6 CRR-NY 192.7NY-CRR
6 CRR-NY 192.7
6 CRR-NY 192.7
192.7 Control of the emerald ash borer.
(a) Purpose, scope and applicability.
(1) The purpose of this Part is to establish quarantines to protect New York’s ash trees, forests, communities, homeowners, forest owners and forest industries from economic, environmental and social harm due to the death of ash trees caused by the invasive, exotic insect, emerald ash borer (Agrilus planipennis). The quarantines restrict the movement of emerald ash borer by regulating movement of host materials to slow the spread of this destructive pest into areas of New York State where it is currently not present, as part of the Department of Environmental Conservation’s forest insect and disease control responsibilities under ECL section 9-1303.
(2) The regulations set forth in this Part are complemented by similar provisions found in 1 NYCRR Part 141, which establishes the same quarantines under their authority.
For the purpose of this Part, the following words, names and terms shall be construed respectively, to mean:
(1) AML means the Agriculture and Markets Law.
(2) Authorized handler means any person who is granted a limited permit or certificate issued by NYSDAM or enters into a compliance agreement with NYSDAM.
(3) Ash means all Fraxinus species including green ash (Fraxinus pennsylvanica), white ash (Fraxinus americana), black ash (Fraxinus nigra), blue ash (Fraxinus quadrangulata) and any horticultural cultivar of these species.
(4) Buffer area means the zone surrounding the core area of emerald ash borer infestation, which begins at the outside boundary of the core area of infestation and extends outward for a distance of five miles.
(5) Certificate of inspection means a document issued under the authority of NYSDAM certifying the eligibility of products for intrastate movement under the requirements set forth in 1 NYCRR Part 141.
(6) Commissioner means the Commissioner of the Department of Environmental Conservation as well as meaning the commissioner's designated agent.
(7) Compliance agreement means a document issued by NYSDAM setting forth the requirements covering the restricted movement, processing, handling or utilization of regulated articles not eligible for certification for intrastate movement, which, if followed, permits the persons or firm executing the document to issue an inspection certificate or a limited permit pursuant to the terms of the document and this Part.
(8) Core area means the location of an EAB infestation, as determined by the department and confirmed by the NYSDAM, based upon the detection of the emerald ash borer and/or evidence of its activity in one or more of its life stages at that location.
(9) Department or DEC means the New York State Department of Environmental Conservation.
(10) Emerald ash borer or EAB means the insect known as the emerald ash borer, Agrilus planipennis, in any stage of development.
(11) Firewood means, only with respect to this section, ash wood, cut or not cut, split or not split, regardless of length, which is either in a form and size appropriate for use as fuel, or intended for use as fuel. Firewood does not include:
(i) kiln dried dimensional lumber;
(ii) wood that has been chipped; and
(iii) logs or wood being transported to or possessed by the following operations and facilities for use in their primary manufacturing process:
(a) sawmills for dimensional lumber;
(b) pulp and/or paper mills;
(c) wood pellet manufacturing facilities;
(d) plywood manufacturing facilities;
(e) wood biomass-using refineries or power plants;
(f) re-constituted wood or wood composite product manufacturing plants; and
(g) facilities treating firewood in accordance with department regulations.
(12) Infestation means the presence of the emerald ash borer in any life stage or as determined by evidence of activity of one or more of the life stages.
(13) Inspector means an inspector of NYSDAM, or cooperator from DEC or the United States Department of Agriculture (USDA), when authorized by NYSDAM to act in that capacity.
(14) Limited permit means a document issued under the authority of NYSDAM permitting the restricted movement of regulated articles from a quarantined area to a specified destination for specified processing, handling or utilization.
(15) Local government means a village, town, city or county.
(16) Moved; movement means shipped, offered or received for shipment, carried, transported, relocated into or through any area of the State.
(17) Nursery stock means all trees, shrubs, plants and vines and parts thereof.
(18) NYSDAM means the New York State Department of Agriculture and Markets.
(19) NYSDAM commissioner means the Commissioner of the Department of Agriculture and Markets.
(20) Person means any individual, firm, co-partnership, association or corporation other than the State or a public corporation, as the latter is defined in article 2A of section 66 of the General Construction Law. A person will also mean the State, a public corporation or a municipal subdivision when set forth in the terms of a cooperative agreement authorized by ECL section 9-1302(1) providing for the agreement of the aforementioned group to be subject to these regulations.
(21) Quarantine map or quarantine maps means an official map approved by NYSDAM, and promulgated pursuant to 1 NYCRR Part 141, which delineates the boundaries of the restricted zones within the State which are subject to the requirements set forth in this section.
(22) Regulated article means any ash material, living, dead, cut or fallen, inclusive of nursery stock, logs, firewood, green lumber, stumps, roots, branches and debris, and any wood material that is commingled and otherwise indistinguishable from the above. Notwithstanding the above:
(i) ash bark and mulch are not regulated articles; and
(ii) ash chips or chips indistinguishable from ash chips, regardless of size, are regulated articles only during the period commencing on April 15th and continuing up to and including May 15th.
(23) Restricted zone or restricted zones means a geographic area of the State delineated on the EAB quarantine map, promulgated in 1 NYCRR Part 141, which includes a core area of infestation, the buffer area and entire area of any town or city which has 30 percent or more of its total area falling within the respective core area and/or the buffer area.
(c) Establishment and amendment of quarantine maps.
The commissioner shall consult and cooperate with NYSDAM in the preparation of quarantine maps, or any amendment or adjustment thereto. The restricted zones on the quarantine maps shall be subject to confirmation by the NYSDAM and shall be promulgated pursuant to NYSDAM regulations, 1 NYCRR Part 141.
(d) Movement of regulated articles within restricted zones.
Regulated articles, including emerald ash borer infested material, may be moved, by any person, at any time, within a restricted zone, for processing, treatment, use or disposal at any other location within that same restricted zone provided the regulated article is eligible for unrestricted movement under all other State plant quarantines and regulations applicable to the regulated article.
(e) Restrictions on intrastate movement of regulated articles originating within or traveling through restricted zones.
(1) No person shall move:
(i) ash nursery stock from any restricted zone;
(ii) chips larger than one inch in two dimensions from the restricted zone during the period commencing on April 15th and continuing up to and including May 15th of each year; and
(iii) notwithstanding subparagraph (ii) of this paragraph, regulated articles (other than ash nursery stock) from any restricted zone to or through any point outside the restricted zone, unless:
(a) accompanied by a valid certificate of inspection; limited permit authorizing such movement, issued by NYSDAM; or administrative instructions of the NYSDAM commissioner; or
(b) for experimental or scientific purposes, on such conditions and under such safeguards as may be prescribed in writing by NYSDAM.
(2) Notwithstanding the above, regulated articles originating outside the restricted zone may be moved through a restricted zone, provided that:
(i) the points of origin and destination of the regulated articles are indicated on a waybill accompanying the regulated article; and
(ii) regulated articles are moved directly through the restricted zone without stopping, except for refueling and traffic conditions.
(f) Conditions governing compliance agreements for movement of regulated articles out of restricted zones.
(1) Persons engaged in growing, handling, or moving regulated articles intrastate may apply for a compliance agreement with NYSDAM, which agreement will authorize the person executing the agreement to issue certificates of inspection and limited permits without a NYSDAM inspection prior to shipment.
(2) Any person who enters into a compliance agreement with NYSDAM must agree to comply with the provisions of 1 NYCRR Part 141, this section and any conditions imposed under a NYSDAM compliance agreement.
(3) A compliance agreement shall be subject to NYSDAM’s acceptance in its sole discretion.
(4) Any compliance agreement may be cancelled by NYSDAM either orally or in writing, whenever an inspector determines, in his or her sole discretion, that the person who has entered into the compliance agreement has not complied with 1 NYCRR Part 141 or the conditions imposed under the compliance agreement. The cancellation shall take effect upon the giving of the oral notice or the delivery of the written notice. If the cancellation is oral, the cancellation and the reasons for the cancellation shall be confirmed in writing.
(g) Conditions governing certificates of inspection and limited permits for the movement of regulated articles out of restricted zones.
(1) An inspector or an authorized holder of a compliance agreement may issue a certificate of inspection for the movement of a regulated article out of a restricted zone, provided that the regulated article:
(i) is apparently free of emerald ash borer, based on an inspection by an inspector; or has been grown, produced, manufactured, treated, stored, or handled in a manner that, in the judgment of the inspector, prevents the regulated article from presenting a risk of spreading emerald ash borer; and
(ii) is eligible for unrestricted movement under all other State plant quarantines and regulations applicable to the regulated articles.
(2) If the regulated article is not eligible for a certificate of inspection, an inspector or authorized holder of a compliance agreement can issue a limited permit for the movement of the regulated article out of a restricted zone upon the following conditions:
(i) the inspector or authorized holder of a compliance agreement determines that the regulated article:
(a) is to be moved intrastate to a specified destination;
(b) for specific processing, handling, or utilization; and
(c) this intrastate movement will not result in the spread of emerald ash borer because emerald ash borer will be destroyed by the specific processing, handling, or utilization;
(ii) the regulated article is eligible for unrestricted movement under all other State plant quarantines and regulations applicable to the regulated article; and
(iii) the destination of the regulated articles and other conditions determined by the inspector are stated in the limited permit.
(3) An inspector or authorized holder of a compliance agreement may provide additional certificates of inspection or limited permits pursuant to the terms of a compliance agreement or authorize, in writing, reproduction of the certificates of inspection on shipping containers, or both, as requested by the person operating under the compliance agreement. These certificates of inspection and limited permits may then be completed and used, as needed, for the movement out of a restricted zone of regulated articles that have met all of the requirements of 1 NYCRR Part 141 and this section.
(4) Any certificate of inspection or limited permit may be cancelled orally or in writing by an inspector whenever the inspector determines that the holder of the certificate of inspection or limited permit has not complied with 1 NYCRR Part 141. If the cancellation is oral, the cancellation will become effective immediately, and the cancellation and the reasons for the cancellation will be confirmed in writing.
(h) Shipments for experimental and scientific purposes.
Regulated articles may be moved intrastate for experimental or scientific purposes, on such conditions and under such safeguards as may be prescribed in writing by NYSDAM. The container of articles so moved shall bear, securely attached to the outside thereof, an identifying tag issued by NYSDAM showing compliance with such conditions.
(i) Marking requirements.
Every container of regulated articles intended for intrastate movement shall be plainly marked with the name and address of the consignor and the name and address of the consignee, when offered for shipment, and shall have securely attached to the outside thereof a valid certificate (or limited permit) issued in compliance with 1 NYCRR Part 141, provided, that:
(1) for lot freight shipments, other than by road vehicle, one certificate may be attached to one of the containers and another to the waybill; and for carlot freight or express shipment, either in containers or in bulk, a certificate may be attached to the waybill only and a placard to the outside of the car, showing the number of the certificate accompanying the waybill; and
(2) for movement by road vehicle, the certificate shall accompany the vehicle and be surrendered to consignee upon delivery of shipment.
(j) Assembly of regulated articles for inspection.
(1) Persons intending to move intrastate any regulated articles shall make application for certification as far in advance as possible, and will be required to prepare and assemble materials at such points and in such manner as the inspector shall designate, so that thorough inspection may be made or approved treatments applied. Articles to be inspected as a basis for certification must be free from matter which makes inspection impracticable.
(2) NYSDAM and/or the department will not be responsible for any cost incident to inspection, treatment, or certification other than the services of the inspector.
(k) Inspection and disposition of shipments.
(1) Any DEC official, authorized agent or law enforcement officer (“official”) acting hereunder may investigate any vehicle, package or container which holds ash, nursery stock or other regulated articles which are infested, or which the official reasonably believes may contain an infestation, and such vehicle, package or container may be examined by the official at any time or place. When regulated articles are found to be moving or to have been moved intrastate in violation of this Part, the official may take such action as deemed necessary to eliminate the danger of dissemination of emerald ash borer. If found to be infested, any regulated articles or other materials regulated by this Part must be rendered free of infestation without cost to the state, except that for inspection and supervision. In addition to any other enforcement authority provided by law or regulation, where there is reasonable cause to believe that untreated firewood is moving or may have been moved in violation of any provision set forth in this section or any other provision of this Title, any law enforcement officer may order that such untreated firewood be returned to its source, or confiscated and destroyed, at the expense of the violator and without cost to the State, in order to control the spread of forest insects in any stage of development and forest tree disease pursuant to ECL section 9-1303.
(2) Disposal of a regulated article shall include the discharge, deposit, dumping or placing of any regulated article into or on any land or water in a manner that prevents the establishment, introduction or spread of EAB within the restricted zone which contained the source of the regulated article. Any such disposal must be in accordance with all applicable laws and regulations.
(l) Other laws and regulations.
No provision of this section relieves any person from the obligation to comply with any other applicable Federal, State, county regional or local law or regulation. This section only applies to the intrastate movement of regulated articles. The interstate movement of regulated articles must comply with applicable Federal laws and regulations.
(m) Effective date.
This section shall become effective in a particular county on and after the 10th day from the filing of a certified copy in the office of the clerk of that county.
6 CRR-NY 192.7
Current through April 15, 2018
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