Summary of, and Comparison with, Existing or Proposed Federal Statutes and Regulations
The United States Department of Agriculture’s Animal Plant Health Inspection Service (USDA APHIS) federally deregulated pine shoot beetle, Tomicus piniperda, on November 2, 2020 by rescinding 7 CFR §301.50 due to lack of serious impacts related to this pest. USDA APHIS federally deregulated the emerald ash borer, Agrilus planipennis, by rescinding 7 CFR §301.53 on January 14, 2021, due to significant ongoing spread of this pest, despite regulations, and in order to focus limited resources on pest treatments, including biocontrol. USDA APHIS federally regulates P. ramorum through CFR §301.92 by delineating the infested area and requiring nurseries that ship stock outside of this area to submit notifications of all proven and associated hosts shipped out of the area, and by submitting to periodic inspections and removal and sanitation activities when ramorum blight is detected on nursery stock to prevent the spread and establishment of this disease, which causes sudden oak death. There are no federal regulations relating to elongate hemlock scale, hemlock woolly adelgid, spotted lanternfly, or thousand cankers disease. Summary of Public Comments Received during Preliminary Comment Period
and at Public Hearing on Statement of Scope
The Department held a preliminary public hearing on the Statement of Scope on October 16, 2020 and accepted public comments until October 23, 2020. No one testified or submitted written comments.
Comparison with Rules in Adjacent States
Illinois has rescinded rules related to pine shoot beetle and emerald ash borer. They intend to rescind thousand cankers disease regulations in the near future. Like many states that lack significant hemlock resources, they do not regulate hemlock woolly adelgid or elongate hemlock scale. They have described they are likely to enact a quarantine for spotted lanternfly if it is detected. They regulate P. ramorum, per federal requirements.
Iowa has a list of insect and disease plant pests that are considered to be dangerously injurious or a public nuisance that shall be prevented from being introduced into, or disseminated within, the state. Currently, Iowa does not have pine shoot beetle, hemlock woolly adelgid, elongate hemlock scale, nor spotted lanternfly on the Iowa pest list. Iowa intends to remove emerald ash borer, P. ramorum, and the walnut twig beetle from their pest list in the near future.
Michigan rescinded its emerald ash borer quarantine in 2018, and it does not have quarantine rules related to pine shoot beetle, elongate hemlock scale, or spotted lanternfly. MI has exterior and interior quarantines for hemlock woolly adelgid. They are also the only state with an exterior quarantine for balsam woolly adelgid, an invasive, introduced pest that has been introduced into portions of the eastern and western United States that they detected in the state in 2021. Wisconsin also considered adding a quarantine rule for balsam woolly adelgid, but decided against it based on the likely climactic unsuitability of this pest in WI, its extremely low rate of spread in MI, lack of concern and support for regulations by WI Christmas tree growers, and lack of regulatory interceptions on nursery stock or Christmas trees coming into our state.
Minnesota has a quarantine for emerald ash borer, but it does not have quarantine rules related to pine shoot beetle, thousand cankers disease, hemlock woolly adelgid, elongate hemlock scale, or spotted lanternfly. They regulate P. ramorum per federal requirements.
Summary of Factual Data and Analytical Methodologies
The Department reviewed ch. ATCP 21 and identified s. ATCP 21.12, the pine shoot beetle quarantine, and s. ATCP 21.17, the emerald ash borer quarantine as obsolete or unnecessary rules in a report filed with the Joint Committee for Review of Administrative Rules pursuant to s. 227.29, Stats. The Department identified s. ATCP 21. 21, the thousand cankers disease quarantine, as being unnecessary after reviewing recent scientific publications and consulting with states in the region. This proposed order repeals these obsolete rules. Remaining rule revisions to s. ATCP 21.16 for hemlock woolly adelgid and s. ATCP 21.19 for P. ramorum; and additions to s. ATCP 21.23 creating spotted lanternfly restrictions and s. ATCP 21.24 creating elongate hemlock scale restrictions are based on generally-accepted plant disease information from reliable sources, including USDA APHIS, the USDA Forest Service, USDA NASS, state-level surveys, regulatory interceptions, industry input, and peer-reviewed scientific publications. Analysis and Supporting Documents Used to Determine Effect on Small Business or in Preparation of an Economic Impact Analysis
Most of the businesses affected by these proposed rule changes are small businesses, including nurseries, Christmas tree growers, vineyards, wreath-makers, loggers, and sawmill owners. Affected businesses will be encouraged to work with the Department’s Bureau of Plant Industry to find solutions to any negative outcomes this rule may yield, although it is noteworthy that some of these same businesses may be positively impacted by the removal of quarantine rules for PSB, EAB, and TCD. Businesses may work with the Department to enter into a compliance agreements, at no charge, that will allow the business to import and move regulated items, provided that risks have been mitigated.
Fiscal Estimate and Economic Impact Analysis
The Fiscal Estimate and Economic Impact Analysis is attached.
Effect on Small Business
The Department’s Regulatory Review Coordinator may be contacted by:
Telephone at (608) 224-5024
The Regulatory Flexibility Analysis is attached.
Department Contact Person
Shahla M. Werner, Plant Protection Section Manager
Division of Agricultural Resource Management
Department of Agriculture, Trade and Consumer Protection
P.O. Box 8911
Madison, WI 53708-8911
(608) 957-5100
Place Where Comments are to Be Submitted and Deadline for Submission:
Comments must be received on or before April 26, 2022 to be included in the record of rule-making proceedings. Submit comments:
By mail to:
Shahla M. Werner, Plant Protection Section Manager
Division of Agricultural Resource Management
Department of Agriculture, Trade and Consumer Protection
P.O. Box 8911
Madison, WI 53708-8911
______________________________________________________________________________
RULE TEXT
Section 1. ATCP 21.01 (2g), ATCP 21.01 (6m), ATCP 21.01 (12), ATCP 21.12, ATCP 21.17, and ATCP 21.21 are repealed.
Section 2. ATCP 21.01 (8g) is amended to read:
ATCP 21.01 (8g) “Hemlock” means any tree or shrub of the genus Tsuga, including all cultivars.
Section 3. ATCP 21.16, Hemlock woolly adelgid; Import controls (title), is amended to read: ATCP 21.16 Hemlock woolly adelgid import controls and quarantine.
Section 4. ATCP 21.16 (1) is amended to read:
ATCP 21.16 (1) HEMLOCK IMPORTS OR MOVEMENT RESTRICTED. Except as provided in sub. (2)(3), no person may import any of the following items to this state from Alaska, California, Connecticut, Delaware, Georgia, Idaho, Kentucky, Maine, Maryland, Massachusetts, Michigan, New Hampshire, New York, New Jersey, North Carolina, Ohio, Oregon, Pennsylvania, Rhode Island, South Carolina, Tennessee, Vermont, Virginia, Washington, West Virginia, the District of Columbia, and the Canadian provinces of British Columbia, Nova Scotia and any delineated area within a state or country, which the responsible state agency has declared to be infested with hemlock woolly adelgid; or move any of the following items from an infested area to an area that is not infested within this state:
(a) Hemlock seedlings.
(b) Hemlock nursery stock.
(c) Hemlock logs with bark.
(d) Hemlock lumber with bark.
(e) Uncomposted Hemlock bark chips with bark.
(f) Uncomposted Hemlock bark.
(g) Cut hemlock trees.
(h) Hemlock branches.
Section 5. ATCP 21.16 (2) is created to read:
ATCP 21.16 (2) KNOWINGLY IMPORTING PLANT PEST: PROHIBITION. No person may knowingly import live hemlock woolly adelgid, Adelges tsugae Annand into this state, except pursuant to a permit under s. 94.03 Stats. and s. ATCP 21.04. Section 6. ATCP 21.16 (2) is renumbered to ATCP 21.16 (3)
Section 7. ATCP 21.19 (1) (b) is amended to read:
