This regulation establishes regulated and quarantine areas consisting of Niagara and Erie Counties in their entirety and portions of Orleans County to help control the spread of the ECFF and establishes parameters in the form of a systems approach for the movement of cherries out of the regulated and quarantine areas.

The regulated area extends from an ECFF detection by one-half mile. Fruit may only be moved from the regulated area if the cherry growers or handlers have a limited permit or have entered into a compliance agreement which requires a systems approach that minimizes the chance of ECFF spread. If the growers or handlers meet these requirements, they can move cherries anywhere within New York, except for the following cherry producing counties established as restricted areas: Counties of Columbia, Dutchess, Ulster and Wayne.

The quarantine area surrounds the regulated area and extends four miles from the regulated area. Cherries may only be moved from a quarantine area if the cherry grower or handler has a limited permit or has entered into a compliance agreement. Since there is a lower risk of exposure to the ECFF in the quarantine area, cherries in this area may be moved throughout the State, including the established restricted cherry producing areas.

These regulations are necessary to protect the general welfare. The effective control of ECFF in New York generally, and, specifically, in Erie, Niagara, and Orleans Counties is critical for the protection of New York’s $4.5 million cherry industry, which includes growers with 450 acres of cherry production. The regulations help ensure that control measures are undertaken in the regulated and quarantine areas, and that the ECFF will not spread beyond those areas via the movement of infested cherries or other hosts.

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.

This regulation adds a new Part 128 to 1 NYCRR, establishing controls to help prevent the spread in New York of the European Cherry Fruit Fly (ECFF), an insect nonindigenous to the United States, which infests cherries and renders them unmarketable.

A summary of each section of the rule follows.

Section 128.1: Definitions. This is the definition section.

Section 128.2: Establishment and amendment of regulated and quarantine areas map. This section establishes the quarantined areas by map and narrative description and, requires that any change to the map must be done by regulation.

Section 128.3: Movement of regulated articles within regulated and quarantine areas. This section sets forth the parameters for movement of cherries within the regulated and quarantine areas. The cherries may be moved at any time within the regulated or quarantine areas for processing, treatment, use, or disposal at any area within the regulated or quarantine areas.

Section 128.4: Restrictions on intrastate movement of regulated articles originating within or traveling through regulated or quarantine areas. This section prohibits any person from moving cherries from the regulated or quarantine areas to or through to any point outside the regulated or quarantine areas, unless accompanied by a valid limited permit or administrative instructions from the Commissioner of the Department authorizing such movement, or for experimental or scientific purposes. This section also provides that any cherries from outside the regulated or quarantine areas may be moved through the regulated or quarantine areas, provided the points of origin and destination are set forth on the waybill, or the cherries is being moved directly through the regulated area without stops, except for refueling and traffic conditions.

Section 128.5: Conditions governing compliance agreements for movement of regulated articles out of regulated or quarantine areas. This section addresses conditions governing compliance agreements for movement of the cherries out of the regulated or quarantine areas. It provides that persons moving the cherries intrastate may apply for a compliance agreement with the Department, which would eliminate the requirement of inspections prior to each movement of cherries. A person who enters into a compliance agreement with the Department must agree to comply with this Part and all conditions in the agreement. A compliance agreement is subject to the Department’s acceptance in its sole discretion. A compliance agreement may be canceled if the Department determines that person is not complying with this regulation or the conditions of the agreement.

Section 128.6: Conditions governing limited permits for movement of regulated articles out of regulated or quarantine areas. This section sets forth conditions governing limited permits for the movement of cherries out of quarantine or regulated areas. With a limited permit, the cherries can be moved from the regulated or quarantine areas. In respect to a quarantine area, an inspector or an authorized holder of a compliance agreement may issue a limited permit if the cherries have been grown under a recognized systems approach for the control of ECFF; and the cherries are otherwise eligible for unrestricted movement under all other state plant quarantines and regulations applicable to the cherries.

In respect to a quarantine area, an inspector or an authorized holder of a compliance agreement may issue a limited permit if the cherries have been grown under a recognized systems approach for the control of ECFF; the cherries are not moved to counties prohibited under the Systems Approach and compliance agreement; and is otherwise eligible for unrestricted movement under all other state plant quarantines and regulations applicable to the cherries.

An inspector or authorized holder of a compliance agreement may provide additional limited permits pursuant to the terms of a compliance agreement or authorize, in writing, reproduction of the limited permits on shipping containers, or both, as requested by the person operating under the compliance agreement. These limited permits may then be completed and used, as needed, for the movement out of a regulated or quarantine area provided that the cherries have met all of the requirements of this Part. Any limited permit may be cancelled orally or in writing by an inspector whenever the inspector determines that the holder of the limited permit has not complied with this Part. The cancellation shall take effect upon the giving of the oral notice or the delivery of written notice. If the cancellation is oral, the cancellation and the reasons for the cancellation shall be confirmed in writing.

Section 128.7: Shipments of regulated articles for experimental and scientific purposes. This section authorizes the intrastate movement of cherries for experimental or scientific purposes, provided the Department’s conditions and safeguards are met. Additionally, the container holding the cherries shall bear an identification tag issued by the Department, showing compliance with the conditions and safeguards.

Section 128.8: Marking Requirements. Every container of cherries 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 this Part.

Section 128.9 Inspection and disposition of shipments. Any vehicle or other conveyance, any package or other container, and any item to be moved, which is moving, or which has been moved intrastate from the regulated or quarantine areas, which may contain cherries, may be examined by an inspector.

Section 128.10: Other laws and regulations; interstate movement of regulated articles. Limits the applicability of this Part to the intrastate movement of cherries. The interstate movement of cherries must comply with applicable federal laws and regulations.

Section 128.11: Effective date. This regulation shall take effect immediately.

1. Statutory authority:

Section 18 of the Agriculture and Markets Law provides, in part, that the 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 as prescribed in the Agriculture and Markets Law and the laws of the State, and for the enforcement of their provisions and the provisions of the rules that have been adopted to implement these laws.

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

Section 167 of the Agriculture and Markets Law provides, in part, that the Commissioner is authorized to make, issue, promulgate and enforce such order, by way of quarantines or otherwise, as he may deem necessary or fitting to carry out the purposes of Article 14 of the same. 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 Article 14 of the Agriculture and Markets Law.

2. Legislative objectives:

These proposed regulations are consistent with the public policy objectives the Legislature sought to advance when enacting the statutory authority, namely, preventing the spread within the State of an injurious insect, such as the European Cherry Fruit Fly (ECFF).

3. Needs and benefits:

This proposed regulation would establish regulated and quarantine areas in Erie, Niagara, and Orleans Counties to help control the spread of the ECFF. Left unchecked, ECFF has the potential to infest 100% of a cherry crop, rendering the cherries unmarketable.

The ECFF (Rhagoletis cerasi), an insect nonindigenous to the United States, is native to Europe. It was first detected in Ontario, Canada in 2015 and subsequently found in Niagara County in 2017. While ECFF infests both sweet and tart cherries, sweet cherries are ECFF’s preferred host material. ECFF also infests honeysuckle (Lonicera sp.), an invasive plant found throughout New York State. Honeysuckle may serve as a reservoir for the ECFF to assist in its unchecked development.

The life cycle of ECFF begins with the emergence of the fruit flies during May and June. They have an average lifespan of two to four weeks. Females usually lay one egg beneath the skin of each piece of fruit. Once the eggs hatch, the larvae develop inside the fruit and feed on it for up to six weeks. As the larvae develop, they damage the fruit pulp. Mature larvae exit the fruit, drop to the ground, and burrow into the soil. Once in the soil, they pupate within a few days and overwinter in the soil underneath or near the host plant. After winter, adult flies emerge from the soil, and the life cycle begins anew.

Evidence of ECFF infestation of cherries includes puncture holes in the cherries. As the larvae develop in the fruit, the puncture hole becomes brown and soft. When cutting or breaking open infested cherries, the larvae and internal fruit damage can be readily seen. Infested cherries may shrivel, display soft spots, and decay. Infested fruit may also exhibit small holes formed when larvae exit the fruit to drop to the ground to pupate. Growers cannot market infested cherries as fresh fruit. Infested cherries, generally sweet cherries, intended for processing also have a high likelihood of being rejected since processors desire primarily tart cherries. Fresh cherries command at least six times the price of processing cherries making it an economic hardship to move fresh cherries to processing even if processors would accept them.

Under the proposal, the regulated area would consist of areas where the ECFF has been found and would extend one-half mile in all directions from each such location. Thus far, ECFF has only been detected in State parks and public lands. Regulated articles would only be moved from the regulated area if a grower or handler has a limited permit issued by the Commissioner or has entered into a compliance agreement which would require a systems approach that minimizes the risk of ECFF spread. If the growers or handlers meet these requirements, they would be able to move regulated articles anywhere within New York, except for the following cherry producing counties established as restricted areas: Counties of Columbia, Dutchess, Ulster and Wayne.

Under the proposed rule, the quarantine area would surround the regulated area and would extend 4 miles from the regulated area. Regulated articles would only be able to be moved from a quarantine area if the grower or handler has a limited permit or has entered into a compliance agreement. Since there is a lower risk of exposure to ECFF in the quarantine area, regulated articles in this area would be able to be moved throughout the State, including the established restricted cherry producing areas.

To date, ECFF has not infested any cherry orchards in the regulated area in New York State. There are 16 growers in the regulated area, and an additional 36 growers in the quarantine area, which would be affected by this proposed regulation. There are also 110 registered nursery growers and 141 registered nursery dealers in the quarantine area. Those in possession of regulated articles would need a limited permit or compliance agreement in order to move regulated articles outside the regulated and quarantine areas to ensure that no plants bear any host fruit at the time of sale or movement out of the regulated area.

These proposed regulations are necessary to protect the general welfare, since the effective control of ECFF in New York State, generally, and Niagara, Erie and Orleans Counties, specifically, is critical for the protection of New York State’s $4.5-million dollar cherry industry, which includes 450 acres of cherry production. The proposed regulations help ensure that as control measures are undertaken in the regulated and quarantine areas, ECFF will not spread beyond those areas via the movement of infested fruit or other host material.

4. Costs:

(a) Costs to regulated parties for the implementation of and continuing compliance with the rule: Growers in the quarantine and regulated areas would be provided the required pesticides and pesticide applications by the United States Department of Agriculture (USDA). Accordingly, growers would not incur any costs for the application of pesticides. Department staff have visited the growers and held meetings in the counties forming part of the proposed regulated and quarantine areas to explain the proposed regulation and the compliance agreements. It is anticipated that each grower would have to spend a maximum of three hours to understand, sign, and comply with requirements of the compliance agreement. This would cost $300.00, based on $100.00 per hour. Growers would be able to self-issue limited permits upon complying with the requirements of the compliance agreement. This time is included in the $300.00. For 52 impacted cherry growers (one grower has fields in both the regulated and quarantine areas), this is a total of $5,200.00.

(b) Costs to the agency, the State and local governments for the implementation and continuation of the rule: Department horticultural Inspectors would be working with growers on the signing and enforcement of the compliance agreements and limited permits. This work would be shared among 2 to 7 people at a cost of approximated $48,000 in staff time.

(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 Department records and practices and observations of the industry.

5. Local government mandates:

There are no additional programs, services, duties or responsibilities imposed by this proposed rule upon any county, city, town, village, school district, fire district or any other special district.

6. Paperwork:

Growers would be issued compliance agreements, which would authorize the grower to self-issue limited permits to move regulated articles.

7. Duplication:

The USDA would issue a parallel quarantine that will mirror the State quarantine.

8. Alternatives:

The only alternative considered was to continue with control efforts directed at similar fruit flies in areas where infestation was discovered without a quarantine. This option was rejected since, to do so, could result in the USDA establishing a quarantine throughout New York State, preventing fresh cherries from New York being sold outside the State.

9. Federal standards:

The USDA would be establishing a parallel quarantine which will mirror this one.

10. Compliance schedule:

This proposed rule would take effect immediately.

1. Effect of rule:

This proposed regulation would establish regulated and quarantine areas in Erie, Niagara, and portions of Orleans Counties to help control the spread of the European Cherry Fruit Fly (ECFF) and would establish a systems approach set forth in a compliance agreement for the movement of regulated articles (i.e. cherries, and host material including soil beneath the dripline of the host material) out of the regulated and quarantine areas.

The regulated area would extend from an ECFF detection by one-half mile. To date, the only detection of ECFF has been found in State parks and public land. Regulated articles would only be moved from the regulated area if a grower or handler has a limited permit issued by the Commissioner or has entered into a compliance agreement which requires a systems approach that minimizes the chance of ECFF spread. If the growers or handlers meet these requirements, they would be able to move regulated articles anywhere within New York, except for the following cherry producing counties established as restricted areas: Counties of Columbia, Dutchess, Ulster and Wayne.

The quarantine area would surround the regulated area and would extend 4 miles from the regulated area. Cherries would only be able to be moved from a quarantine area if the grower or handler has a limited permit issued by the Commissioner or has entered into a compliance agreement. Since there is a lower risk of exposure to the ECFF in the quarantine area, regulated articles in this area would be able to be moved throughout the State, including the established restricted cherry producing areas.

It is not anticipated that local governments would be involved in the shipment of cherries from the regulated and quarantine areas.

2. Compliance requirements:

All regulated parties in the regulated and quarantine areas would be required to obtain limited permits issued by the Commissioner (or enter into compliance agreements) to ship regulated articles outside those areas. If growers enter into compliance agreements, they would have to use a systems approach to control the insects as set forth in the compliance agreement that minimizes the chance of ECFF spread.

It is not anticipated that local governments would be involved in the shipment of cherries from the regulated and quarantine areas.

3. Professional services:

Those shipping regulated articles from the regulated and quarantine areas would need a limited permit issued by the Commissioner, or would have to enter into a compliance agreement which would require a systems approach to control the insects as set forth in the compliance agreement that minimizes the chance of ECFF spread.

It is not anticipated that local governments would be involved in the shipment of cherries from the regulated and quarantine areas.

4. Compliance costs:

(a) Initial capital costs that will be incurred by a regulated business or industry or local government in order to comply with the rule: It is anticipated that there would be no such costs.

(b) Annual cost for continuing compliance with the rule: Costs to regulated parties for the implementation of and continuing compliance with the rule: Growers in the quarantine and regulated areas would be provided the required pesticides and application services by the United States Department of Agriculture (USDA). Accordingly, growers would not incur any costs arising from the application of pesticides. Department staff have discussed with growers the proposed regulation and the compliance agreements. It is anticipated that each grower would have to spend a maximum of three hours to understand, sign, and comply with requirements of the compliance agreement. This will cost $300.00, based on $100.00 per hour.

Growers would be able to self-issue limited permits upon complying with the requirements of the compliance agreement. This time is included in the $300.00. For 52 impacted cherry growers (one grower has fields in both the regulated and quarantine area), this is a total of $5,200.00.

It is not anticipated that local governments would be involved in the shipment of regulated articles from the regulated and quarantine areas.

5. Economic and technological feasibility:

The economic and technological feasibility of compliance with the proposed rule by small businesses and local governments has been addressed and such compliance has been determined to be feasible. Growers shipping regulated articles outside the regulated and quarantine areas would require a limited permit or enter into a compliance agreement which would require a systems approach that minimizes the risk of ECFF spread.

It is not anticipated that local governments would be involved in the shipment of cherries from the regulated and quarantine areas and as such, would incur no costs.

6. Minimizing adverse impact:

Approaches for minimizing adverse economic impact were considered. The Department has sought to minimize adverse impact of ECFF quarantine through the use of limited permits and compliance agreements between the Department and regulated parties, including small businesses. This would facilitate the movement of regulated articles by permitting the shipment of those articles without State or federal inspection, with the exception of regulated articles leaving the regulated area. Those cherries are banned from entry into cherry producing counties restricted by the USDA. There is no charge for a limited permit or compliance agreement. Given all facts and circumstances, the regulations minimize adverse economic impact as much as is currently possible.

It is not anticipated that local governments would be involved in the shipment of cherries from the regulated and quarantine areas.

7. Small business and local government participation:

In anticipation of the regulatory quarantine issued in 2018, which has since expired, the Department mailed an ECFF fact sheet to cherry growers in affected counties and held meetings to discuss ECFF in late 2017.

Most recently, on February 4, 2019 and February 5, 2019, the Department participated in meetings in Lockport and Newark, respectively, to present findings from the 2018 ECFF quarantine and inform growers of the anticipated increase of the regulated and quarantine areas. Approximately 130 fruit growers were in attendance at the meeting in Lockport and 120 fruit growers at the meeting in Newark. Margaret Kelly, Assistant Director of Plant Industry for the Department presented the findings.

On February 20, 2019 ECFF updates were provided by New York State Integrated Pest Management of Cornell University, at a meeting held in Albany, with 250 fruit growers in attendance.

In November, potentially impacted fruit growers participated in a stakeholder meeting with the USDA Animal and Plant Health Inspection Service (APHIS) attended by various Department officials. The Department officials present were Deputy Commissioner Jacqueline Moody-Czub, Director of Plant Industry Christopher Logue, Assistant Director of Plant Industry Margaret Kelly, and Horticultural Inspector William Ellsworth.

Further, the Department has conducted phone calls with various impacted growers by Commissioner Richard Ball, Deputy Commissioner Jacqueline Moody-Czub, Director Christopher Logue, and Assistant Director Margaret Kelly.

1. Types and estimated numbers of rural areas:

There are 16 growers in the regulated area and 36 growers in the quarantine area, all of whom are in rural areas as defined by section 481(7) of the Executive Law.

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

The proposed rule does not require any reporting or recordkeeping requirements. In terms of professional services, those shipping regulated articles from the regulated and quarantine areas would need a limited permit issued by the Commissioner or a compliance agreement.

3. Costs:

Costs to regulated parties for the implementation of and continuing compliance with the rule: Growers in the quarantine and regulated areas would be provided the required pesticides and application services by the United States Department of Agriculture (USDA). Accordingly, growers would not incur any costs arising from the application of pesticides. Department staff have discussed with growers the proposed regulation and the compliance agreements. It is anticipated that each grower would have to spend a maximum of three hours to understand, sign, and comply with requirements of the compliance agreement. This will cost $300.00, based on $100.00 per hour.

Growers would be able to self-issue limited permits upon complying with the requirements of the compliance agreement. This time is included in the $300.00. For 52 impacted cherry growers (one grower has fields in both the regulated and quarantine area), this is a total of $5,200.00.

4. Minimizing adverse impact:

In conformance with State Administrative Procedure Act section 202-bb(2), the Department has designed the proposed rule to minimize adverse economic impact on regulated parties in rural areas. By limiting ECFF regulated and quarantine areas to regions where infestation exists, the rule minimizes economic impacts without compromising efforts to slow the spread of ECFF.

Approaches for minimizing adverse economic impact were considered. The Department has sought to minimize adverse impact of the ECFF quarantine by continuing the use of limited permits issued by the Commissioner and compliance agreements between the Department and regulated parties, including regulated parties in rural areas. This would facilitate the movement of regulated articles by permitting the shipment of cherries without state or federal inspection, with for the exception of cherries leaving the regulated area. Those cherries are banned from entry into cherry producing counties restricted by the USDA. There is no charge for a compliance agreement. Given all the facts and circumstances, the proposed regulations minimize adverse economic impact as much as is currently possible.

5. Rural area participation:

In anticipation of the regulatory quarantine issued in 2018, which has since expired, the Department mailed an ECFF fact sheet to cherry growers in affected counties and held meetings to discuss ECFF in late 2017.

Most recently, on February 4, 2019 and February 5, 2019, the Department participated in meetings in Lockport and Newark, respectively, to present findings from the 2018 ECFF quarantine and inform growers of the anticipated increase of the regulated and quarantine areas. Approximately 130 fruit growers were in attendance at the meeting in Lockport and 120 fruit growers at the meeting in Newark. Margaret Kelly, Assistant Director of Plant Industry for the Department presented the findings.

On February 20, 2019 ECFF updates were provided by New York State Integrated Pest Management of Cornell University, at a meeting held in Albany, with 250 fruit growers in attendance.

In November, potentially impacted fruit growers participated in a stakeholder meeting with the USDA Animal and Plant Health Inspection Service (APHIS) attended by various Department officials. The Department officials present were Deputy Commissioner Jacqueline Moody-Czub, Director of Plant Industry Christopher Logue, Assistant Director of Plant Industry Margaret Kelly, and Horticultural Inspector William Ellsworth.

Further, the Department has conducted phone calls with various impacted growers by Commissioner Richard Ball, Deputy Commissioner Jacqueline Moody-Czub, Director Christopher Logue, and Assistant Director Margaret Kelly.

1. Nature of impact:

It is anticipated that the proposed rule will not have a negative impact on jobs and employment opportunities in New York, since regulated parties would incur no costs in complying with this proposal.

2. Categories and numbers affected:

It is anticipated that the proposed rule will not affect any jobs or employment. opportunities in New York.

3. Regions of adverse impact:

There are no regions of adverse impact since the proposed rule will not affect any jobs or employment opportunities in New York.

4. Minimizing adverse impact:

Approaches for minimizing adverse economic impact to jobs and employment opportunities were considered. The Department has sought to minimize adverse impact of the ECFF quarantine by proposing the use of limited permits issued by the Commissioner or compliance agreements between the Department and regulated parties. These permits and agreements would allow the shipment of regulated articles without State or federal inspection, with the exception of regulated articles leaving the regulated area which are banned from entry into cherry producing counties restricted by the USDA. There is no charge for a limited permit or compliance agreement. Given all of the facts and circumstances, the proposed regulations minimize adverse economic impact as much as is currently possible.