PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following proposed rule:
Proposed Action:
This is a consensus rule making to repeal Parts 128, 129, 131 and 137 of Title I NYCRR.
Statutory authority:
Agriculture and Markets Law, sections 18, 163, 164 and 167
Subject:
To repeal obsolete rules.
Purpose:
To repeal regulations governing quarantine of gypsy moth, pine shoot beetle and pear root stock/seed.
Text of proposed rule:
Parts 128, 129, 131, and 137 of 1NYCRR are repealed.
Text of proposed rule and any required statements and analyses may be obtained from:
Margaret Kelly, Interim Director of Plant Industry, 10B Airline Drive, Albany, NY 12235, (518) 457-2087, email: Margaret.Kelly@agricuture.ny.gov
Data, views or arguments may be submitted to:
Same as above.
Public comment will be received until:
45 days after publication of this notice.
Consensus Rule Making Determination
The Department has considered the proposed amendment which would repeal Parts 128, 129, 131, and 137 of 1NYCRR and has determined that this proposed rulemaking is a consensus rulemaking within the meaning of section 102(11) of the State Administrative Procedure Act (SAPA). Section 102(11) of SAPA defines consensus rule to be a rule proposed by an agency for adoption on an expedited basis pursuant to the expectation that no person is likely to object to its adoption because it merely (a) repeals regulatory provisions which are no longer applicable to any person, (b) implements or conforms to non-discretionary statutory provisions, or (c) makes technical changes or is otherwise non-controversial.
Agriculture and Markets Law (AML) Article 14 relates to the Prevention and Control of Disease in Trees and Plants; Insect Pests; Sale of Fruit-Bearing Trees. 1NYCRR Parts 128, 129, 131, and 137 pertain to quarantine and control of gypsy moth, quarantine of pine shoot beetle, and pear root stock/seed.
1NYCRR Part 128 establishes a quarantine for the gypsy moth, a moth in the family Erebidae of Eurasian origin. These moth larvae are pests that cause tree damage beginning in early spring and continuing through mid-May. Gypsy moth caterpillars have a preference for the leaves of deciduous hardwood trees such as maple, elm, and particularly oak. Gypsy moths can also feed on apple, alder, birch, poplar and willow trees. As a gypsy moth grows it will also attack evergreens pine and spruce. Depending on the degree of infestation, tree damage ranges from light to almost complete defoliation. The moth was brought to the United States in 1869 in a failed attempt to start a silkworm industry. Escaping soon after, the gypsy moth has become, over the past century, a major pest in the northeastern United States and southeastern Canada.
Part 128 prohibits the intrastate movement of the Gypsy moth in all New York State counties, except Cattaraugus, Chautauqua, Erie, Genesee, Monroe, Niagara, Orleans and Wyoming Counties; and the following towns in Monroe County: Brighton, Henrietta, Irondequoit, Mendon, Penfield, Perinton, Pittsford, Rush, Webster and Wheatland; and in Monroe County the City of Rochester. The quarantine regulates the intrastate movement of live gypsy moths in any stage of development, trees, shrubs, plants and vines, both deciduous and evergreen, having persistent woody stems, and parts thereof, including Christmas trees, timber products, stone and quarry products and any other commodities or articles when found on inspection to be infested with the gypsy moth in any of its stages.
Part 129 of Title One of NYCRR regulates the control of gypsy moths and the conditions by which items that may contain living gypsy moths at any stage of development are inspected, moved, and regulated. The Department may issue certificates or limited permits allowing the intrastate movement of woody materials, stone and quarry products and any other articles found on inspection by the Department to be free from infestation of the moth. Certificates and limited permits may be canceled or withdrawn by the Department whenever their further use might result in the dissemination of infestation. Moreover, when articles are found to be moving or have been moved intrastate that contain the moth, the Department may take whatever action is necessary to eliminate the danger of dissemination.
These rules were adopted to help control and prevent the spread of the gypsy moth within New York State by imposing a quarantine and controlling the movement of the gypsy moth. However, despite this effort, the gypsy moth is now endemic throughout New York State. Consequently, there is no longer any basis for the quarantine or the control of movement of the moth within New York State.
1NYCRR Part 131 establishes a quarantine for the Pine Shoot Beetle, a beetle in the family Curculionidae of Eurasian origin. These beetles are shoot-feeding pests that feed through the autumn and winter on the pith in strong apical shoots of healthy young trees, killing the bored-out shoots. This does not kill the tree, but causes damage to the growth form, reducing the economic value of the timber by reducing growth rates and stem straightness. The first known occurrence in North America was found in 1992 at a Christmas tree farm near Cleveland, Ohio, from where it has spread.
Part 131 prohibits the movement of pine Christmas trees, pine nursery stock and pine logs and lumber with bark attached within Albany, Allegany, Broome, Cattaraugus, Cayuga, Chautauqua, Chemung, Chenango, Clinton, Columbia, Cortland, Delaware, Erie, Essex, Franklin, Fulton, Genesee, Greene, Hamilton, Herkimer, Jefferson, Lewis, Livingston, Madison, Monroe, Montgomery, Niagara, Oneida, Onondaga, Oswego, Ontario, Orleans, Otsego, Rensselaer, Saratoga, Schenectady, Schoharie, St. Lawrence, Schuyler, Seneca, Steuben, Sullivan, Tioga, Tompkins, Warren, Washington, Wayne, Wyoming and Yates Counties to any point outside of said counties except in accordance with 7 CFR sections 301.50 through 301.50-10.
The rule was adopted to help control and prevent the spread of the pine shoot beetles within New York State by imposing a quarantine and controlling the movement of the beetle. However, despite this effort, the beetle is now endemic throughout New York State. Consequently, there is no longer any basis for the quarantine or the control of movement of the beetle within New York State.
Part 137 was adopted to regulate the shipments of pear roots and seeds from out of state markets. The rule also prohibits specific pyrus root and seed species. The rule requires that out of state pear root stock and pear seed shipped to New York State receive an inspection certificate and valid affidavit from an authorized official in the roots’ and seeds’ State of origin certifying the variety of pear root or seed. Further, the rule prohibits specific pyrus pear root and seed species from being shipped into New York State. These species include: calleryeana, ussuriensis, nivalis, serotina and betulafolia. The rule provides exceptions to the entry of the above-named species when using them for scientific research purposes. Possession of the prohibited species for research purposes requires confinement of the species and written permission. The disease (pear decline) that was of concern when this regulation was promulgated has not proven to be a significant problem in any pear growing areas in the United States. The perceived need for this regulation no longer exists, rendering the regulation of these pyrus root and seeds obsolete.
Accordingly, for the reasons set forth above, Parts 128, 129, 131, and 137 no longer apply to any person and no person is likely to object to the repeal of these rules since the repeal of these Parts is noncontroversial. As such, the repeal of Parts 128, 129, 131, and 137 is a consensus rule making within the meaning of SAPA § 102(11)(a) and (c).
Job Impact Statement
No job impact statement is required pursuant to section 201-a(2)(a) of the State Administrative Procedure Act. It is apparent from the nature of the proposed amendments, which repeal obsolete rules, that they will have no adverse affect on jobs and employment opportunities.
