DATCP Docket: 22-R-06
Clearinghouse Rule: 22-022
Final Rule Draft
June 24, 2022
THE DEPARTMENT OF AGRICULTURE, TRADE AND CONSUMER PROTECTION’S PROPOSED ORDER TO ADOPT PERMANENT RULES
PROPOSED ORDER
The Wisconsin Department of Agriculture, Trade and Consumer Protection proposes an order to repeal ATCP 21.01 (2g), (6m), and (12), 21.12, 21.17 and 21.21; to amend ATCP 21.01 (8g), 21.16 (title), 21.16 (1), 21.19 (1) (b), 21.19 (1) (note), and 21.19 (2) (a); to create ATCP 21.16 (1) (b) 7. and 8., and (3); 21.19 (2) (a) (note) and 21.23, relating to plant inspection and pest control.
Analysis Prepared by the Department of Agriculture, Trade and Consumer Protection
Explanation of Agency Authority
The Department of Agriculture, Trade and Consumer Protection (department) has broad general authority, under s. 93.07 (1), Stats., to interpret laws under its jurisdiction. The department also has broad general authority, under ss. 93.07 (12) and 94.01, Stats., to conduct surveys and inspections for the detection and control of pests injurious to plants; and to make, modify, and enforce reasonable rules, including imposing quarantines, to prevent and control the importation into or movement of plants or other material within this state as needed to prevent or control the introduction, establishment and spread of injurious plant pests. The department is proposing to adopt these rules, under authority of s. 227.11 (2) (a) (intro.), by the permanent rulemaking process. Related Statutes and Rules
The department has adopted rules regulating a variety of plant pests under ch. ATCP 21, Wis. Adm. Code. This proposed rule amends ch. ATCP 21, by removing restrictions related to preventing and controlling infestations of the pine shoot beetle, emerald ash borer, and thousand cankers diseases; by revising restrictions related to preventing and controlling infestations or infections caused by the hemlock woolly adelgid and Phytophthora ramorum; and by adding restrictions to prevent and control infestations of the introduced, invasive insect pests known as the spotted lanternfly and the elongate hemlock scale. Plain Language Analysis
The department identified ss. ATCP 21.12 and 21.17 as obsolete or unnecessary rules in a report filed with the Joint Committee for Review of Administrative Rules pursuant to s. 227.29. Stats. Section ATCP 21.12 is no longer necessary, as the entire state was added to the federal pine shoot beetle (PSB), Tomicus piniperda, quarantine in 2006 prior to its federal deregulation in 2020, and because no severe impacts of this pest have been observed in Christmas tree fields. The quarantine for emerald ash borer (EAB), Agrilus planipennis, provided by s. ATCP 21.17 is no longer necessary, as the entire state was added to the federal EAB quarantine in 2018 before it was federally deregulated in 2021, and because this pest has now been detected in 65 of Wisconsin’s 72 counties. Section ATCP 21.17 was enacted in 2008 and helped slow the spread of EAB while effective chemical controls like emamectin benzoate were developed, ash was removed and municipal urban forests were diversified, hazard trees were removed in high-use areas like campgrounds, and biocontrols were developed and released, including the larval parasitoids Spathius galinae and Tetrastichus planipennisi. The department also recommends the removal of s. ATCP 21.21, which establishes restrictions on walnut Juglans trees and other regulated articles due to concerns about thousand cankers disease, caused by the walnut twig beetle Pityophthorus juglandis and Geosmithia morbida fungal disease complex, following conferral with central plant board states, new science showing broad distribution of the pathogen, and lack of observed tree mortality or other serious impacts of this disease east of the Mississippi River. This proposed order repeals these obsolete rules. Hemlock woolly adelgid Adelges tsugae (HWA) is a tiny, aphid-like insect that has caused widespread hemlock mortality since being introduced into eastern North America from Japan in the 1950’s. While it has also been introduced into western North America, western and mountain hemlock trees are resistant to HWA damage. It has not been found in Wisconsin to date, although it has established in five coastal counties in lower Michigan, and department staff intercepted over 900 HWA-infested hemlock seedlings that were sent to our state from an online retailer located in the southeastern part of the infested area in 2017. HWA crawlers spread to new areas aided by wind, birds, humans, and other mammals. Because populations are comprised entirely of asexually reproducing females that lay 100-300 eggs per individual and have two generations per year, HWA can build numbers quickly. HWA adults and nymphs are immobile and feed at the base of hemlock needles on branch undersides from late fall to early summer, secreting woolly wax as they feed on sap. This disrupts nutrient storage and transfer, often killing hemlocks within 10 years. HWA threatens Wisconsin’s hemlocks, which, according to the WI DNR, are most prevalent in the northeast, which includes about 81% of the 445 million cubic feet of growing stock, with the remaining 17% occurring in central Wisconsin, especially in unglaciated areas, and 2% in southeastern areas near Lake Michigan. Hemlocks are evergreen, shade-tolerant and long-lived trees that often grow on streambanks. Although hemlock is not a major timber species, it is harvested for pulpwood, sawlogs and veneer. Hemlock is considered a keystone species due to the fact that it moderates water temperatures, reduces erosion, and provides habitat for numerous wildlife species, including birds, fish, insects and mammals. The department seeks to revise s. ATCP 21.16, related to hemlock woolly adelgid import controls, in order to add Alaska to the list of states or areas within states known to be infested with hemlock woolly adelgid, and to add a quarantine to enable us to reduce its spread within the state, should it become established in Wisconsin. Phytophthora ramorum (P. ramorum) is a water mold fungus that causes sudden oak death, an incurable disease that has caused bleeding cankers and dieback that has killed millions of tanoak Lithocarpus densiflorus, coast live oak Quercus agrifolia, and California black oak Quercus keloggii trees in California and Oregon forests where it has been introduced and established. P. ramorum leaf blight and stem infections travel on nursery stock or contaminated irrigation water to spread the disease to new areas. P. ramorum infects over 70 species and cultivars of popular nursery ornamentals, including rhododendron Rhododendron spp., viburnum Viburnum spp., lilac Syringa vulgaris, and mountain laurel Kalmia spp.. Although P. ramorum was detected on rhododendron that was shipped to a Wisconsin nursery in 2019, this disease is not established on the landscape. The department seeks to revise s. ATCP 21.19, related to P. ramorum import controls and quarantine, by removing the list of restricted nursery stock genera and replacing it with the list of host plant taxa identified by USDA APHIS in the code of federal regulations as being proven hosts or plants associated with P. ramorum. Including this code reference rather than a specific list of restricted genera will prevent discrepancies between the state and federal regulations and allow for science-based updates that may result in host list changes without the need for state rule changes. Elongate hemlock scale, Fiorinia externa (EHS) is an introduced, invasive armored scale insect that feeds on a wide range of conifers, including balsam and Fraser fir, hemlock, and spruce species. EHS damages trees by using their threadlike mouthparts to remove nutrients from the mesophyll cells on the undersides of conifer needles, leading to needle yellowing, needle loss and predisposal to drought and other stressors, including HWA. EHS is hard to control with pesticides because mobile crawlers emerge throughout the season; because adult females, nymphs, and eggs are protected under hard waxy coverings; and because some systemic pesticides like imidacloprid that target vascular tissue do not kill this pest. EHS is relatively cold-tolerant and can survive for weeks on rooted and cut plant material. The department has intercepted this pest over 40 times on hemlock nursery stock, fir Christmas trees, and fir wreaths and holiday décor imported from eastern states since 2014. Although EHS has never been detected on the landscape in Wisconsin, this pest has been confirmed to be established in the states of Connecticut, Delaware, Georgia, Kentucky, Maine, Maryland, Massachusetts, Michigan, New Hampshire, Ohio, New Jersey, New York, North Carolina, Ohio, Pennsylvania, Rhode Island, South Carolina, Tennessee, Virginia, West Virginia; and the District of Columbia since being introduced into the US from Japan in 1908. The department seeks to create s. ATCP 21.23 related to elongate hemlock scale import controls and quarantine, in order to regulate plant products and other items that might spread this harmful, invasive pest into or within our state, where it would threaten Christmas tree growers, nursery stock and native hemlock and balsam fir forests. According to the Wisconsin Department of Natural Resources (DNR), over 424 million cubic ft. of balsam fir growing stock are present in the state, with 96% of growing stock concentrated in northern Wisconsin, mostly in mesic to wet mesic habitat types. Although balsam fir is not a major timber species, it provides important habitat for birds and other wildlife and it is important in Christmas tree, wreath and pulpwood production. 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 7 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 or thousand cankers disease. Summary of Public Comments Received during Hearing and Comment Periods
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.
Comment Period on the Economic Impact Analysis
The economic impact analysis was posted for 15 days, with comments accepted through February 11, 2022. No comments were received.
Public Hearing and Comment Period on the Preliminary Rule Draft
The department held public hearings on the preliminary rule draft on April 6, 2022 in Madison and on April 7, 2022 in Wausau. A virtual participation option was available via Zoom for both public hearings but no members of the public used this platform to provide oral testimony or written feedback on the proposed draft rule change. Two individuals, Jeff Edgar, of Silver Creek Nurseries, and Dean Lemke, of Wisconsin Christmas Tree Producers Association, were recorded as having registered and appeared in support of the preliminary rule draft during the public hearings, but neither spoke or submitted written comments. The department accepted comments in writing until April 26, 2022, but no comments were received in that timeframe.
The department also received information from federal and state partners following the public comment deadline that resulted in modifications to the proposed draft rule text. Specifically, after learning that the spotted lanternfly was not being effectively contained by existing state quarantines, that surrounding states and federal partners were not planning to quarantine this pest, and that observed spotted lanternfly impacts have been lower than expected, the department opted to remove the proposed new quarantine for spotted lanternfly from the draft rule. Other factors that played into the decision included limited availability of its preferred host, tree-of-heaven in Wisconsin, and the fact that spotted lanternfly is unlikely to establish in the northern half of Wisconsin because of our cool climate. The department subsequently met internally and consulted with Advisory Committee members associated with tribes (Wisconsin Tribal Conservation Advisory Council Executive Director Jeff Mears 06/16/22), grape growers (WI Grape Growers Association President Craig Carpenter 06/08/22), nurseries (WI Nursery and Landscape Association Board Member Ross Schwartz 06/08/22), and DNR (Invasive Forest Insects Program Coordinator Andrea Diss Torrance 06/07/22). These key partners agreed with the department’s rationale for withdrawing the proposal to create a quarantine rule for spotted lanternfly in Wisconsin. In the absence of a quarantine, the department plans to focus its limited resources on spotted laternfly outreach, survey and treatments, should spotted lanternfly be detected in this state.
Rules Clearinghouse
