DEPARTMENT OF AGRICULTURE
Order of Quarantine; Emerald Ash Borer
[39 Pa.B. 1307]
[Saturday, March 14, 2009]
A. Emerald Ash Borer (EAB), Agrilus planipennis (Fairemaire)--a beetle indigenous to Asia--is a serious plant pest that attacks and kills ash trees belonging to the genus Fraxinus. EAB has worked its way east from Michigan, where it was first detected in 2002.
B. EAB has killed 20-25 million ash trees during the short time it has been present in North America. Typically, trees are killed within 3 years of the initial attack by this beetle. EAB presents a clear threat to this Commonwealth's forest and horticultural resources.
C. The Plant Pest Act (act) (3 P. S. §§ 258.1--258.27) empowers the Department of Agriculture (Department) to take various measures to detect, contain and eradicate plant pests. These powers include the authority to establish quarantines to prevent the spread of plant pests within this Commonwealth.
D. The Department has issued previous EAB-related Orders of Quarantine, establishing a quarantined area that includes all of Allegheny, Beaver, Butler, Lawrence and Mercer Counties, and restricting the movement of designated articles and materials from this quarantined area.
E. EAB has recently been detected in Mifflin County--a county outside of the current quarantined area--making it necessary to expand the quarantined area to include that county.
Under authority of section 21 of the act (3 P. S. § 258.21), and with the Recitals previously listed, incorporated into this Order by reference, the Department of Agriculture hereby orders the following:
1. Confirmation of Quarantine; Addition of Mifflin County to the Quarantined Area.
a. The quarantine established by Order of June 27, 2007, Order of July 16, 2007, and Order of June 27, 2008, with respect to Allegheny, Beaver, Butler, Lawrence and Mercer Counties (collectively, the quarantined area) remains in effect, subject to the conditions set forth in this Order.
b. A quarantine is hereby established with respect to Mifflin County, effective immediately. Mifflin County is part of the quarantined area, and is subject to the conditions set forth in this Order.
2. Limitations Imposed. The following objects or materials may not be moved out of the quarantined area, unless done in accordance with Paragraph No. 3 of this Order:
a. The Emerald Ash Borer in any living stage of development;
b. Ash trees of any size;
c. Ash limbs, branches, stumps and roots;
d. Any cut, nonconiferous (hardwood) firewood;
e. Nonconiferous (hardwood) bark and nonconiferous (hardwood) wood chips larger than 1 inch in two dimensions;
f. Ash logs and lumber with either the bark or the outer 1 inch of sapwood, or both, attached;
g. Any item made from or containing the wood of the ash tree that is capable of spreading emerald ash borer; and
h. Any other article, product or means of conveyance determined by the Department to present a risk of spreading the EAB infestation.
3. Movement of regulated articles from quarantined areas. An article described in Paragraph No. 2 of this Order may be moved from a quarantined area only under the following circumstances:
a. With a valid certificate or limited permit (as described in Paragraph No. 4) attached;
b. Without a certificate or limited permit (as described in Paragraph No. 4) attached if:
i. The regulated article is moved by the United States Department of Agriculture or the Department for experimental or scientific purposes; or
ii. The regulated article originates outside the quarantined area and is moved intrastate through the quarantined area under the following conditions:
A. The points of origin and destination are indicated on a waybill accompanying the regulated article; and
B. The regulated article, if moved through the quarantined area during the period of May 1 through August 31 or when the ambient air temperature is 40° F or higher, is moved in an enclosed vehicle or is completely covered to prevent access by the EAB; and
C. The regulated article is moved directly through the quarantined area without stopping (except for refueling or for traffic conditions, such as traffic lights or stop signs), or has been stored, packed or handled at locations approved by an inspector as not posing a risk of infestation by emerald ash borer; and
D. The article has not been combined or commingled with other articles so as to lose its individual identity.
c. Without a certificate or limited permit (as described in Paragraph No. 4) attached if a USDA-issued or USDA-authorized (by USDA compliance agreement) certificate or permit is attached.
4. Obtaining a Certificate or Limited Permit from the Department for Intrastate Movement of Articles. The Department or a person operating under a compliance agreement will issue a certificate or limited permit authorizing the intrastate movement of articles described in Paragraph No. 2 of this Order if it is satisfied that all of the following are accurate:
a. The article is either of the following:
i. The article is apparently free of EAB, based on inspection; or the article has been grown, produced, manufactured, stored or handled in a manner that, in the judgment of the Department, prevents the article from presenting a risk of spreading EAB; or
ii. The article is to be moved to a specified destination for specific processing, handling or utilization (the destination and other conditions to be listed on the advance written permission), and this movement will not result in the spread of EAB because EAB will be destroyed by the specific processing, handling, or utilization; and
b. The article is to be moved in compliance with this Order and any additional emergency conditions that the Department may impose under the act to prevent the artificial spread of EAB; and
c. The article is eligible for intrastate movement under all other Federal domestic plant quarantines and regulations applicable to the regulated articles.
5. Cancellation of a Certificate or Limited Permit. Any certificate or limited permit may be canceled orally or in writing by the Department whenever the Department determines that the holder of the certificate or limited permit has not complied with the act or this Order. If the cancellation is oral, the cancellation will become effective immediately, and the cancellation and the reasons for the cancellation will be confirmed in writing as soon as circumstances permit.
6. Compliance Agreements. The Department will consider entering into a compliance agreement with any person that demonstrates an understanding of the requirements of this Order and otherwise satisfies the Department it is capable of issuing certificates or limited permits in accordance with the requirements of this Order. The Department shall either provide blank certificates and limited permits to a person operating under a compliance agreement or authorize reproduction of the certificates or limited permits on shipping containers, or both, as requested by the person operating under the compliance agreement. These certificates and limited permits may then be completed and used, as needed, for the intrastate movement of regulated articles that have met all of the requirements of Paragraph No. 4.
7. Documentation to Accompany Articles in Intrastate Movement from the Quarantined Area. If an article described in Paragraph No. 2 of this Order is to be moved intrastate from the quarantined area, the article must be plainly marked with the name and address of the consignor and the name and address of the consignee and must have a copy of the applicable Department-issued or Department-authorized (by compliance agreement as described in Paragraph No. 6) certificate or limited permit securely attached at all times during intrastate movement attached to the article itself, or to the container carrying the article, or to the consignee's copy of the accompanying waybill: Provided, that the description of the article on the certificate or limited permit, and on the waybill, are sufficient to identify the regulated article. The carrier must furnish the certificate or limited permit authorizing the intrastate movement of the article to the consignee at the destination of the shipment.
8. Federal Requirements for Interstate Movement of Articles. This Order is distinct from, and in addition to, any Federal statute, regulation or quarantine order addressing the interstate movement of articles from the quarantined area or this Commonwealth.
9. Contacting the Department. A person seeking information about the requirements of this Order, or a limited permit for intrastate movement of quarantined articles, or a compliance agreement for intrastate movement of quarantined articles, shall contact the Department at the following address or telephone number: Department of Agriculture, Attention: Walt Blosser, 2301 North Cameron Street, Harrisburg, PA 17110-9408, (717) 772-5205, firstname.lastname@example.org.
10. Criminal and Civil Penalties. A person who violates this Order will face summary criminal prosecution carrying up to 90 days imprisonment and a fine of up to $300 with respect to each violation. In addition, a person who violates this Order may be assessed a civil penalty of up to $20,000 with respect to each violation.
11. Cooperation with other agencies. The Department will consult with USDA, other state agencies and the Pennsylvania State University Cooperative Extension with respect to the most efficacious measures to survey for and detect EAB in order to slow the spread or eradicate this pest.
12. Effective Date. This quarantine is effective as of March 1, 2009, and shall remain in effect until rescinded by subsequent order.
DENNIS C WOLFF,
[Pa.B. Doc. No. 09-468. Filed for public inspection March 13, 2009, 9:00 a.m.]
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