PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following action:

Addition of section 192.5 to Title 6 NYCRR.

Firewood restrictions to protect forests from invasive species.

To protect New York State's forests from invasive insects and diseases carried on firewood and introduced into noninfested forests.

A new section 192.5 is added to 6 NYCRR Part 192 to read as follows:

Nonsubstantial changes were made in section 192.5(a)(10).

Bruce Williamson, Department of Environmental Conservation, Bureau of Private Land Services, 625 Broadway, Albany, NY 12233-4253, (518) 402-9425, email: [email protected]

A Negative Declaration has been prepared in compliance with Article 8 of the Environmental Conservation Law.

The non-substantive revision to the rule clarifies the definition of “source” so that it applies equally to landowners and producers. This clarification does not change the intent of the rule, therefore no revisions were made to the RIS, RFA, RAFA and JIS.

Comment:

This regulation is unnecessary.

Response:

This regulation is necessary to protect New York State's forests and trees, which is the Department of Environmental Conservation's (the Department) mission. The State's rural and urban forests are increasingly threatened by numerous invasive, exotic tree-killing insects and diseases. Over the past 10-15 years, invasive exotic insects like the Asian longhorned beetle, emerald ash borer and hemlock wooly adelgid have killed millions of trees in cities and woodlots from Long Island, New York to upper Michigan. Other invasive diseases (e.g., oak wilt and sudden oak death) and insects (e.g., Sirex wood wasp, brown spruce longhorned beetle and Asian Gypsy moth) have the potential to devastate New York State's forests and urban trees. Many invasive tree and forest pests are extremely difficult to detect early enough in an infestation to be able to effectively eliminate them or control their spread. Preventing introductions of such pests is the best and least expensive defense of our forests and communities.

History has shown that humans have inadvertently assisted the spread of invasive forest pests through the long distance movement of infested plants and wood. Firewood is a significant contributor to this problem due to two factors: (1) firewood is a high risk host of these forest pests, and (2) campers frequently transport firewood long-distances. Unfortunately, this fact is evidenced by the frequency of new discoveries of invasive pest infestation at campgrounds and other recreational areas.

In order to protect our State's trees and forests, it is essential to take steps to prevent, delay and minimize the introduction and spread of invasive, exotic forest pests.

Comment:

This regulation will greatly increase the cost of firewood for homeowners and campers.

Response:

The Department recognizes that this regulation may result in a moderate increase in the cost of firewood for some homeowners and recreational users during the initial period of adjustment by the firewood industry and consumers to this regulation. It is anticipated that this regulation will shift consumption and procurement of firewood to local sources. For example, firewood producers that are currently procuring logs from out-of-state sources will find new sources of raw materials within the State. Dealers that have customers outside of the 50 mile limit will consolidate and localize their customer base. Campers that have traditionally transported their firewood from home over long distances to campgrounds will seek out local sources of firewood. As these adjustments are made, any increased costs associated with this regulation should lessen so that there will be no long-lasting economic impact. There will be no additional cost for landowners and homeowners that cut and burn their own firewood in compliance with this regulation because this regulation does not impose a tax or fee on that wood.

Comment:

A 50 mile limit for the movement of firewood is too restrictive.

Response:

Fifty miles was selected as the source radius because it was determined to be: (1) biologically appropriate; (2) economically reasonable distance within which to limit firewood movement; and (3) consistent with existing local distribution patterns. A 50 mile radius circle, 100 miles in diameter equals 7,854 square miles or 5,026,560 acres. This size area would cover almost the entire Adirondack Park, or all of western New York from Dunkirk to Bath and Lake Erie to the Pennsylvania border. This sourcing and distribution area for firewood producers should be large enough to have minimal impact on New York firewood businesses.

Firewood is a relatively low value commodity; therefore, trucking firewood beyond 50 miles will be cost prohibitive in most cases given the increasing costs of fuel. Human assisted transport greatly increases the spread of an invasive forest pest outside this localized area. This restriction will help protect other regions of New York State, such as the Adirondack and Catskill Parks, from undetected infestations as well as western New York and Long Island.

Comment:

The 50 mile restriction on the movement of firewood is too difficult to measure; untreated firewood should be restricted to the town or county of its origin.

Response:

The 50-mile distance is measured on any map, using the scale bar, in a straight line from the point identified as the "source". It is the simplest means of measuring distance. Using town or county boundaries would make the regulation more restrictive for some people in smaller towns or counties.

Comment:

The regulation should allow for the unrestricted movement of untreated firewood during the winter season, when the insects and diseases are dormant, as long as all the wood is burned before spring.

Response:

It is not possible or practical for the Department to determine the date that a piece of firewood was cut and processed. Since firewood may be stored for one season or several years before it is burned, there would be many practical problems with requiring wood to be separated by the date it was cut and processed.

Comment:

This regulation should cover all forms of wood, not just firewood.

Response:

Experience and studies demonstrate that the movement of firewood presents a higher risk of spreading these invasive species than the movement of other forms of wood products. Monitoring conducted in areas around wood product facilities (e.g., sawmills, log yards, pulp and paper mills), indicates that pest outbreaks are not occurring around these facilities. Most frequently, pest outbreaks are discovered in the vicinity of recreational areas (e.g, campgrounds, picnic areas, and boat launches) and near private homes, and such outbreaks are directly linked to the movement of firewood. Generally, saw logs are transported to a mill or other facility where they remain until they are processed. Typically, industrial processing eliminates all life stages of any pest species of concern. On the other hand, firewood logs are transported to a processing center and then are widely distributed. Processing of logs into firewood does not eliminate these pests. Furthermore, firewood often comes from dead or dying trees, which are infested with insects and/or disease.

Comment:

This regulation will be impossible to enforce.

Response:

The Department has carefully considered the difficulties relating to enforcement of this regulation, and it has determined that regulating the transportation of firewood would be the most effective approach to slow down the spread of these invasive species. Enforcement personnel at the Department and at the Office of Parks Recreation and Historic Preservation will receive training and enforcement guidance.

Another important aspect of enforcing any regulation is education and outreach. Department staff will continue to conduct public outreach and education efforts regarding this regulation to ensure that the public is aware of and understands the very real and significant threats these invasive, exotic pests pose to our trees, forests, communities and budgets. The Department recognizes that it would be impossible to check every piece of firewood in New York State. However, the inspection and the record keeping requirements of this regulation should provide an incentive for compliance. In addition, the firewood industry, for its own self-preservation has a strong incentive to comply with this regulation given the very real threats these invasive pests pose to forests-their livelihood- from an accidental pest introduction.

Comment:

This regulation will have a negative impact on the firewood industry.

Response:

Although there may be a significant impact on the long-distance movement of untreated firewood, many of the larger firewood producers in this market are already dealing with heat-treated firewood. There may be a small cost in the record keeping and labeling requirements of the regulation, but this may be offset by the added market value that treated firewood should produce.

Much of the long-term impact will be in the change of distribution pattern within the industry. The Department anticipates a consolidation of buying and selling behavior, but not of a great change in the overall industry itself. Many of the interstate dealers of firewood are already adapting to regulation adopted by other states and the federal government regarding the movement of logs.

New York firewood producers and dealers that continue to deal in untreated firewood will have to make changes in their business to incorporate the 50-mile limit. This means that firewood producers will have to procure their raw logs from within 50 miles. In an area of over 5 million acres, this should pose virtually no difficulties to most producers. They may have to seek new sources for their logs. Firewood dealers will have to confine their sales to the 50-mile limit. With increasing fuel costs, transporting firewood great distances makes little economic sense. Dealers will have to shift their customer base to within this 50-mile limit.

This regulation and similar regulations in other states are already creating new business opportunities for firewood producers who may choose to invest in kilns or heat-treating chambers to sterilize and dry firewood. Large firms such as Wal-Mart, Hannaford, Price Chopper, Stewarts, Lowes, Home Depot and Red Lobster all are interested in selling (or using) firewood, and all want packaged, clean, dry, "bug-free", compliant firewood that can be distributed in multiple states from central warehouses.

Comment:

This is just another means for the State to collect more taxes and fees.

Response:

There are no new taxes or fees associated with this regulation.

Comment:

State boundaries should not be used as a limit; artificial boundaries are not recognized by these organisms.

Response:

The Department realizes that these invasive species do not recognize state boundaries, but as a matter of jurisdiction, we have no authority to cross state lines to enforce this regulation. For example, the regulation requires that firewood producers keep a record of all logs that they buy (within a 50-mile radius) to verify the origin of those logs. The Department has the authority to inspect within State boundaries to verify that logs actually came from the designated location. If the regulation allowed these logs to be brought in from out-of-state, the Department would not have the authority to cross a state boundary to enforce the standards required by this regulation.

Comment:

This regulation should propose increased fines and penalties.

Response:

Section 71-0703 of the Environmental Conservation Law (ECL) sets fines and penalties with respect to this regulation and provides that any person who violates any provision of this regulation "shall be punished by a fine of not more than two hundred fifty dollars ($250), or by imprisonment for not more than fifteen (15) days, or both such fine and imprisonment. . .". The Department can not increase fines by regulation. Only the New York State Legislature can amend the ECL to increase these fines and penalties.

Comment:

There is no scientific basis for this regulation.

Response:

In the development of these regulations Department staff have reviewed numerous studies that demonstrate that the movement of firewood is one of the primary methods of movement for some of the most harmful invasive species. These studies are well documented on the internet, and in literature and reports (and are referenced in the full assessment of public comment). Department staff cooperated and consulted with the USDA, the US Forest Service, APHIS, other educational organizations and state agencies in developing these regulations.

Comment:

There has not been enough outreach on these regulations or the underlying problem.

Response:

For over three years, the Department has been conducting outreach regarding the risks associated with moving firewood in order to educate campers, firewood producers, dealers, forest owners, the logging arborist and forest products industries. In addition, the Department has posted forest pest and firewood related information on its website and on the Reserve America reservation system used by all State-run campgrounds, and has printed and distributed posters, bookmarks, tip strips, written articles, issued press releases, given radio interviews and written grant applications for federal funding to increase outreach and education efforts. The Department intends to continue and expand its education and outreach efforts. For a more extensive discussion of outreach and education activities see the full assessment of public comments available upon request from the Department.