Species of Ash Trees, Parts Thereof and Products and Debris Therefrom Which Are at Risk to Infe...
NY-ADR
6/1/11 N.Y. St. Reg. AAM-01-11-00014-A
NEW YORK STATE REGISTER
VOLUME XXXIII, ISSUE 22
June 01, 2011
RULE MAKING ACTIVITIES
DEPARTMENT OF AGRICULTURE AND MARKETS
NOTICE OF ADOPTION
I.D No. AAM-01-11-00014-A
Filing No. 438
Filing Date. May. 17, 2011
Effective Date. Jun. 01, 2011
Species of Ash Trees, Parts Thereof and Products and Debris Therefrom Which Are at Risk to Infestation by the Emerald Ash Borer
PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following action:
Action taken:
Repeal of Part 141; and addition of a new Part 141 to Title 1 NYCRR.
Statutory authority:
Agriculture and Markets Law, sections 18, 164 and 167
Subject:
Species of ash trees, parts thereof and products and debris therefrom which are at risk to infestation by the emerald ash borer.
Purpose:
To establish the emerald ash borer quarantine to prevent the further spread of this beetle to other areas.
Text of final rule:
Part 141 of 1 NYCRR is repealed and a new Part 141 is added thereto, to read as follows:
Part 141
Control of the Emerald Ash Borer
(Statutory Authority: Agriculture and Markets Law sections 18, 164 and 167)
Section 141.1. Definitions
For the purpose of this Part, the following words, names and terms shall be construed respectively, to mean:
(a) Certificate of inspection. A valid form certifying the eligibility of products for intrastate movement under the requirements of this Part.
(b) Compliance agreement. An approved document, executed by persons or firms, covering the restricted movement, processing, handling or utilization of regulated articles not eligible for certification for intrastate movement.
(c) Emerald Ash Borer. The insect known as the Emerald Ash Borer, Agrilus planipennis, in any stage of development.
(d) Firewood. This term applies to any kindling, logs, chunkwood, boards, timbers or other wood cut and split, or not split, into a form and size of twenty eight inches or less appropriate for use as fuel.
(e) Infestation. This term refers to 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.
(f) Inspector. An inspector of the New York State Department of Agriculture and Markets, or cooperator from the New York State Department of Environmental Conservation (DEC) or the United States Department of Agriculture (USDA), when authorized to act in that capacity.
(g) Limited permit. A valid form authorizing the restricted movement of regulated articles from a quarantined area to a specified destination for specified processing, handling or utilization.
(h) Moved; movement. Shipped, offered for shipment to a common carrier received for transportation or transported by a common carrier, or carried, transported, moved or allowed to be moved into or through any area of the State.
(i) Nursery stock. This term applies to and includes all trees, shrubs, plants and vines and parts thereof.
(j) Quarantined Area. This term applies to Niagara, Erie, Orleans, Genessee, Wyoming, Allegany, Monroe, Livingston, Steuben, Wayne, Ontario, Yates, Schuyler, Chemung, Greene, Ulster, Chautauqua and Cattaraugus Counties.
(k) Regulated article. This terms applies to firewood from any species of tree, and any trees and all host material, living, dead, cut or fallen, inclusive of nursery stock, logs, green lumber, stumps, roots, branches and debris of the following genera: White Ash (Fraxinus Americana); Green Ash Fraxinus pennsylvanica); Black Ash (Fraxinus nigra); and Blue Ash (Fraxinus quadrangulata), and any wood material that is commingled and otherwise indistinguishable from the regulated article.
Section 141.2. Quarantined area.
Regulated articles as described in section 141.3 of this Part shall not be shipped, transported or otherwise moved from any point within Niagara, Erie, Orleans, Genessee, Wyoming, Allegany, Monroe, Livingston, Steuben, Wayne, Ontario, Yates, Schuyler, Chemung, Greene, Ulster, Chautauqua and Cattaragus Counties to any point outside of said counties, except in accordance with this Part.
Section 141.3. Regulated articles.
(a) Prohibited movement.
(1) The intrastate movement of living Emerald Ash Borer in any stage of development, whether moved independent of or in connection with any other article, except as provided in section 141.9 of this Part.
(2) The intrastate movement of nursery stock from the quarantined area to any point outside the quarantined area.
(3) The intrastate movement of regulated articles other than nursery stock from the quarantined area to any point outside the quarantined area, except as provided in section 141.5 of this Part.
(b) Regulated movement.
(1) Regulated articles shall not be moved from the quarantined area to any point outside the quarantined area, except under a limited permit or unless accompanied by a certificate of inspection indicating freedom from infestation.
(2) Regulated articles may be moved through the quarantined area if the regulated articles originated outside the regulated area and:
(i) the points of origin and destination are indicated on a waybill accompanying the regulated article; and
(ii) the regulated articles, if moved through the quarantined area during the period of May 1 through August 31, are moved in an enclosed vehicle or are completely covered to prevent access by the Emerald Ash Borer; and
(iii) the regulated articles are moved directly through the quarantined area without stopping, except for refueling and traffic conditions, or have been stored, packed, or handled at locations approved by an inspector as not posing a risk of infestation by the Emerald Ash Borer.
Section 141.4. Conditions governing the intrastate movement of regulated articles.
(a) Movement from quarantined area. Unless exempted by administrative instructions of the Commissioner of Agriculture and Markets of the State of New York, regulated articles shall not be moved intrastate from the quarantined area to or through any point outside thereof unless accompanied by a valid certificate or limited permit issued by an inspector, authorizing such movement.
Section 141.5. Conditions governing the issuance of certificates and permits.
(a) Certificates of inspection. Certificates of inspection may be issued for the intrastate movement of regulated articles when they have been inspected and determined to have been:
(1) treated, fumigated, or processed by approved methods; or
(2) grown, produced, manufactured, stored, or handled in such a manner that, in the judgment of the inspector, no infestation would be transmitted thereby, provided that subsequent to certification, the regulated articles shall be loaded, handled, and shipped under such protection and safeguards against reinfestation as are required by the inspector.
(b) Limited permits. Limited permits may be issued for the movement of noncertified regulated articles to specified destinations for specified processing, handling, or utilization. Persons shipping, transporting, or receiving such articles may be required to enter into written compliance agreements to maintain such sanitation safeguards against the establishment and spread of infestation and to comply with such conditions as to the maintenance of identity, handling, processing, or subsequent movement of regulated products and the cleaning of cars, trucks and other vehicles used in the transportation of such articles, as may be required by the inspector. Failure to comply with conditions of the agreement will result in its cancellation.
(c) Cancellation of certificates of inspection or limited permits. Certificates or limited permits issued under these regulations may be withdrawn or canceled by the inspector and further certification refused whenever in his or her judgment the further use of such certificates or permits might result in the dissemination of infestation.
Section 141.6. Inspection and disposition of shipments.
Any car or other conveyance, any package or other container, and any article or thing to be moved, which is moving, or which has been moved intrastate from the quarantined area, which contains, or which the inspector has probable cause to believe may contain, infestations of the Emerald Ash Borer, or articles or things regulated under this quarantine, may be examined by an inspector at any time or place. When articles or things are found to be moving or to have been moved intrastate in violation of these regulations, the inspector may take such action as he deems necessary to eliminate the danger of dissemination of the Emerald Ash Borer. If found to be infested, such articles or things must be free of infestation without cost to the State except that for inspection and supervision.
Section 141.7. Assembly of regulated articles for inspection.
(a) 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.
(b) The New York State Department of Agriculture will not be responsible for any cost incident to inspection, treatment, or certification other than the services of the inspector.
Section 141.8. 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 these regulations: provided, that:
(a) 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 need 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
(b) for movement by road vehicle, the certificate shall accompany the vehicle and be surrendered to consignee upon delivery of shipment.
Section 141.9. 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 by the New York State Department of Agriculture and Markets. The container of articles so moved shall bear, securely attached to the outside thereof, an identifying tag issued by the New York State Department of Agriculture and Markets showing compliance with such conditions.
Final rule as compared with last published rule:
Nonsubstantive changes were made in sections 141.1(d) and 41.3(b)(2).
Text of rule and any required statements and analyses may be obtained from:
Kevin King, Director, Division of Plant Industry, New York State Department of Agriculture and Markets, 10B Airline Drive, Albany, New York 12235, (518) 457-2087
Revised Regulatory Impact Statement, Regulatory Flexibility Analysis, Rural Area Flexibility Analysis and Job Impact Statement
The revisions to the text of the rule are not substantial, consisting of the addition of a length dimension (28 inches) to the definition of "firewood" in section 141.1(d); and the deletion of the ambient air temperature range requirement (40 degrees F or higher) during which regulated articles are required to be covered when transported within the quarantined area during the EAB's flight season (May 1 through August 31). Since these revisions further clarify a definition and an existing requirement in the proposed regulation, it was determined that the changes are not substantial. Accordingly, a revised regulatory impact statement, regulatory flexibility analysis, rural area flexibility and job impact statement are not required.
Assessment of Public Comment
The agency received no public comment.
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