Weights and Measures
This rule updates technical standards incorporated by reference in current rules related to fair packaging and labeling (ch.
ATCP 90
, Wis. Adm. Code), methods of sale of commodities (ch.
ATCP 91
, Wis. Adm. Code), and fair weights and measures (ch.
ATCP 92
, Wis. Adm. Code). The technical standards are published by the National Institute of Standards and Technology (NIST). This rule incorporates the latest published editions of the relevant NIST standards, which include routine technical updates to the previously-cited editions.
Other Minor Edits
This rule corrects typographical errors and makes other non-substantive edits to current rules, as needed.
Comparison with federal regulations
This rule updates references to weights and measures technical standards published by the National Institute of Standards and Technology (NIST). By incorporating the latest NIST standards, this rule keeps Wisconsin standards consistent with applicable national standards.
Comparison with rule(s) in surrounding states
This rule does not have a significant impact on programs in this state or other states, or create any significant disparity between this state and other states. The updated national weights and measures standards (NIST standards) incorporated by this rule are the same standards used in other states.
Data and analytical methodologies
This rule does not depend on any complex analysis of data. This rule merely makes minor or technical changes to current rules.
Standards incorporated by reference
This rule updates references to certain weights and measures technical standards (NIST standards) that are incorporated by reference in current rules. Updated technical standards include standards found in NIST Handbooks 44, 130 and 133 (2011 editions).
Pursuant to s.
227.21
, Stats., DATCP will request permission from the Department of Justice to incorporate the updated technical standards by reference in this rule. Copies of the updated standards will be kept on file with DATCP and the Legislative Reference Bureau.
Fiscal Impact
This rule will have no significant fiscal impact on DATCP or local units of government This rule will not have a substantial impact on DATCP administrative or operating costs.
Small Business Impact
This rule will not have any significant impact on small business or other business. This rule makes minor technical "housekeeping" changes that will not have a significant impact on business standards, costs or operations.
Environmental Impact
This "housekeeping" rule will have no significant environmental impact.
Agency Contact Person
Questions or comments related to this rule may be sent to the following address:
Karen Schultz
Department of Agriculture, Trade and Consumer Protection
2811 Agriculture Drive
Madison, WI 53718
Telephone: (608) 224-5023
Notice of Hearing
Agriculture, Trade and Consumer Protection
The Wisconsin Department of Agriculture, Trade and Consumer Protection (DATCP) announces that it will hold public hearings on proposed rules to revise Chapter
ATCP 70
, related to food processing plant license exemptions. DATCP adopted a temporary emergency rule, effective April 22, 2010, to create license exemptions for certain small-scale home canners and maple syrup processors.
Hearing Information
DATCP will hold public hearings at the times and places shown below:
Thursday, November 11, 2010
9:00 a.m. – 12:00 p.m.
Clark County Courthouse - Auditorium
517 Court Street
Neillsville, WI 54456
Friday, November 12, 2010
1:00 p.m. – 4:00 p.m.
Vernon County Courthouse Annex
Third Floor County Board Room
400 Courthouse Square
Viroqua, WI 54665
Monday, November 15, 2010
11:00 a.m. – 2:00 p.m.
Eau Claire County – UW Extension
227 1
st
Street West
Altoona, WI 54720-4712
Tuesday, November 16, 2010
9:00 a.m. – 12:00 p.m.
Spooner Ag Research Station
W6646 HWY 70
Spooner, WI 54801
Wednesday, November 17, 2010
10:00 a.m. – 1:00 p.m.
Northern Great Lakes Center Theater
29270 County Highway G
Ashland, WI 54806
Thursday, November 18, 2010
9:00 a.m. – 12:00p.m.
Oneida County – UW Extension
3375 Airport Road, #10
Rhinelander, WI 54501
Friday, November 19, 2010
9:00 a.m. – 12:00 p.m.
Shawano County Courthouse
311 N. Main Street
Shawano, WI 54166
Monday, November 22, 2010
8:30 a.m. – 11:30 a.m.
Fond du Lac County - UW Extension
Admin./Extension Building
400 University Drive, Room: AE 205/206
Fond du Lac, WI 54935
Monday, November 22, 2010
1:00 p.m. – 4:00 p.m.
Outagamie County - UW Extension
3365 W Brewster Street, Room: ABC
Appleton, WI 54911
Tuesday, November 23, 2010
9:00 a.m. – 12:00 p.m.
Washington County Courthouse
Room 1020 – Lower Level
432 E. Washington Street
West Bend, WI 53095
Tuesday, November 23, 2010
1:30 p.m. – 4:30 p.m.
Jefferson County - UW Extension
864 Collins Road, Room: 8/9 (on the lower level)
Jefferson, WI 53549
Wednesday, November 24, 2010
9:00 a.m. – 12:00 p.m.
Iowa County - UW Extension
222 North Iowa Street
Room: UW Extension Conference Room
Dodgeville, WI 53533
Hearing impaired persons may request an interpreter for these hearings. Please make reservations for a hearing interpreter by
November 5, 2010
, by writing to Deb Mazanec, Division of Food Safety, P.O. Box 8911, Madison, WI 53708-8911; e-mailing to
Debbie.Mazanec@wisconsin.gov
or by phone at (608) 224-4712. Alternatively, you may contact the DATCP TDD at (608) 224-5058. Handicap access is available at the hearings.
Appearances at the Hearing
DATCP invites the public to attend the hearings and comment on the proposed rule. DATCP also seeks public input for the development of the proposed rules, including answers to the following questions:
*
Should small-scale processors of other types of foods also be exempted from food processing plant license requirements?
*
If so, what food types? Under what conditions?
*
If not, why not?
*
Should food processors claiming an exemption be required to register with DATCP and obtain a registration certificate, to help farmers market operators and others verify their license status?
Submittal of Written Comments
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
Keeley.Moll@wisconsin.gov
or by telephone at (608) 224-5039.
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 Food Safety, 2811 Agriculture Drive, P.O. Box 8911, Madison, WI 53708. You may also obtain copies by calling (608) 224-4712 or e-mailing
Debbie.Mazanec@wisconsin.gov
. Copies will also be available at the hearing. To view the proposed rule online, go to:
http://AdminRules.Wisconsin.gov/
.
Analysis Prepared by the Department of Agriculture, Trade and Consumer Protection
The Department of Agriculture, Trade and Consumer Protection (DATCP) administers state food processing plant license requirements under s.
97.29
, Stats. This proposed rule exempts the following persons from licensing under s.
97.29
, Stats., subject to certain conditions:
*An individual who home-cans acidic, acidified or fermented vegetable or fruit products for retail sale at a community or social event, m farmers' market or farm roadside stand, and receives no more than $5,000 from those sales in any license year. This exemption implements the statutory exemption created by
2009 Wis. Act 101
.
*A person who processes maple sap to create maple syrup or concentrated maple sap that the person sells only to other processors for further processing, and who receives no more than $5,000 from those sales in any license year.
Statutes interpreted
Statutory authority
Explanation of statutory authority
DATCP has broad general authority, under s.
93.07 (1)
, Stats., to interpret laws under its jurisdiction.
Under s.
97.09 (4)
, Stats., DATCP may establish and enforce standards governing the production, processing, packaging labeling, transportation, storage, handling, display, sale, including retail sale, and distribution of foods that are needed to protect the public from the sale of adulterated or misbranded foods.
Under s.
97.29(1)(g)8.
and
(5)
, Stats., DATCP may spell out food processing plant license requirements and exemptions.
Related rule(s) or statute(s)
DATCP administers Wisconsin's food safety and labeling laws under ch.
97
, Stats., including food processing plant license requirements under s.
97.29
, Stats. (as modified by
2009 Wis. Act 101
). DATCP has adopted food processing plant licensing rules under ch.
ATCP 70
, Wis. Adm. Code.
A person who processes food for sale or distribution is generally required to hold a state food processing plant license under s.
97.29
, Stats. However, there are certain exemptions. Persons who are engaged in dairy or meat processing, or who operate retail food establishments, must be licensed under other statutes. Local food license and zoning regulations may apply in some cases.
2009 Wis. Act 101
exempted, from state licensing under s.
97.29
, Stats., persons who home-can acidic, acidified or fermented vegetable or fruit products for retail sale at a community or social events or farmers' markets, provided that the person receives no more than $5,000 from those sales during the license year. Act 101 does not exempt those persons from other state license requirements that may apply, nor does it exempt them from local licensing or zoning ordinances that may apply.
Plain language analysis
Home Canning For Retail Sale
Under this proposed rule, a person who home-cans acidic, acidified or fermented vegetable or fruit products for retail sale at a community or social event, farmers' market or farm roadside stand is exempt from a food processing plant license under s.
97.29
, Stats, if
all
of the following apply:
*
The person is an individual, not a legal entity such as a corporation.
*
The individual receives no more than $5,000 during the license year from those sales. If 2 or more individuals home-can acidic, acidified or fermented vegetable or fruit products at the same home address, none of those individuals qualifies for the license exemption unless their combined gross receipts from the sale of those products totals no more than $5,000.
*
The canned products have an equilibrium pH value of 4.6 or lower. The individual must test the first batch of canned product produced according to each separate recipe used by the individual in each license year, to verify that canned products produced according to that recipe meet this pH requirement. The individual must keep, for at least 2 years, a record of each pH test.
*
The individual registers annually with DATCP. There is no cost to register, and the registrant is not required to obtain a registration certificate from DATCP.
*
The individual completes a home-canning safety course, or follows a written recipe (including ingredients and canning procedures) that reliably ensures the safety of each home-canned product.
*
The individual discloses to potential buyers, by means of a sign or placard, that the canned products "are homemade in a kitchen that has not been subject to state inspection."
*
Each canned product is properly labeled to include
all
of the following:
-The name and address of the individual who canned the product.
-The date on which the product was canned.
-The following statement: "This product was made in a home not subject to state licensing or inspection."
-A list of ingredients in descending order of prominence (major ingredients must be of vegetable or fruit origin). The list must include the common name of any ingredient that originates from milk, eggs, fish, crustacean shellfish, tree nuts, wheat, peanuts or soybeans.
*
The individual keeps a complete written record of every batch of canned product.
-The batch record must include the name of the product, the product recipe (including procedures and ingredients), the amount of the product batch canned and sold, the canning and sale dates, the sale location, gross sales receipts, the results of any pH test conducted on the product, and the disposition of any product not sold.
-The individual must keep the record for at least 2 years after the individual sells or otherwise disposes of the product, and must make that record available to DATCP for inspection and copying upon request.
Maple Sap Processed For Sale To Other Processors
Under this proposed rule, a person who processes maple sap to produce maple syrup or concentrated maple sap for sale to another processor for further processing is exempt from licensing under s.
97.29
, Stats., if
all
of the following apply:
*
The person receives less than $5,000 from those sales in a license year.
*
The person registers annually with DATCP. There is no cost to register, and the registrant is not required to obtain a registration certificate from DATCP.
*
The person keeps a written record of each sale, retains that record for at least 2 years, and makes the record available to DATCP for inspection and copying upon request. The record must include the name and address of the purchaser, the date of sale, the amount of maple syrup or concentrated maple sap sold, and the sale price.
Comparison with federal regulations
There is no federal law that addresses these issues or compels DATCP to adopt this rule.
Comparison with rules in surrounding states
Illinois:
Illinois has no laws related to home-processed foods. All food processed for sale to the public in Illinois must be processed in a licensed facility.
Iowa:
In Iowa, individuals may annually process up to $20,000 in potentially-hazardous baked goods (including soft pies and bakery products with a custard or cream filling) at a licensed "home food establishment" for sale on the premises (the bakery goods may be consumed elsewhere). Individuals may sell non-potentially hazardous home-baked goods at a farmers' market, without a license. Canning and processing of low acid or acidified foods must be done in a licensed commercial establishment.
Minnesota:
Minnesota exempts a person from licensing as a food processor if the person produces less than $5,000 of non-potentially hazardous food or less than $5,000 of home-canned acidified food. Home-canned acidified foods may only be sold at community or social events or farmers' markets in Minnesota. A point-of-sale placard and the product label must disclose that the product was produced in an unlicensed and uninspected home setting. The product label must also disclose the name and address of the processor and the date the goods were processed. Wisconsin's new law (
2009 Act 101
) was influenced by Minnesota's law.
Michigan:
Michigan enacted a Cottage Food Law in July 2010 that allows individuals to manufacture and store certain types of foods in an unlicensed home kitchen. Only non-potentially hazardous foods may be manufactured in a home kitchen under this law. Potentially hazardous and canned foods must be manufactured in licensed food processing facilities. The Cottage Foods may only be sold directly to a consumer at farmers' markets, farm stands, roadside stands and similar venues. Cottage foods cannot be sold over the internet, by mail order or for wholesale distribution. Each packaged product must be labeled and contain the statement: Made in a home kitchen not inspected by the Michigan Department of Agriculture. Gross sales are limited to no more than $15,000 per household.
Data and analytical methodologies
This proposed rule is not based on any specialized data or analytical methodologies. Portions of this rule (such as pH requirements for home-canned food sold to the public) are based on well-established food science and public health principles.
Fiscal Estimate
DATCP currently licenses and inspects food processing plants under s.
97.29
, Stats., This emergency rule exempts certain persons from the need to obtain a food processing plant license. These persons include: (1) a person who cans or otherwise processes certain homemade foods and sells them at farmers' markets, community or social events but receives no more than $5,000 in retail sales of these foods in a license year; and (2) a maple syrup processor that sells evaporated maple sap or syrup for further processing and receives no more than $5,000 in a license year. For purposes of this fiscal estimate, DATCP makes the following assumptions (DATCP does not have any data to document these "best guess" assumptions):
1. About 100 home canners will begin to sell their home-canned products at community or social events or farmers' markets in response to the license exemption under this rule. Few, if any, currently licensed food processing plants will qualify for the exemption or drop their current licenses.
2. About 25 maple sap processors will qualify for a license exemption under this rule. Expected revenue loss is less than $2,400.
Impact of the rule on state government
This emergency rule will have minimal fiscal impact on state government. Revenue losses will be less than $2,400 and will be offset by reduced inspection costs. DATCP will incur some costs to implement the license exemptions and provide public information. DATCP estimates that it will need to reassign 0.1 FTE from other work, and will incur $1,000 in added expense. DATCP expects to absorb these costs within its current budget.
Impact of the rule on local governments
This rule will not have any fiscal impact on local governments.
Fiscal Impact
This rule will not have a significant fiscal impact on the state of Wisconsin or on local governments.
Small Business Impact
This proposed rule implements
2009 Wis. Act 101
, which removes license requirements for certain home-canners who wish to sell their products to the public at community or social events, farmers' markets and farm roadside stands. The food safety standards in this rule will help protect the public from serious food safety hazards (including botulism) that may be associated with improperly home-canned products. The prevention of food safety problems promotes public confidence and benefits the entire food industry, including home-canners.
This proposed rule may encourage some home-canning hobbyists to sell their home-canned products at community or social events, at farmers' markets, or at their own farm roadside stands. That may have an adverse competitive impact on licensed canners who currently supply those sales outlets, although the adverse effect is likely to be minimal. Larger food canning businesses that supply canned food for the mass consumer market will not be significantly affected by this emergency rule.
This proposed rule also exempts certain small maple sap processors from licensing under s.
97.29
. The exemption will relieve those processors from unnecessary licensing costs and compliance burdens, while ensuring adequate food safety protection.
Environmental Impact
This rule will not have any significant environmental impact.
Agency Contact Person
Questions and comments related to this proposed rule may be directed to:
Debbie Mazanec
Department of Agriculture, Trade and Consumer Protection
P.O. Box 8911
Madison, WI 53708-8911
Telephone (608) 224-4712
Notice of Hearing
Agriculture, Trade and Consumer Protection
The Wisconsin Department of Agriculture, Trade and Consumer Protection (DATCP) announces that it will hold a public hearing on rules relating to new accountability measures for economic development grants and loans under Chapter
ATCP 161
, required by ss.
93.07 (18) (b) 6.
and
7.
, Stats. (created by
2007 Wisconsin Act 125
).
Hearing Information
DATCP will hold the public hearing at the time and location shown below:
Tuesday, December 2, 2010
9:00 a.m. to 12:00 p.m.
WI Department of Agriculture, Trade and Consumer Protection
Board Room, 1st Floor
2811 Agriculture Drive
Madison, WI 53718
Hearing impaired persons may request an interpreter for this hearing. Please make reservations for a hearing interpreter by
November 17, 2010
by writing to Linda Merriman Hitchman, Division of Agricultural Market Development, P.O. Box 8911, Madison, WI 53708-8911,
Linda.MerrimanHitchman@wisconsin.gov
, telephone (608) 224-5132. Alternatively, you may contact the DATCP TDD at (608) 224-5058. Handicap access is available at the hearings.
Submittal of Written Comments
DATCP invites the public to attend the hearing and comment on the rules. Following the hearing, the hearing record will remain open until
Monday, December 6, 2010
for additional written comments. Comments may be sent to the Division of Agricultural Development at the address below, by email to
Linda.MerrimanHitchman@wisconsin.gov
.
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
Keeley.Moll@wisconsin.gov
or by telephone at (608) 224-5039.
Copies of Proposed Rule
You may obtain free copies of the proposed permanent rule by contacting the Wisconsin Department of Agriculture, Trade and Consumer Protection, Division of Agricultural Market Development, 2811 Agriculture Drive, P.O. Box 8911, Madison, WI 53708. You may also obtain copies by calling (608) 224-5132 or emailing
Linda.MerrimanHitchman@wisconsin.gov
. Copies will also be available at the hearing. To view the proposed rule online, go to:
http://AdminRules.Wisconsin.gov/
.
Analysis Prepared by the Department of Agriculture, Trade and Consumer Protection
This rule implements s.
93.07 (18) (b) 6.
and
7.
, Stats. (created by
2007 Wisconsin Act 125
) which require new accountability measures related to state economic development grants and loans. Under s.
93.07 (18) (b) 6.
and
7.
, Stats., the department of agriculture, trade and consumer protection (DATCP) must adopt rules to do
all
of the following (other agencies that make economic development grants and loans must adopt similar rules):
*
Require persons receiving more than $100,000 in economic development grants or loans to submit verified statements to DATCP, and make supporting documentation available for DATCP inspection.
*
Establish procedures that will allow DATCP to withhold payments to, recover funds from, or impose financial penalties on grant or loan recipients who submit false information to DATCP or fail to honor the terms of a grant or loan contract. The new procedures must include contract provisions that will allow DATCP to impose penalties on grant or loan recipients who fail to honor contract obligations.
Statutes interpreted
Statutory authority
Explanation of statutory authority
DATCP has general authority, under s.
93.07 (1)
, Stats., to interpret laws under its jurisdiction. Sections
93.07 (18) (b) 6.
and
7.
, Stats., require DATCP to adopt certain rules imposing accountability measures related to state economic development grants and loans. This rule implements that statutory mandate.
Related statute(s) or rule(s)
2007 Act 125
also requires the departments of commerce, natural resources, tourism and transportation, the UW system, the Wisconsin technical college system, and the Wisconsin housing and economic development authority to adopt rules that are similar to this rule. DATCP also has existing contract rules for agricultural diversification and development grants (ATCP 161.07) and "buy local" grants (ATCP 161.46).
Plain language analysis
This rule requires the following accountability provisions in each contract for a DATCP economic development grant or loan:
For a grant or loan of $100,000 or more, a provision requiring the grant or loan recipient to give DATCP a verified statement signed by a certified public accountant (CPA) and a director or principal officer of the grant or loan recipient.
Provisions allowing DATCP to withhold payments to, recover funds from, or impose financial penalties on grant or loan recipients who submit false information to DATCP or fail to honor the terms of the grant or loan contract.
Comparison with federal regulations
Federal statutes under
31 USC 6304
require contracts for many federal grants.
Many federal grant programs have regulations to ensure grant accountability, including regulations related to grant contracts, contract performance, financial accountability, and remedies for noncompliance.
Administering agencies may deny, suspend or terminate payments to grant recipients who fail to comply with grant contract terms.
If a grant recipient makes false or misleading statements to obtain a grant or benefit, the agency may collect civil forfeitures and assessments that are well in excess of the fraudulently-obtained grant or benefit payments.
Comparison with rule(s) surrounding states
Minnesota:
Minnesota requires recipients of state economic development grants to enter into grant contracts. Recipients may be required to report on the use of funds, and may be required to repay grant funds if they fail to comply with contract terms. Minnesota, like Wisconsin, requires more detailed reports from persons receiving large grants.
Michigan:
Michigan requires certain persons receiving economic development grants (including tax credits for job promotion) to enter into grant contracts, submit verified statements, and report on fund use and benefits. Funding can be reduced or terminated, and recipients can be required to repay funds, for certain reasons.
Illinoi:s
Illinois requires recipients of state economic development grants to enter into grant contracts. Recipients may be required to report on the use of funds, and may be required to repay grant funds if they fail to comply with contract terms. Minnesota, like Illinois, requires more detailed reports from persons receiving large grants.
Iowa:
Iowa requires recipients of state economic development grants to enter into grant contracts. Recipients may be required to report on the use of funds, and may be required to repay grant funds if they fail to comply with contract terms.
Data and analytical methodologies
This rule does not rely on any special data or analytical methodologies. Rule standards and requirements are largely dictated by state law, but also implement practices developed by DATCP under its existing grant and loan programs. These practices are similar to practices used by the federal government, other states and the private sector.
Fiscal Estimate
Background:
This rule implements s.
93.07 (18) (b) 6.
and
7.
, Stats., created by
2007 Wisconsin Act 125
, which require new accountability measures related to state economic development grants and loans. In accordance with the provisions of s.
93.07 (18) (b) 6.
and
7.
, Stats., this rule requires the following accountability provisions in each contract for a DATCP economic development grant or loan (other agencies that make economic development grants and loans must adopt similar rules):
For a grant or loan of $100,000 or more, a provision requiring the grant or loan recipient to give DATCP a verified statement signed by a certified public accountant (CPA) and a director or principal officer of the grant or loan recipient.
Provisions allowing DATCP to withhold payments, to recover funds from, or impose financial penalties on grant or loan recipients who submit false information to DATCP or fail to honor the terms of the grant or loan contract.
DATCP currently requires each recipient of an economic development grant or loan to enter into a contract that contains provisions similar to those that s.
93.07 (18) (b) 6.
and
7.
, Stats., requires DATCP to adopt by rule. DATCP will make the necessary modifications to the contract language it currently uses to incorporate the required procedures into each grant and loan contract. DATCP legal, financial and program staff currently conduct procedures to withhold payments to, recover funds from, or impose financial penalties on grant and loan recipients as required by the rule. There will be no additional costs created by these administrative activities.
Agency Contact Person
Questions and comments related to this rule may be directed to:
Linda Merriman Hitchman
Department of Agriculture, Trade and Consumer Protection
P.O. Box 8911
Madison, WI 53708-8911
Telephone (608) 224-5132
E-Mail:
Linda.MerrimanHitchman@.wisconsin.gov
Notice of Hearing
Natural Resources
Fish, Game, etc., Chs. 1 —
DNR# IS-49-10 (E) and IS -47-10
NOTICE IS HEREBY GIVEN
that pursuant to ss.
23.27 (3) (b)
and
227.11 (2) (a)
, Stats., the Department of Natural Resources will hold public hearings on permanent and emergency rules to revise Chapter
NR 40
, Wis. Adm. Code, related to white-nose syndrome management. 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, and 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.
Monday, November 29, 2010
Green Bay State Office Building
Room 618
200 North Jefferson Street
Green Bay, WI 54301
Monday, November 29, 2010
The Pyle Center
Room 315
702 Langdon Street
Madison, WI 53706
Monday, November 29, 2010
Division of State Facilities
Eau Claire State Office Building
Room 139
718 W Clairemont Avenue
Eau Claire, WI 54701
Monday, November 29, 2010
UW Marathon County
Room 218
518 S. 7th Avenue
Wausau, WI 54401
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 Rori Paloski at (608) 264-6040 with specific information on your request at least 10 days before the date of the scheduled hearing.
Copies of Rule 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
Stacy.Rowe@wisconsin.gov
. Comments must be submitted by
4:00 p.m
. on
November 29, 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 the Department of Natural Resources
Plain language analysis
Chapter
NR 40
, Wis. Adm. Code, establishes a classification system for invasive species and regulates those in the prohibited and restricted categories. It also establishes preventive measures that when followed, will help minimize the spread of invasive species into or within Wisconsin. In a previous emergency rule, the department listed
Geomyces destructans
as a prohibited invasive fungus species.
Geomyces destructans
has been identified as the fungus that causes white nose syndrome (WNS) in cave bats. Because the department has little if any control over the natural movements of bats, the main focus in WNS management is on limiting the anthropogenic spread of
G. destructans
.
This Order adds provisions to ss.
NR 40.04
and
40.07
relating to early detection and prevention of the spread of WNS due to anthropogenic activities, as follows:
1.
For purposes of early detection, with permission or pursuant to an inspection warrant, department staff may access caves and mines in order to monitor, survey, and inspect for the presence of
Geomyces destructans
.
2.
Equipment, gear, clothing and other objects may not be brought or placed into or near a cave or mine if they have been in or near a cave or mine located outside of Wisconsin.
3.
Equipment, gear, clothing and other objects that have been in or near a cave or mine in the state must be decontaminated following department-approved WNS decontamination protocols before they can be brought into another state cave or mine.
4.
All equipment, gear, clothing and other objects that have been in or near a cave or mine in Wisconsin must be decontaminated immediately upon exit.
5.
All equipment, gear, clothing and other objects that will be or have come in contact with bats (including, but not limited to nets, traps, weighing tubes, bat bags, wing punches, rulers, clothing, gloves, electronic equipment and exclusion materials) and all individuals handling bats must be decontaminated prior to and immediately after contact.
6.
With permission or pursuant to an inspection warrant, the department may install and properly maintain, at no cost to the owner, physical barriers to limit access to any cave or mine by either individuals or bats.
The Order also adds key definitions and sets out authority for the department to grant written exemptions from the new decontamination requirements if it would not allow WNS to be transported to other locations.
Related statute(s) or rule(s)
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.
23.093
Carp control research.
23.235
Nuisance weeds.
23.24
Aquatic plants.
26.20 (4)
[Railroad right-of-way annual weed
removal]
26.30
Forest insects and diseases; department
jurisdiction; procedure.
27.019 (7) (c)
[County rural planning – highways - only
native plantings allowed]
27.05 (5) and (7)
[County authority to manage plants
and control weeds in county waters, parks
and county lands]
29.011
Title to wild animals.
29.047
Interstate transportation of game.
29.053
Specific open and closed seasons.
29.055
Wild animals; possession in closed season
or in excess of bag limit.
29.057
Wild animals; possession in open season.
29.089
Hunting on land in state parks and state fish
hatcheries.
29.091
Hunting or trapping in wildlife refuge.
29.192
Regulation of takings of certain wild
animals.
29.301
General restrictions on hunting.
29.307
Hunting with aid of aircraft prohibited.
29.314
Shining animals.
29.327
Regulation of waterfowl blinds.
29.331
Trapping regulation.
29.334
Hunting and trapping; treatment of wild
animals.
29.335
Feeding wild animals for nonhunting
purposes.
29.337
Hunting and trapping by landowners and
occupants.
29.354
Possession of game birds and animals.
29.407
Transportation of fish.
29.414
Erection of barriers to exclude rough fish.
29.417
Permit to take rough fish.
29.421
Removal of rough fish.
29.424
Control of detrimental fish.
29.509
Bait dealer license.
29.516
Fishing with nets and setlines.
29.601
Noxious substances.
29.604
Endangered and threatened species
protected.
29.614
Scientific collector permit.
29.627
Domestic fur–bearing animal farms.
29.701
Propagation of fish; protected wild
animals.
29.705
Propagation of fish; removal of fish.
29.733
Natural waters used in fish farms.
29.734
Barriers required for fish farms.
29.735
Importation of fish.
29.736
Stocking of fish.
29.737
Permit for private management.
29.738
Private fishing preserves.
29.741
Food in the wild for game birds.
29.875
Disposal of escaped deer or elk.
29.885
Removal of wild animals.
29.887
Wildlife control in urban communities.
29.924
Investigations; Searches.
29.927
Public nuisances.
29.931
Seizures.
29.934
Sale of confiscated game and objects.
30.07
Transportation of aquatic plants and
animals; placement of objects in navigable
waters.
30.1255
Report on control of aquatic nuisance
species.
59.70 (17) and (18)
[County funds, equipment, fees for
pest and weed control, plant or animal
diseases.]
66.0407
Noxious weeds. [local governments]
66.0517
Weed commissioner. [local governments]
66.0627
Special charges for current services.
[charges for weed elimination]
84.07 (3)
[DOT highway patrol officers to destroy
noxious weeds on highways]
93.07
Department duties. [Dept. of Agriculture,
Trade and Consumer Protection - pests]
94.01
Plant inspection and pest control authority.
94.02
Abatement of pests.
94.03
Shipment of pests and biological control
agents; permits.
94.10
Nursery stock; inspection and licensing.
94.38
Agricultural and vegetable seeds;
definitions.
94.41
Prohibitions. [Sale or distribution of
noxious weed seed]
94.45
Powers and authority of the department.
94.46
Stop sale; penalties; enforcement.
94.69
Pesticides; rules.
94.76
Honeybee disease and pest control.
146.60
Notice of release of genetically engineered
organisms into the environment.
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.
169.36
Record–keeping and reporting
requirements.
182.017
Transmission lines; privileges; damages.
[utility weed control along transmission
lines]
281.17 (2)
[DNR to supervise chemical treatment of
waters for the suppression of
nuisance–producing organisms that are not
regulated by the program established under
s.
23.24 (2)
.]
237.10
Rapide Croche lock [Fox River lamprey
barrier]
Comparison with federal regulations
None known.
Comparison with rules in adjacent states
The department is not aware of any other states or provinces that have taken similar actions.
Data and analytical methodologies
Bats affected with WNS were first observed in 2006 at a single cave near Albany, New York. WNS has since been found in 14 states and 2 Canadian provinces, spreading up to 800 miles in the last year. Mortality rates of affected colonies reach 100%. WNS has been linked to the death of over one-million bats since 2007 and threatens to cause the extinction of several bat species in the near future. According to a Consensus Statement issued at the WNS Emergency Science Strategy Meeting in May 2009, white-nose syndrome "
…
has
caused the most precipitous decline of North American wildlife in recorded history."
Last spring, the disease was detected within 225 miles of Wisconsin's southern border and 300 miles from the northern border. That means a WNS-infected cave is now located within the 280-mile dispersal range of Wisconsin little brown bats. Based on the disease's current location and known rate of spread, we anticipate the detection of WNS in Wisconsin as early as January, 2011.
Hibernating bats are susceptible to WNS. Those infected tend to show a white fungal growth on their face, arms, legs, wings, and/or tail caused by the newly isolated and named fungus,
Geomyces destructans
. 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.
To date, nine species of cave bats are affected by WNS, including the federally endangered Indiana bat, which historically was found in Wisconsin. All Wisconsin cave bats, which include the little brown bat (
Myotis lucifugus
), northern long-eared bat (
Myotis septentrionalis
), eastern pipistrelle (
Perimyotis subflavus
), and big brown bat (
Eptesicus fuscus
), are among the species fatally affected by WNS. Consequently, Wisconsin's cave bat population as a whole is threatened by this devastating disease. The little brown bat is Wisconsin's most common bat species and because this species has seen the greatest mortality rate due to WNS, Wisconsin anticipates significant impacts to its cave bat populations when WNS begins to affect Wisconsin bats. Research published in the journal
Science
(August 2010) states "
…
we expect a 99% chance of regional extinction of little brown myotis within the next 16 years."
Research conducted at the United States Geological Survey (USGS) Wildlife Health Center has shown that
G. destructans
is transferred from bat to bat, and a multi-agency project demonstrated bats can develop white nose syndrome (WNS) through infection directly from an affected cave environment, in the absence of infected bats.
There is also evidence of human transfer of
G. destructans
from site to site and/or bat
via contaminated equipment, gear or clothing. There have been long-distance jumps in the spread of WNS, beyond the distance bats would likely transmit the disease. These "jump" sites have been frequently-visited caves, often with small bat populations. The U.S. Geological Survey, National Wildlife Health Center has detected
G. destructans
fungal spores in cave sediment, demonstrating persistence of the fungus in the absence of bats. The New York Department of Environmental Conservation, Wildlife Pathology Unit has isolated
G. destructans
fungal spores on equipment and clothing after exiting an affected cave.
Even in the face of incomplete information, general epidemiological principles should be used to inform the WNS investigation and response. All available evidence indicates that WNS is caused by an infectious agent and can therefore potentially be spread by all known modes of disease transmission, including direct contact, inhalation, ingestion, fomites (inanimate objects), and human or animal vectors. Wildlife diseases such as WNS spread rapidly when there is high prevalence of pathogen(s), efficient chains of transmission, abundant susceptible hosts, and/or environments that allow pathogen persistence without a host. Regardless of the infectious agent (fungus, bacterium, or virus), universal precautions should be implemented. Universal precautions are procedures and guidelines designed to reduce incidence of disease by both preventing infections and breaking chains of transmission.
These rules were developed with the assistance of the Bureaus of Endangered Resources and Legal Services. Department of Justice opinion was also sought and confirmed the need to put the proposed actions into rule. The department has also recently met with stakeholders, including mine and commercial cave owners to discuss WNS and possible management options. All known cave and mine owners in Wisconsin were contacted this year as well to provide background information on WNS and cave management.
Analysis and supporting documents used to determine effect on small business or in preparation of economic impact report
None.
Small Business Impact
The rule is not expected to have a significant adverse effect on a substantial number of small businesses. Therefore, under s.
227.19 (3m)
, Stats., a final regulatory flexibility analysis is not required. The rule may have favorable effects on a number of businesses by preventing the introduction or limiting the spread of WNS, thereby preserving the agricultural, economic and environmental benefits associated with healthy bat populations.
There are approximately 120 known bat hibernacula in Wisconsin, and approximately 12 of these are public caves. In addition, less than 20 of the caves and mines in Wisconsin are routinely caved. Affected constituencies include commercial caves and mines, active underground mines, private cave and mine owners, recreational cavers, agriculture and forest industries, and conservation organizations. Concerns will likely include how the proposed rules 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: cost-sharing for installation of bat gates or other physical barriers, cost-sharing for 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). Agriculture industries, forest industries and conservation organizations would be negatively affected by not attempting to control or slow the spread of WNS.
The cost of decontamination will be minimal. The cost of excluding bats at a cave with high human visitation would be $100-$500. The department is seeking funds to cover these costs. The cost of caving gear typically ranges from $125-$750. Very few sites in Wisconsin require vertical climbing gear. The cost of signage at caves and mines would be $0 because the department will provide the signs.
Under the proposed rules, the department may ask any person who owns, controls, or manages property where a cave or mine may be present to install and properly maintain physical barriers to limit access to the cave or mine by either individuals or bats, in accordance with a plan approved by the department. The department is seeking funding to assist with the installation of barriers, and therefore cost to those parties who install such barriers should be negligible. 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. Finally, the department will work with active mines to develop control plans that will not hinder mining operations.
Under current ch.
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.
The department will normally follow an informal, stepped enforcement process in order to obtain compliance with invasive species rules. This involves informal discussions between department staff and the individual, landowner or company, notifying the person of potential violations and providing guidance on how to comply with the rules. Notices of non-compliance may follow if necessary. If formal enforcement is necessary, ch.
NR 40
will be enforced by department conservation wardens, county district attorneys, and circuit courts through the use of citations and civil or criminal complaints. Civil and criminal enforcement may also be carried out by department referral of violations to the Wisconsin Attorney General, with prosecution and abatement actions in the circuit courts. Criminal enforcement will be limited to intentional violations. Finally, violations of the permits issued under ch.
NR 40
also may be enforced by administrative permit revocation proceedings.
Pursuant to s.
227.114
, Stats., it is not anticipated that the proposed rule will have an economic impact on small businesses. The department's Small Business Regulatory Coordinator may be contacted at
SmallBusiness@dnr.state.wi.us
or by calling (608) 266-1959.
Environmental Analysis
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 Fiscal Estimate:
The proposed rule package will require time by DNR staff to prepare the rule and administer rule hearings. Endangered Resources staff, as well as other Department staff, may see an increase in time associated with the changes to bat management, especially in the decontamination of equipment and in monitoring. It is assumed there will not be a significant increase in staff time, and that this time can be covered by existing appropriations.
Local Fiscal Estimate:
Minimal impact to the few local governments that own caves or mines.
Private Fiscal Impacts:
It is assumed there will be negligible costs associated with this rule. Private landowners with caves may experience some costs associated with restricting cave access, such as posting signs, or with time associated with contractors monitoring on their property, but all potential cost impacts are assumed to be minimal.
The department will also seek funds to assist in the design, installation, and maintenance of physical barriers at all caves.
State fiscal effect
Indeterminate. Increase Costs — May be possible to absorb within agency's budget.
Local government fiscal effect
Indeterminate.
Agency Contact
Stacy Rowe, Bureau of Endangered Resources
101 S. Webster Street, ER/6
P.O. Box 7921
Madison, WI 53707-7921
Phone: (608) 266-7012
Amended Notice of Hearings
(See Register dated October 14, 2010 for original)
Natural Resources
Fish, Game, etc., Chs. NR 1—
DNR# ER-37-10(E) and ER-35-10
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 the emergency and permanent rule proposals 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.
Tuesday, October 26, 2010
Glaciers Edge and Gathering Waters Rooms
DNR South Central Region Headquarters
3911 Fish Hatchery Road
Fitchburg, WI 53711
Monday, November 29, 2010
Green Bay State Office Building
Room 618
200 North Jefferson Street
Green Bay, WI 54301
Monday, November 29, 2010
The Pyle Center
Room 315
702 Langdon Street
Madison, WI 53706
Monday, November 29, 2010
Division of State Facilities
Eau Claire State Office Building
Room 139
718 W Clairemont Avenue
Eau Claire, WI 54701
Monday, November 29, 2010
UW Marathon County
Room 218
518 S. 7th Avenue
Wausau, WI 54401
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 (608) 266-7012 with specific information on your request at least 10 days before the date of the scheduled hearing.
Copies of Rule 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
Stacy.Rowe@wisconsin.gov
. Comments must be submitted by
4:00 p.m.
on
November 29, 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 the Department of Natural Resources
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(s) or rule(s)
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 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.
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 two Canadian provinces in the last three 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 border and 300 miles from the northern border. 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 was delayed until after white-nose syndrome was detected in Wisconsin.
Analysis and supporting documents used to determine effect on small business or in preparation of economic impact report:
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. The department's Small Business Regulatory Coordinator may be contacted at
SmallBusiness@dnr.state.wi.us
or by calling (608) 266-1959.
Environmental Analysis
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.
Agency Contact
Erin Crain, EIM Section Chief
P.O. Box 7921
101 South Webster Street, ER/6
Madison, WI 53707-7921
Phone: (608) 267-7979
Amended Notice of Hearings
(See Register dated October 14, 2010 for original)
Natural Resources
Fish, Game, etc., Chs. NR 1—
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 emergency and permanent rule proposals 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.
Tuesday, October 26, 2010
DNR South Central Region Headquarters
Glaciers Edge and Gathering Waters Rooms
3911 Fish Hatchery Road
Fitchburg, WI 53711
Monday, November 29, 2010
Green Bay State Office Building
Room 618
200 North Jefferson Street
Green Bay, WI 54301
Monday, November 29, 2010
The Pyle Center
Room 315
702 Langdon Street
Madison, WI 53706
Monday, November 29, 2010
Division of State Facilities, Eau Claire State Office Building
Room 139
718 W Clairemont Avenue
Eau Claire, WI 54701
Monday, November 29, 2010
UW Marathon County
Room 218
518 S. 7th Avenue
Wausau, WI 54401
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 (608) 266-7012 with specific information on your request at least 10 days before the date of the scheduled hearing.
Copies of Rule 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
Stacy.Rowe@wisconsin.gov
. Comments must be submitted by
4:00 p.m.
on
November 29, 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 the Department of Natural Resources
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(s) or rule(s)
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 rule(s) 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.
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 and 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 or in preparation of economic impact report
None.
Small Business Impact
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.
Under s.
227.19 (3m)
, Wis. Stats., a final regulatory flexibility analysis is not required.
Pursuant to s.
227.114
, Stats., it is not anticipated that the proposed rule will have a significant economic impact on small businesses. The department's Small Business Regulatory Coordinator may be contacted at
SmallBusiness@dnr.state.wi.us
or by calling (608) 266-1959.
Environmental Analysis
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.
Agency Contact
Erin Crain, EIM Section Chief
P.O. Box 7921
101 South Webster Street, ER/6
Madison, WI 53707-7921
Phone: (608) 267-7979
Notice of Hearing
Natural Resources
Air Pollution Control, Chs. NR 400—
DNR# AM-34-05
NOTICE IS HEREBY GIVEN
that pursuant to ss.
227.16
and
227.17
, Stats, the Department of Natural Resources, hereinafter the Department, will hold a public hearing on proposed amendments to Chapters
NR 400
,
410
,
411
, and
484
, relating to the indirect source air management permit program on the date and at the time and location listed below.
Hearing Information
The Department of Natural Resources will hold a public hearing at the time and place shown below:
Thursday November 18, 2010
at 1:00 PM
Natural Resources State Office Building
Room 713
101 S. Webster Street
Madison, WI 53703
Live interactive satellite connections to this hearing will also be provided in the following locations:
DNR Southeast Region Headquarters
Rooms 140-141
2300 North Dr. Martin Luther King Jr. Drive
Milwaukee, WI 53212
DNR Northeast Region Headquarters
Lake Michigan Room
2984 Shawano Avenue
Green Bay, WI 54313
DNR West Central Region Headquarters
Paddlefish Conference Room
1300 W Clairemont Avenue
Eau Claire, WI 54701
Reasonable accommodations, including the provision of informational material in an alternative format, will be provided for qualified individuals with disabilities upon request. Contact Robert B. Eckdale in writing at the Department of Natural Resources, Bureau of Air Management (AM/7), 101 S Webster, Madison, WI 53707; by E-mail to
Robert.Eckdale@wisconsin.gov
; or by calling (608) 266-2856. A request must include specific information and be received at least 10 days before the date of the scheduled hearing.
Availability of the
p
roposed
r
ules and
f
iscal
e
stimate
The proposed rule and supporting documents, including the fiscal estimate, may be viewed and downloaded from the
Administrative Rules System Web site which can be accessed through the link provided on the
Proposed Air Pollution Control Rules Calendar at
http://www.dnr.state.wi.us/air/rules/calendar.htm
. If you do not have Internet access, a printed copy of the proposed rule and supporting documents, including the fiscal estimate, may be obtained free of charge by contacting Robert Eckdale, Department of Natural Resources, Bureau of Air Management (AM/7), 101 S. Webster St, Madison, WI, 53703, or by calling 608.266.2856.
Submittal of Written Comments
Comments on the proposed rule must be received on or before
November 29, 2010
. Written comments may be submitted by U.S. mail, fax, E-mail, or through the Internet and will have the same weight and effect as oral statements presented at the public hearing. Written comments and any questions on the proposed rules should be submitted to:
Mike Friedlander
Department of Natural Resources
Bureau of Air Management (AM/7)
101 S Webster St, Madison, WI 53703
Phone:
608.267.0806
Fax:
608.267.0560
Analysis Prepared by the Department of Natural Resources
Statute interpreted
Statutory authority
Explanation of agency authority
Section
285.11
, Stats. gives the Department the authority to promulgate air pollution rules. Section
285.60
, Stats., gives the Department the authority to regulate indirect sources by requiring construction and operation permits. Section
285.60 (6)
Stats. gives the Department the authority to exempt types of sources from any requirement, if the potential emissions from the sources do not present a significant hazard to public health, safety, or welfare or to the environment.
Related statute or rule
Chapter
NR 406
describes a general permit process and criteria for the construction, reconstruction, replacement, relocation or modification of stationary sources in accordance with s.
285.60(3)
, Stats.
Plain language analysis
The proposed rule revision will allow a general construction permit option for most indirect sources, providing industry and the Department with a streamlined approach to permitting. The proposed general construction permit option will eliminate carbon monoxide modeling as a requirement for most indirect source permit applications and will eliminate the screening level analysis for roadway capacity expansion projects. Indirect sources may still request a standard indirect source permit with carbon monoxide modeling. The proposed rule revision will eliminate the requirement for indirect source operational permits and focus control measures toward diesel and particulate matter emissions. The basis for permit exemptions is proposed to change from total vehicle capacity to total impervious surface dedicated to parking and maneuver. The proposed rule revision includes an exemption option for sources that agree to adopt superior environmental performance through the Green Tier program. Green Tier is based on a collaborative system of contracts and charters crafted jointly by participating businesses and the DNR. These contracts and charters streamline environmental requirements while advancing new environmental technologies.
Comparison with federal regulation
There is no existing or proposed federal regulation for permitting indirect sources.
Comparison with similar rules in adjacent states
Illinois, Iowa, Michigan, and Minnesota do not have similar rules. Minnesota had an indirect source permit program, but the program was discontinued on July 1, 2001 in response to budget cuts.
Data and analytical methodologies used and how any related findings support the regulatory approach chosen
Technological advances in automobile pollution control equipment and cleaner burning gasoline have significantly reduced carbon monoxide emissions. New health effects information for diesel emissions and fine-particles pollution suggest a different priority for the indirect source permit program.
Indirect source permit applicants were surveyed to determine the average permit processing time and total cost. The survey results were used as a means to define the time and cost savings associated with a streamlined permit process. Indirect source permit holders report the current permit process, from preparing to receiving final permit, requires nearly 8 months and costs between $30,000 - $40,000, excluding legal fees.
Analysis and supporting documents used to determine effect on small business or in preparation of economic impact report
No analysis or supporting documentation was developed as most indirect source permit applicants are large scale developers, not small businesses.
Small Business Impact
Indirect source permit applicants tend to be large scale developers, therefore the impact on small business is not considered to be applicable.
Environmental Analysis
The Department has made a preliminary determination that adoption of the proposed rules would not involve significant adverse environmental effects and would not need an environmental analysis under ch.
NR 150
, Wis. Adm. Code. However, based on comments received, an environmental analysis may be prepared before proceeding. This analysis would summarize the Department's consideration of the impacts of the proposal and any reasonable alternatives.
Fiscal Estimate Summary
A revised rule will save businesses and developers about $270,000 annually in permit fees and project analysis related costs. The cost for an indirect source air permit with environmental assessment is $8,250. In addition, the cost to develop an indirect source permit application, including consultant fees, traffic modeling, and documentation can total between $30,000 - $40,000. In an average year, Air Management processes 9 indirect source air permits, so the total business cost is approximately 9 X $30,000 = $270,000. Since legal fees are not factored into this estimate, the true savings are likely to be substantially greater than the estimate.
The adoption of a general construction permit framework will result in reduced sate costs, but also reduced revenue related to the current indirect source permit revenue. Reduced revenues occur because the proposed rule applies the general permit fee structure, eliminates the environmental assessment requirement for most indirect source permit applications, and eliminated the screening level analysis for roadway projects.
Assumptions for annual reduce revenues
9 indirect source permits – permit fees under current rule = $74,250
9 indirect source permits – permit fees under proposed rule = $13,500
Reduced costs to the sate occur due to the elimination of the screening level analysis for highway projects. Surveys of consultants indicate that the average cost associated with developing an indirect source permit exemption is $4,000. The $4,000 cost is paid by either Wisconsin municipalities or the Wisconsin Department of Transportation.
Assumptions for annual reduced costs
2 screening level analyses – consultant fees under current rule = $8,000
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