1, the proposed rules are a Type III action. A Type III action normally does not have the potential to cause significant environmental effects and normally does not involve unresolved conflicts in the use of available resources. The Department has reviewed these rules and finds no reason to believe that any unusual conditions exist. At this time, the Department has issued this notice to serve as a finding of no significant impact.

Fiscal Estimate

Summary

Raising the yearly limits on tax credits for angel investments and for early stage seed investments is not expected to significantly change either Department revenues or staff workload.

The proposed rules are not expected to impose any significant costs on local governments or the private sector, because the rules would only raise the yearly limits on tax credits for angel investments and for early stage seed investments.

State fiscal effect

None.

Local government fiscal effect

None.

Long-range fiscal implications

None known.

Agency Contact Person

Chris Schiffner, WI Dept. of Commerce

Division of Business Development

201 West Washington Avenue

Madison, WI 53703

Phone: [phone]

Email: [e-mail] .

Notice of Hearing

Commerce

Financial Resources for Businesses and Communities, Chs. Comm 100—

EmR1026 , CR 10-113

NOTICE IS HEREBY GIVEN That pursuant to SECTION 45 (1) (b) of 2009 Wisconsin Act 265 , the Department of Commerce will hold a public hearing on emergency rules and proposed permanent rules to create Chapter Comm 139 , relating to rural outsourcing grants, and affecting small businesses.

Hearing Information

The public hearing will be held as follows:

Date and Time:	Location:
October 13, 2010 Wednesday at 2:30 p.m.	Thompson Commerce Center Third Floor, Room 3B 201 West Washington Avenue Madison, Wisconsin

This hearing will be held in an accessible facility. If you have special needs or circumstances that may make communication or accessibility difficult at the hearing, please call Sam Rockweiler at [phone] or at Contact Through Relay at least 10 days prior to the hearing date. Accommodations such as interpreters, English translators, or materials in audio tape format will, to the fullest extent possible, be made available upon a request from a person with a disability.

Appearance at Hearing and Submittal of Written Comments

Interested persons are invited to appear at the hearing and present comments on the proposed rules. Persons making oral presentations are requested to submit their comments in writing, via e-mail. Persons submitting comments will not receive individual responses. The hearing record on this rulemaking will remain open until October 15, 2010 , to permit submittal of written comments from persons who are unable to attend the hearing or who wish to supplement testimony offered at the hearing. E-mail comments should be sent to [e-mail] . If e-mail submittal is not possible, written comments may be submitted to Sam Rockweiler, Department of Commerce, Division of Environmental and Regulatory Services, P.O. Box 14427, Madison, WI 53708-0427.

Copies of Proposed Rules

The proposed rules and an analysis of the rules are available on the Internet by entering "Comm 139" in the search engine at the following Web site: https://health.wisconsin.gov/admrules/public/Home .

Paper copies may be obtained without cost from Sam Rockweiler at the Department of Commerce, Division of Environmental and Regulatory Services, P.O. Box 14427, Madison, WI 53707, or at [e-mail] , or at telephone [phone], or at Contact Through Relay. Copies will also be available at the public hearing.

Analysis Prepared by Department of Commerce

Statutes interpreted

SECTION 45 (1) of 2009 Wisconsin Act 265 .

Statutory authority

Section 227.11 (2) (a) , Stats., and SECTION 45 (1) (b) of 2009 Wisconsin Act 265 .

Explanation of agency authority

SECTION 45 (1) (b) of 2009 Wisconsin Act 265 requires the Department to promulgate rules for awarding the rural outsourcing grants established in SECTION 45 (1). Section 227.11 (2) (a) , Stats., authorizes the Department to promulgate rules interpreting the provisions of any Statute administered by the Department.

Related statute or rule

The Department has rules for several other programs associated with economic and business development grants, but those programs are not targeted specifically to grants to businesses for outsourcing work to rural municipalities.

Summary of rule

The rules in this order address (1) the eligibility requirements for applicants and projects; (2) the documentation that must be submitted by applicants; (3) the Department's response to the submitted documentation; and (4) the Department's use of any funds that are not applied for by the end of the 2009-11 fiscal biennium.

Comparison with federal regulations

No similar existing or proposed federal regulations or programs were found through review of the Code of Federal Regulations and pertinent federal agency Web sites — including at the US Department of Agriculture, the US Department of Commerce, the US Economic Development Administration, and the US Small Business Administration.

Comparison with rules in adjacent states

Review of existing rules and programs in adjacent States and review of proposed state legislation through the National Conference of State Legislatures did not reveal any similar rules or programs in the adjacent States.

Summary of factual data and analytical methodologies

The data and methodology for developing these rules were derived from and consisted of (1) incorporating the applicable criteria in SECTION 45 of 2009 Wisconsin Act 265 ; (2) incorporating applicable best practices the Department has developed in administering similar programs for economic and business development, and (3) reviewing Internet-based sources of related federal, state, and private-sector information.

Analysis and supporting documents used to determine effect on small business

The primary documentation that was used to determine the effect of the rules on small business was SECTION 45 (1) of 2009 Wisconsin Act 265 . This SECTION authorizes the Department to award grants to businesses for outsourcing work to rural municipalities and requires the Department to promulgate rules for administering the program. This SECTION applies its private-sector requirements only to businesses that chose to apply for the grants.

Small Business Impact

The rules are not expected to impose significant costs or other impacts on small businesses because the rules address submittal of documentation only by applicants that choose to pursue grants for outsourcing work to rural municipalities.

Small business regulatory coordinator

Any inquiries for the small business regulatory coordinator for the Department of Commerce can be directed to Sam Rockweiler, as listed above.

Initial regulatory flexibility analysis

Types of small businesses that will be affected by the rules.

Businesses that choose to pursue grants for outsourcing work to rural municipalities, under SECTION 45 (1) (b) of 2009 Wisconsin Act 265 .

Reporting, bookkeeping and other procedures required for compliance with the rules.

An application must be submitted to the Department, that includes information enabling the Department to determine the corresponding potential economic impacts of a proposed project.

Types of professional skills necessary for compliance with the rules.

No new professional skills are necessary for compliance with the rules.

Rules have a significant economic impact on small businesses.

No.

Environmental Impact

The Department has considered the environmental impact of the proposed rules. In accordance with chapter Comm 1, the proposed rules are a Type III action. A Type III action normally does not have the potential to cause significant environmental effects and normally does not involve unresolved conflicts in the use of available resources. The Department has reviewed these rules and finds no reason to believe that any unusual conditions exist. At this time, the Department has issued this notice to serve as a finding of no significant impact.

Fiscal Estimate

Although the rules will newly result in review of documentation relating to issuing grants to businesses for outsourcing work to rural municipalities, the number of these reviews and grants is expected to be too small to result in significant changes in the Department's costs for administering its business development programs. Therefore, the proposed rules are not expected to have any significant fiscal effect on the Department.

The proposed rules are not expected to impose any significant costs on the private sector, because the rules address only voluntary submittal of documentation relating to grants for outsourcing work to rural municipalities

State fiscal effect

None.

Local government fiscal effect

None.

Long-range fiscal implications

None known.

Agency Contact Person

Mary Gage, Wisconsin Dept. of Commerce

Bureau of Business Finance and Compliance

P.O. Box 7970

Madison, WI 53707-7970

Phone: [phone]

Email: [e-mail]

Notice of Proposed Rulemaking
(Without Public Hearing)

Controlled Substances Board

CR 10-112

NOTICE IS HEREBY GIVEN that pursuant to ss. 961.11 (1) and 961.16 , Stats., and according to the procedure set forth in s. 227.16 (2) (e) , Stats., the Controlled Substances Board will adopt the following rule as proposed in this notice, without public hearing unless, within 30 days after publication of this notice on September 30, 2010, the Controlled Substances Board is petitioned for a public hearing by 25 natural persons who will be affected by the rule; a municipality which will be affected by the rule; or an association which is representative of a farm, labor, business or professional group which will be affected by the rule.

Submittal of Written Comments

Comments may be submitted to Pamela Haack, Department of Regulation and Licensing, Division of Board Services, 1400 East Washington Avenue, Room 116, P.O. Box 8935, Madison, Wisconsin 53708-8935, or by email at [e-mail] . Comments must be received on or before October 15, 2010 to be included in the record of rule-making proceedings.

Analysis Prepared by the Department of Regulation and Licensing

Statutes interpreted

Sections 961.11 (1) and 961.16 , Stats.

Statutory authority

Sections 961.11 (1) and 961.16 , Stats.

Explanation of agency authority

The Controlled Substances Board is authorized by s. 961.11 (1) , Stats., to add substances to or delete or reschedule substances listed under schedule II, in s. 961.16 , Stats., pursuant to the rule-making procedures of ch. 227 , Stats.

Related statute or rule

21 CFR Sec. 1308.12 (d) (5)

Plain language analysis

By final rule of the Drug Enforcement Administration (DEA), adopted effective June 4, 2007, lisdexamfetamine was classified as a schedule II controlled substance under the federal Controlled Substances Act (CSA). Lisdexamfetamine has not been so scheduled under the Wisconsin Controlled Substances Act in ch. 961 , Stats. The objective of this proposed rule-making is to bring the treatment of this drug into conformity with that at the federal level.

Drugs that are classified as "controlled substances" under federal and state laws are subject to higher civil and criminal penalties for their illicit possession, distribution and use. Health care providers are also subject to greater recordkeeping requirements regarding procuring, prescribing and dispensing of such drugs. This is because certain drugs, like lisdexamfetamine, have a greater likelihood of abuse, addiction and adverse consequences to patient health if utilized inappropriately, than do other drugs.

Lisdexamfetamine is also known by the trade name Vyvanse TM and has the DEA Drug Code 1205. It will be marketed as a prescription drug product for the treatment of Attention Deficit Hyperactivity Disorder (ADHD).

The DEA found reason to classify Lisdexamfetamine, including its salts, isomers, and salts of isomers, as a schedule II drug based on the following findings:

(1) Lisdexamfetamine has a high potential for abuse;

(2) Lisdexamfetamine has a currently accepted medical use in treatment in the United States; and

(3) Abuse of lisdexamfetamine may lead to severe psychological or physical dependence.

Comparison with federal regulations

21 CFR Sec. 1308.12 (d) (5)

Lisdexamfetamine has been classified as a schedule II controlled substance in the federal Controlled Substances Act since June 4, 2007. This regulation change will make Wisconsin regulations consistent with the federal CSA.

Comparison with rules in adjacent states

Illinois:

Not scheduled. Provisions relating to permit authorization application requirements and renewal : Federal registration is required before activity can occur. Illinois grants an "independent activity" license that expires on December 31 of even-numbered years. A registered person who fails to renew before the expiration date of the registration must apply for a new registration. The registration expires on the date specified. Section 3100, Illinois Rules.

Iowa:

Schedule II Controlled Substance. House File 2167, Sec. 2. Provisions relating to permit authorization application requirements and renewal : Iowa's regulations identify who must register and include application requirements. A $100 late renewal fee is assessed if there is a failure to remit payment by the first day of the month following expiration. Grounds for revocation, suspension and denial are specified. Section 657, Iowa Administrative Code.

Michigan:

Not scheduled. Provisions relating to permit authorization application requirements and renewal : Michigan requires a research license. Rules deal separately with personal training for euthanasia, thefts and diversion, storage, employees and records. Chapter 338 , Michigan Rules.

Minnesota:

As of March 8, 2010, Minnesota classified lisdexamfetamine as a schedule II controlled substance.

Summary of factual data and analytical methodologies

The Wisconsin Controlled Substances Board reviewed the federal rule summary and supplemental information for the scheduling of this substance, and agrees with the conclusions therein regarding the potential for abuse.

Analysis and supporting documents used to determine effect on small business

Since there is no anticipated impact on small business from this rule, no additional compliance, bookkeeping, reporting, recordkeeping or professional skills are required.

Section 227.137 , Stats, requires an "agency" to prepare an economic impact report before submitting the proposed rule-making order to the Wisconsin Legislative Council. The Department of Regulation and Licensing is not included as an "agency" in this section.

Anticipated Costs Incurred By Private Sector

The department finds that this rule has no significant fiscal effect on the private sector.

Small Business Impact

These proposed rules will not have any significant economic impact on a substantial number of small businesses, as defined in s. 227.114 (1) , Stats. The Department's Regulatory Review Coordinator may be contacted by email at [e-mail] , or by calling [phone].

Fiscal Estimate

There is no fiscal impact on the department.

Agency Contact Person

Pamela Haack

Department of Regulation and Licensing

Division of Board Services

1400 East Washington Avenue, Room 116

P.O. Box 8935, Madison, WI 53708-8935

Telephone: [phone]

Email: [e-mail] .

Text of Proposed Rule

SECTION 1. CSB 2.35 is created to read:

CSB 2.35 Addition of lisdexamfetamine to schedule II. (1) Section 961.16 (5) (e) is created to read:

Section 961.16 (5) (e) lisdexamfetamine, commonly known as "Vyvanse TM."

Notice of Hearing

Military Affairs

EmR1030 , CR 10-111

NOTICE IS HEREBY GIVEN that pursuant to s. 321.45 (2) , Stats.,the Department of Military Affairs will hold a public hearing on emergency rules and the promulgation of permanent rules to create Chapter DMA 1 , relating to Military Family Financial Aid.

Hearing Information

Date:   Wednesday, October 13, 2010

Time:   1:00 p.m. – 2:00 p.m.

Location:   MADISON
  Witmer Hall
  2400 Wright St.
  Madison, WI 53704

The public hearing site is accessible to people with disabilities. If you have special needs or circumstances that may make communication or accessibility difficult at the hearing, please contact Randi Milsap at [phone].

Copies of Proposed Rule

Copies of the proposed rule will be provided at the public hearing. Copies may also be obtained at no charge by emailing a request to Randi Milsap at [e-mail]

Submittal 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 Randi Milsap, Department of Military Affairs, 2400 Wright St., P. O. Box 14587, Madison, WI 53708-0587. You may also contact Randi Milsap by phone at [phone] or email [e-mail] .

Analysis Prepared by Department of Military Affairs

Statute interpreted

Section 321.45 (2) , Wis. Stats.

Statutory authority

Section 321.45 (2) , Chapter 321 , Wis. Stats.

Explanation of agency authority

The Department of Military Affairs is charged with promulgating rules to administer Military Family Financial Aid under Wis. Stat. 321.45 (2).

Related statute or rule

Section 20.465 (2) (r) , Wis. Stats.

Plain language analysis

The proposed rule, DMA 1, is being promulgated under the statutory authority of Wis. Stat. s. 321.45 (2) and is designed to provide the process for application and distribution of funds from the military family relief fund for the payment of financial aid to military families as provided under Wis. Stat. s. 20.465 (2) (r) .

This rule establishes the eligibility criteria, the amount of financial aid and the application process for military family financial aid. The purpose of the military family financial aid is to provide financial support to service members and their immediate families dealing with emergency situations. The rule requires applicants be a member of the immediate family of a service member, that the service member and the applicant are residents of the state, and that the service member is serving on active duty in the U.S. armed forces.

The application is available free of charge and the fund administrator will make a decision to approve or deny an application within 14 days of the receipt of a completed application. An applicant has 30 days to appeal any final determination by the fund administrator in writing and an addition 30 days to appeal the administrator's decision to the adjutant general.

A governing board comprised of military officials and the fund's executive director will provide oversight of the family aid process, and application records will be archived for 5 years.

Comparison with federal regulations

Each military branch has its own emergency relief organizations. This rule most closely resembles Army Regulation 930-4, which sets out rules for the administration of Army Emergency Relief (AER) assistance.

Active Duty service members, their dependents, some retired service members, and surviving spouses and orphans of service members who died on active duty are eligible to receive aid through AER. Military Family Financial Aid funds are available only to service members on active duty and their immediate family members. Both Army Emergency Relief and Military Family Financial Aid are funded through donations. Military Family Financial Aid will be administered by a Fund Administration committee as the Wisconsin Department of Military Affairs. Army Emergency Relief provides loans and grants to service members, whereas Military Family Financial Aid provides only grants. That aside, the substantive provisions of the Military Family Financial Aid Rule were based in large part on Army Emergency Relief.

Comparison with rules in adjacent states

Illinois:

The Illinois Military Family Relief Fund (IMFRF) is authorized by Title 95 Chapter 2 Part 200 of the Illinois Administrative Code and is funded by a voluntary check off on Illinois individual income tax forms.

The IMFRF provides grants to families of Illinois National Guard members and Illinois residents serving in the U.S. Armed Forces Reserve who are called to active duty as a result of the September 11, 2001 terrorist attacks. IMFRF grants are available to help service members and their families defray the costs of food, housing, utilities, medical services, and other expenses that become difficult to afford when a wage-earner.

The IMFRF provides three tiers of grants. All status and need based grants are awarded on a first-come, first-served basis. A status based grant of $500 is available for National Guard and Reserve soldiers on active duty for a minimum of 60 days with a pay grade below a moderate amount. Members may reapply for the $500 status based grant for every 6 months of consecutive duty.

A need based grant of $2,000 is available for National Guard and Reserve soldiers on active duty for a minimum of 60 days with a pay grade below a moderate amount and the service member's military salary must be at least 30% less than his or her civilian salary. Members may reapply for the $2,000 need based grant for every 6 months of consecutive duty. A casualty based grant of $5,000 is available for Active Duty, National Guard and Reserve soldiers who suffer a service-connected injury.

Iowa:

The State of Iowa has established a Veterans Trust Fund to provide certain services to veterans under Iowa Administrative Code 801 Chapter 14 . As of 2009 the trust fund is funded by a Joint Veterans Trust Fund and volunteer fire fighter preparedness fund income tax check off. Trust fund expenditures are approved through the Iowa Veterans Commission.

Funds are used for unemployment or underemployment assistance due to service-related causes, assistance with vision, hearing, dental care, durable medical equipment, and prescription drugs; counseling and substance abuse services; housing repair; and transitional housing in an emergency.

Disbursements are limited to members with income less than 200% of federal poverty level and less than $15,000 in liquid assets. Interest funds are received monthly and approved applicants are placed on a waiting list based on the date received and approved.

Michigan:

The Michigan Military Family Relief Fund is authorized by MI ST 35.1211-35.1216 2004 and is funded by a voluntary check off on Michigan individual income tax forms.

The fund is available to any member of a reserve component of the United States armed forces based in Michigan or who is a resident of Michigan serving in a reserve component of the United States armed forces based in another state and is called to active duty by the president of the United States or the United States secretary of defense as a result of national response to September 11, 2001 or as a response to a national emergency declared by the president of the United States and for which funds are being spent by the federal government.

The fund provides financial assistance for clothing, food, housing, utilities, medical services or prescriptions, insurance payments, vehicle payments, or other related necessities of daily living. The fund covers needs that occurred during the time the individual was on active duty or needs that occurred because the individual has incurred a line of duty injury or illness. Michigan limits the fund to $2,000 in one calendar year for each individual.

Minnesota:

Minnesota does not have a government administrated military family relief fund.

Summary of factual data and analytical methodologies

None.

Analysis and supporting documents used to determine effect on small business

Not necessary.

Small Business Impact

None.

Agency Contact Person

Randi Milsap

Department of Military Affairs

2400 Wright Street

Madison, WI 53708

Telephone: [phone]

Email: [e-mail]

Notice of Hearing

Natural Resources

Fish, Game, Forestry, etc., Chs. NR 1—

CR 10-114

DNR # ER-35-10 and ER-37-10(E)

NOTICE IS HEREBY GIVEN that pursuant to ss. 23.09 (2) , 29.604 , 227.11 (2) and 227.24 , Stats., the Department of Natural Resources will hold public hearings on proposed emergency and permanent rules to list four cave bat species as threatened in s. NR 27.03 (3) , Wis. Adm. Code. The hearings will be held concurrently with hearings to list the fungus, Geomyces destructans , as a prohibited invasive species in s. NR 40.04 (2) , Wis. Adm. Code.

Hearing Information

The hearings will begin at 11:00 am at the locations listed below. Following a brief informational presentation, public comments and statements will be accepted.

October 25, 2010   Conference Room 1
  DNR Oshkosh Service Center
  625 E. County Rd. Y
  Oshkosh

October 26, 2010   Glaciers Edge & Gathering Waters Rms.
  DNR South Central Region Hdqrs.
  3911 Fish Hatchery Road
  Fitchburg

October 28, 2010   Room 185
  DNR West Central Region Hdqrs.
  1300 W. Clairemont
  Eau Claire

October 29, 2010   Conference Room 1
  DNR Northern Region Headquarters
  107 Sutliff Avenue
  Rhinelander

Pursuant to the Americans with Disabilities Act, reasonable accommodations, including the provision of informational material in an alternative format, will be provided for qualified individuals with disabilities upon request. Please call Stacy Rowe at [phone] with specific information on your request at least 10 days before the date of the scheduled hearing.

Copies of Proposed Rules and Submittal of Written Comments

The proposed rule and fiscal estimate may be reviewed and comments electronically submitted at the following Internet site: http://adminrules.wisconsin.gov . Written comments on the proposed rule may be submitted via U.S. mail to Ms. Stacy Rowe, Bureau of Endangered Resources, P.O. Box 7921, Madison, WI 53707 or by email to [e-mail] . Comments may be submitted until November 1, 2010 . Written comments whether submitted electronically or by U.S. mail will have the same weight and effect as oral statements presented at the public hearings. A personal copy of the proposed rule and fiscal estimate may be obtained from Ms. Rowe.

Analysis Prepared by Department of Natural Resources

Statutory authority

Sections 23.09 (2) , 29.604 , 227.11 (2) and 227.24 , Stats.

Plain language analysis

The proposed changes to Ch. NR 27 , Wis. Admin. Code, will add the four cave bat species in Wisconsin to the Wisconsin threatened species list. The four species include the little brown bat ( Myotis lucifugus ), big brown bat ( Eptesicus fuscus ), northern long-eared bat ( Myotis septentrionalis ), and eastern pipistrelle ( Perimyotis subflavus ).

Related statute or rules

Section 29.604 (3) , Wis. Stats., requires the Department to establish an endangered and threatened species list. Chapter NR 27 , Wis. Admin. Code, provides the list of endangered and threatened species.

Comparison with federal regulations

Although several species of cave bats are listed federally by the United States Fish and Wildlife Service (USFWS), we are not aware of any listings that have occurred specifically due to white-nose syndrome. However, USFWS has received a petition to list two cave bat species due to white-nose syndrome and is in the process of reviewing the petition.

Comparison with rules in adjacent states

Vermont, New York and Massachusetts are in the process of listing several cave bat species due to white-nose syndrome.

The Minnesota Department of Natural Resources has recently proposed the little brown bat ( Myotis lucifugus ) and big brown bat ( Eptesicus fuscus ) as species of special concern because of the eminent threat of white-nose syndrome in the state. The other two species of cave bats in Minnesota, northern long-eared bat ( Myotis septentrionalis ) and eastern pipistrelle ( Perimyotis subflavus ) are already listed as species of special concern in Minnesota.

Summary of factual data and analytical methodologies

The proposed emergency rule is related to the addition of Wisconsin's four cave bat species to the state's threatened species list. The four species include the little brown bat ( Myotis lucifugus ), big brown bat ( Eptesicus fuscus ), northern long-eared bat ( Myotis septentrionalis ), and eastern pipistrelle ( Perimyotis subflavus ).

The proposed rule change seeks to provide protection to Wisconsin cave bat species, which face the imminent threat of white-nose syndrome. White-nose syndrome has spread across 14 states and 2 Canadian provinces in the last 3 years, spreading up to 800 miles per year. Mortality rates of affected bat colonies reach 100%. The disease was located last spring within 225 miles of Wisconsin's southern boarder and 300 miles from the northern boarder. Because the known dispersal distance of the little brown bat is 280 miles, an affected cave is now located within the dispersal range of Wisconsin little brown bats. Based on the current location and known rate of spread of the disease, we anticipate the presence of white-nose syndrome in Wisconsin as early as January 2011.

Wisconsin has one of the highest concentrations of cave bat hibernacula in the Midwest and large numbers of cave bats from neighboring states hibernate in Wisconsin. Consequently, Wisconsin's cave bat population, and those of surrounding states, is threatened by this devastating disease. All Wisconsin bat species are among the species fatally affected by the white-nose syndrome.

Cave bats were assessed for changes in population condition, using the following triggers established by the Bureau of Endangered Resources:

1.   Significant change in the Natural Heritage Inventory State Rank since 1997.

2.   Significant change in the Natural Heritage Inventory Global Rank since 1997.

3.   Change in United States Endangered Species Act status since 1997.

4.   Is there a need for immediate protection (i.e., new threat).

5.   Change in other statuses, e.g., International Union for Conservation of Nature (IUCN), Convention on International Trade in Endangered Species (CITES).

6.   New data on population condition available.

7.   Recommended for listing/delisting since 1997.

8.   Taxonomic change.

9.   For currently listed species, have recovery goals been met.

All four cave bat species met triggers #1 and #4, and the little brown bat also met trigger #7 (recommended for listing by stakeholders), therefore indicating the need for the emergency rule change.

Listing these species before white-nose syndrome has been detected in Wisconsin will allow the Department time to work collaboratively with stakeholders to ensure that appropriate conservation measures are developed and in place. Because of the speed of white-nose syndrome, the Department would not have time to develop appropriate conservation measures if listing were delayed until after white-nose syndrome was detected in Wisconsin.

Analysis and supporting documents used to determine effect on small business

None.

Small Business Impact

Affected constituencies include commercial caves and mines, private cave and mine owners, recreational cavers, wildlife rehabilitators, animal control operators, the agricultural industry, the conservation community, wind utilities, WI Department of Transportation (WDOT) and homeowners. Concerns will likely include how listing the bats will affect current activities. Many of these potential concerns will be addressed through a broad incidental take permit/authorization and voluntary agreements so that the listing does not have a significant economic impact on a substantial number of small businesses.

A broad incidental take permit/authorization would be created, as provided for under s. 29.604 , Wis. Stats. The broad incidental take permit/authorization would allow for the incidental taking of state listed cave bats that may occur as a result of specific public health concerns, bat removals, building demolitions, forestry activities, bridge demolitions, miscellaneous building repairs and wind energy development projects (see the "Broad Incidental Take Permit/Authorization for Cave Bats" attachment for more information). Some take of bats may still occur as a result of these activities, however take will be minimized by following specific minimization measures and the department has concluded that the projects covered under this permit are not likely to jeopardize the continued existence and recovery of the state population of these bats or the whole plant-animal community of which they are a part; and has benefit to the public health, safety or welfare that justifies the action. This incidental take permit/authorization is only needed when a bat is present or suspected to be present (e.g., Natural Heritage Inventory report of bats in the area, evidence of bat presence).

Pursuant to s. 227.114 , Stats., it is not anticipated that the proposed rule will have a significant economic impact on small businesses.

Small business regulatory coordinator

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.

Fiscal Estimate

Rule summary

The proposed rule package amends Ch. NR 27 , Wis. Adm. Code to add four species of bats to the endangered and threatened species list. This addition to the invasives list is being proposed as both an emergency rule, ER-37-10 (E), and a permanent rule, ER-35-10.

State fiscal estimate

The proposed rule package will require time by DNR staff to prepare the rule and administer rule hearings. Endangered Resources review staff will likely see an increase in time associated with the listing of bats. There will be an increase in the time associated with incidental take permits. It is assumed there will not be a significant increase in staff time, and that this time can be covered by existing appropriations. Staff at the Public Service Commission and the Office of Energy will see an increase in staff time associated with issues surrounding bats and wind farms. These agencies will also see an increase in time associated with incidental permits. It is assumed there will not be a significant increase in staff's time at these agencies.

Local fiscal estimate

It is assumed there will be minimal cost increases to local governments as a result of this rule change. As an example of these minimal costs, local public works departments will need to distribute new local construction permits to include the listing of bats.

Private entities fiscal impact

It is assumed the Department will be issuing a broad incidental take permit associated with the listing. Many private companies such as pest control operators and construction companies will be covered under this broad incident take permit. The impact to wind farms will be determined by the location. Depending on the impact to bats, wind farms may be required to report damages to bats or to perform a determined mitigation.

It is assumed the impact to farmers of this rule change will be positive; especially, in light of the fact that if bat populations in the state were to be devastated, the costs to agriculture from pest destruction and pesticide use would increase.

State fiscal impact

Indeterminate. Increase costs — May be possible to absorb within agency's budget.

Local government fiscal impact

Indeterminate. Increase costs — Permissive.

Types of local governmental units affected

Towns, Villages, Cities, Counties.

Agency Contact Person

Erin Crain

Bureau of Endangered Resources

P O Box 7921

101 S. Webster Street, ER/6

Madison, WI 53707-7921

Phone: [phone]

Notice of Hearing

Natural Resources

Fish, Game, Forestry, etc., Chs. NR 1—

CR 10-115

DNR # IS-42-10(E) and IS-41-10

NOTICE IS HEREBY GIVEN that pursuant to ss. 23.09 (2) , 23.22 , 227.11 (2) and 227.24 , Stats., the Department of Natural Resources will hold public hearings on the proposed emergency and permanent rules to list the fungus, Geomyces destructans , as a prohibited invasive species in s. NR 40.04 (2) , Wis. Adm. Code. The hearings will be held concurrently with hearings to list four cave bat species as threatened in s. NR 27.03 (3) , Wis. Adm. Code.

Hearing Information

The hearings will begin at 11:00 am at the locations listed below. Following a brief informational presentation, public comments and statements will be accepted.

October 25, 2010   Conference Room 1
  DNR Oshkosh Service Center
  625 E. County Rd. Y
  Oshkosh

October 26, 2010   Glaciers Edge & Gathering Waters Rms.
  DNR South Central Region Hdqrs.
  3911 Fish Hatchery Road
  Fitchburg

October 28, 2010   Room 185
  DNR West Central Region Hdqrs.
  1300 W. Clairemont
  Eau Claire

October 29, 2010   Conference Room 1
  DNR Northern Region Headquarters
  107 Sutliff Avenue
  Rhinelander

Pursuant to the Americans with Disabilities Act, reasonable accommodations, including the provision of informational material in an alternative format, will be provided for qualified individuals with disabilities upon request. Please call Ms. Rowe at [phone] with specific information on your request at least 10 days before the date of the scheduled hearing.

Copies of Proposed Rules and Submittal of Written Comments

The proposed rule and fiscal estimate may be reviewed and comments electronically submitted at the following Internet site: http://adminrules.wisconsin.gov . Written comments on the proposed rule may be submitted via U.S. mail to Ms. Stacy Rowe, Bureau of Endangered Resources, P.O. Box 7921, Madison, WI 53707 or by email to [e-mail] . Comments may be submitted until November 1, 2010 . Written comments whether submitted electronically or by U.S. mail will have the same weight and effect as oral statements presented at the public hearings. A personal copy of the proposed rule and fiscal estimate may be obtained from Ms. Rowe.

Analysis Prepared by Department of Natural Resources

Statutory authority

Sections 23.09 (2) , 23.22 , 227.11 (2) and 227.24 , Stats.

Plain language analysis

The proposed changes to ch. NR 40 , Wis. Adm. Code, will add the fungus, Geomyces destructans , to the list of prohibited invasive species, allowing the department to effectively manage its spread and limit human transport.

Existing rules ban the transportation (including importation), possession, transfer (including sale) and introduction of invasive species that are listed or identified as "prohibited", with certain exceptions. Transportation, possession, transfer and introduction without a permit are exempt if the department determines that the transportation, possession, transfer or introduction was incidental or unknowing, and was not due to the person's failure to take reasonable precautions. Existing rules authorize the department to enter property with the permission of the owner or person in control of the property and, if permission cannot be obtained, to seek an inspection warrant from the Circuit Court. Entry is only for the purpose of inspection, sampling or control of prohibited invasive species.

The current rules also allow the department to enter into consent orders with persons who own, control or manage property where prohibited invasive species are present to implement approved control measures, and to issue unilateral orders for control purposes unless the person was not responsible for the presence of the prohibited invasive species. If a control order is not complied with and the department undertakes control measures, the current rules allow for cost-recovery by the department for the expenses it incurred.

Related statute or rule

Related statutes or rules include but are not limited to the following provisions which, to varying degrees, may apply to the identification, classification, control or other regulation of species that are invasive, or to conduct that may result in the introduction or spread of invasive species:

Statutory section Title [or subject]

15.347 (18)   Invasive species council.

23.24   Aquatic plants.

29.011   Title to wild animals.

29.604   Endangered and threatened species
  protected.

29.614   Scientific collector permit.

29.885   Removal of wild animals.

29.924   Investigations; Searches.

30.07   Transportation of aquatic plants and animals;
  placement of objects in navigable waters.

94.01   Plant inspection and pest control authority.

94.02   Abatement of pests.

94.03   Shipment of pests and biological control
  agents; permits.

94.69   Pesticides; rules.

169.04   Possession of live wild animals.

169.06   Introduction, stocking, and release of wild
  animals.

169.07   Exhibition of live wild animals.

169.08   Propagation of wild animals.

169.10   Sale and purchase of live wild animals.

169.11   Harmful wild animals.

Comparison with federal regulations

We are not aware of any existing or proposed federal regulations that would list the fungus, Geomyces destructans , as an invasive species.

Comparison with rules in adjacent states

Wisconsin appears to be unique in taking the approach of listing the fungus, Geomyces destructans , as an invasive species; we are not aware of any other states or provinces that have taken similar actions. We don't know of any other states that have a similar mechanism—an invasive species rule— for listing the fungus. We are also not aware of any existing or proposed federal regulations that would list the fungus, Geomyces destructans , as an invasive species.

Summary of factual data and analytical methodologies

White-nose Syndrome (WNS) is a disease responsible for unprecedented mortality in cave hibernating bats and is identified by the white fungus ( Geomyces destructans ) that grows on the nose, ears, and muzzle and/or wing membrane. Infected bats exhibit atypical behavior, such as daytime activity during winter hibernation, which rapidly depletes stored energy reserves. Wing damage and emaciation are also common.

WNS has been documented in fourteen states and two Canadian provinces, is spreading rapidly from the first affected sites (up to 800 miles per year). The speed at which WNS is spreading necessitates immediate action on the part of the department to list the white-nose fungus as a prohibited invasive species. Based on the current location and known rate of spread of the disease, it is likely that WNS will reach Wisconsin as early as January 2011.

This rule was developed with the assistance of the Bureaus of Endangered Resources and Legal Services and with input from the Wisconsin Council on Invasive Species (Council). The Bureau of Endangered Resources prepared an Issue Brief for the Council, which provided background on white-nose syndrome, the extent and serious nature of the threat of the disease to Wisconsin's cave bats, and the need for listing Geomyces destructans as a prohibited invasive species.

Analysis and supporting documents used to determine effect on small business

Affected constituencies include commercial caves and mines, private cave and mine owners, recreational cavers, property owners, the agricultural industry, and the conservation community. Concerns will likely include how listing the fungus will affect current activities. Many of these potential concerns may be addressed through cost-sharing, technical support, and education provided by the department. Examples include: reviewing proposed research proposals and issuance of scientific research licenses, cost-sharing for installation of bat gates and other conservation actions, providing cave closure signage and decontamination protocols, and providing locations of caves that may be used for recreational caving activities (where bats are known to have been excluded).

Under NR 40, the department may ask any person who owns, controls, or manages property where a prohibited species is present to control the prohibited species in accordance with a plan approved by the department. While a person who owns, controls or manages property where a prohibited species is present is responsible for controlling the prohibited species that exists on the property, the department will seek funds to assist in the control of prohibited species. Therefore, conducting control measures will not necessarily result in a cost to commercial cave operators. Additionally, commercial caves will have the option to exclude bats from their cave(s) with the help of the department, allowing them to remain open for tourism, and resulting in no loss of tourism dollars.

Small Business Impact

Pursuant to s. 227.114 , Stats., it is not anticipated that the proposed rule will have a significant economic impact on small businesses.

Under s. 227.19 (3m) , Wis. Stats., a final regulatory flexibility analysis is not required.

Small business regulatory coordinator

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.

Fiscal Estimate

Assumptions used in arriving at fiscal estimate

State government

The proposed rule package will require time by DNR staff to prepare the rule and administer rule hearings. In addition, once the rule is implemented DNR staff time associated with NR 40 will require increased surveillance and treatment. It is assumed all of the increased time will be possible to absorb within the Department's current budget.

Local government

It is assumed there will be no increase in local government costs associated with this rule.

Private entities

Once the rule is implemented, there will be no costs to private land owners to follow invasives law. As with the existing law, if private land owners do not allow DNR on their land or if they intentionally move the invasive species, there will be an associated penalty cost if NR 40 is not followed.

State fiscal effect

Indeterminate. Increase Costs - May be possible to absorb within agency's budget.

Local government fiscal effect

None.

Agency Contact

Erin Crain

Bureau of Endangered Resources

P O Box 7921

101 S. Webster Street, ER/6

Madison, WI 53707-7921

Phone: [phone]

Notice of Hearing

Natural Resources

Environmental Protection — Water Supply,
Chs. NR 800—

CR 10-109

DNR # DG-34-10

NOTICE IS HEREBY GIVEN That pursuant to ss. 227.11 (2) (a) and 281.346 (4s) , (5) , and (9) , Stats., the Department of Natural Resources will hold public hearings on the creation of Chapter NR 860 — Water Use Permitting, relating to the application and permit process for withdrawals of water from the Great Lakes basin.

Hearing Information

The hearings will be held on:

October 13, 2010   DNR Milwaukee SER Headquarters
Wednesday   Rooms 140-141
at 2:00 p.m.   2300 N. Dr. Martin Luther King Jr. Dr.
  Milwaukee, WI

Concurrent sessions will be held at the following two locations:

October 14, 2010   University of Wisconsin Green Bay
Thursday   Instructional Services Bldg. Rm. 1034
at 2:00 p.m.   2420 Nicolet Drive
  Green Bay, WI
( http://www.uwgb.edu/team/maps/index.htm#is1034

October 14, 2010   Wis. Indianhead Tech. College (WITC)
at 2:00 p.m.   Conference Center Room 306
  2100 Beaser Avenue
  Ashland, WI
http://www.witc.edu/ashland/map.htm

Pursuant to the Americans with Disabilities Act, reasonable accommodations, including the provision of informational material in an alternative format, will be provided for qualified individuals with disabilities upon request. Please call James McLimans at [phone] with specific information on your request at least 10 days before the date of the scheduled hearing.

Copies of Proposed Rules and Submittal of Written Comments

The proposed rule and supporting documents, including the fiscal estimate, may be viewed and downloaded and comments electronically submitted at the following Internet site: http://adminrules.wisconsin.gov . (Search this Web site using the Natural Resources Board Order No. DG-34-10. Written comments on the proposed rule may be submitted via U.S. mail to Ms. Kristy Rogers, Bureau of Drinking Water and Groundwater, P.O. Box 7921, Madison, WI 53707 or by e-mail to [e-mail] . Comments may be submitted until October 31, 2010 . Written comments whether submitted electronically or by mail will have the same weight and effect as oral statements presented at the public hearings. If you do not have Internet access, a personal copy of the proposed rule and supporting documents may be obtained from Kristy Rogers, Bureau of Drinking Water and Groundwater, P.O. Box 7921, Madison, WI 53707 or by calling [phone].

Analysis Prepared by Department of Natural Resources

Statute interpreted

Section 281.346 ( 4m), (4s), (5), (5m), (6) and (9), Stats.

Statutory authority

Sections 227.11 (2) (a) and 281.346 (4s) , (5) , and (9) , Stats.

Plain language analysis

This rule supports the implementation of 2007 Wisconsin Act 227 and the Great Lakes—St. Lawrence River Basin Water Resources Compact (Compact) by defining the process, requirements, and criteria for water use permitting in the Great Lakes basin. Beginning on December 8, 2011, coverage under a general permit or an individual permit is required for all persons who withdraw water from the Great Lakes basin in an amount that averages 100,000 gallons per day or more in any 30-day period. The rule establishes definitions, permit application information requirements, permit review time limits, required permit conditions, criteria for permit issuance, procedures for amending and terminating permits, and standards and procedures for public participation for the water use permitting program.

Summary of factual data and analytical methodologies

Information from the Great Lakes-St. Lawrence River Basin Water Resources Council, other Great Lakes states, existing state statutes, and existing department rules and procedures were used to guide the development of the proposed rule.

Comparison with federal regulations

There are no comparable federal regulations pertaining to withdrawals of Great Lakes basin water.

Comparison with rules in adjacent states

The following table compares permitting requirements for water withdrawals in adjacent states.

Wisconsin	Michigan	Illinois	Iowa	Minnesota
A water use general permit is required for withdrawals from the Great Lakes basin that average 100,000 gallons per day or more in any 30 day period. A water use individual permit is required for withdrawals from the Great Lakes basin that equal at least 1,000,000 gallons per day for any 30 consecutive days.	Permits are required for new and increased withdrawals of more than 2,000,000 gallons per day, new or increased withdrawals of more than 1,000,000 gallons per day if the withdrawal will have a certain type of impact (Zone C withdrawal), and new or increased intrabasin transfers of more than 100,000 gallons per day average over any 90-day period.	An allocation permit is required for withdrawals from the Great Lakes basin.	Water use permits are required of any person or entity that withdraws at least 25,000 gallons in a 24-hour period during any calendar year.	Water use permits are required for withdrawals greater than or equal to 10,000 gallons per day or 1 million gallons per year from surface or groundwater.

Analysis and supporting documents used to determine effect on small business

The department lacks complete data on the number and nature of operations withdrawing water above the thresholds requiring a permit. However, based upon the withdrawal data that does exist (e.g. high capacity well pumpage data), most small businesses are expected to fall within the general permit category with very few needing to obtain an individual permit.

Small Business Impact

This rule will affect small businesses that supply their own water with water supply systems that withdraw an average of 100,000 gallons per day. Small businesses, like other entities that are affected by this rule, will have to obtain a permit, measure the amount of water used on a monthly basis, and report that water use annually. Small businesses that receive water solely from a public water supply will not be impacted by this rule. Most small businesses regulated by this rule are expected to fall within the general permit category. The general permit requirements are straightforward and can be accomplished by most individuals with no specific professional background. The application for an individual permit may require the hiring of a professional environmental consultant to assist with the evaluation of impacts from a proposed withdrawal.

Pursuant to s. 227.114 , Stats., it is not anticipated that the proposed rules will have an economic impact on small businesses.

Small business regulatory coordinator

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.

Fiscal Estimate

A fiscal estimate has been prepared and a full copy can be obtained following the procedures set forth above. The rule is expected to have a minimal fiscal impact on existing withdrawers. New withdrawers and existing withdrawers that wish to increase their withdrawal will be required to apply for a permit. Preparation of the permit application may require the hiring of a consultant. The costs for a consultant will vary depending on the size of the withdrawal and potential impacts. There is little-to-no expected increase in annual costs for withdrawers. In most cases, the withdrawal measurement and annual reporting requirements are consistent with other existing Department requirements.

Agency Contact Person

Kristy J. Rogers, Water Supply Specialist

Wisconsin Department of Natural Resources

Bureau of Drinking Water & Groundwater

Phone: [phone]

Email: [e-mail]