ENV-21-15-00010-A Prevent Further Spread of the Emerald Ash Borer (EAB)

10/7/15 N.Y. St. Reg. ENV-21-15-00010-A

NEW YORK STATE REGISTER

VOLUME XXXVII, ISSUE 40

October 07, 2015

RULE MAKING ACTIVITIES

DEPARTMENT OF ENVIRONMENTAL CONSERVATION

NOTICE OF ADOPTION

 

I.D No. ENV-21-15-00010-A

Filing No. 803

Filing Date. Sept. 18, 2015

Effective Date. Oct. 07, 2015

Prevent Further Spread of the Emerald Ash Borer (EAB)

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

Action taken:

Addition of section 192.7 to Title 6 NYCRR.

Statutory authority:

Environmental Conservation Law, sections 1-0101(3)(b), (d), 3-0301(1)(b), (d), (2)(m), 9-0105(1), (3) and 9-1303; art. 9, title 13

Subject:

Prevent further spread of the Emerald Ash Borer (EAB).

Purpose:

To restrict EAB, ash wood and ash products infested with EAB to restricted zones where infestations exist.

Text of final rule:

A new section 192.7 is added to 6 NYCRR Part 192 to read as follows:

Section 192.7 Control of the Emerald Ash Borer

(a) Purpose, scope and applicability.

(1) The purpose of this Part is to establish quarantines to protect New York’s ash trees, forests, communities, homeowners, forest owners and forest industries from economic, environmental and social harm due to the death of ash trees caused by the invasive, exotic insect, emerald ash borer (Agrilus planipennis). The quarantines restrict the movement of emerald ash borer by regulating movement of host materials to slow the spread of this destructive pest into areas of New York State where it is currently not present, as part of the Department of Environmental Conservation’s Forest Insect and Disease Control responsibilities under ECL section 9-1303.

(2) The regulations set forth in this Part are complemented by similar provisions found in New York State Agriculture and Markets regulations, in Part 141 of Title 1 of NYCRR, which establishes the same quarantines under their authority.

(b) Definitions.

For the purpose of this Part, the following words, names and terms shall be construed respectively, to mean:

(1) ‘AML’ means the Agriculture and Markets Law.

(2) ‘Authorized handler’ means any person who is granted a limited permit or certificate issued by NYSDAM or enters into a compliance agreement with NYSDAM.

(3) ‘Ash’ means all Fraxinus species including green ash (Fraxinus pennsylvanica), white ash (Fraxinus americana), black ash (Fraxinus nigra), blue ash (Fraxinus quadrangulata) and any horticultural cultivar of these species.

(4) ‘Buffer area’ means the zone surrounding the core area of emerald ash borer infestation, which begins at the outside boundary of the core area of infestation and extends outward for a distance of five miles.

(5) ‘Certificate of inspection’ means a document issued under the authority of NYSDAM certifying the eligibility of products for intrastate movement under the requirements set forth in Part 141 of Title 1 of NYCRR.

(6) ‘Commissioner’ means the commissioner of the Department of Environmental Conservation as well as meaning the Commissioner's designated agent.

(7) ‘Compliance agreement’ means a document issued by NYSDAM setting forth the requirements covering the restricted movement, processing, handling or utilization of regulated articles not eligible for certification for intrastate movement, which, if followed, permits the persons or firm executing the document to issue an inspection certificate or a limited permit pursuant to the terms of the document and this Part.

(8) ‘Core area’ means the location of an EAB infestation, as determined by the department and confirmed by the NYSDAM, based upon the detection of the emerald ash borer and/or evidence of its activity in one or more of its life stages at that location.

(9) ‘Department’ or ‘DEC’ means the New York State Department of Environmental Conservation.

(10) ‘Emerald ash borer or EAB’ means the insect known as the emerald ash borer, Agrilus planipennis, in any stage of development.

(11) ‘Firewood’ means, only with respect to this section, ash wood, cut or not cut, split or not split, regardless of length, which is either in a form and size appropriate for use as fuel, or intended for use as fuel. Firewood does not include: (1) kiln dried dimensional lumber; (2) wood that has been chipped; and (3) logs or wood being transported to or possessed by the following operations and facilities for use in their primary manufacturing process:

(i) sawmills for dimensional lumber;

(ii) pulp and/or paper mills;

(iii) wood pellet manufacturing facilities;

(iv) plywood manufacturing facilities;

(v) wood biomass-using refineries or power plants;

(vi) re-constituted wood or wood composite product manufacturing plants; and

(vii) facilities treating firewood in accordance with department regulations.

(12) ‘Infestation’ means 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.

(13) ‘Inspector’ means an inspector of NYSDAM, or cooperator from DEC or the United States Department of Agriculture (USDA), when authorized by NYSDAM to act in that capacity.

(14) ‘Limited permit’ means a document issued under the authority of NYSDAM permitting the restricted movement of regulated articles from a quarantined area to a specified destination for specified processing, handling or utilization.

(15) ‘Local government’ means a village, town, city or county.

(16) ‘Moved; movement’ means shipped, offered or received for shipment, carried, transported, relocated into or through any area of the state.

(17) ‘Nursery stock’ means all trees, shrubs, plants and vines and parts thereof.

(18) ‘NYSDAM’ means the New York State Department of Agriculture and Markets.

(19) ‘NYSDAM commissioner’ means the Commissioner of the Department of Agriculture and Markets.

(20) ‘Person’ means any individual, firm, co-partnership, association or corporation other than the state or a public corporation, as the latter is defined in Article 2A of section 66 of the General Construction Law. A person will also mean the state, a public corporation or a municipal subdivision when set forth in the terms of a cooperative agreement authorized by ECL section 9-1302(1) providing for the agreement of the aforementioned group to be subject to these regulations.

(21) ‘Quarantine map or quarantine maps’ means an official map approved by NYSDAM, and promulgated pursuant to Part 141 of Title 1 of NYCRR, which delineates the boundaries of the restricted zones within the state which are subject to the requirements set forth in this section.

(22) ‘Regulated article’ means any ash material, living, dead, cut or fallen, inclusive of nursery stock, logs, firewood, green lumber, stumps, roots, branches and debris, and any wood material that is commingled and otherwise indistinguishable from the above. Notwithstanding the above, (i) ash bark and mulch are not regulated articles; and (ii) ash chips or chips indistinguishable from ash chips, regardless of size, are regulated articles only during the period commencing on April fifteenth and continuing up to and including May fifteenth.

(23) ‘Restricted zone or restricted zones’ means a geographic area of the state delineated on the EAB quarantine map, promulgated in Part 141 of Title 1 of NYCRR, which includes a core area of infestation, the buffer area and entire area of any town or city which has thirty (30) percent or more of its total area falling within the respective core area and/or the buffer area.

(c) Establishment and amendment of quarantine maps.

The commissioner shall consult and cooperate with NYSDAM in the preparation of quarantine maps, or any amendment or adjustment thereto. The restricted zones on the quarantine maps shall be subject to confirmation by the NYSDAM and shall be promulgated pursuant to NYSDAM regulations, Part 141 of Title 1 of NYCRR.

(d) Movement of regulated articles within restricted zones.

Regulated articles, including emerald ash borer infested material, may be moved, by any person, at any time, within a restricted zone, for processing, treatment, use or disposal at any other location within that same restricted zone provided the regulated article is eligible for unrestricted movement under all other state plant quarantines and regulations applicable to the regulated article.

(e) Restrictions on intrastate movement of regulated articles originating within or traveling through restricted zones.

(1) No person shall move:

(i) ash nursery stock from any restricted zone;

(ii) chips larger than one inch in two dimensions from the restricted zone during the period commencing on April fifteenth and continuing up to and including May fifteenth of each year; and

(iii) notwithstanding subparagraph (ii) above, regulated articles (other than ash nursery stock) from any restricted zone to or through any point outside the restricted zone, unless: (a) accompanied by a valid certificate of inspection; limited permit authorizing such movement, issued by NYSDAM; or administrative instructions of the NYSDAM Commissioner; or (b) for experimental or scientific purposes, on such conditions and under such safeguards as may be prescribed in writing by NYSDAM.

(2) Notwithstanding the above, regulated articles originating outside the restricted zone may be moved through a restricted zone, provided that:

(i) the points of origin and destination of the regulated articles are indicated on a waybill accompanying the regulated article; and

(ii) regulated articles are moved directly through the restricted zone without stopping, except for refueling and traffic conditions.

(f) Conditions governing compliance agreements for movement of regulated articles out of restricted zones.

(1) Persons engaged in growing, handling, or moving regulated articles intrastate may apply for a compliance agreement with NYSDAM, which agreement will authorize the person executing the agreement to issue certificates of inspection and limited permits without a NYSDAM inspection prior to shipment.

(2) Any person who enters into a compliance agreement with NYSDAM must agree to comply with the provisions of Part 141 of Title 1 of NYCRR, this section and any conditions imposed under a NYSDAM compliance agreement.

(3) A compliance agreement shall be subject to NYSDAM’s acceptance in its sole discretion.

(4) Any compliance agreement may be cancelled by NYSDAM either orally or in writing, whenever an inspector determines, in his or her sole discretion, that the person who has entered into the compliance agreement has not complied with Part 141 of Title 1 of NYCRR or the conditions imposed under the compliance agreement. The cancellation shall take effect upon the giving of the oral notice or the delivery of the written notice. If the cancellation is oral, the cancellation and the reasons for the cancellation shall be confirmed in writing.

(g) Conditions governing certificates of inspection and limited permits for the movement of regulated articles out of restricted zones.

(1) An inspector or an authorized holder of a compliance agreement may issue a certificate of inspection for the movement of a regulated article out of a restricted zone, provided that the regulated article:

(i) is apparently free of emerald ash borer, based on an inspection by an inspector; or has been grown, produced, manufactured, treated, stored, or handled in a manner that, in the judgment of the inspector, prevents the regulated article from presenting a risk of spreading emerald ash borer; and

(ii) is eligible for unrestricted movement under all other state plant quarantines and regulations applicable to the regulated articles.

(2) If the regulated article is not eligible for a certificate of inspection, an inspector or authorized holder of a compliance agreement can issue a limited permit for the movement of the regulated article out of a restricted zone upon the following conditions:

(i) the inspector or authorized holder of a compliance agreement determines that the regulated article: (‘a’) is to be moved intrastate to a specified destination; (‘b’) for specific processing, handling, or utilization; and (iii) this intrastate movement will not result in the spread of emerald ash borer because emerald ash borer will be destroyed by the specific processing, handling, or utilization;

(ii) the regulated article is eligible for unrestricted movement under all other state plant quarantines and regulations applicable to the regulated article; and

(iii) the destination of the regulated articles and other conditions determined by the inspector are stated in the limited permit.

(3) An inspector or authorized holder of a compliance agreement may provide additional certificates of inspection or limited permits pursuant to the terms of a compliance agreement or authorize, in writing, reproduction of the certificates of inspection on shipping containers, or both, as requested by the person operating under the compliance agreement. These certificates of inspection and limited permits may then be completed and used, as needed, for the movement out of a restricted zone of regulated articles that have met all of the requirements of Part 141 of Title 1 of the NYCRR and this section.

(4) Any certificate of inspection or limited permit may be cancelled orally or in writing by an inspector whenever the inspector determines that the holder of the certificate of inspection or limited permit has not complied with Part 141 of Title 1 of the NYCRR. If the cancellation is oral, the cancellation will become effective immediately, and the cancellation and the reasons for the cancellation will be confirmed in writing.

(h) 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 in writing by NYSDAM. The container of articles so moved shall bear, securely attached to the outside thereof, an identifying tag issued by NYSDAM showing compliance with such conditions.

(i) 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 Part 141 of Title 1 of the NYCRR, provided, that:

(1) 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 may 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

(2) For movement by road vehicle, the certificate shall accompany the vehicle and be surrendered to consignee upon delivery of shipment.

(j) Assembly of regulated articles for inspection.

(1) 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.

(2) NYSDAM and/or the department will not be responsible for any cost incident to

(3) inspection, treatment, or certification other than the services of the inspector.

(k) Inspection and disposition of shipments.

(1) Any DEC official, authorized agent or law enforcement officer (“official”) acting hereunder may investigate any vehicle, package or container which holds ash, nursery stock or other regulated articles which are infested, or which the official reasonably believes may contain an infestation, and such vehicle, package or container may be examined by the official at any time or place. When regulated articles are found to be moving or to have been moved intrastate in violation of this Part, the official may take such action as deemed necessary to eliminate the danger of dissemination of emerald ash borer. If found to be infested, any regulated articles or other materials regulated by this Part must be rendered free of infestation without cost to the state, except that for inspection and supervision. In addition to any other enforcement authority provided by law or regulation, where there is reasonable cause to believe that untreated firewood is moving or may have been moved in violation of any provision set forth in this section or any other provision of Title 6, any law enforcement officer may order that such untreated firewood be returned to its source, or confiscated and destroyed, at the expense of the violator and without cost to the state, in order to control the spread of forest insects in any stage of development and forest tree disease pursuant to ECL section 9-1303.

(2) Disposal of a regulated article shall include the discharge, deposit, dumping or placing of any regulated article into or on any land or water in a manner that prevents the establishment, introduction or spread of EAB within the restricted zone which contained the source of the regulated article. Any such disposal must be in accordance with all applicable laws and regulations.

(l) Other laws and regulations.

No provision of this section relieves any person from the obligation to comply with any other applicable federal, state, county regional or local law or regulation. This section only applies to the intrastate movement of regulated articles. The interstate movement of regulated articles must comply with applicable federal laws and regulations.

(m) Effective date.

This section 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.

Final rule as compared with last published rule:

Nonsubstantive changes were made in section 192.7(b), (c), (e), (e)(1)(ii), (g)(2)(i) and (i)(1).

Text of rule and any required statements and analyses may be obtained from:

Bruce Williamson, Chief Bureau of Private Land Services, NYS Department of Environmental Conservation, 625 Broadway, Albany, NY 12233-4253, [phone], email: [e-mail]

Additional matter required by statute:

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

Revised Regulatory Impact Statement

Non-substantive changes were made to the rule that do not necessitate revision to the previously published RIS. The non-substantive revision to the express terms allows for the movement of wood chips from a restricted zone during flight season if they are of a certain size, not larger than one inch in two dimensions.

Revised Regulatory Flexibility Analysis

Non-substantive changes were made to the rule that do not necessitate revision to the previously published RFA statement. The non-substantive revision to the express terms allows for the movement of wood chips from a restricted zone during flight season if they are of a certain size, not larger than one inch in two dimensions. This revision does not result in any impact on small businesses and local governments in the State.

Revised Rural Area Flexibility Analysis

Non-substantive changes were made to the rule that do not necessitate revision to the previously published RAFA. The non-substantive revision to the express terms allows for the movement of wood chips from a restricted zone during flight season if they are of a certain size, not larger than one inch in two dimensions. This revision does not result in any impact on rural communities in the State.

Revised Job Impact Statement

Non-substantive changes were made to the rule that do not necessitate revision to the previously published JIS. The non-substantive revision to the express terms allows for the movement of wood chips from a restricted zone during flight season if they are of a certain size, not larger than one inch in two dimensions. These revisions do not result in any impact on jobs and employment opportunities in the State.

Initial Review of Rule

As a rule that requires a RFA, RAFA or JIS, this rule will be initially reviewed in the calendar year 2018, which is no later than the 3rd year after the year in which this rule is being adopted.

Assessment of Public Comment

The Department received public comments on the addition of a new section 192.7 of Part 192 which would help control the spread of the Emerald Ash Borer (EAB) in New York State. The Department received two comments during the public comment period.

First Comment:

The first comment was submitted by Eric Carlson, President and CEO of the Empire State Forest Products Association. Mr. Carlson raises four issues and concerns in his comments, as follows:

Issue/Concern: Mr. Carlson expresses the view that the past regulatory framework has done very little to slow the spread of EAB and that except for the Adirondacks, EAB is in every region of the State.

Response: The Department disagrees. Surveys reveal that EAB is not in every region of the State and in fact, only approximately 7.3 percent of New York State has been found to be infested with the pest. The Department believes that its EAB quarantine order, coupled with the department’s regulations restricting movement of untreated firewood and the New York State Department of Agriculture and Markets (NYSDAM) EAB quarantine regulation, have significantly slowed the spread of EAB in New York State.

Issue/Concern: Mr. Carlson expresses the view that EAB infestations have spread due to local concentrations of ash trees, and expects the pattern to continue under the new regulations. He also indicates that the regulations would impact local wood harvesting entities and consumers, since extra handling to separate ash from other wood species would be necessary and would limit sales of untreated ash firewood. Mr. Carlson says that although the restrictions in the regulations would not be a large factor in firewood availability, the restrictions would contribute to local shortages of firewood in certain regions of New York State. Finally, Mr. Carlson indicates that firewood producers in any of the restricted zones set forth in the regulations would be placed at a competitive disadvantage in supplying local markets.

Response: Notwithstanding local concentrations of ash trees, evidence suggests that the quarantines instituted by both the Department and NYSDAM have slowed the spread of EAB, particularly in the case of human-assisted movement which allows the pest to infest areas far beyond its point of origin. The Department agrees (as Mr. Carlson notes) that market factors other than the restrictions in the regulations have contributed to firewood shortages in some areas. The Department believes that the economic and environmental benefits of the regulation in protecting New York State’s natural resources from the spread of EAB outweighs the costs to regulated parties. In any event, these costs to firewood producers are mitigated by the fact that the regulations allow for the sale of ash firewood within a restricted zone; allow for the sale and movement of firewood other than ash outside a restricted zone; and allow any heat-treated firewood to be sold and moved throughout New York State.

Issue/Concern: Mr. Carlson questions the overall benefit of separating logs by species and restricting movement of infested ash wood in more populated areas where expensive trees being used along public roads and in public parks are being impacted. He recommends that the Department reconsider the regulations and possibly eliminate them, while continuing outreach to populated regions to assist communities in understanding measures to consider in implementing practical, cost-effective strategies.

Response: The regulations are but one component of the State’s overall response to EAB. Other aspects include ongoing outreach and educational efforts aimed at reducing the human-assisted spread of EAB; technical and financial assistance to communities in preparing for and responding to EAB; and participation in bio-control research. Outreach efforts with communities and regulated parties are ongoing. The Department and NYSDAM are monitoring the status of the EAB infestations as well as new detections. Amendments to the regulations are possible if circumstances so warrant.

Issue/Concern: Mr. Carlson argues that the likelihood of EAB surviving the chipping operations at a mill is very low and urges that the restriction concerning the transport of ash wood chips during EAB flight season be removed. He says that the restriction “imposes serious material handling problems while creating new worker safety concerns.” He also says that the restriction diminishes the value of the chips for other wood products.

Response: Section 192.7(e)(1)(ii) of the regulations provides that no person shall move “chips of any size from the restricted zone during the period commencing on April fifteenth and continuing up to and including May fifteenth of each year …” The Department has considered Mr. Carlson’s comment as well as applicable federal protocols. In an effort to clarify the regulations, the Department is making a non-substantial change to section 192.7(e)(1)(ii) to read that no person shall move “chips larger than one inch in two dimensions from the restricted zone during the period commencing on April fifteenth and continuing up to and including May fifteenth of each year …”

Chips below this size threshold meet the established Federal and state treatment specifications for preventing spread of EAB and therefore, other provisions notwithstanding, they may be allowed to move without further restriction.

This change eases a regulatory burden and addresses Mr. Carlson’s concern at least in part, by allowing movement of very small (‘treated”) chips (one inch or less in two dimensions) during flight season.

Second Comment:

The second comment was submitted by Thomas Gerow of the Wagner Companies in Owego, New York. He raises the following issue/concern:

Issue/Concern: Like Mr. Carlson, Mr. Gerow questions the need for the prohibition against the movement of wood chips during the EAB flight season (April 15th – May 15th). He believes it is “not impossible, just extremely unlikely” that EAB could survive the chipping process.

Response: As noted above, the Department has changed section 192.7(e)(1)(ii) to allow the movement during flight season of chips which are one inch or less in two dimensions.