EmR1209 Revise section ATCP 21.17, relating to the quarantines of Rock County and Walworth County for emerald ash borer.

Wisconsin Administrative Register No. 680, 8/14/2012

Rule-Making Notices

Notice of Hearing

Agriculture, Trade and Consumer Protection

EmR1209

Rule Related to Plant Pest Import Controls and Quarantine

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

Hearing Information

Date:   Tuesday, August 28, 2012

Time:   1:00-3:00 p.m.

Location:   Dept. of Agriculture, Trade and Consumer       Protection
  Conference Room 172 (1 st floor, across from   main entrance)
  2811 Agriculture Drive
  Madison, WI 53718

Hearing impaired persons may request an interpreter for this hearing. Please make reservations for a hearing interpreter by August 22, 2012 , by writing to Barbara Stalker, Division of Agricultural Resource Management, P.O. Box 8911, Madison, WI 53708-8911, telephone [phone]. Alternatively, you may contact the DATCP TDD at [phone]. The hearing facility is accessible to disabled users.

Appearances at the Hearing and Submittal of Written Comments

DATCP invites the public to attend the hearing and comment on the emergency rule. Following the public hearing, the hearing record will remain open until Tuesday, September 4, 2012 , for additional written comments. Comments may be sent to the Division of Agricultural Resource Management at the address below, to [e-mail] or at http://adminrules.wisconsin.gov .

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

Copies of the Proposed Rules

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

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

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

DATCP is adopting this temporary emergency rule pending the adoption of a federal regulation to quarantine Rock County and Walworth County. The emergency rule will take effect immediately upon publication in the official state newspaper, and will remain in effect for 150 days. The Legislature's Joint Committee for Review of Administrative Rules may extend the emergency rule for up to 120 additional days.

Statutes interpreted

Sections 93.07 (12) and 94.01 , Stats.

Statutory authority

Sections 93.07 (1) , 93.07 (12) , 94.01 and 227.24 , Stats.

Explanation of statutory authority

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

Background

The United States Department of Agriculture-Animal and Plant Health Inspection Services (APHIS) positively identified EAB in Walworth County near the village of Walworth on June 11, 2012. APHIS also positively identified EAB in Rock County in the city of Janesville on June 25, 2012. This emergency rule creates DATCP quarantines for Rock County and Walworth County. Federal quarantines will be enacted approximately six to eight weeks after a formal submission by the state plant regulatory official. Emerald ash borer is carried and spread by untreated ash wood products. A six week delay until enactment of the federal quarantine leaves too much time for businesses or individuals to move potentially EAB-infested material out of these counties to areas of Wisconsin or other states that are not infested with EAB.

Emerald ash borer is an injurious exotic pest that now endangers Wisconsin's 750 million ash trees and ash tree resources. This insect has the potential to destroy entire stands of ash, and any incursion of emerald ash borer can result in substantial losses to forest ecosystems and urban trees, as well as the state's thriving tourism and timber industries. The emerald ash borer has killed over fifty million trees in the Midwest and has cost several hundred million dollars annually in losses to the woodlot, nursery and landscape industries. The United States Department of Agriculture predicts the national urban impact from this pest could exceed $370 billion.

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

Emergency rule content

The emergency rule will do the following:

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

•   Provide an exemption for items that have been inspected and certified by a pest control official and are accompanied by a written certificate issued by the pest control official (some products, such as nursery stock, cannot be given an exemption).

•   Provide an exemption for businesses that enter into a state or federal compliance agreement. The compliance agreement describes in detail what a company can and cannot do with regulated articles.

Federal and surrounding state programs

Federal programs

Under the federal Plant Protection Act, APHIS has responsibility for excluding, eradicating and controlling serious plant pests, including emerald ash borer. APHIS has instituted statewide quarantines on the movement of all ash wood for Illinois, Indiana, Ohio, Pennsylvania and West Virginia, in addition to portions of Iowa, Kentucky, Maryland, Michigan, Minnesota, Missouri, New York, and Virginia. APHIS has also instituted quarantines for Brown, Kenosha, Racine, Milwaukee, Waukesha, Ozaukee, Washington, Sheboygan, Fond du Lac, La Crosse, Vernon and Crawford Counties in Wisconsin. The quarantines include restrictions on the movement of any hardwood (non-coniferous) firewood.

Surrounding state programs

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

Fiscal Impact

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

Business Impact

This emergency rule may have an impact on persons or companies that deal in any hardwood firewood or ash materials in Rock County and Walworth County. The affected businesses are all small businesses. This emergency rule restricts the sale or distribution of ash products plus any hardwood firewood from Rock County and Walworth County to locations outside of the contiguously quarantined counties of Fond du Lac, Sheboygan, Washington, Ozaukee, Waukesha, Milwaukee, Racine and Kenosha.

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

Rock County and Walworth County have a combined total of 36 licensed nursery growers that could possibly be growing ash nursery stock. Those growers will not be able to sell ash nursery stock outside of the contiguous quarantine area of southeast Wisconsin, though discussions with the Wisconsin Nursery Association indicate that few, if any, nurseries continue to sell ash trees. There are also a total of four known firewood dealers in Rock County and Walworth County. Firewood dealers would need to be certified under s. ATCP 21.20 to sell firewood outside of the contiguous quarantine area. To obtain certification a firewood dealer pays a $50 annual certification fee to DATCP and treats the firewood in a manner that ensures it is free of EAB. There are six sawmills (non-veneer) in Rock County and Walworth County and an unknown number of wood processing facilities that deal with ash. To sell ash wood products outside of the contiguous quarantine area they will need to enter into a compliance agreement with DATCP or APHIS that authorizes movement of ash products outside of the quarantine only when there is assurance that the movement will not spread EAB to other locations.

Environmental Impact

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

DATCP Contact

Questions and comments (including hearing comments) related to this rule may be directed to:

Brian Kuhn or Christopher Deegan

Department of Agriculture, Trade and Consumer Protection

P.O. Box 8911

Madison, WI 53708-8911

Telephone: [phone] or [phone]

E-Mail: [e-mail] or
[e-mail]

Notice of Proposed Rule-Making Without Public Hearing

Technical College System Board

CR 12-032

The Wisconsin Technical College System Board proposes an order to amend TCS 2, relating to district board member appointments. Pursuant to s. 227.16 (2) (b) , Stats., a public hearing is not required as the proposed amendment brings the existing rule into conformity with district board membership provisions established in 2011 Wisconsin Act 286 .

The scope statement for this rule, SS 039-12 , was approved by the governor on June 8, 2012, published in Register No. 678 on June 30, 2012, and approved by the Wisconsin Technical College System Board on July 25, 2012.

Analysis Prepared by the Wisconsin Technical College System Board

Statutes interpreted

Wis. Stats. section 38.08 (1) (a).

Statutory authority

Wis. Stats. section 38.04 (15).

Explanation of statutory authority

Wis. Stats. s. 38.04 (15) assigns responsibility for review of district board appointments to the Wisconsin Technical College System stating that "the board shall, by rule, establish criteria and procedures for the review of district board member appointments."

Related rule or statute

TCS 2.

Plain language analysis

2011 Wisconsin Act 286 created new district board and appointment committee membership requirements for the Milwaukee Area Technical College (MATC) District. The proposed amendments to TCS 2 will align administrative rule provisions to MATC's district board membership with the member representation established by the Legislature and the Governor in 2011 Wisconsin Act 286 .

Summary of, and comparison with, existing or proposed federal regulation

Not applicable.

Comparison with rules in adjacent states

Not applicable.

Summary of factual data and analytical methodologies

Not applicable.

Analysis and supporting documents used to determine effect on small business or in preparation of economic impact report

Not applicable.

Effect on Small Business

None.

Agency Contact Person

Morna Foy, Vice President, Wisconsin Technical College System, 4622 University Avenue, P.O. Box 7874, Madison, Wisconsin 53707-7874, telephone [phone], e-mail [e-mail] .

Place Where Comments are to be Submitted and Deadline for Submission

A public hearing and notice are not required under s. 227.16 (2) (b) , Stats., however, written comments may be submitted by 4:00 pm on September 15, 2012 to Morna Foy at the Wisconsin Technical College System, 4622 University Avenue, PO Box 7874, in Madison, WI 53707-7874 or by email to [e-mail] with a subject line of TCS 2.

Effective Date

This rule shall take effect on the first day of the month following publication in the Wisconsin Administrative Register, as provided in s. 227.22 (2) (intro.) , Stats.

Final Regulatory Flexibility Analysis

Not Applicable.

Fiscal Estimate

Attached.

Text of Rule

SECTION 1. TCS 2.02 (1), (3), and (5) are amended to read:

TCS 2.02 Definitions. (1) "Appointment committee" means the appointment committee constituted under s. 38.10 (1) (a) , (b) , or (c), or (d) , Stats.

(3) With the exception of the district board governing the Milwaukee area technical college, "Business "business and industry" includes every trade, occupation and profession.

(5) Except as provided in (5m) "Employer" "employer" means any person who receives earnings as payment for personal services and possesses the power to hire, transfer, suspend, layoff, recall, promote, discharge, assign, reward, or discipline other employees, or adjust employee grievances, or effectively recommend such action, if in connection with the exercise of such power the person exercises independent judgment in relation to the power. Employer does not include a person acting in the capacity of officer or agent of a labor organization.

SECTION 2. TCS 2.02 (5m) is created to read:

(5m) For the district board governing the Milwaukee area technical college, "employer" means a business entity, as defined in s. 13.62 (5) , Wis. Stats., a nonprofit organization that provides health care services, credit union, or cooperative association.

SECTION 3. TCS 2.04 (3) (a) 4. and 6. are amended to read:

TCS 2.04 (3) (a) 4. Except as provided under subd. 4m., Position position sought as an employer, employee, additional, elected official or school district administrator member.

6. Sex Gender and status as a member of a minority as defined under s. TCS 2.02 (5) (9) .

SECTION 4. TCS 2.04 (3) (a) 4m. is created to read:

For the district board governing the Milwaukee area technical college, position sought as a school district administrator, elected official, additional member, or member representing an employer. A person seeking appointment as an additional member shall indicate whether he or she is a school district administrator, elected official, or member representing an employer. Candidates seeking appointment as a member representing an employer must identify if the employer has 15 or more employees or 100 or more employees, and whether it is a manufacturing business.

SECTION 5. TCS 2.04 (4) (c) and (d) are amended to read:

(4) (c) Except as provided in (e), Reasonably reasonably represent the various businesses and industries in the district as required for employer and employee members of the district board.

(d) Except as provided in (e), Result result in a district board consisting of 9 members, including 2 employer members, 2 employee members, 3 additional members, a school district administrator as defined under s. 115.001 (8) , Stats., and employed by a school board of a school district located in the district, and one elected official who holds a state or local office as defined in s. 5.02 , Stats., except for the office of party committeeman or party committeewoman.

SECTION 6. TCS 2.04 (4) (e) is created to read:

(e) For the Milwaukee area technical college district, result in a district board consisting of 9 members who are residents of the district, 7 of whom are residents of Milwaukee County, consisting of one school district administrator as defined under s. 115.001 (8) , Stats., one elected official who holds a state or local office, as defined in s. 5.02 , Stats., 2 additional members, and 5 persons representing employers as defined in TCS 2.02 (5) (b). Three of the members shall represent employers with 15 or more employees, 2 of the members shall represent employers with 100 or more employees, and at least 2 of the members shall represent employers who are manufacturing businesses.

STATE OF WISCONSIN DEPARTMENT OF ADMINISTRATION DOA 2049 (R 07/2011) ADMINISTRATIVE RULES FISCAL ESTIMATE AND ECONOMIC IMPACT ANALYSIS
Type of Estimate and Analysis
X Original Updated Corrected
Administrative Rule Chapter, Title and Number
TCS 2, District Board Member Appointments
Subject
District Board Member Appointments
Fund Sources Affected			Chapter 20, Stats. Appropriations Affected
GPR FED PRO PRS SEG SEG-S
Fiscal Effect of Implementing the Rule
X No Fiscal Effect (for WTCS Board) Indeterminate	Increase Existing Revenues Decrease Existing Revenues		Increase Costs Could Absorb Within Agency's Budget Decrease Costs (for technical college districts)
The Rule Will Impact the Following (Check All That Apply)
State's Economy Local Government Units		Specific Businesses/Sectors Public Utility Rate Payers
Would Implementation and Compliance Costs Be Greater Than $20 million? Yes X No
Policy Problem Addressed by the Rule
Alignment of statutory and administrative rule provisions regarding the appointment of district board members.
Summary of Rule's Economic and Fiscal Impact on Specific Businesses, Business Sectors, Public Utility Rate Payers, Local Governmental Units and the State's Economy as a Whole (Include Implementation and Compliance Costs Expected to be Incurred)
None.
Benefits of Implementing the Rule and Alternative(s) to Implementing the Rule
Alignment of statutory and administrative rule provisions regarding the appointment of district board members. Alternative would be to rely on statutory provisions.
Long Range Implications of Implementing the Rule
Alignment of statutory and administrative rule provisions regarding the appointment of district board members.
Compare With Approaches Being Used by Federal Government
Not applicable.
Compare With Approaches Being Used by Neighboring States (Illinois, Iowa, Michigan and Minnesota )
Not applicable.
Name and Phone Number of Contact Person
Morna Foy, [phone]