(The scope statement for this rule, SS 128-15, was approved by the Governor on November 6, 2015, published in register No. 719A2 on November 9, 2015, and approved by the Board of Agriculture, Trade & Consumer Protection on November 18, 2015.)
WISCONSIN DEPARTMENT OF AGRICULTURE,
TRADE AND CONSUMER PROTECTION
The state of Wisconsin department of agriculture, trade and consumer protection hereby adopts the following emergency rule to amend s. ATCP 21.17 (1) (b) and to create s. ATCP 21.17 (1) (d), relating to the quarantine of Marquette County for emerald ash borer.
Analysis Prepared by the Department
of Agriculture, Trade and Consumer Protection
This emergency rule creates a quarantine for Marquette County for the emerald ash borer (“EAB”). Under this rule, the Department of Agriculture, Trade and Consumer Protection (“DATCP”) quarantines Marquette 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 Marquette County. This 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.
Explanation of Statutory Authority
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.
The United States Department of Agriculture – Animal and Plant Health Inspection Service (“APHIS”) positively identified EAB in Marquette County in the town of Montello on July 29, 2015. This emergency rule creates a DATCP quarantine for Marquette County. A Federal quarantine will be enacted approximately six to eight weeks after a formal submission by the state plant regulatory official. EAB 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 the county to areas of Wisconsin or other states that are not infested with EAB.
EAB is an injurious exotic pest that now endangers Wisconsin’s 770 million ash trees and ash resources. This insect has the potential to destroy entire stands of ash, and any incursion of EAB can result in substantial losses both to forest ecosystems and to urban trees, as well as the state’s vital tourism and timber industries. The EAB has killed over fifty million trees in the Midwest and has cost several hundred million dollars in losses to the woodlot, nursery, landscape industries, and municipalities. APHIS predicts the national urban impact alone from this pest may 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
Under this emergency rule, movement of all hardwood (non-coniferous) firewood of any type, plus movement of any ash wood out of Marquette County, is prohibited with certain exceptions. The emergency rule will do the following:
• Create a quarantine for EAB for Marquette County that prohibits 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 contiguous quarantined area in southern Wisconsin.
• 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.
Summary of Factual Data and Analytical Methodologies
Data for this analysis was obtained from DATCP nursery license records, local business directories, and field surveys of the wood products industry (e.g., timber, lumber, firewood) in the area. This analysis was based on the regulatory language of ATCP 21.17 and 7 CFR 301.53, on the observations of DATCP nursery inspectors, and on conversations with stakeholders in the nursery and other timber-related industries.
Analysis and Supporting Documents used to Determine Effect on Small Business
DATCP searched its nursery license database to obtain current records for licensed nursery growers operating in Marquette County. Based on previous and ongoing work with Wisconsin’s Gypsy Moth and firewood certification programs, DATCP staff also identified known saw mills, wood products, and firewood industry concerns. Finally, online Yellow Pages business listings were also searched to find related tree nursery, timber, firewood, and tree service companies.