Wisconsin Legislature: Text

Soil and potted media.

Any other material that could reasonably harbor Phytophthora ramorum.

Hemlock Woolly Adelgid

DATCP rules currently limit the import and movement of Hemlock Woolly Adelgid host materials from infested areas identified in the current rules. The current DATCP rule is based on an outdated Forest Service list. This rule updates the current DATCP list to conform to the most recent Forest Service list. This rule makes no other changes to current DATCP rules.

Effects on Businesses

Asset Protection and Loss Prevention

This rule is designed to protect Wisconsin forest and landscape resources, on which many Wisconsin businesses rely. The rule will help prevent or delay pest infestations that would deprive Wisconsin businesses of key raw materials and markets, and drive up business costs in a variety of ways.

Pest infestation costs are difficult to predict, and may depend on the nature, timing, location, scope and spread of the infestation. However, the pests regulated by this rule would likely be at least as destructive as the gypsy moth, which currently infests large portions of Wisconsin. The gypsy moth infestation has cost Wisconsin businesses an estimated $48,000 in 2005, and the cost will continue to grow over time. This rule is designed to prevent or delay business costs of this sort.

Costs to Comply

None of the pests regulated by this rule have been detected in Wisconsin to date, so the initial impact of this rule will be limited to businesses that may be importing host materials from outside this state. Importers may not import host materials from infested areas in other states, unless a pest control official in the state of origin inspects the materials and certifies that they are free of the relevant pest.

This may increase costs or limit supply options for some materials. However, there are many alternative supply options at this time, so this rule is expected to have a very limited impact on Wisconsin businesses in the short term. In any case, this rule merely duplicates and reinforces existing federal rules related to interstate movement. It also protects Wisconsin importers from pest infestations that could destroy their businesses.

This rule may have a larger impact on in-state business if any of the regulated pests is ever found in this state. The rule could then affect a variety of in-state businesses including nursery growers and dealers, lumber mills, paper mills, firewood sellers, landscapers and loggers. Businesses would not be able to move host materials from infested areas unless a state inspector first inspected the materials and certified that they were pest free. There is a flat fee of $50 for an inspection certificate.

Businesses in infested areas would likely incur added costs, and could lose some markets for their products. However, those consequences would result from the infestation itself, with or without this rule. This rule might add some incremental costs, but would provide a mechanism by which commerce could continue subject to regulation. The rule would protect businesses and forest resources in other areas of the state, and would forestall more general federal quarantines that could limit exports from the entire state (including exports from non-infested areas).

Wisconsin importers affected by this rule must make sure that import shipments from infested areas have been properly inspected and certified. This rule does not impose additional recordkeeping requirements, and does not require affected businesses to hire additional professional services or pest experts. But with or without this rule, businesses would benefit from increased knowledge of plant pest threats. DATCP will work with affected industries to provide helpful information and education.

Small Business Impact

Approximately 50-60% of the businesses affected by this rule are small businesses. Because none of the regulated pests has yet been found in this state, only a small percentage of these businesses (those importing host materials from outside this state) will be affected by this rule in the short term. The effect, even for those businesses, will be minimal.

This rule may have a larger impact on small in-state business if any of the regulated pests is ever found in this state. Businesses would not be able to move host materials from infested areas unless a state inspector first inspected the materials and certified that they were pest free (see inspection charges above). Small businesses would need to comply, just like large businesses.

Small businesses in infested areas would likely incur added costs, and could lose some markets for their products. However, those consequences would result from the infestation itself, with or without this rule. This rule might add some incremental costs, but would provide a mechanism by which commerce could continue subject to regulation.

Steps to Assist Small Business

This rule will help, not harm, small businesses in this state. This rule will not have a significant adverse economic impact on small business. An exemption for small business would undermine the effectiveness of the rule in preventing the introduction and spread of harmful pests. DATCP will provide information and education to help small businesses recognize pest threats, and protect their businesses from those threats. DATCP will also provide training and assistance related to compliance with this rule.

Conclusion

This rule will help protect Wisconsin industries, by helping to protect the resources on which they depend. This rule may impose additional costs on some businesses, including small businesses, but the costs are minimal, and are greatly outweighed (even for those businesses) by the protection that this rule affords. Most costs would result from the pest infestations themselves, and not from this rule.

Assumptions Used in Arriving at Fiscal Estimate

This rule will be administered by the Division of Agricultural Resource Management of the Department of Agriculture, Trade and Consumer Protection. The following estimate is based on the cost for administering and enforcing conditions for the movement of regulated items at risk of spreading or introducing plant pests under state or federal law. The financial impact is based on the current status and distribution of emerald ash borer, Asian longhorned beetle and Phytophthora ramorum. Administration and enforcement of the import controls imposed by this rule will involve minimal additional costs to DATCP in terms of notifying affected industries; it may be possible to absorb the costs within the agency's budget. The department will present information through development of written material, press releases, and cooperative efforts with affected industries. Ongoing duties would be to monitor industry compliance with the rule. Industry compliance is already monitored for other sections of ch. ATCP 21 and this new section would be a small addition.

Long - Range Fiscal Implications

If an infestation is ever found in this state, DATCP may experience substantial costs and personnel demands for detection, monitoring and control efforts. Costs may vary, depending on the nature and scope of the infestation, and cannot be accurately predicted at this time. Increased cost would be generated with or without this rule.

Environmental Assessment of Proposed Rule

Rule Subject: Import controls and quarantine for Emerald Ash Borer, Asian Longhorned Beetle, Phytophthora ramorum and Hemlock Woolly Adelgid.

Administrative Code Reference: ATCP 21

Rules Clearinghouse #: Not yet assigned

DATCP Docket #: 04-R-09

Purpose and Content of Proposed Rule

This rule regulates the import and movement of host materials that may spread infestations of Emerald Ash Borer, Asian Longhorn Beetle, Phytophthora ramorum or Hemlock Woolly Adelgid. Each of these pests has been found in the United States, and each poses a major threat to Wisconsin's forest and urban landscapes. None of these pests has yet been found in Wisconsin. This rule is designed to prevent and limit the spread of these pests, by regulating imports of host materials, to Wisconsin, from known infested areas. If any of these pests is ever found in Wisconsin, this rule will also affect the movement of host materials from infested areas in this state.

This rule will protect the environment by preventing the infestation and loss of tree species in Wisconsin. This rule includes the following key provisions:

Emerald Ash Borer

This rule prohibits the import or intrastate movement of host materials from infested areas designated by USDA-APHIS in the Code of Federal Regulations (CFR), unless a pest control official inspects the materials and certifies that they are free of Emerald Ash Borer. Host materials include:

Ash trees.

Ash limbs, branches and roots.

Ash logs, slabs or untreated ash lumber with bark attached.

Cut firewood of all non-coniferous species.

Ash chips and ash bark fragments (both composted and uncomposted) larger than one inch in diameter.

Asian Longhorned Beetle

Cut firewood of all non-coniferous species.

Nursery stock, logs, green lumber, stumps, roots, branches or debris from any of the following trees: maple, horse chestnut, mimosa, birch, hackberry, ash, sycamore, poplar, willow, mountain ash and elm.

Phytophthora ramorum

This rule restricts the import or intrastate movement of host materials from infested areas designated by USDA-APHIS in the Code of Federal Regulations (CFR), unless a pest control official inspects the materials and certifies that they are free of Phytophthora ramorum. Host materials include:

Nursery stock, unprocessed wood, and unprocessed wood and plant products (including bark chips, firewood, logs, lumber, mulch, wreaths, garlands and greenery) from species designated in this rule. The designated species include a large variety of different trees and plants, including for example: fir, maple, buckeye, heather, camellia, chestnut, hazelnut, wood fern, beech, ash, witch hazel, Christmas berry, California holly, laurel, oak, tanoak, honeysuckle, Douglas fir, rhododendron, sumac, rose, raspberry, blackberry, blueberry, willow, coast redwood, Lilac, yew, poison ivy and poison oak.

Soil and potted media.

Any other material that could reasonably harbor Phytophthora ramorum.

Hemlock Woolly Adelgid

Who is Affected, and How?

The rule could affect a variety of in-state businesses, including nursery growers and dealers, lumber mills, paper mills, firewood sellers and dealers, landscapers and loggers. However, because none of the pests regulated by this rule have been detected in Wisconsin to date, the initial impact of this rule will be limited to businesses that may be importing host materials from outside this state. If any of the regulated pests is ever found in this state, this rule may have a larger impact on in-state business. These businesses would not be permitted to move host materials from infested areas unless a state inspector first inspected the materials and certified that they were pest free. DATCP estimates that 50-60% of the businesses affected by this rule are “small businesses."

Costs to Comply

This rule will add costs for some affected businesses. Affected businesses may incur costs related to:

Inspection and certification. Businesses would not be able to move host materials from infested areas unless a state inspector first inspected the materials and certified that they were pest free.

The current inspection certificate charge is $50.

Businesses in infested areas would likely incur added costs, and could lose some markets for their products. Those consequences would result from the infestation itself, with or without this rule. This rule might add some incremental costs, but would provide a mechanism by which commerce could continue subject to regulation. The rule would protect businesses and forest resources in other areas of the state, and would forestall more general federal quarantines that could limit exports from the entire state (including exports from uninfested areas).

Small Business Impact

Approximately 50-60% of the businesses affected by this rule are small businesses. Only a small fraction, 10% at most, of these nurseries, landscapers, firewood producers and dealers, mulch producers and dealers, loggers, lumber mills, paper mills, wood manufacturers, and wood recycling or disposal facilities request an inspection certificate to ship or move host plant materials interstate or internationally. The 168 nursery growers, representing about 10% of the total number of nurseries in the state, would be the most affected by this rule. The current $50 cost for a plant health certificate would apply to businesses exporting host materials out of an infested area.

Small businesses in infested areas, like large businesses, would likely incur added costs, and could lose some markets for their products. However, those consequences would result from the infestation itself, with or without this rule. This rule might add some incremental costs, but would provide a mechanism by which commerce could continue subject to regulation. An exemption for small business would undermine the effectiveness of the rule in preventing the introduction and spread of harmful pests. This rule will not have a significant adverse economic impact on small business. Therefore, it is not subject to the delayed small business effective date provision in s. 227.22 (2) (e), Stats.

Farmers

Farmers will not be directly affected by this rule.

General Public

This rule will positively impact the general public, by helping to prevent the introduction and spread of serious plant pests that threaten key urban and residential tree species in Wisconsin. If enacted, this rule would help to minimize the impact of the plant pests on the public, to lessen damage and losses that could result in reductions in private property value when tree removal is mandated.

Environmental Impact

This rule will positively impact the environment by helping to prevent the introduction and spread of serious plant pests that threaten key tree species in Wisconsin. The primary environmental consequences of no action are increased risk of pest spread and elevated environmental risks from uncoordinated application of pesticides to limit damage from the emerald ash borer. Also, introductions of these pests would lead to changes in the composition and age structure of forests resulting from the no action alternative and could have long-term effects on the ecological relationships in the forested areas.

Economic Effects

This rule will prevent the economic effects that would be caused by an infestation. The cost of tree removal and the subsequent lowering of property values would be significant.

Social and Cultural Effects

This rule will not have significant social or cultural effects, except that it will help to prevent the disruption of local communities that can result from urban tree removal. Further it will help to protect black ash which is a sacred material used by Wisconsin Indian Tribes for making baskets.

Alternatives to this Rule

No Action

Under the no action alternative, DATCP would not implement measures to prevent the import and movement of Emerald Ash Borer, Asian Longhorn Beetle, Phytophthora ramorum or Hemlock Woolly Adelgid. Left unchecked, these pests would spread throughout Wisconsin and the U.S., having severe environmental and economic impacts. In the case of Emerald Ash Borer it is certain that all affected ash trees would die or lose commercial value within just a few years.

The absence of control or containment measures would lead to an increase in Emerald Ash Borer, Asian Longhorn Beetle, Phytophthora ramorum or Hemlock Woolly Adelgid populations, and an increase in long-term, continuing costs for detection and removal of infested host plants. Local business owners and area residents could attempt to control damage from infestations by removing the infested trees or plants from their properties.

In addition, the spread of these pests would lead to loss of valuable ornamental and commercial trees, loss of associated forest products, and private or uncoordinated use of pesticides to control the pest with associated adverse impacts to the environment. The wide distribution of host plants for these pests suggests the danger of spread across much of the country with increases in damage and losses commensurate with the spread. The damage and losses to commercial trees would lower the value and production of timber and tree products such as lumber used in the production of furniture.

Lastly, control measures would likely be taken by USDA-APHIS if DATCP does not act; those actions would not be under DATCP's control and would likely results in a statewide quarantine.

Modify Rule Provisions

Under this alternative, DATCP would enact import control and quarantine to restrict the movement of firewood, green lumber, and other living, dead, cut or fallen material, including nursery stock, logs, stumps, roots, and branches from any host trees. These materials may be moved within the quarantine area but would be restricted from moving outside the area.

Controversial Public Issues

DATCP does not anticipate major public controversy related to this rule. However, some industry members may express concern about possible increased costs for inspections or limited markets. The controversial issues would be certain in the absence of this rule and the associated necessity of tree removal.

This rule will improve protection for the public at large.

Conclusion

This rule will have a positive effect on the environment, and will not have any significant negative effects. This rule may increase costs for some businesses, including small businesses, but the costs are minimal, are greatly outweighed (even for those businesses) by the protection that this rule affords. There are no preferable alternatives to this rule. This rule is not a “major action significantly affecting the quality of the environment," for purposes of s. 1.11, Stats. No environmental impact statement is required under s. 1.11, Stats. or ch. ATCP 3, Wis. Adm. Code.

Notice of Hearing

Labor and Industry Review Commission

[CR 05-092]
(reprinted from 2/15/06, Wis. Adm. Register)

NOTICE IS HEREBY GIVEN That pursuant to ss. 103.04 (2), Stats., and interpreting ss. 40.65 (2), 102.18 (3) and (4), 106.52 (4), 106.56 (4), 108.09 (6), 108.10 (2) and (3), 111.39 (5) (a), 303.07 (7) and 303.21 of the statutes, the Wisconsin Labor and Industry Review Commission will hold a public hearing at Room B103 of the GEF I State Office Building, 201 East Washington Avenue, in the City of Madison, Wisconsin, on the 8th day of March, 2006, at 10:30 a.m., to consider the repeal, amendment and recreation of rules relating to the procedures applicable to review of decisions by the commission.