Statutory Authority
The department of agriculture, trade and consumer protection (“DATCP") has general authority to adopt rules interpreting statutes under its jurisdiction (
see s.
93.07(1), Stats.). DATCP is specifically authorized to adopt rules to prevent the introduction and spread of injurious plant pests, including plant diseases (
see ss.
93.07(12) and
94.01(1), Stats.).
Background
This rule regulates the import and movement of certain host materials from areas infested with Emerald Ash Borer, Asian Longhorned Beetle, Phytophthora ramorum or Hemlock Woolly Adelgid. Regulated host materials vary, depending on the pest in question, but include things like nursery stock, firewood, untreated lumber and mulch.
This rule is designed to prevent the introduction and spread of Emerald Ash Borer, Asian Longhorned Beetle, Phytophthora ramorum and Hemlock Woolly Adelgid. These pests pose a grave threat to Wisconsin forest and urban landscapes. This rule will help protect Wisconsin industries, by helping to protect the resources on which they depend.
Rule Contents
Emerald Ash Borer
Emerald Ash Borer, Agrilus planipennis Fairmaire, is a wood-boring beetle that attacks and eventually kills ash trees. Ash is a major urban and forest tree species in Wisconsin. An estimated 628 million ash trees in this state are at risk of destruction by Emerald Ash Borer.
Emerald Ash Borer, which is native to Asia, has been found in 3 states and one Canadian province. Thirty-nine counties in Michigan, 9 counties in Ohio, and 2 counties in Indiana have infestations (20 counties in Michigan and one in Ohio are considered “generally infested"). An infestation was recently found, for the first time, in the Upper Peninsula of Michigan. As many as 14 million ash trees have already died as a result of infestations in Michigan, Ohio and Indiana.
Emerald Ash Borer can be spread by the movement of ash host materials, including firewood, nursery stock, trees, logs, bark chips, and any lumber or wood with bark attached. This rule prohibits the import or intrastate movement of ash host materials from infested areas designated by USDA-APHIS, unless a pest control official inspects the materials and certifies that they are free of Emerald Ash Borer.
USDA-APHIS publishes a list of infested areas in the Code of Federal Regulations (CFR), and updates the CFR listing as necessary. This rule regulates the import or movement of host materials from infested areas that are currently listed in the CFR, or that may be listed in the future.
Asian Longhorned Beetle
The Asian Longhorned Beetle, Anoplophora glabripennis (Motschulsky), infests and kills several types of deciduous trees including maple, a highly important tree species in Wisconsin. The Asian Longhorned Beetle is a serious threat to Wisconsin's lumber, maple syrup, nursery, commercial fruit and tourism industries.
Infestations have caused the destruction of more than 10,000 trees in New York, New Jersey and Illinois (Cook County). Preemptive destruction of trees is the only known reliable method for controlling the Asian Longhorned Beetle.
This rule prohibits the import or intrastate movement of host materials from infested areas designated by USDA-APHIS, unless a pest control official inspects the materials and certifies that they are free of Asian Longhorned Beetle. Host materials include:
Cut firewood of all non-coniferous species.
Nursery stock, logs, green lumber, stumps, roots, branches or debris from any of the following trees: maple, buckeye, mimosa, birch, hackberry, ash, sycamore, poplar, willow, mountain ash and elm.
USDA-APHIS publishes a list of infested areas in the Code of Federal Regulations (CFR), and updates the CFR listing as necessary. This rule regulates the import or movement of host materials from infested areas that are currently listed in the CFR, or that may be listed in the future.
Phytophthora ramorum
Since 1995, thousands of oaks in California and Oregon have died of Phytophthora ramorum (Werres et al., 2001), also known as Sudden Oak Death, ramorum leaf blight, and ramorum dieback. Phytophthora ramorum, the pathogen that causes these diseases, is harbored in a large number of different plant species. The pathogen is also found in soil in infested areas.
This rule restricts the import or intrastate movement of host materials from infested areas designated by USDA-APHIS, 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, holly, laurel, oak, tanoak, honeysuckle, Douglas fir, rhododendron, sumac, rose, raspberry, blackberry, huckleberry, willow, redwood, lilac, yew, poison ivy, viburnum, magnolia and sumac.
Soil and potted media.
Any other material that could reasonably harbor Phytophthora ramorum.
USDA-APHIS publishes a list of infested areas in the Code of Federal Regulations (CFR), and updates the CFR listing as necessary. This rule regulates the import or movement of host materials from infested areas that are currently listed in the CFR, or that may be listed in the future.
Hemlock Woolly Adelgid
Hemlock Woolly Adelgid, Adelges tsugae (Annand), is a serious pest that kills native and ornamental hemlock trees, an important Wisconsin resource. Infestations of Hemlock Woolly Adelgid currently exist in 17 states. DATCP rules currently limit the import and movement of Hemlock Woolly Adelgid host materials from infested areas identified in the current rules.
USDA-APHIS does not have a formal regulatory program for the Hemlock Woolly Adelgid, but the United States Forest Service maintains and updates a list of infested areas. Because the Forest Service does not publish its list in the Code of Federal Regulations (CFR), DATCP lists the infested areas in its rule (rather than by reference to the CFR).
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.
Fiscal Impact
This rule will have little fiscal impact on Wisconsin state government in the short term, and no fiscal impact on local government. DATCP will incur some costs to provide information and education to affected businesses. However, DATCP expects to absorb those costs.
The attached fiscal estimate is based on the current distribution of the regulated pests, which have not been found in Wisconsin to date. There could be a much more dramatic fiscal impact on state government in the future, if any of the regulated pests is ever found in Wisconsin. However, that impact will largely result from the infestation itself, not this rule. This rule will help to prevent increased costs, by helping to prevent the introduction of pests to this state.
If an infestation is ever found in this state, DATCP may experience the following fiscal impacts with or without this rule:
Substantial costs and personnel demands for detection, monitoring and control efforts. Costs cannot be accurately predicted at this time, and will depend on the aggressiveness of the state's control effort. However, control programs could be comparable to the gypsy moth control program which currently costs Wisconsin approximately $3.6 million per year (including federal grant funds to Wisconsin, but not including direct federal services). Michigan reportedly hired at least 140 additional staff to control infestations of Emerald Ash Borer in that state.
Greatly increased demand for state inspection and certification of commodities (host materials) shipped from infested areas, to satisfy buyers that the commodities are free of relevant pests. DATCP can charge fees to cover its cost to perform requested inspections, but would need legislative authorization to hire additional inspectors. The number of inspection requests cannot be accurately predicted at this time. However, the number could be large, given the importance of the nursery, landscaping and forest-based industries in this state.
Increased costs for information and education.
If infestation occurs in this state, local governments may also experience dramatically increased costs related to dying trees and pest control. However, those costs will result from the infestation itself, and not from this rule. This rule will not, by itself, impose significant costs on local government. By helping to prevent the introduction and spread of serious pests, this rule will help to minimize local costs.
Business Impact
This rule will help protect Wisconsin industries, by helping to protect the resources on which they depend. This rule may have some adverse impact on some individual businesses, but that adverse impact is greatly outweighed (even for those businesses) by the protection that this rule affords.
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 infested areas outside this state. The negative effects on those businesses will be small. The rule will help protect Wisconsin importers from pest infestations that could destroy their businesses.
If any of the regulated pests is ever found in this state, the infestation may have a major impact on affected businesses such as nursery growers and dealers, lumber mills, paper mills, firewood sellers, landscapers and loggers. Businesses in infested areas will incur added costs, and some may lose markets for their products. But those consequences will result from the infestation itself, with or without this rule. This rule may add some incremental costs for businesses in infested areas, but will protect businesses in other areas. It will also forestall a more general federal quarantine that could limit exports from the entire state (including exports from uninfested areas). A complete Business Impact Analysis is attached.
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. A complete environmental assessment is attached.
Federal Regulations
USDA-APHIS regulates plant pests and diseases at the federal level. Wisconsin and other states work with USDA-APHIS to prevent the introduction and spread of plant pests and diseases.
States may regulate intrastate movement within their own territory, and may also restrict imports of host materials from infested areas in other states. States may act on their own authority (independent of USDA-APHIS), and may restrict imports and movement from infested areas other than those designated by USDA-APHIS. However, a coordinated federal-state program promotes consistent regulation of interstate commerce throughout the United States.
The federal-state regulatory scheme may vary, depending on the type of pest or disease. In the case of Emerald Ash Borer, Asian Longhorned Beetle and Phytophthora ramorum, it takes the following general form:
USDA-APHIS lists infested areas (such as counties) in the Code of Federal Regulations (CFR), and updates the list from time to time.
If a state fails to quarantine an infested area listed by USDA-APHIS in that state, USDA-APHIS may quarantine the entire state. The threat of a statewide federal quarantine is an incentive for state action. A statewide federal quarantine restricts exports from the entire state (not just infested areas), but does not affect the movement of materials within the state.
If a state quarantines infested areas that USDA-APHIS has listed for that state, USDA-APHIS also quarantines those areas (not the entire state). The state and federal quarantines restrict interstate and intrastate movement from the quarantined areas, but do not affect interstate exports from other parts of the state.
State and federal quarantines prohibit the movement of potential host materials (such as firewood and untreated lumber) from quarantined areas. State quarantines must meet federal standards, in order to be recognized by USDA-APHIS for federal quarantine purposes.
USDA-APHIS does not have a formal regulatory program for the Hemlock Woolly Adelgid, but the United States Forest Service maintains and updates a list of infested areas. DATCP lists infested areas in its current rule (rather than by reference to the CFR), because the Forest Service does not publish its list in the CFR. DATCP must modify its rule if it wishes to incorporate changes in the Forest Service list.
Regulation in Surrounding States
Emerald Ash Borer
Michigan regulates the import and movement of host materials from infested areas designated by USDA-APHIS. Thirty-nine counties are currently affected by state and federal quarantines.
Emerald Ash Borer has not been detected in any of the other states surrounding Wisconsin (Illinois, Iowa or Minnesota). None of those states has adopted regulations related to Emerald Ash Borer. However, Illinois has adopted a readiness plan, and Minnesota has implemented a detection program.
Asian Longhorned Beetle
Illinois is the only state, adjacent to Wisconsin, in which Asian Longhorned Beetle has been detected to date. Over 1,500 trees have been destroyed in Cook County since 1998 (tree destruction is the only effective method of control). Illinois and USDA-APHIS have established quarantines in Cook County. Quarantines prohibit the movement of host materials from the quarantined area.
The Asian Longhorned Beetle has not been detected in Iowa, Michigan or Minnesota. Those states have not adopted any regulations related to Asian Longhorned Beetle.
Phytophthora ramorum
Phytophthora ramorum has not been found in Michigan, Illinois, Iowa or Minnesota (only Illinois and Minnesota have implemented nursery inspection programs for the pathogen). None of the states surrounding Wisconsin has adopted regulations related to Phytophthora ramorum.
Hemlock Woolly Adelgid
Wisconsin is one of five states that currently regulate the import and movement of Hemlock Woolly Adelgid host materials. The other states are Michigan, Maine, New Hampshire and Vermont. Michigan, like Wisconsin, has large populations of native hemlock. Michigan successfully eradicated its only finding of Hemlock Woolly Adelgid to date (an isolated nursery finding).
Minnesota and Illinois have no large populations of native hemlock, and Iowa has no native hemlock. None of those states regulates the import or movement of Hemlock Woolly Adelgid host materials.
Rule Subject: Plant Pest Import Controls and Quarantines
Adm. Code Reference: ATCP 21
Rules Clearinghouse #: Not yet assigned
DATCP Docket #: 04-R-09
Rule Description
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.
Businesses Affected
This rule regulates the import and movement of certain host materials from areas infested with Emerald Ash Borer, Asian Longhorned Beetle, Phytophthora ramorum or Hemlock Woolly Adelgid. Regulated host materials vary, depending on the pest in question, but include things like nursery stock, firewood, untreated lumber and mulch.
This rule affects a variety of businesses such as nursery growers and dealers, lumber mills, paper mills, firewood sellers, landscapers and loggers. This rule applies to large and small businesses alike. The Department of Agriculture, Trade and Consumer Protection (“DATCP") estimates that 50-60% of the affected businesses are “small businesses."
This rule is designed to prevent the introduction and spread of Emerald Ash Borer, Asian Longhorned Beetle, Phytophthora ramorum and Hemlock Woolly Adelgid. These pests pose a grave threat to Wisconsin forest and urban landscapes. This rule will help protect Wisconsin industries, by helping to protect the resources on which they depend. This rule may have some adverse impact on some individual businesses, but that adverse impact is greatly outweighed (even for those businesses) by the protection that this rule affords.
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 infested areas outside this state. The negative effects on those businesses will be small. The rule will help protect Wisconsin importers from pest infestations that could destroy their businesses.
If any of the regulated pests is ever found in this state, the infestation may have a major impact on affected businesses. Businesses in infested areas will incur added costs, and some may lose markets for their products. But those consequences will result from the infestation itself, with or without this rule.
This rule may add some incremental costs for businesses in infested areas, but will protect businesses in other areas. It will also forestall a more general federal quarantine that could limit exports from the entire state (including exports from uninfested areas).
Key Rule Provisions
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.
