The proposed rule, which expands the quarantine area, has been adopted as an emergency rule, to protect the public welfare. The Spotted Lanternfly infests different types of trees, including fruit trees, as well as plants, including grape plants and hops plants. Once infested, a tree or plant is deprived of nutrients, is incapable of producing fruit to the extent it had prior to infestation, and is not useful as a source of wood. The proposed rule is designed to prevent the Spotted Lanternfly from entering the State from a designated county and jeopardizing its forest-based industries and its fruit-based industries which, in sum, contribute approximately $7 billion to the State’s economy, annually. Based on the facts and circumstances set forth above, the Department has determined that the immediate adoption of this rule is necessary for the preservation of the general welfare and that compliance with 202(1) of the State Administrative Procedure Act would be contrary to the public interest.

The quarantine area consists of the following counties:

(a) in the Commonwealth of Pennsylvania, the Counties of Allegheny, Beaver, Berks, Blair, Bucks, Carbon, Chester, Columbia, Cumberland, Dauphin, Delaware, Huntington, Juniata, Lancaster, Lebanon, Lehigh, Luzerna, Mifflin, Monroe, Montgomery, Northampton, Northumberland, Perry, Philadelphia, Schuylkill, York;

(b) in the Commonwealth of Virginia, the Counties of Clarke and Frederick;

(c) in the State of New Jersey, the Counties of Burlington, Camden, Gloucester, Salem, Mercer, Hunterdon, Warren and Somerset;

(d) in the State of Delaware, the County of New Castle;

(e) in the State of Maryland, the Counties of Cecil and Hartford;

(f) in the State of West Virginia, the County of Berkley.

1. Statutory authority:

Section 18 of the Agriculture and Markets Law provides, in part, that the Commissioner of Agriculture and Markets (“Commissioner”) may enact, amend, and repeal necessary rules which shall provide generally for the exercise of the powers and performance of the duties of the Department of Agriculture and Markets (“Department”) as prescribed in the Agriculture and Markets Law (“AML”) and the laws of the State and for the enforcement of their provisions and the provisions of the rules that have been enacted.

Section 164 of the AML provides, in part, that the Commissioner shall take such action as he or she may deem necessary to control or eradicate any injurious insects, noxious weeds, or plant diseases existing within the State.

Section 167 of the AML provides, in part, that the Commissioner is authorized to make, issue, promulgate and enforce such order, by way of quarantines or otherwise, as he or she may deem necessary or fitting to carry out the purposes of AML Article 14. AML Section 167 also provides that the Commissioner may adopt and promulgate such rules and regulations to supplement and give full effect to the provisions of AML Article 14.

2. Legislative objectives:

The proposed rule will amend section 142.2 of 1 NYCRR to require a person, prior to moving a “regulated article” from Allegheny, Beaver, Blair, Columbia, Cumberland, Huntingdon, Juniata, Luzerne, Mifflin, Northumberland, Perry and York Counties in PA, Hartford County in MD, Clarke County in VA; Berkley County in WV, and Burlington, Camden, Gloucester and Salem in NJ, into the State, to obtain a certificate of inspection. that indicates that such article is free of Spotted Lanternfly (“SLF”).

The proposed rule will further the legislature’s objective to help ensure that injurious insects, such as SLF, are not allowed to enter the State.

3. Needs and benefits:

1 NYCRR Part 142 currently regulates the movement of articles capable of transporting SLF from certain counties in Pennsylvania, Virginia, Maryland, Delaware and New Jersey into NYS. SLF is an injurious insect that attacks, infests, and destroys the value of hardwood trees of economic significance, including Walnut and Porcelain Berry, and hops plants and grape vines. The proposed rule is needed to add the Allegheny, Beaver, Blair, Columbia, Cumberland, Huntingdon, Juniata, Luzerne, Mifflin, Northumberland, Perry and York Counties in PA, Hartford County in MD, Clarke County in VA; Berkley County in WV, and Burlington, Camden, Gloucester and Salem counties in NJ to the list of counties from which regulated articles may not be moved into the State, until determined to be free of SLF. These newly added counties have recently been found to harbor SLF and it is necessary that they be added to such list to better ensure that the SLF does not enter the State and cause the damage referred to above.

4. Costs:

(a) Costs to regulated parties for the implementation of and continuing compliance with the rule: A person who wants to import a “regulated article” into the State of New York that originates from Allegheny, Beaver, Blair, Columbia, Cumberland, Huntingdon, Juniata, Luzerne, Mifflin, Northumberland, Perry and York Counties in PA, Hartford County in MD; Clarke County in VA, Berkley County in WV, and Burlington, Camden, Gloucester and Salem in NJ (“a designated county”), will be required to obtain a certificate of inspection from an appropriate State authority, attesting that the article is free of SLF. Presently, no authority in any of those states imposes a fee for the issuance of such a certificate. The proposed rule provides that the Department of Agriculture and Markets will recognize a certificate if it indicates, inter alia, that a regulated article has been “treated, fumigated, or processed by an approved method” so as to be free of SLF. The cost of such treatment, fumigation, or processing is dependent upon the nature of the article being so treated, fumigated, or processed; the extent of infestation, if any; and the treatment, fumigation, or processing procedure actually used.

(b) Costs to the agency, the state and local governments for the implementation and continuation of the rule: Local governments, the Department of Agriculture and Markets, and the State will not incur any additional expenses due to the proposed rule.

(c) The information, including the sources of such information and the methodology upon which the cost analysis is based: The costs analysis set forth above is based upon observations of the industry and state regulatory agencies.

5. Local government mandates:

This rule imposes no mandates upon any county, city, town, village, school district, fire district, or other special district.

6. Paperwork:

Regulated articles inspected and certified to be free of SLF moving from a designated county would have to be accompanied by a certificate of inspection.

7. Duplication:

There are no relevant rules or other legal requirements of the Federal or State governments that duplicate, overlap, or conflict with this rule.

8. Alternatives:

The alternative of no action was considered. However, this option is not feasible, given the fact that SLF has recently been found in a designated county and given the threat that SLF poses to the State’s forests, agriculture, and tourism industries. As such there does not appear to be any viable alternative to the adoption of the proposed rule.

9. Federal standards:

There are no federal standards regulating the movement of articles infested, or capable of being infested, with SLF.

10. Compliance schedule:

It is anticipated that regulated parties would be able to comply with the proposed rule immediately.

1. Effect of rule:

The proposed rule will amend 1 NYCRR section 142.2 to require a person who wants to move a “regulated article” (that is, an item that is capable of harboring the invasive insect, Spotted Lanternfly) that originates from Allegheny, Beaver, Blair, Columbia, Cumberland, Huntingdon, Juniata, Luzerne, Mifflin, Northumberland, Perry and York Counties in PA, Hartford County in MD, Clarke County in VA, Berkley County in WV, and Burlington, Camden, Gloucester and Salem in NJ (“a designated county”), to obtain a certificate from an appropriate state regulatory agency, attesting that such article is free of Spotted Lanternfly. It is impossible to determine if, and the number of, small businesses that will want to move “regulated articles” from a designated county into the State. It is anticipated that no local government would be involved in moving a regulated article from a designated county into the State; as such, this analysis addresses the impact of the proposed rule only upon small businesses.

2. Compliance requirements:

Each small business that wants to move a regulated article from a designated county (“a regulated party”) will be required to obtain a certificate of inspection to ship a regulated article into the State from a state agency authorized to issue such a certificate or by a person duly-designated by such an agency.

3. Professional services:

The proposed rule provides that the Department of Agriculture and Markets will not recognize a certificate of inspection unless the regulated article to be moved into the State, from a designated county, has been found to be free of Spotted Lanternfly or rendered free of that pest by having been properly treated, fumigated, or processed by an approved method– those procedures could require utilization of a professional service in the event the party still desires to move the regulated article into the State.

4. Compliance costs:

A regulated party will need to ensure that the article to be moved from a designated county is free of Spotted Lanternfly or has been treated, fumigated, or processed by an approved method to render it free of such pest; the cost of such treatment, fumigation, or processing would be dependent upon the nature of the article being so treated, fumigated, or processed; the extent of the infestation, if any; and the treatment, fumigation, or processing procedure actually used. In order to move a regulated article into the State, a regulated party will need to obtain a certificate of inspection from an appropriate state agency; this service is available from Pennsylvania, New Jersey, Delaware, West Virginia, Virginia and Maryland, none of which imposes a fee therefor.

5. Economic and technological feasibility:

Small businesses will be economically and technically able to comply with the proposed rule. The technology exists to render an infested article free of Spotted Lanternfly. Furthermore, a small business that wants to move a regulated article into the State from a designated county will be able to obtain a certificate of inspection from Pennsylvania, New Jersey, Delaware, West Virginia, Virginia and Maryland attesting that the article is free of Spotted Lanternfly, at no charge.

6. Minimizing adverse impact:

The Department has designed the proposed rule to minimize adverse economic impact on small businesses. Spotted Lanternfly has, recently, been found in a designated counties. The proposed rule is designed to ensure that Spotted Lanternfly does not enter the State from those counties and, thereby, have a negative impact upon the State’s agriculture and tourism industry which consist, in large part, of small businesses; the proposed rule could not have been designed any differently and still have adequately implemented its objective.

7. Small business and local government participation:

1 NYCRR Part 142 was originally made effective on September 19, 2018. Prior to that date, the Department informed a number of organizations, consisting in part of small businesses, of its intent to promulgate the proposed rule; such organizations consisted of the Empire State Forest Products Association, the Invasive Species Advisory Committee, the New York State Turfgrass Association, the New York Farm Bureau, the New York State Trucking Association, and the Catskill Regional Invasive Species Partnership. The Department received input from those organizations, none of whom objected to requiring importers of regulated articles from counties in other states, known to harbor Spotted Lanternfly, to obtain certificates, prior to importation, attesting that such activities were free of Spotted Lanternfly.

1. Type and estimated numbers of rural areas:

The proposed rule will amend 1 NYCRR section 142.2 to require a person who wants to move an item that is capable of harboring the invasive insect, Spotted Lanternfly (a “regulated article”) that originates from Allegheny, Beaver, Blair, Columbia, Cumberland, Huntingdon, Juniata, Luzerne, Mifflin, Northumberland, Perry and York Counties in PA, Hartford County in MD, Clarke County in VA, Berkley County in WV, and Burlington, Camden, Gloucester and Salem in NJ (“a designated county”) into the State to obtain a certificate from an appropriate state regulatory agency, attesting that such article is free of Spotted Lanternfly.

It is impossible to determine if residents of rural areas will themselves import “regulated articles” from a designated county into the State and, if so, the number of residents of such areas who will want to do so.

2. Reporting, recordkeeping and other compliance requirements; and professional services:

Each resident of a rural area who imports a regulated article from a designated county into the State will be required to obtain a certificate of inspection from a state agency authorized to issue such a certificate or by a person duly-designated by such an agency.

3. Costs:

The proposed rule will require that a regulated article may not be moved into the State from a designated county unless it has been inspected and a certificate of inspection has been issued that indicates the article is free of Spotted Lanternfly; this service is available from Pennsylvania, West Virginia, Virginia, New Jersey, Delaware and Maryland and none of those states impose a fee therefor. The proposed rule will require that the Department of Agriculture and Markets (“Department”) recognize a certificate of inspection only if the regulated article has been found to be free of Spotted Lanternfly. If a regulated article has come into contact with Spotted Lanternfly, this certification can be made only if the article has been properly treated, fumigated, or processed by an approved method.The cost of these procedures would depend upon the nature of the article being so treated, fumigated, or processed; the extent of infestation, if any; and the treatment, fumigation, or processing procedure actually used.

4. Minimizing adverse impact:

In conformance with State Administrative Procedure Act section 202, the Department has designed the rule to minimize adverse economic impact on persons and businesses located in rural areas. If Spotted Lanternfly were to become endemic in the State, residents of, and businesses in, rural areas would suffer disproportionally, both economically and otherwise.

5. Rural area participation:

1 NYCRR Part 142 was originally made effective on September 19, 2018. Prior to that date, the Department informed the Empire State Forest Products Association, the Invasive Species Advisory Committee, the New York State Turfgrass Association, the New York Farm Bureau, the New York State Trucking Association, and the Catskill Regional Invasive Species Partnership, organizations with business members located in rural areas, of its intent to promulgate 1 NYCRR Part 142. The Department received input from these organizations, none of which objected to requiring importers of regulated articles from counties in other states, known to harbor Spotted Lanternfly, to obtain certificates, prior to importation, attesting that such articles were free of Spotted Lanternfly.

The proposed rule will amend Part 142 to 1 NYCRR, requiring that a person, prior to moving a designed article from Allegheny, Beaver, Blair, Columbia, Cumberland, Huntingdon, Juniata, Luzerne, Mifflin, Northumberland, Perry and York Counties in PA, Hartford County in MD, Clarke County in VA, Berkley County in WV, and Burlington, Camden, Gloucester and Salem in NJ (“a designated county”) into New York State to obtain a “certificate of inspection” that indicates that the article is free of “Spotted Lanternfly.”, Spotted Lanternfly is an invasive insect that can cause serious damage to grapes, hops, and various types of trees including fruit trees and deciduous trees.

The proposed rule will not have an adverse impact on jobs or employment opportunities and, in fact, will likely aid in protecting jobs and employment opportunities now and in the future. Forest related activities in New York State provide employment for approximately 70,000 people. Of that number, 55,000 jobs are associated with the wood-based forest economy, including manufacturing. The forest-based economy generates payrolls of more than $2 billion. New York State’s fruit industry is the largest on the east coast excluding citrus. New York State’s fruit crop is valued at over $400 million annually, the two largest components of which are apples and grapes. New York State ranks 2nd nationally in production of apples and ranks 3rd nationally in the production of grapes. New York State’s apple industry has 694 commercial apple orchards that directly employ 10,000 people and indirectly employ 7,500 people. New York State produces 29.5 million bushels of apples per year. The New York State grape and wine industry has 1,631 vineyards and over 400 wineries. New York State produces over 175 million bottles of wine annually. The grape, wine, and juice industry generates over $4.8 billion annually. The New York State tourism industry employs over 780,000 people generating $64 billion in direct sales and $34.6 billion in salary.

Implementation of the proposed rule will aid in preventing the further spread of this pest into the State from a designated county. A spread of the infestation would have very adverse economic consequences. Additionally, a spread of the infestation could result in the imposition of more restrictive quarantines by the federal government, other states and foreign countries that would have a detrimental impact upon the financial well-being of these industries.

By helping to prevent the spread of Spotted Lanternfly, the proposed rule helps prevent such adverse economic consequences and protects the jobs and employment opportunities associated with the State’s nursery, fruit growing, craft beverage, tourism, and forestry industries.