Explanation of Statutory 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 adopt regulations to prevent and control plant pest infestations. The Department is proposed to adopt this rule, under authority of s. 227.24, Stats., 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, Wis. Adm. Code, by adding restrictions, related to preventing and controlling infestations of the mountain pine beetle. Plain Language Analysis
Background
The mountain pine beetle, Dendroctonus ponderosae Hopkins, has been described as the most destructive pest of mature pines in North America. Its major host species are ponderosa, lodgepole, and western white, but mountain pine beetle has been recorded attacking at least a half-dozen other pine species including jack and red pine. The most recent unprecedented outbreak of mountain pine beetle spread over 88 million acres of pine forests in Colorado, Wyoming, Idaho, Montana, and South Dakota, as well as the Canadian provinces of Alberta and British Columbia. Estimates of pine mortality in infested forests can reach 80%.
Red pine, jack pine, and eastern white pine are the most common commercially significant pine species in Wisconsin. Recent research indicates all three species to be viable hosts for the mountain pine beetle. According to the Wisconsin Department of Natural Resources (DNR), over 3.5 billion cubic feet of pine growing stock is present in the state. Wisconsin’s State Forests are dominated by pine forest types, occupying about 22% of total state timberland area (an estimated 43 million trees on state land alone). As a whole, pine species comprise about 10.7% of Wisconsin’s forest areas. About 59 million cubic feet of Wisconsin pine are removed as timber annually, accounting for 23% of the total annual commercial timber harvest. The current annual stumpage value of Wisconsin’s pine resource is estimated by DNR to be about $38 million. That number climbs to over $70 million if processed or finished pine products are included.
While the mountain pine beetle is native to North America, it historically has been limited in distribution to western pine forests from Mexico to central British Columbia. To date, no mountain pine beetle populations have been found in the United States east of the Black Hills area of South Dakota.
The most common pathway for introduction of the mountain pine beetle is in untreated or raw pine wood with the bark still on, including logs, burls, stumps, firewood, green lumber, wood chips, and wood packing material. Movement of untreated pine wood from western states to the east is uncommon, but can occur. Pulp mills, saw mills, and campgrounds may be the most likely pathways for the eastern movement of the mountain pine beetle. Natural spread is another potential pathway as presented by the recent expansion of this pest’s range eastward into the Canadian province of Alberta.
The mountain pine beetle may be spread by the movement of firewood, unfinished or untreated pine wood with bark, and products. Subject to certain exemptions, this rule establishes a Department quarantine restricting the movement of host materials, potentially infested with mountain pine beetle, into Wisconsin, if those materials originated from or were exposed to the environment in an area where the mountain pine beetle is known to exist. This rule will establish a quarantine for these materials, potentially infested with the mountain pine beetle, in order to protect the forest pine resource and forest products industry in Wisconsin.
Rule Content
Plant Pests; Import Prohibition
Under the proposed rule, no person may knowingly import the mountain pine beetle into this state, except pursuant to a special Department permit (for controlled scientific research or other limited purposes that pose no significant pest risk).
Host Materials; Import Prohibition
Under the proposed rule, no person may import any of the following host materials into Wisconsin from an infested nation, state, or area (as determined by the United States Department of Agriculture or respective state plant pest regulatory officials):
• Firewood from any species of tree.
• Wood or plant parts of the genus Pinus (pines). This prohibition applies, for example, to dimensional lumber with bark attached, logs, stumps, and branches.
Exemptions
Under the proposed rule, the prohibition against the importation of host materials does not apply to any of the following:
• Processed lumber which is 100% bark-free or kiln-dried.
• Finished wood products without bark (for example, finished furniture, home furnishings, or building materials).
• Pine Christmas trees.
• Pine nursery stock.
• Pine bark mulch or pulpwood chips.
• Materials that are accompanied by a written certificate, signed by a pest control official in the infested area, that describes the materials and states at least one of the following:
• The materials have not been exposed to the mountain pine beetle. The certificate must explain the basis for the official’s statement.
The materials have been effectively treated to destroy the mountain pine beetle. The certificate must specify the date and method of treatment.
• The materials have been produced, processed, stored, handled, or used under conditions, described in the certificate, that effectively preclude the transmission of mountain pine beetle.
• Materials imported in compliance with a written agreement between the importer and the Department. The agreement must include all of the following:
• The name and address of the importer
• The type and volume of material that may be imported under the agreement
• The locations from which the material may be imported under the agreement
• The names and addresses of the persons to whom, and the locations to which, the material may be imported under the agreement
• The method by which the material may be imported
• The time period covered by the agreement
• The importer’s commitment to keep complete records of each import shipment under the agreement, and to submit those records to the Department for inspection and copying upon request
• Specific import terms and conditions that will, in the Department’s opinion, effectively ensure that materials imported pursuant to the agreement will not introduce mountain pine beetle into this state
• A provision authorizing the Department to terminate the agreement without prior notice, for any reason
Federal and Surrounding State Programs
Federal Programs
The Animal and Plant Health Inspection Service of the United States Department of Agriculture (APHIS) has not issued any quarantine for the mountain pine beetle. APHIS does not restrict imports from other nations, because the mountain pine beetle is native to North America. Federal law does not prevent Wisconsin from taking regulatory action to prevent the mountain pine beetle from spreading to this state.
Surrounding State Programs
The State of Minnesota recently adopted regulations (January 2015) to prevent the spread of mountain pine beetle across its borders. Recent inquiries regarding the transport of beetle-killed western pine into Wisconsin and neighboring states has prompted additional states (including Wisconsin and Michigan) to consider import restrictions to prevent the spread of this pest. Current regulations in Minnesota are not substantively different than this proposed draft rule. Michigan has not enacted any regulations to date.
Data and Analytical Methodologies
This rule is based on generally-accepted plant disease information from reliable sources, including USDA APHIS and the USDA Forest Service.
