Firewood Restrictions to Protect Forests from Invasive Species.
Purpose:
To make revisions to the current regulation to clarify it's intent.
Text of proposed rule:
Section 192.5 is repealed and new sections 192.5 and 192.6 are adopted.
Section 192.5 Firewood Restrictions to Protect Trees and Forests from Invasive Species
(a) Definitions. For the purposes of this section, these terms shall be defined as follows:
(1) "Department" shall mean the New York State Department of Environmental Conservation.
(2) "Firewood Dealer" shall mean any person, including a firewood producer, that sells firewood at retail.
(3) "Firewood" shall mean all wood of any species, cut or not cut, split or not split, regardless of length which is in a form and size appropriate for use as a fuel or which is destined for use as fuel. Kiln dried lumber is exempt from this section.
(4) "Firewood producer" shall mean any person who processes firewood for sale at the wholesale level or sells firewood at the wholesale level.
(5) "New York-Approved Treated Firewood/Pest-Free" shall mean a labeling standard for firewood that may be used by a firewood producer who complies with the provisions of subdivision (d) of this section.
(6) "Origin" shall mean the village, town, city, or street address where firewood for personal use was grown.
(7) "Person" shall mean an individual, organization, corporation, business, or partnership, public authority, county, town, village, city, municipal agency or public corporation, other than the department.
(8) "Personal Use" shall mean the use of firewood as a fuel, under the conditions specified in subdivision (e) of this section.
(9) "Phytosanitary certificate" or "plant health certificate" shall mean an official document issued by a State Department of Agriculture and Markets or the United States Department of Agriculture Animal Plant Health Inspection Service or equivalent certification from the country in which the treated firewood was produced which certifies that the firewood meets the phytosanitary regulations of New York State in accordance with the provisions of subdivision (a)(13) of this section.
(10) "Self-issued Certificate of Origin" shall mean a document for the possession of firewood for personal use as specified in subdivision (e) of this section which specifies the date, name of the possessor, the street address, city, state and zip code of the possessor, the origin of the firewood being possessed, the final destination of the firewood, and the approximate volume in cords or cubic feet being possessed. A sample self-issued certificate of origin shall be available on the department's website and at the department's regional offices.
(11) "Source" shall mean the village, town, or city designated by a firewood dealer or firewood producer as the location no greater than 50 miles from where said untreated firewood was grown. For untreated firewood produced from pallets, or which is a by-product of industrial, commercial, or wood milling operations, "source" shall mean the actual business or mill street address where such firewood is produced.
(12) "Source Documentation" shall mean a document which shall include the name and legal address of the firewood producer or firewood dealer, the source of the firewood, and the approximate volume of firewood if greater than one cord or 128 cubic feet. Source documentation may consist of a bill of lading, purchase receipt or invoice accompanying all such firewood sold or a label attached to each package or bundle of firewood.
(13) "Treated Firewood" shall mean firewood treated to achieve a minimum wood core temperature of 71°C for a minimum of 75 minutes. Such treatment may employ kiln-drying or other treatments approved by the department that achieve this specification through use of steam, hot water, dry heat or other methods.
(14) "Untreated Firewood" shall mean any firewood that has not been treated in accordance with the provisions of subdivision (a)(13) of this section.
(15) "50 Miles" shall mean a 50 mile linear distance determined by using the scale-bar on a New York State road map, atlas, or gazetteer.
(b) Prohibitions.
(1) No person shall, buy, sell, possess, or import, by any means, untreated firewood into this state from any location outside the state.
(2) No person shall buy, sell, or possess untreated firewood within the state without source documentation, as defined in subsection (a)(12), or a self-issued certificate of origin, as defined in subsection (a)(10).
(3) No person shall buy, sell, or possess untreated firewood produced from trees that are grown in New York State, more than 50 miles from the source of the firewood.
(4) No person shall sell at the retail level treated firewood unless it is labeled in accordance with subdivision (d) of this section.
(5) No person shall buy, sell, possess or import, by any means, treated firewood in this state unless the treated firewood is accompanied by a label as specified in subdivision (d) of this section or a phytosanitary certificate or a plant health certificate.
(c) Untreated Firewood
(1) Firewood dealers of untreated firewood, produced from trees that are grown in the state, shall provide source documentation to all purchasers.
(2) Firewood dealers of untreated firewood shall maintain records of their firewood purchases or procurement to verify the firewood was grown no more than 50 miles from the source. Records shall also include the name and address of the person(s) from whom the firewood was obtained and the date(s) of purchase or procurement. Such records shall be retained for two years and shall be made available for inspection by the department upon request.
(3) Firewood producers of untreated firewood shall provide to firewood dealers written source documentation for all untreated firewood supplied to them.
(4) Firewood producers of untreated firewood shall maintain records of log or wood purchases or procurement to verify firewood was grown no more than 50 miles from the source. Records shall also include the name and address of the person(s) from whom the logs or wood made into firewood were obtained and the date(s) of purchase or procurement. Such records shall be retained for two years and shall be made available for inspection by the department upon request.
(d) Treated Firewood
(1) Treated Firewood sold at the retail level in New York shall be labeled "New York-Approved Treated Firewood/Pest-Free" or shall include a phytosanitary certificate or plant health certificate. The above wording or certification shall be prominently displayed on the bill of sale or lading, purchase receipt or invoice for bulk shipments or sales or on a label affixed to any bundle or package. This labeling shall constitute the firewood dealer's certification that the firewood is treated firewood.
(2) Treated firewood sold at the wholesale level in the state shall be labeled "New York-Approved Treated Firewood/Pest-Free" or shall include a phytosanitary certificate or plant health certificate. The above wording or certification shall be prominently displayed on the bill of sale or lading, purchase receipt or invoice for bulk shipments or sales or on a label affixed to any bundle or package. This labeling shall constitute the firewood producer's certification that the firewood is treated firewood.
(3) Producers of "New York-Approved Treated Firewood/Pest-Free" firewood shall maintain, for at least two years from the date of treatment, records that document the treatment method and the volume of firewood treated, and shall also allow department officials to inspect such records and the facilities used to treat firewood upon request.
(e) Firewood for Personal Use
(1) Persons who possess untreated firewood not purchased from a firewood producer or a firewood dealer, for personal use, must complete and possess a self-issued certificate of origin.
(2) A self-issued certificate of origin shall be signed by the person possessing the untreated firewood for personal use.
(3) No person shall possess untreated firewood for personal use more than 50 miles from the origin of the firewood.
(4) Untreated firewood which originates from a person's own property, for personal use on that same property, is exempt from the requirements of this section.
(5) Persons possessing untreated firewood or treated firewood on property other than state land under the department's jurisdiction as described in subsection 190.0(a) or under the jurisdiction of the New York State Office of Parks, Recreation and Historic Preservation where it will be used for fuel are exempt from the requirement of possessing source documentation or a self-issued certificate of origin as specified in subsection (b)(2) and (e)(1), or a label, phytosanitary certificate or a plant health certificate as specified in subsection (b)(5).
(f) Enforcement
(1) In addition to any other enforcement provided by law or regulation, when treated or untreated firewood is found to be moving or to have been moved intrastate in violation of any provision set forth in this section and/or section 192.6, or is likely to result in irreversible or irreparable damage to natural resources, the law enforcement officer may take such action as he/she deems necessary pursuant to ECL section 71-0301 and/or 6 NYCRR Part 620, including, but not limited to, confiscation of the untreated firewood, at the expense of the violator and without cost to the state.
(2) If a person is held liable or found guilty in any prosecution, civil or criminal, of the buying, selling, transportation, or possession of treated or untreated firewood in violation of this section or section 192.6 or if a person shall effect a civil compromise of any action or cause of action in favor of the state arising out of such violation, the person's interest in any and all such firewood shall be forfeited to the state and such firewood shall be disposed of as the department shall direct at the defendant's expense.
Section 192.6 Quarantine Orders.
No person shall fail to comply with the provisions of any quarantine order issued by the department pursuant to ECL section 9-1303. To the extent any of the provisions of section 192.5 and any such quarantine order are in conflict, the more restrictive provision shall apply.
Text of proposed rule and any required statements and analyses may be obtained from:
Bruce Williamson, Bureau of Private Land Services, NYS Department of Environmental Conservation, 625 Broadway, Albany, NY 12233-4253, (518) 402-9425, email: firewood@gw.dec.state.ny.us
Data, views or arguments may be submitted to:
Same as above.
Public comment will be received until:
45 days after publication of this notice.
Additional matter required by statute:
A Negative Declaration has been prepared in compliance with Article 8 of the Environmental Conservation Law.
Regulatory Impact Statement
Statutory authority:
The Environmental Conservation Law (ECL) provides the Department of Environmental Conservation ("Department") with broad and comprehensive authority to preserve forests within the State from disease and insects known to destroy tree species that grow in New York. For example, ECL section 1-0101(3)(b) directs the 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." Furthermore, ECL Section 1-0101(3)(b) directs the 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."
In addition to the general authority summarized above, ECL section 9-1303 provides the Department with specific authority to control and prevent the spread of forest insects and forest tree diseases, including (i) conducting necessary investigations to discover better methods of control or prevention of the spread of forest insects and forest tree diseases, (ii) entering upon any lands for the purpose of determining if such property is infested with forest insects or forest tree diseases, (iii) establishing quarantine districts in the State, (iv) prohibiting the movement of materials which may be harboring forest insects or forest tree diseases in any of their different forms, (v) establishing zones to prevent the spread of forest insect and disease pests, and making modifications in the composition of the forest growth as deemed necessary, including spraying, cutting, destroying or treating vegetation, and (vi) adopting rules and regulations to prevent the spread of or to control forest insects and forest tree diseases.
Legislative objectives:
As detailed below, the Department proposes pursuant to this rulemaking to amend the existing firewood regulations for the purpose of making them easier to understand and implement; i.e., the substantive requirements would remain largely unchanged. Accordingly, the proposed amendments would continue the Department's pursuit of protecting New York's trees and forests, as directly authorized under the sections of the ECL summarized above. In particular, the amended regulations would continue the Department's regulatory authority over the importation and movement of wood products that have been demonstrated to be carriers of numerous invasive and/or exotic forest pests that are harmful to New York tree species. Indeed, the United States Department of Agriculture (USDA) Animal and Plant Health Inspection Service (APHIS), as well as applicable State agencies, have determined that the movement of infested firewood is associated with new and expanded disease and insect infestations, particularly with respect to the Emerald ash borer, which has infested areas of Michigan, Illinois, Indiana, and West Virginia. However, in the absence of a confirmed, specific pest infestation, APHIS lacks authority to prohibit the movement of wood materials which may potentially contain such species across state borders. The proposed regulations at issue, clearly authorized under the ECL, represent the Department's pro-active effort to prevent both the interstate and intrastate transport of firewood containing non-indigenous and dangerous insects.
Needs and benefits:
The Department is proposing to revise the current firewood regulation to clarify the requirements and conditions, and re-arrange the sections to make them easier to interpret, comply with and enforce for all affected parties. The proposed revisions to section 192.5 do not change any of the existing substantive requirements, prohibitions or conditions concerning the import, sale, possession or movement of firewood in New York State. These revisions are being proposed directly in response to feedback, comments and questions received from the public, law enforcement officers and judges in the two years since the initial regulations were adopted. Regular workshops and training sessions have been conducted for campers, firewood producers and dealers, residential firewood users, municipalities and campground operators to inform them about invasive forest pests, the risks associated with firewood movement and the details of the Department's firewood regulation. A "firewood hotline" has also been maintained at the Department's Central Office that has fielded thousands of calls from people and businesses with questions about the firewood regulation, and the related State and Federal Emerald ash borer and Asian longhorned beetle quarantines in New York (both invasive forest and both quarantines also include "firewood" in their list of "regulated articles").
There are several provisions of section 192.5 that are being clarified. For example, the definition of "firewood" was clarified to mean all wood destined for use as a fuel and kiln dried lumber was expressly excluded; and, provisions related to untreated firewood and treated firewood are now addressed in separate subsections.
The Department is also proposing to adopt a new section 192.6 at the request of Department Law Enforcement personnel, to clarify that failure to obey quarantine orders constitutes a violation of the ECL. Apparently, some local judges were unable to determine whether the existing regulations addressed this issue.
The needs for and benefits associated with regulating firewood imports and movement in New York were previously discussed in the initial firewood regulation, proposed and adopted in 2009. The identical needs and benefits still exist today: protection of New York's tree species. Again, the proposed regulations are needed to simply clarify the requirements for the benefit of firewood producers, dealers and consumers, as well as for Law Enforcement officials and local judges. The changes to the regulation's language and organization, proposed by Department Law Enforcement and Legal staff, will benefit all parties by making it easier for them to understand and comply with the regulation. The changes proposed will also facilitate enforcement of the regulation by Department officers and other law enforcement agencies. In summary, the purpose behind the proposed and initial regulations is the same: to reduce the risk of introduction and spread of invasive insects and diseases of trees by preventing untreated firewood from entering New York State and restricting the movement, within the State, of firewood that originates in New York State. The proposed regulations are intended to simply make the firewood requirements easier to understand and implement.
As noted above, the Department determined that there was a need to clarify the regulatory requirements based on its extensive and aggressive public information, outreach and education campaign regarding invasive forest pests and firewood movement. Indeed, this effort follows on the heel of efforts taken prior to adoption of the initial regulations. Since 2008, for example, the Department initiated a strong "Don't Move firewood" message to both raise awareness of the risks and to inform the public about the (new) firewood regulations and its requirements. These efforts will continue within the constraints of funding and staffing. Additionally, prior to adoption of the firewood regulation in 2009, the Department held a dozen public meetings around the State, covering every Department region, to inform interested affected stakeholders of the need for firewood regulations. These meetings included information about how producers, dealers and consumers of firewood will be affected, along with the actions necessary for their compliance. Further, the development of regulations was based, in part, on firewood surveys at Department Campgrounds. The purpose of the surveys was to determine trends in firewood movement, as well as the availability and cost of firewood at and around campgrounds.
Costs:
The purposed amendment to the existing firewood regulation does not impose any additional costs on either the regulated community or the Department.
Local government mandates:
The proposed amendment to the existing firewood regulation does not impose any new programs, services, duties or responsibilities upon any county, city, town, village, school district or other special district.
Paperwork:
The proposed amendment of the existing firewood regulation does not impose any new paperwork requirements on either the regulated community or the Department.
Duplication:
The proposed amendment of the existing firewood regulation does not duplicate any existing State or Federal regulation.
Alternatives:
The Department could leave the existing firewood regulation in place, as is, without amendment. However, this alternative would not resolve the clarity and enforcement issues associated with the existing regulation. As noted, Department Law Enforcement and Legal staff have indicated that the current regulation, as written, poses difficulties with respect to enforcement, as some sections are either not sufficiently clear, or redundant. Because of the need for clarity, the Department rejected the alternative of leaving the existing regulation in place.
Federal standards:
APHIS's authority to impose quarantine restrictions concerning treatment and movement of firewood (a commodity) are only imposed in direct conjunction with a specific pest species regulatory action. Department staff is trying to be proactive and recognize that a wide variety of invasive, exotic forest pests and diseases may be transported to new areas on many different species of wood used as firewood.
The heat treating standard the Department is applying for imported firewood is consistent with USDA APHIS Emerald ash borer quarantine standards and international trade standards for firewood and solid wood packaging materials.
Compliance schedule:
Regulated parties are already aware of and operating under the existing firewood regulation. The changes proposed will essentially have no impact on the requirements or restrictions that currently exist for firewood producers, dealers, or consumers. The only substantive change for firewood consumers would be that consumers would no longer be required to retain source or origin documentation for firewood they possess, on private property, where it will be used. This actually relaxes the regulatory burden on firewood users and reduces potential problems for Law Enforcement officials. Source or origin documentation would still be required to be possessed by users when on lands under the jurisdiction of the Department or Office of Parks, Recreation and Historic Preservation.
Regulatory Flexibility Analysis
A Regulatory Flexibility Analysis for Small Businesses and Local Governments is not submitted with this proposal because the proposal will not impose any reporting, record-keeping or other compliance requirements on small businesses or local governments. The Department is proposing to revise the current firewood regulation to clarify the requirements and conditions, and re-arrange the sections to make interpretation, compliance and enforcement easier for all affected parties. The proposed revisions to the existing rule do not change any of the existing substantive requirements, prohibitions or conditions concerning the import, sale, possession or movement of firewood in New York State, rather they will clarify requirements and facilitate field enforcement for officers. This will allow for more efficient enforcement of the regulation.
Rural Area Flexibility Analysis
A Rural Area Flexibility Analysis is not submitted with this proposal because the proposal will not impose any reporting, record-keeping or other compliance requirements on rural areas. The Department is proposing to revise the current firewood regulation to clarify the requirements and conditions, and re-arrange the sections to make interpretation, compliance and enforcement easier for all affected parties. The proposed revisions to the existing rule do not change any of the existing substantive requirements, prohibitions or conditions concerning the import, sale, possession or movement of firewood in New York State, rather they will clarify requirements and facilitate field enforcement for officers. This will allow for more efficient enforcement of the regulation.
Job Impact Statement
A Job Impact Statement is not submitted with this proposal because the proposal will have no substantial adverse impact on existing or future jobs and employment opportunities. The Department is proposing to revise the current firewood regulation to clarify the requirements and conditions, and re-arrange the sections to make interpretation, compliance and enforcement easier for all affected parties. The proposed revisions to the existing rule do not change any of the existing substantive requirements, prohibitions or conditions concerning the import, sale, possession or movement of firewood in New York State, rather they will clarify requirements and facilitate field enforcement for officers. This will allow for more efficient enforcement of the regulation.
