WISCONSIN DEPARTMENT OF AGRICULTURE,
TRADE AND CONSUMER PROTECTION
EMERGENCY RULE
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
Adams, Buffalo, Calumet, Juneau, Kewaunee,
Manitowoc, Oneida
and Outagamie
Counties
for
the
emerald ash borer
beetle
.
Analysis Prepared by the Department
of Agriculture, Trade and Consumer Protection
This emergency rule creates
a
quarantine for
Adams, Buffalo, Calumet, Juneau, Kewaunee,
Manitowoc, Oneida
and Outagamie
Counties
for
the
emerald ash borer
beetle
(“EAB”). Under this rule, the Department of Agriculture, Trade and Consumer Protection (“DATCP”) quarantines
Adams, Buffalo, Calumet, Juneau, Kewaunee,
Manitowoc, Oneida
and Outagamie
Counties
to mitigate the
risk of
movement of emerald ash borer to other areas of Wisconsin and
to
other states.
DATCP is adopting this temporary emergency rule pending the adoption of a federal regulation to quarantine
Adams, Buffalo, Calumet, Juneau, Kewaunee,
Manitowoc, Oneida
and Outagamie
Counties
. Th
is
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
Statutory Authority
Explanation of Statutory Authority
DATCP
has broad general authority, under s.
93.07 (1)
,
Wis.
Stats., to adopt regulations to enforce laws under its jurisdiction.
DATCP also has broad general authority under ss.
93.07 (12)
and
94.01
,
Wis.
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 adoptin
g this temporary emergency rule
under authority of s.
227.24
,
Wis.
Stats., pending the adoption of federal regulations on the same subject.
Background
The
United States Department of Agriculture – Animal and Plant Health Inspection Service (“APHIS”) positively identified EAB in
Adams County near Lake Petenwell in the Town of Monroe on July 31, 2014. APHIS subsequently identified EAB in Merrick State Park, Buffalo County, on August 5, 2014. On August 29, 2014, APHIS identified EAB in the Village of Sherwood, Calumet County, only four miles from the Outagamie County line.
On October 6, 2014, APHIS identified EAB in the city of Rhinelander, Oneida County
.
While EAB has not yet been positively identified in Juneau, Kewaunee,
Manitowoc
and Outagamie Counties, these four are now almost completely surrounded by the state EAB quarantine and are in relatively close proximity to existing infestations. It is likely that these four counties already contain some level of EAB infestation, and there is little economic or ecological benefit to maintaining their status outside of the EAB quarantine
.
This emergency rule creates
a DATCP quarantine
for
Adams, Buffalo, Calumet, Juneau, Kewaunee,
Manitowoc, Oneida
and Outagamie
Counties
.
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
n eight-
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
se
eight
count
ies
to areas of Wisconsin or
to
other states that are not infested with
EAB
.
E
AB
is an injurious exotic pest t
hat now endangers Wisconsin’s estimated 77
0 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
impacting
the state’s
vital
tourism and timber industries.
The emerald ash borer has killed over fifty million trees in the Midwest and
has cost
several hundred
million
dollars
in losses to
the
woodlot
, nursery,
and
landscape industries
and
to
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
,
Wis.
Stats., to adopt rules establishing quarantines or other restrictions on the importation or movement of
plants or other materials
into and
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
Adams, Buffalo, Calumet, Juneau, Kewaunee,
Manitowoc, Oneida
and Outagamie
Counties
,
is prohibited
with certain exceptions. The emergency rule will do the following:
Create
a
quarantine
for EAB
for
Adams, Buffalo, Calumet, Juneau, Kewaunee,
Manitowoc, Oneida
and Outagamie
Counties
that prohibit
s
the movement of
regulated articles, including 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 th
e
s
e
count
ies
or any
contiguous
EAB
quarantined
counties
.
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
affected
area
.
This analysis was based on the regulatory language of
s.
ATCP 21.17
and
7 CFR
301.53
, on the observations of
D
A
TCP
Plant Industry Bureau staff
, and on conversations with stakeholders in the nursery and tim
b
er-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
Adams, Buffalo, Calumet, Juneau, Kewaunee,
Manitowoc, Oneida
and Outagamie
Counties
.
Based on previous and ongoing work with Wisconsin’s Gypsy Moth and firewood certification programs
, DATCP staff also identified known
sawmills,
wood products
companies
and firewood ind
ustry concerns. Finally, online
business listings were also searched to find related tree nursery, timber, firewood and tree service companies.
Business Impact
This emergency rule may have an impact on persons or companies that deal in any hardwood firewood or ash materials in
Adams, Buffalo, Calumet, Juneau, Kewaunee,
Manitowoc, Oneida
and Outagamie
Counties
. The affected businesses are all small businesses. This emergency rule
restricts the sale or distribution of ash trees, ash wood products, and any hardwood firewood from
Adams, Buffalo, Calumet, Juneau, Kewaunee,
Manitowoc, Oneida
and Outagamie
Counties
to locations outside of the
s
e
count
ies
or
outside
any
contiguously
quarantined counties
.
The business impact of this emergency rule depends on the
quantity
of
:
1) nurseries that sell or distribu
te ash nursery stock outside the
s
e
count
ies
,
2) firewood producers/dealers that sell or distribute
firewood
outside the
se
count
ies
,
3) sawmills that move untreated ash stock (green lumber) outside the
se
count
ies
, and
4) untreated wood waste (e.g. ash brush, chips or mulch) that is moved outside the
se
count
ies
.
Adams, Buffalo, Calumet, Juneau, Kewaunee,
Manitowoc, Oneida
and Outagamie
Counties
ha
ve
a total of
39
licensed nursery growers that could possibly be growing ash nursery stock.
Those growers will not be able to
move or
sell ash nursery stock outside of the
quarantine area, though discussions with the Wisconsin Nursery
and Landscape
Association indicate that few, if any, nurseries continue to sell ash trees
.
There are
also
an estimated
58
known firewood
producers or
dealers in
these
eight
c
ount
ies
.
Firewood dealers would need to be certified under s.
ATCP 21.20
, Wis. Admin. Code,
to sell
or move
firewood outside of the
quarantine area
.
To obtain certification
,
a
n inspected
firewood dealer pays a $50 annual fee to DATCP and treats the firewood in a manner that ensures it is free of EAB.
There
are
59
known
lumber mill
s
in
these
eight
c
ounties
and an
estimated
67
other
tree service/
wood processing facilities that
may also
deal with ash
.
To
transport
ash wood products outside of
the
quarantine area
,
they will have 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
non-quarantined
locations.
Certification and compliance agreements will require some additional recordkeeping on the part of those businesses.
Environmental Impact
This emergency rule will not have a significant impact on the environment.
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
EAB
.
APHIS has instituted statewide quarantines on the movement of all ash wood for Illinois, Indiana
,
Iowa
,
Kentucky
,
Missouri,
New Jersey,
Ohio, Pennsylvania
, Virginia
and West Virginia, in addition to portions of
Arkansas,
Colorado,
Connecticut,
Georgia,
Kansas,
Maryland,
Massachusetts,
Michigan, Minnesot
a
, New Hampshire, New York
, North Carolina
and Tennessee
. APHIS has also
enacted
quarantines for
Brown, Columbia, Crawford, Dane, Dodge, Door, Douglas, Fond du Lac, Grant, Green, Iowa, Jefferson, Kenosha, La Crosse, Lafayette, Milwaukee, Monroe, Ozaukee, Racine, Richland, Rock, Sauk, Sheboygan, Trempealeau, Vernon, Walworth, Washington, Waukesha and Winnebago
Counties in Wisconsin. The quarantines include restrictions on the movement of any hardwood
(non-coniferous)
firewood
.
Surrounding State Programs
Surrounding states where
EAB
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.
DATCP Contact
Questions and 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: (608) 224-4590 or (608) 224-4573
Rule comments will be accepted up to two weeks after the last public hearing is held on this rule. Hearing dates will be scheduled after this emergency rule is approved by the Governor and published in the Wisconsin State Journal.
FINDING OF EMERGENCY
(1)
T
he
United States Department of Agriculture – Animal and Plant Health Inspection Service (“APHIS”) positively identified E
merald
A
sh
B
orer (“EAB”)
in
Adams County near Lake Petenwell in the Town of Monroe on July 31, 2014. APHIS subsequently identified EAB in Merrick State Park, Buffalo County, on August 5, 2014. On August 29, 2014, APHIS identified EAB in the Village of Sherwood, Calumet County, only four miles from the Outagamie County line.
On October 6, 2014, APHIS identified EAB in the
C
ity of Rhinelander, Oneida County.
While EAB has not yet been positively identified in Juneau, Kewaunee,
Manitowoc
and Outagamie Counties, these four are now almost completely surrounded by the state EAB quarantine and are in relatively close proximity to existing infestations. It is likely
that these four counties already contain some level of EAB infestation, and there is little economic or ecological benefit to maintaining their status outside of the EAB quarantine
.
E
AB
is an exotic
, invasive
pest that poses a dire risk to the ash forest. When APHIS declares quarantine, DATCP has regulatory authority for import controls and quarantine for
EAB
under
s.
ATCP 21.17
, Wis. Admin. Code
. It is anticipated that APHIS will declare
a
quarantine for
Adams, Buffalo, Calumet, Juneau, Kewaunee,
Manitowoc, Oneida
and Outagamie
Counties
but that it will take
six
to eight
weeks for APHIS to act. A
n eight-
week delay until enactment of the federal quarantines leaves too much time for businesses or individuals to move potentially
EAB
infested material out of thi
s
count
y
to areas of Wisconsin or other states that are not infested with
EAB
.
(2)
DATCP is adopting this rule as a temporary emergency rule, pending completion of federal quarantine regulations. DATCP does not anticipate completing a permanent rule.
EMERGENCY RULE
SECTION 1.
ATCP 21.17 (1) (b) is amended to read:
ATCP 21.17 (1) (b)
Move any regulated item under sub. (2)
o
ut of an emerald ash borer regulated area that is identified in
7 CFR 301.53
-
3
and located in this state
or out of an emerald ash borer regulated area identified in (c)
or (d)
.
SECTION 2.
ATCP 21.17 (1) (
d
) is created to read:
ATCP 21.17 (1) (
d
)
Adams, Buffalo, Calumet, Juneau, Kewaunee,
Manitowoc, Oneida
and Outagamie
Counties
are
designated
a
s
e
merald ash borer regulated area
s
.
SECTION 3.
EFFECTIVE DATE:
This emergency rule takes effect upon publication, and remains in effect for 150 days. The department may seek to extend this emergency rule as provided in s.
227.24
, Stats.
