AAM-19-16-00003-EP Various Trees and Plants of the Prunus Species  

  • 5/11/16 N.Y. St. Reg. AAM-19-16-00003-EP
    NEW YORK STATE REGISTER
    VOLUME XXXVIII, ISSUE 19
    May 11, 2016
    RULE MAKING ACTIVITIES
    DEPARTMENT OF AGRICULTURE AND MARKETS
    EMERGENCY/PROPOSED RULE MAKING
    NO HEARING(S) SCHEDULED
     
    I.D No. AAM-19-16-00003-EP
    Filing No. 420
    Filing Date. Apr. 21, 2016
    Effective Date. Apr. 21, 2016
    Various Trees and Plants of the Prunus Species
    PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following action:
    Proposed Action:
    Amendment of Part 140 of Title 1 NYCRR.
    Statutory authority:
    Agriculture and Markets Law, sections 18, 164 and 167
    Finding of necessity for emergency rule:
    Preservation of general welfare.
    Specific reasons underlying the finding of necessity:
    The amendments to Part 140 of 1 NYCRR are being adopted as an emergency measure because of the threat that the Plum Pox Virus (PPV) will spread outside the areas it now infects in New York State.
    PPV is a serious viral disease of stone fruit trees that affects many of the Prunus species, including species of plum, peach, apricot, almond and nectarine. PPV does not kill infected plants, but debilitates the productive life of the trees. This affects the quality and quantity of the fruit, which reduces the fruit’s marketability. Symptoms of the PPV may manifest themselves on the leaves, flowers and fruits of infected plants and include green or yellow veining on leaves; streaking or pigmented ring patterns on the petals of flowers; and ring or spot blemishing on the fruit which may also become misshapen. Infected trees often display no symptoms. There is no known treatment or cure for this virus. The virus is spread naturally by several aphid species. These insects serve as vectors for the spread of PPV by feeding on the sap of infected trees and then feeding on plants which aren’t infected with the virus. PPV may also be spread through the exchange of budwood and its propagation.
    PPV was first reported in Bulgaria in 1915 and was first documented in the United States in 1999. In 2000, PPV was discovered in Canada’s Ontario province within five miles of its border with New York. By 2006, PPV was detected in two locations in Niagara County near the Canadian border, prompting adoption of and subsequent amendments to, a PPV quarantine as the virus spread.
    The latest PPV detection is a tree in Ulster County. This latest find is prompting this rule, which implements a quarantined area in Orange and Ulster Counties. Ten municipalities in Dutchess, Orange and Ulster Counties will also be under quarantine. A regulated area will be established in a one mile radius around the infected tree. One quarantined area is also being maintained in Niagara County, since only four years have passed since positive detections of PPV and the proximity of this area to an active PPV infestation in Canada’s Ontario province. These provisions are designed to prevent the further spread of PPV throughout New York State as well as into neighboring states and provinces.
    This rule also lifts the quarantine in all other areas of Niagara County and all of the quarantines in Orleans and Wayne Counties. These quarantines are being lifted since there have been no PPV detections in these areas in the past six years. This effectively lifts a regulatory burden for approximately 256 regulated parties in these areas.
    A further spread of PPV would have adverse economic consequences to the stone fruit industry in New York State, both from the destruction of the regulated articles upon which these industries depend, and from the more restrictive quarantines that could be imposed by the federal government and by other states. Further, if this rule is not adopted, USDA-APHIS might decide to withhold or withdraw its funding of 85% of the cost for removal of infected trees.
    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 subdivision one of section 202 of the State Administrative Procedure Act would be contrary to the public interest.
    Subject:
    Various trees and plants of the Prunus species.
    Purpose:
    To amend the plum pox virus quarantined and regulated areas for purposes of helping prevent the further spread of this virus.
    Text of emergency/proposed rule:
    Subdivision (k) of section 140.1 of 1 NYCRR is repealed and a new subdivision (k) is added to read as follows:
    (k) Nursery stock regulated area means any town a portion of which is within 11 and one-half kilometers of any location where the plum pox virus has been detected within the preceding six years.
    Subdivision (o) of section 140.1 of 1 NYCRR is amended to read as follows:
    (o) Regulated articles means plant and plant materials, including trees, seedlings, root stock, budwood, branches, scion, twigs and leaves of the following varieties of the Prunus species:
    Paragraphs (2) and (3) of subdivision (o) of section 140.1 of 1 NYCRR are amended to read as follows:
    (2) Ornamental varieties including all cultivars of:
    Scientific NameCommon Name
    Prunus cerasiferaPurple Leaf Plum
    Prunus x cistenaPurple Leaf Sand Cherry
    Prunus glandulosaFlowering Almond
    Prunus persicaFlowering Peach & Purple Leaf Peach
    Prunus pumilaSand Cherry and Western Sand Cherry
    Prunus spinosaBlack Thorn and Sloe
    Prunus serrulataJapanese Flowering Cherry & Kwanzan Cherry
    Prunus tomentosaNanking Cherry & Hansen's Bush Cherry
    Prunus trilobaFlowering Plum
    (3) For the purposes of this Part, the following varieties of the Prunus species are not regulated articles: Prunus avium; Prunus cerasus; [Prunus effuse;] Prunus laurocerasus; Prunus mahaleb; Prunus padus; Prunus sargentii; Prunus serotina; Prunus serrula; Prunus subhirtella; Prunus yedoensis; and Prunus virginiana.
    Subdivisions (a), (b) and (c) of section 140.2 of 1 NYCRR are repealed, and new subdivisions (a) and (b) are added to read as follows:
    (a) That area of Niagara County which is bordered on the north by Lake Ontario and bordered on the east by the town line of the towns of Newfane and Somerset, extending south to the town line of the towns of Newfane and Hartland, extending south on the town lines of the towns of Newfane and Hartland to the intersection of Route 104 (Ridge Road), extending west on Route 104 (Ridge Road), to the intersection of Route 425 (Cambria-Wilson Road/Lake Street), extending north on Route 425 to Lake Ontario to the north.
    (b) The following cities, towns, and hamlets are under quarantine for the plum pox virus:
    (1) City of Newburgh in Orange County;
    (2) Town of Newburgh in Orange County;
    (3) City of Poughkeepsie in Dutchess County;
    (4) Town of Poughkeepsie in Dutchess County;
    (5) Town of Marlborough in Ulster County;
    (6) City of Beacon in Dutchess County;
    (7) Town of Plattekill in Ulster County;
    (8) Town of Fishkill in Dutchess County;
    (9) Town of Wappinger in Dutchess County; and
    (10) Hamlet of Marlboro in Ulster County.
    Subdivisions (a) through (e) of section 140.3 of 1 NYCRR are repealed, and a new subdivision (a) is added to read as follows:
    (a) That area of Ulster and Orange Counties that intersects and lies within the following one mile radius circle: (GPS coordinates 41.59229. -73.97927), that intersect with Route 9W on the north, following an imaginary line east to the intersection of Mill House Road, (GPS coordinates 41.58775. -73.97780), following an imaginary line south-west to the intersection of McDonald Drive, (GPS coordinates 41.57976, -73.97993), following an imaginary line south-west to the intersection of Levinson Heights Road, (GPS coordinates 41.57397, -73.98737), following an imaginary line south to the intersection of Old Post Road, (GPS coordinates 41.57295, -73.99007), following an imaginary line south to the intersection of Route 9W on the south, (GPS coordinates 41.57271, -73.99096), following an imaginary line south-west to the intersection of Lattintown Road (GPS coordinates 41.57393, -74.00663), following an imaginary line north-west to the intersection of Candlestick Hill Road, (GPS coordinates 41.58121, -74.01490), following an imaginary line north-west to the intersection of Bingham Road, (GPS coordinates 41.58945, -74.01589), following an imaginary line north to the intersection of Hampton Road, (GPS coordinates 41.59138, -74.01522), following an imaginary line north-east to the intersection of Gobblers Knob Road, (GPS coordinates 41.59830, -74.00813), following an imaginary line north-east to the intersection of Gobblers Knob Road, (GPS coordinates 41.59872, -74-00733), following an imaginary line north-east to the intersection of South Street, (GPS coordinates 41.60023, -74.00320), following an imaginary line north-east to the intersection of Lattintown Road, (GPS coordinates 41.60084, -73.99983), following an imaginary line east to the intersection of Lu El Ann Road, (GPS coordinates 41.60084, -73.99450), following an imaginary line south-east to the intersection of Cross Road, (GPS coordinates 41.59916, -73.98775), following an imaginary line south-east to the intersection of South Street/Rosa Drive, (GPS coordinates 41.59774, -73.98483), following an imaginary line south-east to the intersection of Highland Avenue, (GPS coordinates 41.59639, -73.98296), following an imaginary line south-east to Vineyard Lane, (GPS coordinates 41.5960, -73.98245), following an imaginary line south-east back to the intersection of Route 9W, (GPS coordinates 41.59229, -73.97927), to close the imaginary line in a one mile circle.
    Subdivision (a) is amended and new subdivisions (b) and (c) of section 140.5 of 1 NYCRR are added to read as follows:
    (a) Regulated articles originating from or growing within the regulated area of the nursery stock regulated area shall not be used as a source of propagated material (either root stock, scion, budwood or seed).
    (b) Regulated articles originating from or growing within Niagara County shall not be used as a source of propagated material (either root stock, scion, budwood or seed), except as allowed in subdivision (c) of this section.
    (c) On-farm propagation of regulated articles for the purposes of fruit production shall only be allowed pursuant to a compliance agreement.
    Paragraph (6) is amended and a new paragraph (8) of subdivision (a) of section 140.6 of 1 NYCRR is added to read as follows:
    (6) The digging [or] and moving of regulated articles by nursery dealers and nursery growers within the nursery stock regulated area is prohibited.
    (8) The planting and over-wintering of regulated articles by nursery dealers and nursery growers within Niagara County is prohibited.
    Section 140.7 of 1 NYCRR is amended to read as follows:
    Nursery dealers and nursery growers handling regulated articles within [the] a nursery stock regulated area that is adjacent to a regulated area shall compile, maintain and make available for inspection, for a period of two years, records of inventory and sales of regulated articles on a form or forms prescribed by the commissioner.
    Subdivision (a) of section 140.8 of 1 NYCRR is repealed and a new subdivision (a) is added to read as follows:
    (a) Certificates may be issued for the intrastate movement of regulated articles when they have been grown, produced, manufactured, stored or handled in such a manner that, in the judgment of the inspector, no infection would be transmitted thereby, provided that subsequent to certification, the regulated articles will be loaded, handled and shipped under such protection and safeguards against reinfection as are required by the inspector.
    This notice is intended:
    to serve as both a notice of emergency adoption and a notice of proposed rule making. The emergency rule will expire July 19, 2016.
    Text of rule and any required statements and analyses may be obtained from:
    Christopher A. Logue, Director, Division of Plant Industry, New York State Department of Agriculture and Markets, 10B Airline Drive, Albany, New York 12235, (518) 457-2087, email: Christopher.Logue@agriculture.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.
    Regulatory Impact Statement
    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 enacted.
    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 said Law. Said Section 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 as he may deem necessary.
    2. Legislative objectives.
    The proposed rule establishing a quarantine accords with the public policy objectives the Legislature sought to advance by enacting the statutory authority in that it will help to prevent the further spread within the State of a serious viral infection of plants, the plum pox virus (Potyvirus).
    3. Needs and benefits.
    Plum pox virus (PPV) is a serious viral disease of stone fruit trees that affects many of the Prunus species, including species of plum, peach, apricot, almond and nectarine. PPV does not kill infected plants, but debilitates the productive life of the trees. This affects the quality and quantity of the fruit, which reduces its marketability. Symptoms of the PPV may manifest themselves on the leaves, flowers and fruits of infected plants and include green or yellow veining on leaves; streaking or pigmented ring patterns on the petals of flowers; and ring or spot blemishing on the fruit which may also become misshapen. Infected trees often display no symptoms. There is no known treatment or cure for this virus. The virus is spread naturally by several aphid species. These insects serve as vectors for the spread of PPV by feeding on the sap of infected trees and then feeding on plants which aren’t infected with the virus. PPV may also be spread through the exchange of budwood and its propagation.
    PPV was first reported in Bulgaria in 1915. It subsequently spread throughout Europe, the Middle East and Africa. PPV was first discovered in North America in 1999 when trees in an orchard in Pennsylvania were found to be infected with the virus. In the summer of 2000, PPV was discovered in Canada’s Ontario province within five miles of its border with New York. This find resulted in the Department, with the support of the United States Department of Agriculture (USDA), beginning annual PPV surveys of stone fruit orchards in New York. From 2000 through 2005, more than 89,000 leaf samples were taken, analyzed and found to be negative for plum pox.
    In 2006, PPV was detected in two locations in Niagara County near the Canadian border. In 2007, the Department adopted a rule which immediately established a PPV quarantine in those areas in Niagara County. PPV was subsequently detected in 17 locations in Niagara, Orleans and Wayne Counties between 2007 and 2011. The Department adopted rules extending the quarantine to Orleans and Wayne County as well as a larger area of Niagara County.
    When initially adopting the rule, the Department created three areas designed to regulate the planting, movement and sale of prunus in areas where PPV has been detected.
    The regulated area is an area in which one or more prunus have been found to be infected with PPV. The perimeter of the regulated area is one mile from the infestation. Prunus cannot be planted, sold or moved within the regulated area.
    The quarantined area is a large area in which the regulated area is located. The quarantined area extends 11.5 kilometers from the infestation. Prunus can be moved within the quarantined area under a compliance agreement, but cannot be moved out of the quarantined area or into the regulated area. Prunus can be planted anywhere in the quarantined area, except in the regulated area. Prunus cannot be propagated in the quarantined area. Prunus cannot over-winter within the quarantined area and must be sold or destroyed by the end of the season. This ensures that exposure of plants to PPV is limited.
    The nursery stock regulated area is the quarantined area exclusive of the regulated area. Prunus may be planted and moved within the nursery stock regulated area with a compliance agreement, but cannot be propagated.
    This rule makes changes to the quarantined area (section 140.2 of 1 NYCRR). Under the rule, quarantined areas are lifted in all but one part of Niagara County adjacent to the Canadian border. This quarantined area and propagation ban is being implemented to reduce the risk of the spread of the virus from an active PPV infestation in Canada’s Ontario province. Quarantined areas are also being lifted in all of Orleans and Wayne Counties. The quarantine is being lifted in these areas since surveys for PPV, dating back six years, have been negative for the virus. However, due to a finding of a prunus tree positive for PPV in Ulster County, the rule implements a quarantined area in Orange and Ulster Counties. Ten municipalities in Dutchess, Orange and Ulster Counties are also under quarantine. Additionally, prunus originating from or growing within all of Niagara County shall not be used as a source of propagated material, except for on-farm propagation for purposes of fruit production.
    The rule also makes changes to the regulated area (section 140.3 of 1 NYCRR). The rule establishes a regulated area in Orange and Ulster Counties, due to the positive find of PPV in a tree in Ulster County.
    Finally, the rule amends the definitions of nursery stock regulated area and regulated article [sections 140.1(k) and 140.1(o)]; amends the list of ornamental species of prunus [section 140.1(o)(2) and (3)]; prohibits nursery growers and dealers from planting and over-wintering prunus within Niagara County [section 140.6(a)(1)]; and requires that nursery dealers and nursery growers compile and maintain for two years, records of inventories and sales of prunus if they are adjacent to a regulated area [section 140.7].
    This rule is necessary, since it would bring the State’s quarantined and regulated areas in line with those established at the federal level by USDA-APHIS. This is important to ensure that APHIS continues to pay 85-percent of costs to prunus growers for removal of the trees which are located within 500 meters of a positive find.
    This rule is also necessary since USDA-APHIS could decide to quarantine the entire State of New York against PPV if the State does not establish an internal, parallel quarantine.
    Finally, this rule is necessary, since it would help prevent the further spread of PPV throughout New York and neighboring states. This would not only result in damage to the stone fruit industry of New York, but could also result in the imposition on New York of a federal quarantine (as noted above) or quarantines by other states. Such quarantines would cause economic hardship for New York’s nurseries and stone fruit growers, since such quarantines may encompass the entire state. The consequent loss of business would harm industries which are important to New York’s economy and as such, would harm the general welfare.
    4. Costs.
    (a) Costs to the State government:
    Under this rule, regulated articles exposed to PPV in the newly established regulated area would be destroyed. Compensation for the regulated articles is predicated upon the age of the plants and trees. Compensation would range from $3,302.00 to $29,743.00 per acre, of which USDA-APHIS would pay 85% of the compensation. Accordingly, New York’s 15% share of the compensation would be $495.30 to $4,461.45 per acre, provided the owners of the regulated articles in question submit verified claims to the Department in accordance with section 165 of the Agriculture and Markets Law, and provided further that damages are awarded based on those claims. New York State also pays up to $1,000.00 per acre in costs to remove host trees from infected orchards.
    Nursery dealers and nursery growers would also be eligible to receive compensation for regulated articles planted in the newly established quarantined areas that would otherwise be prohibited from sale. Compensation for these trees would be $10.80 per tree of which USDA-APHIS would pay 85% of the compensation and New York would pay the remaining 15%.
    (b) Costs to local government:
    None.
    (c) Costs to private regulated parties:
    Regulated parties handling regulated articles in the newly established quarantined areas, pursuant to a compliance agreement, may only sell host prunus within the nursery stock regulated area, which consists of the quarantined area, absent the regulated area.
    Regulated parties would also incur those removal costs which exceed $1,000 per acre for removal of regulated articles planted in the newly established regulated areas and nursery stock regulated areas.
    (d) Costs to the regulatory agency:
    It is anticipated that the regulatory oversight and enforcement of the expanded quarantined and regulated areas under this rule would be accomplished through use of existing staff and resources.
    5. Local government mandate.
    None.
    6. Paperwork.
    Nursery dealers and nursery growers handling regulated articles in the newly established nursery stock regulated areas would require a compliance agreement with the Department. They would also be required to maintain inventory and sales records of prunus for two years.
    7. Duplication.
    None.
    8. Alternatives.
    None. The failure of the State to establish and extend the quarantine under this rule in response to the most recent findings of the PPV, could result in the establishment of quarantines by the federal government or other states. It could also place the State’s own stone fruit industry at risk from the further spread of PPV which could result from the unrestricted movement of regulated articles in and out of the quarantined area. Failure to implement this rule which would make the State’s quarantined and regulated areas consistent with those established by USDA-APHIS could result in APHIS withholding or withdrawing 85% of the funding for removal of regulated articles in the regulated areas. In light of these factors, there does not appear to be any viable alternative to this rule.
    9. Federal standards.
    Sections 301.74 through 301.74-5 of Title 7 of the Code of Federal Regulations (CFR) restrict the interstate movement of regulated articles susceptible to PPV. The proposed amendments do not exceed any minimum standards for the same or similar subject areas, since it restricts the intrastate, rather than interstate, movement of regulated articles by establishing a PPV quarantine in New York State.
    10. Compliance schedule.
    It is anticipated that regulated parties would be able to comply with this rule immediately.
    Regulatory Flexibility Analysis
    1. Effect of rule.
    In response to the detection of the plum pox virus (PPV) in Ulster County, this rule establishes a quarantine in ten municipalities in Dutchess, Orange and Ulster Counties, as well as a separate quarantined area in Orange and Ulster Counties. This rule also establishes a regulated area in Orange and Ulster Counties where a prunus tree was found positive for PPV. One quarantined area is also being maintained in Niagara County, since only four years have passed since positive detections of PPV and the proximity of this area to an active PPV infestation in Canada’s Ontario province. Finally, this rule lifts the quarantine in all other areas of Niagara County and all of the quarantines in Orleans and Wayne Counties. These quarantines are being lifted since there have been no PPV detections in these areas in the past six years.
    It is estimated that there are 16 regulated parties in the area of Niagara County where the quarantine is being maintained; 79 regulated parties in the ten municipalities in Dutchess, Orange and Ulster Counties where a quarantine has been established; and four regulated parties in the regulated area created within the quarantined area in Orange and Ulster Counties. There are also 256 regulated parties in areas of Niagara County and all of Orleans and Wayne Counties where the quarantines are being lifted. These regulated parties are stone fruit growers, nursery growers and nursery dealers, most of whom are small businesses.
    It is not anticipated that local governments would be involved in the handling or movement of regulated articles within any part of the regulated and quarantined areas.
    2. Compliance requirements.
    Any regulated parties in the quarantined areas established by this rule would be prohibited from the propagation of regulated articles as well as restricted from the sale of nursery stock outside the quarantined areas. In an effort to help prevent the human-assisted movement of PPV, nursery growers and nursery dealers who wish to handle regulated articles within these newly established areas would be required to enter into compliance agreements.
    The rule would prohibit regulated parties in the newly established quarantined areas from digging and moving regulated articles and planting or over-wintering regulated articles. In addition, regulated parties in these newly established areas would be required to maintain inventory and sales records of regulated articles for a period of two years.
    All regulated parties in the regulated area established under this rule would be prohibited from moving regulated articles within those areas. Regulated parties would, however, be able to move regulated articles within the newly established nursery stock regulated areas pursuant to a compliance agreement.
    3. Professional services.
    None.
    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 proposed rule: None.
    (b) Annual cost for continuing compliance with the proposed rule:
    Regulated parties handling regulated articles in the newly established quarantined areas, pursuant to a compliance agreement, may not over-winter regulated articles and would be required to destroy unsold plants, at an undetermined cost.
    Regulated parties handling regulated articles in Niagara County are prohibited from propagating plants and/or over-wintering prunus which is also prohibited in the quarantined areas. Regulated parties would be required to destroy unsold plants at the end of the season, at an undetermined cost.
    Regulated parties would also incur removal costs which exceed $1,000 per acre for removal of regulated articles within 500 meters of a PPV-infected tree.
    It is not anticipated that local governments would be involved in the handling of regulated articles within any part of the regulated and quarantined 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. Nursery dealers and nursery growers handling regulated articles within the newly established quarantined areas, would be allowed to move or sell these articles within the quarantined area, exclusive of the regulated area (i.e., the nursery stock regulated area), under a compliance agreement.
    6. Minimizing adverse impact.
    The Department has designed the proposed rule to minimize adverse economic impact on small businesses and local governments. The rule establishes and extends the regulated area and quarantined areas to only those areas where PPV has been detected. Additionally, the proposal lifts the quarantine in areas of Niagara County and all of Orleans and Wayne Counties where the virus has not been detected for six years. The approaches for minimizing adverse economic impact required by section 202-a(1) of the State Administrative procedure Act and suggested by section 202-b(1) of the State Administrative Procedure Act were considered. Given all of the facts and circumstances, it is submitted that the proposed rule minimizes adverse economic impact as much as is currently possible.
    7. Small business and local government participation.
    Two meetings were held (one in the afternoon; one in the evening) on November 18, 2015 in Highland, which is in Ulster County. The purpose of the meetings was to inform stone fruit growers about the detection of PPV in Ulster County. Department and federal officials briefed the attendees on the disease and its impact on the stone fruit crop. Management of the disease and proposed regulatory action were also discussed. Maps of the proposed regulated and quarantined areas were also presented. Growers were afforded the opportunity to review the maps individually and to discuss the impact of the regulations on their businesses. A total of 14 stone fruit growers participated in the two meetings.
    On February 17, 2016, Department officials presented a program on PPV eradication in Kingston. Approximately 150 stone fruit growers attended.
    Since March of this year, Department inspectors have been meeting individually with regulated parties to inform them of the proposed regulations and to determine whether they wanted to enter into a compliance agreements.
    Rural Area Flexibility Analysis
    1. Type and estimated numbers of rural areas.
    In response to the detection of the plum pox virus (PPV) in Ulster County, this rule establishes a quarantine in ten municipalities in Dutchess, Orange and Ulster Counties, as well as a separate quarantined area in Orange and Ulster Counties. This rule also establishes a regulated area in Orange and Ulster Counties where a prunus tree was found positive for PPV. One quarantined area is also being maintained in Niagara County, since only four years have passed since positive detections of PPV and the proximity of this area to an active PPV infestation in Canada’s Ontario province. Finally, this rule lifts the quarantine in all other areas of Niagara County and all of the quarantines in Orleans and Wayne Counties. These quarantines are being lifted since there have been no PPV detections in these areas in the past six years.
    It is estimated that there are 16 regulated parties in the area of Niagara County where the quarantine is being maintained; 79 regulated parties in the ten municipalities in Dutchess, Orange and Ulster Counties where a quarantine has been established; and four regulated parties in the regulated area created within the quarantined area in Orange and Ulster Counties. There are also 256 regulated parties in areas of Niagara County and all of Orleans and Wayne Counties where the quarantines are being lifted.
    All of these regulated parties are stone fruit growers, nursery growers and nursery dealers, most of whom are in rural areas.
    2. Reporting, recordkeeping and other compliance requirements; and professional services.
    Any regulated parties in the quarantined areas established by this rule would be prohibited from the propagation of regulated articles as well as restricted from the sale of nursery stock outside the quarantined areas. In an effort to help prevent the human-assisted movement of PPV, nursery growers and nursery dealers who wish to handle regulated articles within these newly established areas would be required to enter into compliance agreements.
    The rule would prohibit regulated parties in the newly established quarantined areas from digging and moving regulated articles and planting or over-wintering regulated articles. In addition, regulated parties in these newly established areas would be required to maintain inventory and sales records of regulated articles for a period of two years.
    All regulated parties in the regulated area established under this rule would be prohibited from moving regulated articles within those areas. Regulated parties would, however, be able to move regulated articles within the newly established nursery stock regulated areas pursuant to a compliance agreement.
    3. Costs.
    Regulated parties handling regulated articles in the newly established quarantined areas, pursuant to a compliance agreement, may not over-winter regulated articles and would be required to destroy unsold plants, at an undetermined cost.
    Regulated parties handling regulated articles in Niagara County are prohibited from propagating plants and/or over-wintering prunus which is also prohibited in the quarantined areas. Regulated parties would be required to destroy unsold plants at the end of the season, at an undetermined cost.
    Regulated parties would also incur removal costs which exceed $1,000 per acre for removal of regulated articles within 500 meters of a PPV-infected tree(s).
    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 regulated parties in rural areas. The rule establishes and extends the regulated area and quarantined areas to only those areas where PPV has been detected. Additionally, the proposal lifts the quarantine in areas of Niagara County and all of Orleans and Wayne Counties where the virus has not been detected for six years. The approaches for minimizing adverse economic impact required by the State Administrative Procedure Act were considered. Given all of the facts and circumstances, it is submitted that the rule minimizes adverse economic impact as much as is currently possible.
    5. Rural area participation.
    Two meetings were held (one in the afternoon; one in the evening) on November 18, 2015 in Highland, which is in Ulster County. The purpose of the meetings was to inform stone fruit growers about the detection of PPV in Ulster County. Department and federal officials briefed the attendees on the disease and its impact on the stone fruit crop. Management of the disease and proposed regulatory action were also discussed. Maps of the proposed regulated and quarantined areas were also presented. Growers were afforded the opportunity to review the maps individually and to discuss the impact of the regulations on their businesses. A total of 14 stone fruit growers participated in the two meetings.
    On February 17, 2016, Department personnel presented a program on PPV eradication in Kingston. Approximately 150 stone fruit growers attended.
    Since March of this year, Department inspectors have been meeting individually with regulated parties to inform them of the proposed regulations and to determine whether they wanted to enter into a compliance agreements.
    Job Impact Statement
    In response to the detection of the plum pox virus (PPV) in Ulster County, this rule establishes a quarantine in ten municipalities in Dutchess, Orange and Ulster Counties, as well as a separate quarantined area in Orange and Ulster Counties. This rule also establishes a regulated area in Orange and Ulster Counties where a prunus tree was found positive for PPV. One quarantined area is also being maintained in Niagara County, since only four years have passed since positive detections of PPV and the proximity of this area to an active PPV infestation in Canada’s Ontario province. Finally, this rule lifts the quarantine in all other areas of Niagara County and all of the quarantines in Orleans and Wayne Counties. These quarantines are being lifted since there have been no PPV detections in these areas in the past six years.
    It is estimated that there are 16 regulated parties in the area of Niagara County where the quarantine is being maintained; 79 regulated parties in the ten municipalities in Dutchess, Orange and Ulster Counties where a quarantine has been established; and four regulated parties in the regulated area created within the quarantined area in Orange and Ulster Counties. There are also 256 regulated parties in areas of Niagara County and all of Orleans and Wayne Counties where the quarantines are being lifted.
    The establishment and extension of the plum pox virus quarantine is designed to prevent the further spread of this viral infection throughout New York State as well as into neighboring states and provinces. A further spread of this plant disease would have very adverse economic consequences to these industries in New York State, both from the destruction of the regulated articles upon which these industries depend, and from the more restrictive quarantines that could be imposed by the federal government and by other states. By helping to prevent the further spread of the plum pox virus, the proposed rule would help to prevent such adverse economic consequences and in so doing, protect the jobs and employment opportunities associated with the State’s stone fruit and nursery industries.

Document Information

Effective Date:
4/21/2016
Publish Date:
05/11/2016