Section 192.7(b) sets forth the definitions used in this section.

Section 192.7(c) sets forth the process for establishing the current quarantine map. The map, promulgated in regulation by the New York State Department of Agriculture and Markets (NYSDAM), in Part 141 of Title 1 of NYCRR, identifies the 14 restricted zones which are infested with the Emerald Ash Borer (EAB). This section also provides that any amendment to the map shall be made by regulation.

Section 192.7(d) governs the movement of regulated articles within restricted zones. It generally provides that any ash material or wood material that is commingled and otherwise indistinguishable from ash material may be moved within a restricted zone for processing, treatment, use or disposal. This includes EAB-infested material.

Section 192.7(e) governs restrictions on movement of regulated articles originating within or traveling through restricted zones. This section generally prohibits the movement of ash nursery stock year round and chips between April 15th and May 15th. This section permits the movement of regulated articles accompanied by a valid certificate of inspection, limited permit, both from NYSDAM, administrative instructions by the Commissioner of NYSDAM, or those being moved for experimental or scientific purposes. Section 192.7(e) also provides that regulated articles from outside a restricted zone may be moved through the restricted zone to a point outside that zone, as long as the origin and destination of the articles are on a waybill and the articles are moved without stopping except for traffic conditions or refueling.

Section 192.7(f) governs compliance agreements. This section generally provides that persons engaged in growing, handling or moving regulated articles intrastate may apply to NYSDAM for a compliance agreement, subject to NYSDAM approval. Any person who enters into a compliance agreement must agree to comply with this section and NYSDAM regulation, Part 141 of Title 1 NYCRR and any condition in the agreement. Any compliance agreement may be cancelled either orally or in writing, whenever an inspector determines that the person holding the compliance agreement has not complied with this section or NYSDAM regulation, Part 141 of Title 1 NYCRR or the conditions in the agreement.

Section 192.7(g) governs certificates of inspection and limited permits. An inspector may issue a certificate of inspection for the movement of regulated articles outside restricted zones, provided that the article is apparently free of EAB; has been grown, produced, manufactured, treated, stored or handled in a manner that prevents the regulated article from presenting a risk of spreading EAB; and is eligible for unrestricted movement under all other state plant quarantines and regulations. If the regulated articles are not eligible for a certificate of inspection, an inspector may issue a limited permit for movement of the articles, provided the articles are being moved to a specified destination for specific processing, handling or utilization, and the movement will not result in the spread of EAB since EAB will be destroyed by the specific processing, handling or utilization. Any certificate of inspection or limited permit may be cancelled either orally or in writing, whenever an inspector determines that the person holding the certificate or permit has not complied with this section or NYSDAM regulation, Part 141 of Title 1 NYCRR.

Section 192.7(h) provides that regulated articles may be moved intrastate for experimental or scientific purposes on conditions and safeguards as may be prescribed in writing by NYSDAM. The container carrying the articles shall bear an identifying tag issued by NYSDAM showing compliance with such conditions.

Section 192.7(i) governs marking requirements. It generally provides that every container of regulated articles intended for intrastate movement shall be marked with the names and addresses of the consignor and consignee. A valid certificate of inspection or limited permit shall also be attached to the container.

Section 192.7(j) governs the assembly of regulated articles for inspection. This section generally requires that persons intending to move regulated articles intrastate shall apply for certification as far in advance as possible and assemble regulated articles at such points and in such manner as the inspector shall designate. This section also provides that the Department and/or NYSDAM will not be responsible for any cost incident to the inspection other than for the services of the inspector.

Section 192.7(k) governs the inspection and disposition of shipments. It generally provides that any vehicle, container and any item to be moved, which is moving or which has been moved intrastate from a restricted zone, and may contain regulated articles or infestations of EAB, may be examined by a DEC official or an inspector. It also provides that when regulated articles are found to be moving or have been moved in violation of these regulations, a DEC official or an inspector may take such action deemed necessary to eliminate the danger of the spread of EAB. Infested articles must be rendered free of infestation at no cost to the state.

Section 192.7(l) provides that no provision of section 192.7 relieves any person from the obligation of complying with any other applicable federal, state or local law or regulation.

Section 192.7(m) sets forth the effective date of the regulation. The rule becomes effective in a particular county on and after the tenth day from the filing of a certified copy in the office of the clerk of that county.

1. Statutory authority:

Environmental Conservation Law (ECL) section 1-0101 (3) (b) directs the Department of Environmental Conservation (“Department”) to guarantee “that the widest range of beneficial uses of the environment is attained without risk to health or safety, unnecessary degradation or other undesirable or unintentional consequences.” ECL section 1-0101 (3) (d) directs the Department to preserve the unique qualities of the Adirondack Forest Preserve. ECL section 3-0301 (1) (b) gives the Department the responsibility to “promote and coordinate management of…land resources to assure their protection… and take into account the cumulative impact upon all such resources in… promulgating any impact upon all such resources… in promulgating any rule or regulation.” ECL section 3-0301 (1) (d) authorizes the Department to “exercise care, custody and control” of forest preserve lands; ECL section 9-0105(1) authorizes the Department to “exercise care, custody and control of the several preserves, parks and other state lands described” in ECL Article 9; ECL section 3-0301 (2) (m) authorizes the Department to adopt rules and regulations “as may be necessary, convenient or desirable to effectuate the purposes of the ECL”; and ECL 9-0105 (3) authorizes DEC to “make necessary rules and regulations to secure proper enforcement of ECL Article 9.”

ECL section 9-1303 grants the following authority for the purpose of control and preventing the spread of forest insects and forest tree diseases: to enter into cooperative agreements; to accept and expend gifts of money for control and prevention work; to conduct necessary investigations to discover better methods of control or prevention of the spread of forest insects and forest tree diseases; to enter upon any lands for the purpose of determining if such property is infested with forest insects or forest tree diseases; to establish quarantine districts in the State; to prohibit the movement of materials which may be harboring forest insects or forest tree diseases in any of their different forms; to poison forest areas in or near sections infested by insect pests or forest tree diseases; to establish zones for preventing the spread of forest insect and disease pests and make modifications in the composition of the forest growth as deemed necessary, including spraying, cutting, destroying or treating vegetation; and to make rules and regulations to prevent the spread of or to control forest insects and forest tree diseases, their pupae, eggs and caterpillars, and plants or trees infested by them.

2. Legislative objectives:

These regulations are consistent with the public policy objectives the Legislature sought to advance when enacting the statutory authority, preventing the spread within the State of an injurious insect and protecting trees, forests and the environment from harm or degradation.

3. Needs and benefits:

At present, 44 counties and portions of four others are under an EAB quarantine. This regulation replaces a DEC Emerald Ash Borer, Agrilus planipennis (EAB) quarantine order and replaces it with a new section 192.7, in parallel with the New York State Department of Agriculture and Markets (NYSDAM) repealing its existing Part 141 of Title 1 NYCRR and replacing it with a new Part 141, as an emergency and Proposed rulemaking, which, among other things, replaces the quarantines in the counties with 14 restricted zones. These restricted zones have been shown to be infested with EAB through survey and trapping or lie substantially within a 5 mile protective buffer zone around known infestations.

EAB, is a destructive wood-boring insect that is not indigenous to the United States. EAB causes serious damage to healthy ash trees by boring through their bark, which ultimately results in the death of the tree within two years.

Ash trees, ash nursery stock, and material from ash trees like logs, green lumber, firewood, stumps, roots, branches and debris are subject to infestation. Materials at risk of attack and infestation by the EAB include the following species of North American ash trees: White Ash (Fraxinus americana); Green Ash (Fraxinus pennsylvanica); Black Ash (Fraxinus nigra); and Blue Ash (Fraxinus quadrangulata). The movement of these materials poses a serious threat to susceptible ash trees in forests as well as in the urban landscape throughout the state.

EAB was first discovered in Michigan in June 2002, and has since spread to at least 15 other states as well as to two provinces in Canada. The initial detection of this pest in New York occurred on June 16, 2009 in the Town of Randolph, which is located in southwestern Cattaraugus County and is adjacent to Chautauqua County. A quarantine of both counties was established pursuant to federal protocols for control of EAB.

Further detections were confirmed in six other counties (Monroe, Genesee, Livingston, Steuben, Greene and Ulster) during July and August, 2010. Due to the patchwork nature of these detections, limited detection capabilities and stakeholder input, the EAB quarantine was extended to the following 10 counties in western New York: Niagara, Erie, Orleans, Wyoming, Allegany, Wayne, Ontario, Yates, Schuyler and Chemung. A new quarantine region was also established in eastern New York comprised of Greene and Ulster Counties.

In 2011, there were multiple new detections within the Western New York quarantine area. New detections of EAB in Albany and Orange Counties demonstrated further spread of EAB within the Eastern New York quarantine area and prompted the extension of the quarantine to include those counties.

In 2013, the two quarantine zones were combined by adding the counties of Broome, Cayuga, Chenango, Columbia, Cortland, Delaware, Dutchess, Otsego, Putnam, Rensselaer, Schenectady, Schoharie, Seneca, Sullivan, Tioga and Tompkins as well as portions of Fulton, Herkimer, Madison, Montgomery, Oneida and Onondaga.

In 2014, based upon new findings of EAB, the quarantine was extended to include all of Onondaga and Madison Counties.

Based upon ongoing surveys, it has been determined that all of the counties currently under quarantine are not infested with EAB; instead, there are 14 areas in the state which are infested with the pest. Under the rule, these have been designated restricted zones.

The 14 restricted zones established under this rule are located in and around the following municipalities or areas: Albany-Rensselaer; Bath; Binghamton; Buffalo; Livingstonville; Mid-Hudson; Montezuma; Nichols; Randolph; Rochester; Sheridan; Syracuse; Unadilla; and West Point. Each restricted zone consists of a core area, which is the location of an EAB infestation, and a buffer area, which surrounds the core area and extends a distance of five miles. If the core or buffer area encompasses 30-percent or more of a municipality, the entire municipality will be included within the restricted zone.

The rule allows for the movement of regulated articles within a restricted area and controls the intrastate movement of regulated articles to other locations in the state outside of the restricted zones. The rule does not regulate the interstate movement of regulated articles, since this movement is regulated by federal laws and regulations. Regulated articles that may be moved intrastate outside of a restricted area, require a valid certificate of inspection, limited permit or administrative instructions from the Commissioner of NYSDAM. The administrative instructions from the Commissioner of NYSDAM would be used in cases where the regulated articles would not be moved pursuant to Certificate of inspection or limited permit. An example would be the removal of storm debris. The administrative instructions would be expedient and would alleviate a regulatory burden by eliminating the need to apply for a certificate or permit.

Movement is allowed for experimental and scientific purposes on such conditions and under such safeguards as may be prescribed in writing by NYSDAM. This means that NYSDAM would provide conditions for movement to ensure that the pest does not escape in transit and that it will be properly contained and disposed of at the destination. Permits from the United States Department of Agriculture may also be required if the insect is moved interstate.

Persons engaged in growing, handling or moving regulated articles intrastate may apply for a compliance agreement for the restricted movement of regulated articles. The holder of a compliance agreement is authorized to issue certificates of inspection or limited permits for the one-time movement of regulated articles without a NYSDAM inspection prior to such movement.

The benefits offered by the regulations are the more effective control of the spread of EAB with the reduction of regulation of movement of ash wood from areas where there is no EAB infestation. The immediate adoption of this rule is necessary to mitigate negative economic and ecological impacts that have resulted from the current configuration of the quarantine.

4. Costs:

(a) Costs to regulated parties for the implementation of and continuing compliance with the rule: It is anticipated that costs will be minimal. There are 346 registered nursery growers and 514 registered plant dealers in the new restricted zones. However, only a fraction of these regulated parties carry regulated articles. There is no approved protocol eliminating EAB from ash nursery stock that does not kill the nursery stock; and EAB infestation has significantly reduced or eliminated the market for ash nursery stock as ornamental, street and park plantings. The new rule, by decreasing the geographical scope of the areas subject to quarantine, imposes less regulation and fewer costs on regulated parties.

Tree removal services would have the option of leaving regulated articles within the restricted zone, chipping the material, or transporting them outside of the restricted zone under a certificate of inspection or limited permit for specific processing, handling, or utilization.

(b) Costs to the agency, the state and local governments for the implementation and continuation of the rule: The only costs to the Department are for outreach and enforcement, neither of which will change from the current situation under our existing EAB quarantine order. Some local governments may face expenses in tree maintenance or removal due to EAB infestation, since ash trees have become popular trees to use to line streets. However, those costs will occur with or without this rule, most likely sooner without. The regulation does not require local governments to remove the trees from the restricted zones. Accordingly, local governments within a restricted zone will not incur any additional expenses.

(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.

5. Local government mandates:

This new section 6 NYCRR 192.7 will not impose any programs, services, duties or responsibilities upon any county, city, town, village, school district or fire district, or other special district.

6. Paperwork:

Regulated articles inspected and certified to be free of EAB moving from a restricted zone established by the rule will have to be accompanied by a state or federal certificate of inspection or a limited permit.

7. Duplication:

The New York State Department of Agriculture and Markets (NYSDAM) has implemented a regulation parallel to this one, under their overlapping authorities.

8. Alternatives:

The alternative of no action was considered. However, this option is not feasible, given the fact that many of the counties presently under quarantine are not infested, and the modification of the quarantine could reduce regulatory burden and better target infested areas of the State. The Department considered but rejected the option of establishing an entire state quarantine because this approach could place the State’s forest, urban and agricultural resources at risk from the spread of EAB that could result from the unrestricted movement of ash materials. In light of these factors, there does not appear to be any viable alternative to the establishment of restricted zones as set forth in this rule.

9. Federal standards:

The regulations do not exceed any minimum standards for the same or similar subject areas.

10. Compliance schedule:

This rule shall become effective in a particular county on and after the tenth day from the filing of a certified copy in the office of the clerk of that county.

1. Effect of rule:

It is anticipated that the modification of the Department of Environmental Conservation’s (DEC’s) regulatory approach on those handling ash wood, regardless of their size, should have minimal adverse impact on regulated parties. The Emerald Ash Borer (EAB) infestation and current federal and state quarantines have already significantly changed business practices and patterns with respect to regulated articles. Conversely, some of the changes proposed, particularly regarding movement of regulated articles within restricted zones, will benefit many parties handling ash material.

Arborists, tree care companies, utilities, municipalities and homeowners would have the option of freely moving regulated articles within the restricted zones for use, treatment or disposal, chipping the material or transporting the articles outside the restricted zones during the non-flight season, to a facility for use, treatment or disposal under a New York State Department of Agriculture and Markets (NYSDAM) compliance agreement or limited permit.

The greatest economic impact of EAB would continue to be on municipalities within the restricted zones (infested areas), as they deal with the costs to manage the impacts of this pest through assessments of existing ash inventories, tree removals, protective chemical treatments and eventual replacement of lost community trees. However, the modifications of the EAB regulations would not alter that impact.

2. Compliance requirements:

All parties in the restricted zones would be required to obtain certificates of inspection and limited permits from NYSDAM (or enter into compliance agreements with NYSDAM) to ship regulated articles (e.g. treated firewood and ash logs or lumber) outside those areas.

As there is no approved protocol to diagnose or treat nursery stock (since approved methods of eliminating EAB would kill the plants), movement of ash nursery stock outside a restricted zone is prohibited.

It is not anticipated that local governments would be involved in the shipment of regulated articles from the restricted zones.

3. Professional services:

Those shipping regulated articles from restricted zones (without having a compliance agreement with NYSDAM) would require professional inspection services provided by NYSDAM, the Department of Environmental Conservation (DEC) or the United States Department of Agriculture Animal Plant Health Inspection Service (USDA APHIS).

It is not anticipated that local governments would be involved in the shipment of regulated articles from the restricted zones.

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:

None.

(b) Annual cost for continuing compliance with the rule:

Regulated parties exporting regulated articles, exclusive of nursery stock, from the restricted zones, other than pursuant to compliance agreements, would require an inspection of the materials, reviewing shipment records and issuing a federal or state certificate of inspection. These services are available from NYSDAM at a rate of $25 per hour. Most inspections will take one hour or less. However, most shipments would be made pursuant to compliance agreements, for which there is no charge.

Tree removal services would have the option to leave ash materials within the restricted zones or transport them outside of the zones under a limited permit to a federal/state disposal site for processing.

It is not anticipated that local governments would be involved in the shipment of regulated articles from the restricted zones.

5. Economic and technological feasibility:

The economic and technological feasibility of compliance with the rule by small businesses and local governments has been addressed and such compliance has been determined to be feasible. Regulated parties shipping regulated articles outside restricted zones would require an inspection and the issuance of a certificate of inspection. The majority of shipments would be made pursuant to compliance agreements, which would not require independent inspection.

6. Minimizing adverse impact:

DEC and NYSDAM have designed their parallel rules to minimize adverse economic impact on small businesses and local governments. By limiting the EAB quarantine to areas where infestations exist, the rules minimize economic impacts while maintaining, without compromising, efforts to slow the spread of EAB.

Approaches for minimizing adverse economic impact required by section 202-a(1) of the State Administrative Procedure Act (SAPA) and suggested by section 202-b(1) of SAPA were considered. DEC has sought to minimize adverse impact of the EAB quarantine by continuing the use of compliance agreements between NYSDAM and regulated parties, agreements which permit the shipment of regulated articles without state or federal inspection and for which there is no charge. Given all of the facts and circumstances, the regulations minimize adverse economic impact as much as is currently possible.

7. Small business and local government participation:

Movement of firewood continues to present a serious threat to spread EAB and other invasive insects. State and federal entities are continuing aggressive outreach efforts in promoting the message “don’t move firewood.”

DEC is and will continue to keep stakeholder groups informed concerning this rule. On March 6, 2015, a stakeholders meeting was held in NYSDAM’s Albany Offices. Approximately 30 regulated parties attended and expressed support for the rule.

1. Type and estimated numbers of rural areas:

It is anticipated that the modification of the Department’s regulatory approach on those handling ash wood, regardless of their size, should have minimal adverse impact on regulated parties. The emerald ash borer (EAB) infestation and current federal and state quarantines have already significantly changed business practices and patterns with respect to regulated articles. Conversely, some of the changes proposed, particularly regarding movement of regulated articles within restricted zones, will benefit many parties handling ash material.

Arborists, tree care companies, utilities, municipalities and homeowners would have the option of leaving regulated articles within the restricted zones, chipping the material or transporting the articles outside the restricted zones to a disposal site for processing under a New York State Department of Agriculture and Markets (NYSDAM) compliance agreement or limited permit.

The greatest economic impact of EAB regulation would continue to be on municipalities within the restricted zones (infested areas), including those in rural areas, as they deal with the costs to manage the effect of this pest through assessments of existing ash inventories, tree removals, protective chemical treatments and eventual replacement of lost community trees. However, the modifications of the EAB regulations would not alter that impact.

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

All parties in the restricted zones, including those in rural areas, would be required to obtain certificates of inspection and limited permits from NYSDAM (or enter into compliance agreements with NYSDAM) to ship regulated articles (e.g. treated firewood and ash logs and lumber) outside those areas.

As there is no approved protocol to diagnose or treat nursery stock (since approved methods of eliminating EAB would kill the plants), movement of ash nursery stock outside a restricted zone is prohibited.

It is not anticipated that local governments, including those in rural areas, would be involved in the shipment of regulated articles from the restricted zones.

Those in rural areas shipping regulated articles from restricted zones (without having a compliance agreement with NYSDAM) would require professional inspection services provided by NYSDAM, the Department of Environmental Conservation (DEC) or the United States Department of Agriculture Animal Plant Health Inspection Service (USDA APHIS).

It is not anticipated that local governments in rural areas would be involved in the shipment of regulated articles from the restricted zones.

3. Costs:

Regulated parties in rural areas exporting regulated articles, exclusive of nursery stock, from the restricted zones, other than pursuant to compliance agreements, would require an inspection of the materials, taking and analyzing soil samples, reviewing shipment records and issuing a federal or state certificate of inspection. These services are available from NYSDAM at a rate of $25 per hour. Most inspections will take one hour or less. However, most shipments would be made pursuant to compliance agreements, for which there is no charge.

Tree removal services in rural areas would have the option to leave ash materials within the restricted zones or transport them outside of the zones under a limited permit from NYSDAM to a disposal site for processing.

It is not anticipated that local governments in rural areas would be involved in the shipment of regulated articles from the restricted zones.

4. Minimizing adverse impact:

In conformance with State Administrative Procedure Act section 202-bb(2), the Department has designed the rule to minimize adverse economic impact on small businesses and local governments in rural areas. By limiting the EAB quarantine to areas where infestations exist, the rule minimizes economic impacts while maintaining, without compromising, efforts to slow the spread of EAB.

Approaches for minimizing adverse economic impact were considered. The Department and NYSDAM have sought to minimize adverse impact of the EAB quarantine by continuing the use of compliance agreements between NYSDAM and regulated parties in rural areas, compliance agreements which permit the shipment of regulated articles without state or federal inspection and for which there is no charge. Given all of the facts and circumstances, the regulations minimize adverse economic impact as much as is currently possible.

5. Rural area participation:

Movement of firewood continues to present a serious threat to spread EAB and other invasive insects. State and federal entities are continuing aggressive outreach efforts in promoting the message “don’t move firewood.”

The Department and NYSDAM are and will continue to keep stakeholder groups informed concerning this rule. On March 6, 2015, a stakeholders meeting was held in NYSDAM’s Albany Offices. Approximately 30 regulated parties attended and expressed support for the rule.

The forest-based economy generates payrolls of more than $2 billion. 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.

There are an estimated 750 million ash trees in New York State (excluding the Adirondack and Catskill Forest Preserves), with ash species making up approximately seven percent of all trees in the State’s forests. The unchecked spread of the infestation would have substantial adverse economic consequences to the nursery, forestry and wood-working (e.g. lumber yard, flooring and furniture and cabinet making) industries of the State, due to the destruction of the regulated articles upon which these industries depend.

The modifications of the Department’s EAB regulations will: (1) target areas of infestation with greater precision, (2) more effectively slow the spread of the infestation; and, (3) at the same time, ease the regulatory burden on entities in areas where there is no current EAB infestation. Accordingly, the new regulations will not have a substantial adverse impact on jobs or employment opportunities; and will better protect jobs and employment opportunities in the wood-based forest economy.