atcp021_EmR0913.pdf Agriculture, Trade and Consumer Protection – Revises Ch. ATCP 21 – EmR0913
Publication Date: August 22, 2009
Effective Dates: August 22, 2009 through January 18, 2010
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) (c), relating to the quarantines of Brown County and Kenosha County for emerald ash borer.
Analysis Prepared by the Department of Agriculture, Trade and Consumer Protection
This emergency rule creates quarantines for Brown County and Kenosha County for the emerald ash borer. Under this rule, the Department of Agriculture, Trade and Consumer Protection (“DATCP”) quarantines Brown County and Kenosha 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 federal quarantines for Brown County and Kenosha County. This 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: ss. 93.07(12) and 94.01, Stats.
Statutory Authority: ss. 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 emerald ash borer 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 emerald ash borer in Brown County on July 24, 2009, and in Kenosha County on August 12, 2009. This emergency rule creates DATCP quarantines for Brown County and Kenosha County. A federal quarantine will be enacted approximately two to six weeks after a formal submission by the state plant regulatory official. Emerald ash borer is carried by untreated ash wood products. A two to six week delay until enactment of the federal quarantine leaves too much time for businesses or individuals to move potentially emerald ash borer infested material out of the county to areas of Wisconsin or other states that are not infested with emerald ash borer.
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. Efforts are currently underway in other states to eradicate emerald ash borer. Those efforts have proven to be costly, time-consuming, and not completely effective. In Michigan, emerald ash borer has caused an estimated $11.6 million in landscape industry and wood lot losses and approximately $2 million in lost nursery stock sales annually. 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
Under this emergency rule, movement of all hardwood (non-coniferous) firewood of any type plus movement of any ash wood out of Brown County and Kenosha County is prohibited with certain exceptions. The emergency rule will do the following:
· Create quarantines of emerald ash borer for Brown County and Kenosha County that prohibit the movement of all hardwood species of firewood, 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 county.
· 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 spells out what a company can and cannot do with regulated articles.
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 Brown County and Kenosha 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 Brown County or Kenosha County. The affected businesses are all small businesses. This emergency rule restricts the sale or distribution of ash products plus any hardwood firewood from Brown County and Kenosha County to locations outside of Brown County and Kenosha County.
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.
Brown County has 21 and Kenosha County has 17 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 county during the quarantine. Thirteen known firewood dealers have been identified in Brown County and 18 known firewood dealers have been identified in Kenosha County. They would need to be certified under s. ATCP 21.20 to sell firewood outside of the county. To obtain certification a firewood dealer will have to pay an annual certification fee to DATCP of $50 and treat the firewood in a manner that insures it is free of emerald ash borer. There is one veneer mill in Brown County and up to three wood processing mills in Kenosha County that deal with ash. To sell ash wood products outside of their counties they will have to enter into a compliance agreement with DATCP or APHIS that authorizes movement of ash products outside of their counties only when there is assurance that the movement will not spread the emerald ash borer to other locations.
Environmental Impact
This emergency rule will not have a significant impact on the environment.
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 and Ohio, in addition to the Lower Peninsula of Michigan. APHIS has also instituted quarantines for Ozaukee, Washington, Sheboygan, Fond du Lac, 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, Ohio, 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 Bob Dahl
Department of Agriculture, Trade and Consumer Protection
P.O. Box 8911
Madison, WI 53708-8911
Telephone: (608) 224-4590 or (608) 224-4573
E-Mail: Brian.Kuhn @wisconsin.gov or Robert.Dahl@wisconsin.gov
Finding of emergency
(1) On July 24, 2009, APHIS identified emerald ash borer in Brown County. On August 12, 2009, APHIS identified emerald ash borer in Kenosha County. Emerald ash borer is an exotic pest that poses a dire risk to the ash forest. When APHIS declares quarantine, DATCP has regulatory authority for import controls and quarantine for emerald ash borer under ATCP 21.17. It is anticipated that APHIS will declare quarantines for Brown County and Kenosha County but that it will take up to six 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 emerald ash borer infested material out of the county to areas of Wisconsin or other states that are not infested with emerald ash borer.
(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.
Text of 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) Out 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).
Section 2. ATCP 21.17 (1) (c) is created to read:
ATCP 21.17 (1) (c) Brown County and Kenosha County are designated emerald ash borer regulated areas.
