AAM-39-11-00002-E Firewood (All Hardwood Species) and Other Host Tree Materials Susceptible to the Asian Long Horned Beetle

9/28/11 N.Y. St. Reg. AAM-39-11-00002-E

NEW YORK STATE REGISTER

VOLUME XXXIII, ISSUE 39

September 28, 2011

RULE MAKING ACTIVITIES

DEPARTMENT OF AGRICULTURE AND MARKETS

EMERGENCY RULE MAKING

 

I.D No. AAM-39-11-00002-E

Filing No. 805

Filing Date. Sept. 07, 2011

Effective Date. Sept. 07, 2011

Firewood (All Hardwood Species) and Other Host Tree Materials Susceptible to the Asian Long Horned Beetle

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

Action taken:

Repeal of section 139.2(c); and relettering of section 139.2(d) to 139.2(c) 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 rule, which will lift the Asian Long Horned Beetle (ALB) quarantine in the Town of Islip in Suffolk County, is being adopted as an emergency measure because after three comprehensive ALB surveys over various periods, the pest has not been detected in the Town since June 2002. The lifting of the quarantine at this time is consistent with existing scientific protocols, and will coincide with USDA's lifting of its quarantine in the Town of Islip. The Town includes the Villages of Bayshore, East Islip, Islip and Islip Terrace.

The Asian Long Horned Beetle, Anoplophora glabripennis, an insect species non-indigenous to the United States, can cause serious damage to healthy trees by boring into their heartwood and eventually killing them. Nursery stock, logs, green lumber, firewood, stumps, roots, branches and debris of a half inch or more in diameter are subject to infestation. Host hardwood materials at risk to attack and infestation include species of the following: maple; horse chestnut; silk tree or mimosa; birch; poplar; willow; elm; hackberry, ash; katsura; plane tree, sycamore; and mountain ash. The pest was initially detected in the Greenpoint section of Brooklyn in August of 1996. Subsequent survey activities delineated other locations in Brooklyn as well as locations in and about Amityville, the Town of Islip, Queens, Manhattan and Staten Island. As a result, 1 NYCRR Part 139 was adopted, establishing a quarantine of the areas in which the Asian Long Horned Beetle had been observed. The boundaries of those areas are described in 1 NYCRR section 139.2. The lifting of the quarantine in the Town of Islip will ease regulatory burdens on nursery dealers, nursery growers, landscaping companies, transfer stations, compost facilities and general contractors as well as private citizens within that area, by allowing them to move ALB host materials from the Town, without the need for compliance agreements or phytosanitary certificates and incurring costs incident thereto. By lifting the quarantine in an area where ALB has not been detected since June 2002, the rule will ease burdens on regulated parties without compromising plant health, thereby preserving the general welfare. It will also conform the State quarantine to the federal quarantine, which was lifted in the Town of Islip on August 23rd.

Based on the facts and circumstances set forth above, the Department has determined that the immediate adoption of this amendment 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:

Firewood (all hardwood species) and other host tree materials susceptible to the Asian Long Horned Beetle.

Purpose:

To lift the Asian Long Horned Beetle quarantine in the Town of Islip, since the pest has not been found since 2002.

Text of emergency rule:

Subdivision (c) of section 139.2 of 1 NYCRR is repealed, and subdivision (d) of section 139.2 of 1 NYCRR is re-lettered subdivision (c).

This notice is intended

to serve only as a notice of emergency adoption. This agency intends to adopt this emergency rule as a permanent rule and will publish a notice of proposed rule making in the State Register at some future date. The emergency rule will expire December 5, 2011.

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

Kevin S. King, NYS Department of Agriculture and Markets, 10B Airline Drive, Albany, New York 12235, [phone]

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. Section 167 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 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 spread within the State of an injurious insect, the Asian Long Horned Beetle.

3. Needs and benefits:

The Asian Long Horned Beetle, Anoplophora glabripennis, an insect species non-indigenous to the United States, can cause serious damage to healthy trees by boring into their heartwood and eventually killing them. Nursery stock, logs, green lumber, firewood, stumps, roots, branches and debris of a half inch or more in diameter are subject to infestation. Host hardwood materials at risk to attack and infestation include species of the following: Acer (Maple); Aesculus (Horse Chestnut), Albizzia (Silk Tree or Mimosa); Betula (Birch); Populus (Poplar); Salix (Willow); Ulmus (Elm); Celtis (Hackberry), Fraxinus (Ash); Cercidiphyllum japonicum (Katsura); Platanus (Plane tree, Sycamore) and Sorbus (Mountain Ash). The pest was initially detected in the Greenpoint section of Brooklyn in August of 1996. Subsequent survey activities delineated other locations in Brooklyn as well as locations in and about Amityville, the Town of Islip, Queens, Manhattan and Staten Island. As a result, 1 NYCRR Part 139 was adopted, establishing a quarantine of the areas in which the Asian Long Horned Beetle had been observed. The boundaries of those areas are described in 1 NYCRR section 139.2.

The lifting of the quarantine in the Town of Islip will ease regulatory burdens on nursery dealers, nursery growers, landscaping companies, transfer stations, compost facilities and general contractors as well as private citizens within that area, by allowing them to move ALB host materials from the Town, without the need for compliance agreements or phytosanitary certificates and incurring expenses incident thereto. By lifting the quarantine after three comprehensive surveys over various periods in an area where ALB has not been detected since June 2002, the rule will ease burdens on regulated parties without compromising plant health, thereby promoting the general welfare. It will also conform the State quarantine to the federal quarantine, which was lifted in the Town of Islip on August 23rd.

4. Costs:

(a) Costs to the State government: None. The Department may realize cost savings by no longer issuing phytosanitary certificates or compliance agreements.

(b) Costs to local government: The proposed amendment will not result in costs to local governments. In fact, there will be lower costs to the Town of Islip and the municipalities within the Town, since they will no longer incur expenses incident to obtaining phytosanitary certificates or compliance agreements in order to move host materials.

(c) Costs to private regulated parties: The rule will not result in costs to private regulated parties. In fact, there will be lower costs to private regulated parties, since they will no longer incur expenses incident to obtaining phytosanitary certificates or compliance agreements in order to move host materials.

(d) Costs to the regulatory agency:

(i) The initial expenses: None.

(ii) The ongoing expenses: None. The Department may realize cost savings by no longer issuing phytosanitary certificates or compliance agreements.

5. Local government mandate:

None. In fact, the Town of Islip and the villages located therein will no longer have to engage in the disposal of host materials. The Town of Islip currently maintains a waste wood disposal program at a cost of $200,000 per year.

6. Paperwork:

None.

7. Duplication:

None.

8. Alternatives:

The only alternative considered was to leave the quarantine in place in the Town of Islip. This alternative was rejected, since leaving the Asian Long Horned Beetle quarantine in place where the pest has not been observed for three comprehensive surveys since June 2002, is inconsistent with existing scientific protocols and imposes an unnecessary burden on regulated parties. In light of this, the only viable alternative is to lift the quarantine in the Town of Islip. Additionally, lifting of the quarantine will conform the State quarantine to the federal quarantine, which was lifted in the Town of Islip on August 23rd.

9. Federal standards:

The USDA has a parallel Asian Long Horned Beetle quarantine in the Town of Islip, which was lifted on August 23rd.

10. Compliance schedule:

It is anticipated that regulated parties would be able to comply with the rule immediately.

Regulatory Flexibility Analysis

1. Effect on small business.

There are approximately 467 nursery dealers, nursery growers, landscaping companies, transfer stations, compost facilities and general contractors located within Suffolk County and potentially affected by the quarantine which would be lifted under this rule. Most of these entities are small businesses. Since the rule will lift the Asian Long Horned Beetle (ALB) quarantine in the Town of Islip, regulated businesses in the Town will be able to freely move regulated materials without the need for compliance agreements and phytosanitary certificates and without incurring costs incident thereto.

2. Compliance requirements.

None.

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: None. In fact, there will be lower costs to private regulated parties, since they will no longer incur expenses incident to obtaining phytosanitary certificates or compliance agreements in order to move host materials.

5. Minimizing adverse impact.

Since the rule will lift the ALB quarantine in the Town of Islip, the rule minimizes adverse impact since regulated parties in the Town of Islip will no longer be subject to the quarantine and the requirements incident thereto.

6. Small business and local government participation.

None.

7. Assessment of the economic and technological feasibility of compliance with the rule by small businesses and local governments.

The economic and technological feasibility of compliance with the rule by small businesses and local governments has been addressed and such compliance has been determined to be feasible. The basis for this determination is that by lifting the ALB quarantine, the rule actually eliminates a regulatory burden on small businesses and local governments in the Town of Islip.

Rural Area Flexibility Analysis

The rule will not impose any adverse impact or reporting, recordkeeping or other compliance requirements on public or private entities in rural areas. This finding is based upon the fact that the quarantine areas to which the amendments apply are not situated in "rural areas," as defined in section 481(7) of the Executive Law.

Job Impact Statement

It is anticipated that the rule will not have a substantial adverse impact on jobs and employment opportunities. In fact, by easing regulatory burdens and costs incident thereto, the lifting the Asian Long Horned Beetle quarantine in the Town of Islip may have a positive impact on jobs within the Town.