New York Register, Volume 35, Issue 14, April 03, 2013

JurisdictionNew York
LibraryNew York Register
Published date03 April 2013
Year2013
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
EMERGENCY/PROPOSED
RULE MAKING
NO HEARING(S) SCHEDULED
Species of Ash Trees, Parts Thereof and Products and Debris
Therefrom Which Are at Risk for Infestation by the Emerald
Ash Borer
I.D. No. AAM-14-13-00001-EP
Filing No. 265
Filing Date: 2013-03-15
Effective Date: 2013-03-15
PURSUANT TO THE PROVISIONS OF THE State Administrative Pro-
cedure Act, NOTICE is hereby given of the following action:
Proposed Action: Amendment of section 141.2 of Title 1 NYCRR.
Statutory authority: Agriclture 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 amends
section 141.2 of 1 NYCRR to establish an Emerald Ash Borer (EAB)
quarantine in the counties of Broome, Cayuga, Chenango, Columbia,
Cortland, Delaware, Dutchess, Otsego, Putnam, Rensselaer, Schenectady,
Schoharie, Seneca, Sullivan, Tioga and Tompkins. The rule will also
extend the quarantine to the southern portions of the following counties:
Fulton, Herkimer, Madison, Montgomery, Oneida and Onondaga.
EAB, Agrilus planipennis, an insect species non-indigenous to the
United States, is a destructive wood-boring insect native to eastern Russia,
northern China, Japan and the Korean peninsula. EAB can cause serious
damage to healthy trees by boring through their bark, consuming cambium
tissue, which contains growth cells, and phloem tissue, which is respon-
sible for carrying nutrients throughout the tree. This boring activity results
in loss of bark, or girdling, and ultimately results in the death of the tree
within two years. The average adult EAB is 3/4 of an inch long and 1/6 of
an inch wide and is a dark metallic green in color. The larvae are ap-
proximately 1 to 1 1/4 inches long and are creamy white in color. Adult
insects emerge in May and June and begin laying eggs in crevasses in the
bark about two weeks after emergence. One female can lay 60 to 90 eggs.
After hatching, the larvae burrow into the bark and begin feeding on the
cambium and phloem, usually from late July or early August through
October, before overwintering in the outer bark. The larvae emerge as
adult insects the following spring, and the life cycle begins anew. Evi-
dence of the presence of the EAB includes loss of tree bark, S-shaped
larval galleries, or tunnels, just beneath the bark, small, D-shaped exit
holes through the bark and dying and thinning branches near the top of the
tree.
Ash trees, nursery stock, logs, green lumber, firewood, stumps, roots,
branches and debris of a half inch or more in diameter are subject to
infestation. Materials at risk of attack and infestation by the EAB include
the following species of North American ash trees: White Ash (Fraxinus
Americana); Green Ash (Fraxinus pennsylvanica); Black Ash (Fraxinus
nigra); and Blue Ash (Fraxinus quadrangulata). The movement of these
materials poses a serious threat to susceptible ash trees in forests as well as
in parks and yards throughout the State.
EAB was first discovered in Michigan in June 2002, and has since
spread to at least 15 other states as well as to two provinces in Canada.
The initial detection of this pest in New York occurred on June 16, 2009
in the Town of Randolph, which is located in southwestern Cattaraugus
County and is adjacent to Chautauqua County. A quarantine of both coun-
ties was established pursuant to federal protocols for control of EAB.
Further detections were confirmed in six other counties (Monroe,
Genesee, Livingston, Steuben, Greene and Ulster) during July and August,
2010. Due to the patchwork nature of these detections, limited detection
capabilities and stakeholder input, the EAB quarantine was extended to
the following 12 counties in western New York: Cattaraugus, Chautauqua,
Niagara, Erie, Orleans, Wyoming, Allegany, Wayne, Ontario, Yates,
Schuyler and Chemung. A new quarantine region was established in
eastern New York comprised of Greene and Ulster Counties.
In 2011, there were multiple new detections within the Western New
York quarantine area. New detections of EAB in Albany and Orange
Counties demonstrate further spread of EAB within the Eastern New York
quarantine area and prompted the extension of the quarantine to include
those counties.
In 2012, there were new detections within the Western New York
quarantine area as well as the Eastern New York area. All but two are
within quarantine counties. Dutchess and Tioga Counties are new detec-
tions outside the current quarantine and as such, are required to be
quarantined per federal protocols.
Given the rapid pace of EAB detections in New York, the challenges
with timely detection, cost of control, and stakeholder calls for changes
due to economic impacts and limited ability to move various regulated
articles, this regulation combines both quarantine zones by adding the
counties of Broome, Cayuga, Chenango, Columbia, Cortland, Delaware,
Dutchess, Otsego, Putnam, Rensselaer, Schenectady, Schoharie, Seneca,
Sullivan, Tioga and Tompkins as well as portions of Fulton, Herkimer,
Madison, Montgomery, Oneida and Onondaga. This creates one quarantine
zone.
The regulations are necessary to protect the general welfare, since the
effective control of the EAB in the counties where this insect has most
recently been found is important to protect New York’s nursery, forest
products industry, urban and suburban street trees and forest resources.
The quarantine will help ensure that as control measures are undertaken,
1
EAB does not spread beyond those areas via the movement of infested
trees and materials. Since EAB has been detected in many locations in
both western and eastern New York, there is a high likelihood that this
pest is present in other areas of the State, but has yet to be detected.
The regulations are also necessary to balance pest risk against eco-
nomic impacts as this program transitions to a management program. The
immediate adoption of this rule is necessary to meet Federal protocols for
new detections as well as mitigate negative economic impacts that have
resulted from the current configuration of the quarantine.
Based on the facts and circumstances set forth above, the Department
has determined that the immediate adoption of these amendments is nec-
essary 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: Species of ash trees, parts thereof and products and debris there-
from which are at risk for infestation by the emerald ash borer.
Purpose: To extend the emerald ash borer quarantine to prevent the fur-
ther spread of the beetle to other areas.
Text of emergency/proposed rule: Section 141.2 of 1 NYCRR is amended
to read as follows:
Section 141.2. Quarantined area.
(a) Regulated articles as described in section 141.3 of this Part shall not
be shipped, transported or otherwise moved from any point within
[Albany, Orange, Niagara, Erie, Orleans, Genesee, Wyoming, Allegany,
Monroe, Livingston, Steuben, Wayne, Ontario, Yates, Schuyler, Chemung,
Greene, Ulster, Chautauqua and Cattaraugus Counties] Albany, Allegany,
Broome, Cattaraugus, Cayuga, Chautauqua, Chemung, Chenango, Co-
lumbia, Cortland, Delaware, Dutchess, Erie, Genesee, Greene, Livingston,
Monroe, Niagara, Ontario, Orleans, Orange, Otsego, Putnam, Rens-
selaer, Schenectady, Schoharie, Schuyler, Seneca, Steuben, Sullivan,
Tioga, Tompkins, Ulster, Wayne, Wyoming and Yates Counties to any
point outside of said counties, except in accordance with this Part.
(b) Regulated articles as described in section 141.3 of this Part shall
not be shipped, transported or otherwise moved from any point within
those portions of Fulton, Herkimer, Madison, Montgomery, Oneida and
Onondaga Counties inclusive of and south of the New York State Thruway
to any point outside of said counties, except in accordance with this Part.
The boundary of the quarantine in these counties is as follows: a line from
the shore of Lake Ontario following the boundary of Cayuga County south
to the New York State Thruway; continuing east along and inclusive of the
New York State Thruway to its intersection with State Route 28 in
Herkimer County; continuing north along State Route 28 to its intersec-
tion with State Route 29; continuing east along State Route 29 onto State
Route 29A until the crossing of the East Canada Creek; continuing south
along the East Canada Creek to its intersection with State Highway 29;
continuing east along State Highway 29 until its intersection with State
Highway 67; continuing east along State Highway 67 until its intersection
with the Saratoga County line; continuing south along the boundary of
Saratoga and Albany Counties to the Rensselaer County line.
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
June 12, 2013.
Text of rule and any required statements and analyses may be obtained
from: Kevin King, Director, Division of Plant Industry, NYS Department
of Agriculture and Markets, 10B Airline Drive, Albany, New York 12235,
(518) 457-2087
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. 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.
2. Legislative objectives:
The regulations are consistent 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
Emerald Ash Borer (EAB).
3. Needs and benefits:
The rule amends section 141.2 of 1 NYCRR to extend the EAB
quarantine to the counties of Broome, Cayuga, Chenango, Columbia,
Cortland, Delaware, Dutchess, Otsego, Putnam, Rensselaer, Schenectady,
Schoharie, Seneca, Sullivan, Tioga and Tompkins. The rule would also es-
tablish a quarantine within the southern portions of Fulton, Herkimer,
Madison, Montgomery, Oneida and Onondaga Counties.
The Emerald Ash Borer, Agrilus planipennis, an insect species non-
indigenous to the United States, is a destructive wood-boring insect native
to eastern Russia, northern China, Japan and the Korean peninsula. EAB
can cause serious damage to healthy trees by boring through their bark,
consuming cambium tissue, which contains growth cells, and phloem tis-
sue, which is responsible for carrying nutrients throughout the tree. This
boring activity results in loss of bark, or girdling, and ultimately results in
the death of the tree within two years. The average adult EAB is 3/4 of an
inch long and 1/6 of an inch wide and is a dark metallic green in color.
The larvae are approximately 1 to 1 1/4 inches long and are creamy white
in color. Adult insects emerge in May and June and begin laying eggs in
crevasses in the bark about two weeks after emergence. One female can
lay 60 to 90 eggs. After hatching, the larvae burrow into the bark and
begin feeding on the cambium and phloem, usually from late July or early
August through October, before overwintering in the outer bark. The
larvae emerge as adult insects the following spring, and the life cycle
begins anew. Evidence of the presence of the EAB includes loss of tree
bark, S-shaped larval galleries, or tunnels, just beneath the bark, small,
D-shaped exit holes through the bark and dying and thinning branches
near the top of the tree.
Ash trees, nursery stock, logs, green lumber, firewood, stumps, roots,
branches and debris of a half inch or more in diameter are subject to
infestation. Materials at risk of attack and infestation by the EAB include
the following species of North American ash trees: White Ash (Fraxinus
Americana); Green Ash (Fraxinus pennsylvanica); Black Ash (Fraxinus
nigra); and Blue Ash (Fraxinus quadrangulata). The movement of these
materials poses a serious threat to susceptible ash trees in forests as well as
in parks and yards throughout the State.
EAB was first discovered in Michigan in June 2002, and has since
spread to at least 15 other states as well as to two provinces in Canada.
The initial detection of this pest in New York occurred on June 16, 2009
in the Town of Randolph, which is located in southwestern Cattaraugus
County and is adjacent to Chautauqua County. A quarantine of both coun-
ties was established pursuant to federal protocols for control of EAB.
Further detections were confirmed in six other counties (Monroe,
Genesee, Livingston, Steuben, Greene and Ulster) during July and August,
2010. Due to the patchwork nature of these detections, limited detection
capabilities and stakeholder input, the EAB quarantine was extended to
the following 10 counties in western New York: Niagara, Erie, Orleans,
Wyoming, Allegany, Wayne, Ontario, Yates, Schuyler and Chemung. A
new quarantine region was established in eastern New York comprised of
Greene and Ulster Counties.
In 2011, there were multiple new detections within the Western New
York quarantine area. New detections of EAB in Albany and Orange
Counties demonstrate further spread of EAB within the Eastern New York
quarantine area and prompted the extension of the quarantine to include
those counties.
In 2012, there were new detections within the Western New York
quarantine area as well as the Eastern New York area. All but two are
within quarantine counties. Dutchess and Tioga Counties are new detec-
tions and are outside the current quarantine and are required to be
quarantined per federal protocols. Since EAB has been detected in many
locations in both western and eastern New York, there is a high likelihood
that this pest is present in other areas of the State, but has yet to be detected.
Most finds are well established leading to little opportunity for successful
intervention.
Given the rapid pace of EAB detections in New York and the likelihood
EAB is established in counties but yet to be detected, the regulation adds
the counties of Broome, Cayuga, Chenango, Columbia, Cortland, Dela-
ware, Dutchess, Otsego, Putnam, Rensselaer, Schenectady, Schoharie,
Seneca, Sullivan, Tioga and Tompkins to the quarantine area. The rule
also establishes a quarantine within the southern portions of Fulton,
Herkimer, Madison, Montgomery, Oneida and Onondaga Counties. The
addition of these counties or portions thereof creates one quarantine zone.
This not only helps to control the further spread of this pest, but also
answers the calls by regulated parties to combine the two quarantine areas
due to economic impacts and limited ability to move various regulated
articles throughout the State.
NYS Register/April 3, 2013Rule Making Activities
2

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