EmR1508 The quarantine of Taylor County for the gypsy moth

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 21.10 (1) (b) and to create s. ATCP 21.1 0 (1) ( c ) , relating to the quarantine of Taylor C ount y for the gypsy moth .

Analysis Prepared by the Department

of Agriculture, Trade and Consumer Protection

This emergency rule creates a quarantine for Taylor County for the gypsy moth (“ GM ”). Under this rule, the Department of Agriculture, Trade and Consumer Protection (“DATCP”) quarantines Taylor County to restrict the movement of GM from generally infested areas to other areas of Wisconsin and to other states.

DATCP is adopting this temporary emergency rule pending the adoption of a parallel federal regulation to quarantine Taylor County . 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

Statutes Interpreted: ss. 93.07 (12) and 94.01 , Wis. Stats.

Statutory Authority

Statutory Authority : ss. 93.07 (1) , 93.07 (12) , 94.01 and 227.24 , Wis. Stats.

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. U nder s. 94.01 (1) , Wis. Stats., DATCP may 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 . 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

G ypsy moth is a highly destructive insect pest of approximately 500 species of trees and shrubs. This insect has the potential to defoliate entire stands of forest, shade , and commercial trees such as nursery stock and Christmas trees. A ny infestation of GM can result in substantial losses both to forest ecosystems and to urban trees, as well as to Wisconsin’s vital tourism and timber industries. In the United States, GM has defoliated an estimated 30 million forest hectares since 1970, and has cost millions of dollars annually in losses to the timber and nursery industries and local municipalities .

DATCP conducts annual trapping surveys for Lymantria dispar , the g ypsy m oth (GM). The 201 4 survey in Taylor County showed that current and projected GM populations there have reached the threshold level to trigger implementation of further regulatory measures. Since 2013 , multiple trap sites in Taylor County have caught over 100 individual moths, with an av erage trap count of 19 in 201 4 . These counts represent a six - fold increase from 2011 . The survey data indicate that reproducing populations of GM now exist at significant levels in Taylor County . E radication is no longer feasible ; targeted area treatments were last applied in 2013, and no further treatments are planned for Taylor County . The s e findings support the need for a quarantine to limit GM movement and to prevent the artificial spread of thi s infestation .

This emergency rule creates a DATCP quarantine for Taylor County. Gypsy moth quarantines created by this rule are part of an overall state strategy to prevent and control plant pest infestations, including GM infestations. A parallel federal quarantine will be enacted approximately six to eight weeks after a formal submission by the state plant regulatory official.

Emergency Rule Content

Under this emergency rule, movement of all logs, timbers, and firewood of any type , plus movement of any wood y nursery stock or Christmas trees out of Taylor County is prohibited with certain exceptions. The emerge ncy rule will do the following:

 Create a quarantine for GM for Taylor County that prohibits the movement of all trees, woody shrubs, cut Christmas trees, logs, pulpwood, slabwood, firewood or wood chips out of Taylor County or any contiguous GM quarantined counties

 Prohibit any common carrier from transporting any used outdoor household item out of Taylor County or any contiguous GM quarantined counties.

 Provide an exemption for articles that have been inspected and certified by a pest control official or trained inspector and are accompanied by a written certificate issued by that official or inspector.

 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 s. ATCP 21.1 0 and 7 CFR 301. 45 , on the observations of D A TCP nursery inspectors, and on conversations with stakeholders in the nursery and other 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 and dealers operating in Taylor County . Based on previous and ongoing work with Wisconsin’s g ypsy m oth and firewood certification programs , DATCP staff also identified known saw mills, loggers, wood products companies and firewood ind ustry concerns. Finally, online Yellow Pages 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 nursery stock, hardwood firewood or timber materials in Taylor County. The affected businesses are all small businesses. This emergency rule restricts the sale or distribution of nursery trees, Christmas trees, timber and raw wood products plus any hardwood firewood from Taylor County to locations outside of th is county or any contiguously quarantined counties, and to neighboring states.

The business impact of this emergency rule depends on the number of 1) nurseries that sell/distribute nursery stock or Christmas trees outside thi s county , 2) firewood producers/dealers t hat sell/distribute outside this count y , 3) loggers and sawmills that move untreated timber or raw wood products outside th is count y , and 4) untreated wood waste ( e.g . brush, chips or mulch) that is moved outside th is count y .

Taylor County has a total of 11 licensed nursery growers and dealers that could possibly transport nursery stock and 19 licensed Christmas tree growers . Those growers will not be able to move or sell nursery stock and Christmas trees outside of the quarantine area without a compliance agreement with DATCP or with the U.S. Department of Agriculture ’s Animal and Plant Health Inspection Service (“ APHIS ”) that authorizes movement of nursery stock and cut Christmas trees outside of the quarantine only when there is assurance that the movement will not spread GM to non-quarantined locations.

There are also an estimated 13 firewood dealers in Taylor County. Firewood dealers would need to be certified under s. ATCP 21.20 to sell or move 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 regulated insect pests .

There are an estimated 13 lumber mills in Taylor County and an estimated 11 other tree service/wood processing facilities that may also deal with woody material. T hese businesses also will have to enter into a compliance agreement t o transport logs, timber or raw wood products outside of the quarantine area.

Businesses with compliance agreements can self-inspect regulated articles moved from quarantine areas. State or Federal officials will provide inspection and certification services to businesses without compliance agreements at no additional cost. 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 negative impact on the environment. By reducing the spread of gypsy moth, this emergency rule is expected to have a net positive impact on Wisconsin’s forested environments and treescapes.

Federal and Surrounding State Programs

Federal Programs

Under the federal Plant Protection Act of 2000 , APHIS has responsibility for excluding, eradicating and controlling serious plant pests, including GM . APHIS has instituted statewide quarantines on the movement of all regulated materials for Connecticut, Delaware, Maryland , Massachusetts , Michigan , New Hampshire, New Jersey, New York, Pennsylvania , Rhode Island and Vermont , in addition to portions of Illinois , Indiana , Maine, Minnesota, North Carolina, Ohio , Virginia and West Virginia . APHIS has also enacted quarantines for Adams, Ashland, Bayfield , Brown , Calumet , Clark , Columbia , Dane , Dodge , Door , Florence , Fond du Lac , Forest , Green Lake , Iowa, Iron , Jackson , Jefferson , Juneau , Kenosha , Kewaunee , Langlade , Lincoln , Manitowoc , Marathon , Marinette , Marquette , Menominee , Milwaukee , Monroe , Oconto , Oneida , Outagamie , Ozaukee , Portage , Price , Racine , Rock , Sauk , Shawano , Sheboygan , Vilas , Walworth , Washington , Waukesha , Waupaca , Waushara , Winnebago and Wood Counties in Wisconsin. The quarantines include restrictions on the movement of firewood .

Surrounding State Programs

Surrounding states where GM has been identified (Illinois, Indiana, Michigan and Minnesota ) 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:

Christopher Deegan

Department of Agriculture, Trade and Consumer Protection

P.O. Box 8911

Madison, WI 53708-8911

Telephone: [phone]

E-Mail: [e-mail]

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) Gypsy moth (GM) is an exotic , invasive pest that poses a serious risk to Wisconsin’s forest , shade and commercial trees . The 201 4 DATCP survey in Taylor County shows that current and projected GM populations in that county have reached the threshold level to trigger implementation o f further regulatory measures. Since 201 3 , multiple trap sites in Taylor County have caught over 100 individual moths, with an average trap count of 19 in 201 4 (a six -fold increase from 2011). The survey data indicate that reproducing populations of GM now exist at significant levels in Taylor County . Eradication is no longer feasible; targeted area treatments were last applied in 2013, and no further treatments are planned for Taylor County . This evidence supports the need for a quarantine to limit movement from this infestation . When APHIS declares a quarantine, DATCP has regulatory authority for import controls and quarantine for GM under s. ATCP 21.1 0 . It is anticipated that APHIS will declare a quarantine for Taylor County but that it will take six to eight weeks for APHIS to act. A six week delay until enactment of the federal quarantines leaves too much time for businesses or individuals to move potentially GM infested material out of thi s count y to areas of Wisconsin or other states that are not infested with GM .

(2) DATCP is adopting this rule as a temporary emergency rule, pending completion of federal quarantine regulations. DATCP does not anticipa te completing a permanent rule.

EMERGENCY RULE

SECTION 1. ATCP 21.10 (1) (b) is amended to read:

ATCP 21.10 (1) (b) E x cept as provided under sub. (3), no person may m ove any trees, woody shrubs, cut Christmas trees, logs, pulpwood, slabwood, firewood or wood chips out of any area of this state which the United S tates department of agriculture has designated as a gypsy moth regulated area under 7 CFR 301. 45 - 2 or out of a gypsy moth regulated area identified in (c) .

SECTION 2. ATCP 21.10 (1) ( c ) is created to read:

ATCP 21.10 (1) ( c ) Taylor County is designated a gypsy moth regulated area .

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 , Wis. Stats.