Scope Statements
Agriculture, Trade and Consumer Protection
In accordance with
2011 Wisconsin Act 21 (s.
227.135 (2), Stats.), this scope statement was approved by the governor on August 29, 2011, before DATCP took any action in proceeding with this proposed rule, including submission of this scope statement for publication.
The Department of Agriculture, Trade and Consumer Protection (DATCP) gives notice, pursuant to section
227.135, Stats., that it proposes to adopt an emergency administrative rule as follows:
Subject
Emerald Ash Borer Emergency Rule.
Administrative Code Reference
Statutory Authority
Preliminary Objectives
This rule will do the following:
•
Create county-level quarantines for emerald ash borer for counties where the beetle is detected. The quarantine will prohibit the movement of all hardwood species of firewood, nursery stock, green lumber, and other material living, dead, cut or fallen, including logs, stumps, roots, branches and composted and uncomposted chips of the genus Fraxinus (Ash wood), out of the county or out of adjoining contiguous quarantined counties.
•
Provide an exemption for items that have been inspected and certified by a pest control official and are accompanied by a written certificate issued by the pest control official (some products, such as nursery stock, cannot be given an exemption).
•
Provide an exemption for businesses that enter into a state or federal compliance agreement. The compliance agreement spells out what a company can and cannot do with regulated articles.
Preliminary Policy Analysis
DATCP has authority under s.
93.07 (12), Stats., to conduct surveys and inspections for the detection and control of pests injurious to plants, and to make, modify, and enforce reasonable rules needed to prevent the dissemination of pests. DATCP also has plant inspection and pest control authority under s.
94.01, Stats. DATCP may by rule impose restrictions on the importation or movement of serious plant pests, or items that may spread serious plant pests.
EAB is a very serious plant pest risk that has destroyed large numbers of ash trees in neighboring Midwestern states. EAB is an exotic pest that endangers Wisconsin's 770 million ash trees and ash tree resources. This insect has the potential to destroy entire stands of ash, including up to 20% of Wisconsin's urban street trees and residential landscaping trees, and can result in substantial losses to forest ecosystems. The insect can cause great harm to state lands, and to the state's tourism and timber industries. Currently, EAB has been identified in 15 states, including Wisconsin, and two Canadian provinces. Eleven Wisconsin counties have been quarantined to restrict the movement of ash wood in order to prevent the spread of EAB.
This emergency rule is necessary to create an immediate quarantine of the counties with new EAB detections until the federal quarantine is enacted. The federal quarantine will take effect up to six months after a formal submission by the state plant regulatory official.
Current and Proposed Federal Legislation and Comparison to Proposed Rule
In order to limit the spread of EAB, the Animal and Plant Health Inspection Service of the United States Department of Agriculture (USDA-APHIS) has imposed quarantines on the movement of ash wood from Illinois, Indiana, Iowa, Kentucky, Maryland, Michigan, Minnesota, Missouri, New York, Ohio, Pennsylvania, Tennessee, Virginia, West Virginia, and Wisconsin, as well as the Canadian provinces of Ontario and Quebec. DATCP rules currently prohibit imports of hardwood firewood and any wood of the genus Fraxinus from any federally quarantined area, except under authorized conditions. This proposed rule is consistent with current state and federal rules.
Entities Affected
This emergency rule may have an impact on persons or companies that deal in any hardwood firewood or ash materials in the quarantined counties. This emergency rule restricts the sale or distribution of ash products plus any hardwood firewood from the quarantined counties to locations outside of the quarantined counties.
The business impact of this emergency rule depends on the number of nurseries that sell/distribute ash nursery stock outside the quarantined counties, firewood producers/dealers that sell/distribute outside the quarantined counties, saw mills that move untreated ash stock outside the quarantined counties, and green wood waste that is moved outside the quarantined counties.
Licensed nursery growers will not be able to sell ash nursery stock outside of the quarantined counties. Firewood dealers would need to be certified under s.
ATCP 21.20 to sell firewood outside of the quarantined counties. To obtain certification a firewood dealer will have to pay an annual certification fee to DATCP of $50 and treat the firewood in a manner that insures it is free of emerald ash borer. In order to sell ash wood products outside of their counties, veneer mills and wood processing mills that deal with ash will have to enter into a compliance agreement with DATCP or APHIS that authorizes movement of ash products outside of their counties only when there is assurance that the movement will not spread the emerald ash borer to other locations.
Policy Alternatives
If DATCP does nothing, potentially infested wood will be allowed to move freely and the department will not be able to regulate its movement. The department would have no regulatory authority in the counties with new EAB finds, raising the potential of a more rapid spread of EAB.
Statutory Alternatives
None at this time.
Staff Time Required
DATCP estimates that it will use approximately 0.1 FTE staff time to develop these rules. This includes time required for investigation and analysis, rule drafting, preparing related documents, holding public hearings, and communicating with affected persons and groups. DATCP will use existing staff to develop this rule.
Datcp Board Authorization
DATCP may not begin drafting this rule until the Board of Agriculture, Trade and Consumer Protection approves this scope statement. The Board may not approve this scope statement sooner than 10 days after this scope statement is published in the Wisconsin Administrative Register. Before the department may publish the emergency rule, it must receive written approval of the proposed emergency rule from the Governor.
Corrections
The statement of scope for this rule, SS 410-DOC 302-11 Act 38 Modifications of Sentences, was approved by the governor on August 4, 2011.
Subject
Revises Chapter
DOC 302, relating to the repeal under
2011 Wis. Act 38 of statutory provisions relating to modification of sentences under s.
973.01, Stats.
Description of the Objective of the Rule
The objective of the rule is to bring chapter DOC 302 into compliance with
2011 Wis. Act 38. The legislature repealed the provisions of
2009 Wis. Act 28, relating to modification of bifurcated sentences under s.
973.01, Wis. Stats. The department seeks to repeal and amend the provisions of chapter DOC 302 which were promulgated in response to
2009 Wis. Act 28.
Description of Existing Policies and New Policies Included in the Proposed Rule and An Analysis of Policy Alternatives
In response to
2009 Wis. Act 28, the department promulgated rules to address mechanisms for modification of bifurcated sentences under s. 973.01, Stats. The legislature recently repealed the provisions of Act 28. (See
2011 Wis. Act 38.) The department seeks to repeal and amend the provisions of chapter DOC 302, relating to modification of bifurcated sentences to come into compliance with
2011 Wis. Act 38.
Failure to engage in the rule making process will result in the department's rules not being in compliance with
2011 Wis. Act 38.
Statutory Authority
Estimate of the Amount of Time State Employees Will Spend Developing the Proposed Rule and of Other Resources Necessary to Develop the Rule
The Department estimates that it will take approximately 50 hours to develop this rule, including drafting the rule and complying with rulemaking requirements.
Description of All of the Entities That Will be Affected by the Rule
The rule affects persons who are convicted of criminal offenses and receive a sentence under s.
973.01, Stats., and DOC staff.
Summary of and Preliminary Comparison with Any Existing or Proposed Federal Regulation that Is Intended to Address the Activities to be Regulated by the Proposed Rule
There are no federal regulations which address the issue of modification of sentences under s.
973.01, Wis. Stats.
Contact Person
Kathryn R. Anderson, Chief Legal Counsel, Wisconsin Department of Corrections, 3099 East Washington Avenue, P.O. Box 7925, Madison, WI 53707-7925, (608) 240-5049,
kathryn.anderson@wisconsin.gov.
Employment Relations Commission
This statement of scope regarding both an emergency rule and a proposed permanent rule was approved by the governor on August 31, 2011.
