Rule-Making Notices
Notice of Hearing
Agriculture, Trade and Consumer Protection
(ATCP # 10-R-6)
NOTICE IS HEREBY GIVEN that the state of Wisconsin Department of Agriculture, Trade and Consumer Protection (DATCP) announces that it will hold a public hearing on its hearing draft rule revising section
ATCP 21.21, Wis. Adm. Code, relating to thousand cankers disease of walnut.
Hearing Information
DATCP will hold one public hearing at the time and place shown below.
Date and Time:
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Location:
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January 26, 2011
Wednesday
1:00pm-3:00pm
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Department of Agriculture, Trade and Consumer Protection
Conference Room 266 (2nd flr)
2811 Agriculture Drive
Madison, WI 53718-6777
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Hearing impaired persons may request an interpreter for this hearing. Please make reservations for a hearing interpreter by January 12, 2011, by writing to Stacy VanWormer, Division of Agricultural Resource Management, P.O. Box 8911, Madison, WI 53708-8911, telephone (608) 224-4574. Alternatively, you may contact the DATCP TDD at (608) 224-5058. The hearing facility is handicap accessible.
Copies of Proposed Rule
You may obtain a free copy of this hearing draft 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 (608) 224-4573 or emailing
robert.dahl@wisconsin.gov. Copies will also be available at the hearing. To view the hearing draft rule online, go to:
https://health.wisconsin.gov/admrules/public/Home.
Submittal of Written Comments
DATCP invites the public to attend the hearing and comment on the proposed rule. Following the public hearings, the hearing record will remain open until
February 9, 2011 for additional written comments. Comments may be sent to the Division of Agricultural Resource Management at the address below or to
robert.dahl@wisconsin.gov or at
https://health.wisconsin.gov/admrules/public/Home.
Analysis Prepared by the Department of Agriculture, Trade and Consumer Protection
This rule restricts the import of certain plants, wood and wood products to prevent the introduction of thousand cankers disease of walnut trees (“thousand cankers disease") into this state. This rule restricts the import of affected materials from states and nations that are known to be infested with thousand cankers disease (there are certain exemptions).
Statute(s) interpreted
Statutory authority
Explanation of agency authority
DATCP has broad general authority, under s.
93.07 (1), Stats., to interpret 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. DATCP is adopting this rule, under authority of s.
227.24, Stats., pending the adoption of a more “permanent" rule by the normal rulemaking process.
Related statute(s) or rule(s)
DATCP has adopted rules regulating a variety of plant pests under ch.
ATCP 21, Wis. Adm. Code. This rule amends ch.
ATCP 21 by adding restrictions related to thousand cankers disease.
Plain language analysis
Thousand cankers disease is an emerging fungal disease that can be carried by the walnut twig beetle (the beetle is native to this country). The disease poses a serious threat to black walnut trees, an important forest species in Wisconsin. Black walnut is known for its highly valuable lumber, which is used for finished products such as furniture, musical instruments and gun stocks. There are approximately 18.5 million black walnut trees in Wisconsin, with over 13% of them located in the southwestern part of the state. Wisconsin businesses export over $4 million in black walnut products annually.
Thousand cankers disease was first observed in New Mexico in the 1990's. The disease has spread throughout the western United States, causing dieback and mortality in black walnut trees. In July, 2010, the disease was also confirmed in the Knoxville, Tennessee area. The Tennessee infestation is the first confirmed infestation east of the Mississippi River, the native range of the black walnut tree. The disease is currently known to exist in the states of Arizona, California, Colorado, Idaho, Nevada, New Mexico, Oregon, Tennessee, Utah and Washington.
Thousand cankers disease has not yet been found in Wisconsin.
Thousand cankers disease may be spread by the movement of firewood, nursery stock, and unfinished or untreated wood products. Subject to certain exemptions, this rule restricts the movement of potential host materials into Wisconsin, if those materials originated from or were exposed to the environment in an area where thousand cankers disease is known to exist.
Rule content
Plant Pests; Import Prohibition
Under this rule, no person may knowingly import the walnut twig beetle or the fungal pathogen Geosmithia morbida sp. Nov into this state, except pursuant to a special DATCP permit (for controlled scientific research or other limited purposes that pose no significant disease risk).
Host Materials; Import Prohibition
Under this rule, no person may import any of the following host materials into this state from an infested nation, state or area (as determined by the United States department of agriculture):
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Firewood from any species of tree.
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Living or dead plants or plant parts of the genus
Juglans (walnuts). This prohibition applies, for example, to nursery stock, budwood, scionwood, green lumber, logs, stumps, roots, branches, composted chips and uncomposted chips.
Exemptions
The prohibition against the importation of host materials does not apply to any of the following:
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Nuts, nut meats or nut hulls.
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Processed lumber, with square edges, which is 100% bark-free and kiln-dried.
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Finished wood products without bark (for example, finished furniture, musical instruments or gun stocks).
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Materials that are accompanied by a written certificate, signed by a pest control official in the infested area, which describes the materials and states at least one of the following:
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The materials have not been exposed to thousand cankers disease. The certificate must explain the basis for the official's statement.
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The materials have been effectively treated to destroy thousand cankers disease. The certificate must specify the date and method of treatment.
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The materials have been produced, processed, stored, handled or used under conditions, described in the certificate, which effectively preclude the transmission of thousand cankers disease.
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Materials imported in compliance with a written agreement between the importer and DATCP. The agreement must include all of the following:
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The name and address of the importer.
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The type and volume of material that may be imported under the agreement.
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The locations from which the material may be imported under the agreement.
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The names and addresses of the persons to whom, and the locations to which, the material may be imported under the agreement.
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The method by which the material may be imported.
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The time period covered by the agreement.
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The importer's commitment to keep complete records of each import shipment under the agreement, and to submit those records to DATCP for inspection and copying upon request.
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Specific import terms and conditions that will, in DATCP's opinion, effectively ensure that materials imported pursuant to the agreement will not introduce thousand cankers disease into this state.
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A provision authorizing DATCP to terminate the agreement without prior notice, for any reason.
Summary of, and comparison with, existing or proposed federal regulations
The Animal and Plant Health Inspection Service of the United States Department of Agriculture (APHIS) has not yet issued any quarantine for thousand cankers disease. APHIS does not restrict imports from other nations, because the walnut twig beetle is native to North America. APHIS is working with the U.S. Forest Service on strategies to limit the spread of the disease. Federal law does not prevent Wisconsin from taking regulatory action to prevent thousand cankers disease from spreading to this state.
Comparison with rules in adjacent states
Several states, including Indiana, Kansas, Missouri, Michigan, Nebraska North Carolina and Oklahoma, have adopted regulations to prevent the spread of thousand cankers disease. The recent disease finding in Tennessee - the first finding in the black walnut's native range east of the Mississippi – has prompted many states (including Wisconsin and some surrounding states) to consider import restrictions to prevent the spread of the disease.
Summary of factual data and analytical methodologies
This rule is based on generally-accepted plant disease information from reliable sources, including APHIS and the U.S. Forest Service.
Environmental Impact
This rule will have a positive impact on the environment, by helping to prevent the spread of thousand cankers disease into this state. This rule will help protect Wisconsin's environmentally-important black walnut forest resource.
Effect on Small Business
