Rule-Making Notices (Hearing Notices)

rulemaking_notices Wisconsin Administrative Register No. 681, 9/30/2012

Rule-Making Notices

Notice of Hearing

Agriculture, Trade, and Consumer Protection

rulemaking_notices EmR1211 EmR1211

Rule Related to Plant Pest Import Controls and Quarantine

The state of Wisconsin Department of Agriculture, Trade and Consumer Protection (DATCP) announces that it will hold a public hearing on its emergency rule, revising section ATCP 21.17, Wis. Adm. Code, relating to the quarantine of Trempealeau County for the emerald ash borer.

Hearing Information

DATCP will hold a public hearing at the time and place shown below.

Date:   Friday, October 12, 2012

Time:   1:00 p.m.-3:00p.m.

Location:   Department of Agriculture, Trade and         Consumer Protection
  Conference Room 172 (1st Floor across from   main entrance)
  2811 Agriculture Drive
  Madison, WI 53718

Accessibility

Hearing impaired persons may request an interpreter for this hearing. Please make reservations for a hearing interpreter by October 9, 2012, by writing to Barbara Stalker, Division of Agricultural Resource Management, P.O. Box 8911, Madison, WI 53708-8911, telephone [phone]. Alternatively, you may contact the DATCP TDD at [phone]. The hearing facility is accessible to disabled users.

Appearances at the Hearing and Submittal of Comments

DATCP invites the public to attend the hearing and comment on the emergency rule. Following the public hearing, the hearing record will remain open until Friday, October 19, 2012, for additional written comments. Comments may be sent to the Division of Agricultural Resource Management at the address below, to [e-mail] or at
http://adminrules.wisconsin.gov.

To provide comments or concerns relating to small business, please contact DATCP's small business regulatory coordinator, Keeley Moll, at the address above, by emailing [e-mail] or by telephone at [phone].

Copies of the Rule

You may obtain a free copy of this emergency 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 [phone] or emailing [e-mail]. Copies will also be available at the hearing. To view the emergency rule online, please go to: http://adminrules.wisconsin.gov.

Analysis Prepared by the Department of Agriculture, Trade and Consumer Protection

This emergency rule creates a quarantine for Trempealeau County for emerald ash borer (EAB). Under this rule, the Department of Agriculture, Trade and Consumer Protection (DATCP) quarantines Trempealeau 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 Trempealeau County. The 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.

Statutes interpreted

Sections 93.07 (12) and 94.01, Stats.

Statutory authority

Sections 93.07 (1), 93.07 (12), 94.01 and 227.24, Stats.

Explanation of statutory authority

The Wisconsin Department of Agriculture, Trade and Consumer Protection (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.

Background

The United States Department of Agriculture-Animal and Plant Health Inspection Services (APHIS) positively identified EAB in Trempealeau County at Perrot State Park on August 16, 2012. This emergency rule creates a DATCP quarantine for Trempealeau County. Federal quarantines will be enacted approximately six to eight weeks after a formal submission by the state plant regulatory official. Emerald ash borer 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 this county to areas of Wisconsin or other states that are not infested with EAB.

Emerald ash borer is an injurious exotic pest that now endangers Wisconsin's 750 million ash trees and ash tree resources. This insect has the potential to destroy entire stands of ash, and any incursion of emerald ash borer can result in substantial losses to forest ecosystems and urban trees, as well as the state's thriving tourism and timber industries. The emerald ash borer has killed over fifty million trees in the Midwest and has cost several hundred million dollars annually in losses to the woodlot, nursery and landscape industries. The United States Department of Agriculture predicts the national urban impact from this pest could 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

The emergency rule will do the following:

•   Create a quarantine of emerald ash borer for Trempealeau County that prohibits the movement of all hardwood species of firewood, and 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.

•   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.

Federal and surrounding state programs

Federal Programs

Under the federal Plant Protection Act, APHIS has responsibility for excluding, eradicating and controlling serious plant pests, including emerald ash borer. APHIS has instituted statewide quarantines on the movement of all ash wood for Illinois, Indiana, Ohio, Pennsylvania, Virginia and West Virginia, in addition to portions of Iowa, Kentucky, Maryland, Michigan, Minnesota, Missouri and New York. APHIS has also instituted quarantines for Brown, Rock, Walworth, Kenosha, Racine, Milwaukee, Waukesha, Ozaukee, Washington, Sheboygan, Fond du Lac, La Crosse, Vernon and Crawford Counties in Wisconsin. The quarantines include restrictions on the movement of any hardwood (non-coniferous) firewood.

Surrounding State Programs

Surrounding states where emerald ash borer has been identified (Illinois, Indiana, Iowa, Minnesota and Michigan) have state and federal quarantines that prohibit the movement of regulated articles out of quarantined areas. A regulated article can only move out of quarantined areas after it is certified by USDA or state officials.

Fiscal Impact

DATCP will have additional workload related to enforcing the quarantines but it will be able to absorb the projected workload and costs within DATCP's current budget and with current staff. The presence of emerald ash borer may produce additional workload for local governments in Trempealeau County, but the quarantines will not themselves produce any local fiscal impact.

Business Impact

This emergency rule may have an impact on persons or companies that deal in any hardwood firewood or ash materials in Trempealeau County. The affected businesses are all small businesses. This emergency rule restricts the sale or distribution of ash products plus any hardwood firewood from Trempealeau County to locations outside of the contiguously quarantined counties of La Crosse, Vernon and Crawford.

The business impact of this emergency rule depends on the number of nurseries that sell/distribute ash nursery stock outside the county, firewood producers/dealers that sell/distribute outside the county, saw mills that move untreated ash stock outside the county, and green wood waste that is moved outside the county.

Trempealeau County has a total of eight licensed nursery growers that could possibly be growing ash nursery stock. Those growers will not be able to sell ash nursery stock outside of the contiguous quarantine area of western Wisconsin, though discussions with the Wisconsin Nursery Association indicate that few, if any, nurseries continue to sell ash trees. There are no known firewood dealers in Trempealeau County. Firewood dealers would need to be certified under s. ATCP 21.20 to sell firewood outside of the contiguous quarantine area. To obtain certification a firewood dealer pays a $50 annual certification fee to DATCP and treats the firewood in a manner that ensures it is free of EAB. There are three sawmills (non-veneer) in Trempealeau County and an unknown number of wood processing facilities that deal with ash. To sell ash wood products outside of the contiguous quarantine area they will need to enter into a compliance agreement with DATCP or APHIS that authorizes movement of ash products outside of the quarantine only when there is assurance that the movement will not spread EAB to other locations.

Environmental Impact

This emergency rule will not have a significant impact on the environment.

DATCP Contact

Questions and comments (including hearing comments) related to this rule may be directed to:

Brian Kuhn or Christopher Deegan

Department of Agriculture, Trade and Consumer Protection

P.O. Box 8911

Madison, WI 53708-8911

Telephone [phone] or [phone]

E-Mail: [e-mail] or
[e-mail]