New York Register, Volume 35, Issue 53, December 31, 2013

• Jurisdiction: New York
• Library: New York Register
• Published date: 31 December 2013
• Year: 2013

RULE MAKING

ACTIVITIES

Each rule making is identified by an I.D. No., which consists

of 13 characters. For example, the I.D. No.

AAM-01-96-00001-E indicates the following:

AAM -the abbreviation to identify the adopting agency

01 -the State Register issue number

96 -the year

00001 -the Department of State number, assigned upon

receipt of notice.

E -Emergency Rule Making—permanent action

not intended (This character could also be: A

for Adoption; P for Proposed Rule Making; RP

for Revised Rule Making; EP for a combined

Emergency and Proposed Rule Making; EA for

an Emergency Rule Making that is permanent

and does not expire 90 days after filing.)

Italics contained in text denote new material. Brackets

indicate material to be deleted.

Department of Agriculture and

Markets

PROPOSED RULE MAKING

NO HEARING(S) SCHEDULED

To Repeal Obsolete Rules

I.D. No. AAM-53-13-00004-P

PURSUANT TO THE PROVISIONS OF THE State Administrative Pro-

cedure 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repealed.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 Preven-

tion 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 decidu-

ous 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 intra-

state 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 intra-

state movement of woody materials, stone and quarry products and any

other articles found on inspection by the Department to be free from infes-

tation 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 Depart-

ment 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 control-

ling 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

1

stock and pine logs and lumber with bark attached within Albany, Al-

legany, Broome, Cattaraugus, Cayuga, Chautauqua, Chemung, Chenango,

Clinton, Columbia, Cortland, Delaware, Erie, Essex, Franklin, Fulton,

Genesee, Greene, Hamilton, Herkimer, Jefferson, Lewis, Livingston, Mad-

ison, 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 con-

trolling 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.

Department of Corrections and

Community Supervision

PROPOSED RULE MAKING

NO HEARING(S) SCHEDULED

Shock Incarceration Program

I.D. No. CCS-53-13-00002-P

PURSUANT TO THE PROVISIONS OF THE State Administrative Pro-

cedure Act, NOTICE is hereby given of the following proposed rule:

Proposed Action: This is a consensus rule making to amend sections

1800.2, 1800.4, 1800.5, 1800.8(a), 1800.9(b)(1), (3), (10) and 1800.10(e)

of Title 7 NYCRR.

Statutory authority: Corrections Law, sections 112 and 866

Subject: Shock Incarceration Program.

Purpose: Update eligibility requirements, transfer procedure, grooming

standards, the agency name, and clarify impact of refusal/removal.

Text of proposed rule: Amend Section 1800.2 of 7 NYCRR, as follows:

There is a present need to provide to selected [young ]inmates a special

six-month program of shock incarceration, stressing a highly structured

routine of discipline, intensive regimentation, exercise and work therapy,

together with substance abuse workshops, education, prerelease counsel-

ing and self-improvement counseling. If an inmate successfully completes

the shock incarceration program, he or she will be eligible for parole

release and will be awarded a certificate of earned eligibility pursuant to

Correction Law, sections 805 and 807.

Amend Sections 1800.4(a)(1) through (a)(5) of 7 NYCRR, as follows:

(a) An inmate sentenced to an indeterminate or determinate term of

imprisonment may apply for participation in the shock incarceration

program if the inmate meets all of the following requirements:

(1) has not reached [40]50 years of age;

(2) will become eligible for release on parole within three years for

inmates with indeterminate sentences, or will be eligible for release to

Post Release Supervision within 3 years of his/her conditional release

date for inmates with determinate sentences;

(3) unless already provided, has agreed to provide a DNA sample for

forensic analysis; and

[(4) has not previously been convicted of a felony upon which an in-

determinate term of imprisonment was imposed; and]

(4)[(5)] was at least 16 but less than [40]50 years of age at the time of

commission of the crime upon which his or her present sentence was

based.

Amend Section 1800.5 of 7 NYCRR, as follows:

Inmates will be given [preliminary]Shock Incarceration screening at

reception centers to determine if they meet the selection and statutory

eligibility criteria for participation in the shock incarceration program.

Selected inmates may then be transferred to designated shock incarcera-

tion facilities [for final screening and approval for] to await entry into the

program[ participation].

Amend Section (a) of 1800.8 of 7 NYCRR, as follows:

(a) All incoming shock inmates will have a haircut [on]within the first

week of arrival[day] in the facility. Haircuts will be military style, 1/4’’ in

length and completely trimmed around the ears.

Amend Sections (b)(1), (b)(3), and (b)(10) of 1800.9 of 7 NYCRR, as

follows:

(b) Memo of agreement.

Shock Incarceration Program

Memo of Agreement

Name

Facility

DIN

1. As authorized pursuant to Correction Law, article 26-A, I agree to

participate in the Department of [Correctional Services]Corrections and

Community Supervision Shock Incarceration Program. This agreement is

made voluntarily and without coercion.

3. I promise that I shall abide by all the conditions specified in this

agreement and all other conditions and instructions given to me by any

representative of the Department of [Correctional Services]Corrections

and Community Supervision and will be subject to removal from the

program for failure to do so.

10. If additional criminal charges are lodged against me, I agree that I

may be removed from the program in the discretion of the Department of

[Correctional Services]Corrections and Community Supervision.

I accept the foregoing program and agree to be bound by the terms and

conditions thereof. I understand that my participation in the program is a

privilege that may be revoked at any time at the sole discretion of the

Commissioner. I understand that I must successfully complete the entire

program to obtain a certificate of earned eligibility upon the completion of

said program, and in the event that I do not successfully complete said

program, for any reason, I will be returned to a nonshock incarceration

correctional facility to continue service of my sentence.

I have read and understand the above Memo of Agreement, and I agree

to fully abide by the terms of the memo.

———————————

Inmate Signature

———————————

Date

———————————

Witness

———————————

Date

cc: [Inmate

Central Office File]

Institutional File

[Parole Institutional File]

Amend Section (e) of 1800.10 of 7 NYCRR, as follows:

(e) Any inmate who is eligible for the shock incarceration program who

chooses not to participate in [it]shock at the reception center while in

reception status, or who is removed from the program will be considered

ineligible for participation in the temporary release program, unless the

reason for the removal was due to an intervening circumstance beyond the

control of the inmate.

Text of proposed rule and any required statements and analyses may be

obtained from: Maureen E. Boll, Deputy Commissioner and Counsel,

NYS Dept. of Corrections and Community Supervision, Harriman State

Campus - Building 2, 1220 Washington Avenue, Albany, NY 12226-2050,

(518) 457-4951, email: Rules@Doccs.ny.gov

Data, views or arguments may be submitted to: Same as above.

NYS Register/December 31, 2013Rule Making Activities

2