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HomeMy WebLinkAbout2018-09-13-TREE-min LEXINGTON TREE COMMITTEE MEETING MINUTES Thursday, September 13, 2018 at 7:30 am Room 125, Samuel Hadley DPW Building, 201 Bedford Street Present: Members Gerry Paul (Chair),Jewel Kuljan, Jim Wood,Anne Senning, Nancy Sofen,John Frey (Emeritus), Jill Hai (Selectman liaison), Bob Creech (Planning Liaison). Guests Erik Gitschier (DPW), Gang Chen, Gloria Bloom, Kathleen Lenihan. Absent: Chris Filadoro (Tree Warden), Pat Moyer (member) 1. Nancy Sofen was appointed scribe. Minutes of the August 9, 2018 meeting were approved. 2. Erik Gitschier outlined sidewalk work that is being planned by the Highway Department this fall (Appendix A), and described his approach to sidewalk replacement. a. A study was done 3-4 years ago to see which sidewalks need work. Priorities for which sidewalks will be replaced are determined by Safe Routes to Schools, amount of use, condition and other factors. b. Sidewalks must be 5' wide (by selectmen's mandate) to accommodate 4' wide snow equipment and the fact that equipment is operated in less than ideal conditions (snow cover and operator fatigue). c. They try when possible to leave a 3' or larger planting strip, and to replant more trees than are removed. d. While Tree Committee prefers meandering sidewalks, snow removal and ADA requirements for clear line of sight make that difficult. e. P.J.Albert (the contractor currently working on Mass. Ave. project) has been chosen for sidewalk replacements listed,with Mass.Ave. and Oak Street to be the first to be done. EG is confident that they know the town's expectations regarding tree protection. He expects that no trees will be removed for these sidewalks. f. Would like to walk Emerson Gardens Road with Tree Committee members, to see how best to replace this sidewalk that has been damaged by maple roots. ACTION ITEM: members to email availability over the next few weeks. Anne comments that many setback trees were planted in the ROW because underground Comcast lines prevented the planting of street trees. 3. Submission to Town Annual Report (Appendix B) was approved as amended: a. Reference to web site maintenance was removed. b. The seventh bulleted highlight was reworded to read, "Provided input to the Tree Warden for information to be collected for a complete Town tree inventory to be conducted in FY19." 4. Applicants for the open position on the committee introduced themselves. a. Gang Chen is a 10 year resident of Lexington and a TMM. b. Gloria Bloom has lived in Lexington since 1965 and is also a TMM. c. Kathleen Lenihan, TMM and member of the School Committee, has lived in Lexington since 2000. d. Anne pointed out that members must be prepared to take on tasks of committee work. e. After guests departed at 9:15, TC voted unanimously to request of the Selectmen that the TC expand to 9 members, stating that we have identified 3 qualified members. If this expansion is approved,the TC recommends the appointment of the candidates named above. f. The chair will send invitations to all candidates, inviting them to join pending approval of(e) by the BOS. 5. Tree Management Manual updates a. The black text of Appendix C was approved in May. New red text incorporates the Town's response when Emerald Ash Borer (EAB) was found in town in August. Approved. b. Appendices D&E to these meeting minutes are Appendices VIII and IX of the Tree Management Manual: the Code of Federal Regulations for EAB and Asian Longhorn Beetle (ALB) respectively. For the printed versions, only the Massachusetts quarantine areas will be listed. Other areas can be found in the referenced URLs. Approved. 6. Best Practices Recommendations for Planting (Appendix F): the first section of the draft document, Tree Siting,was discussed. a. Anne disagrees that trees may be planted under wires. b. Further discussion of whether homeowners can refuse to have a tree planted in the right of way in front of their house is needed, preferably with Chris present. c. A vote was tabled until next meeting. 7. Meeting was adjourned at 9:30-ish. (1) LLJ 0 z �) 2 LIJ w 5 25 to C) ID Cq Lu L UJ L CC b.0 > 0 bn Tf r Pi > bo CD .j m m C14 P4 0 'a 0 U .4 r- r r4 u) > w �nZ 0 g4 �7) 1 P-4 o Tree Committee ROLE: To promote preservation and protection of public shade trees and certain trees on private property, working with the Tree Warden,to plant trees throughout Town and develop regulations and manuals for promulgation by Selectmen. APPOINTED by Selectmen, 3-year terms:John Frey( Chair),Jewel Kuljian, Karen Longeteig (succeeded by Pat Moyer), Gerald Paul, Anne Senning, Nancy Sofen, and James Wood; with Suzanne Barry(succeeded by Jill Hai), Selectmen Liaison; Ginna Johnson, Planning Board Liaison; and Christopher Filadoro, Lexington Tree Warden. HIGHLIGHTS: • Recommended 56 tree planting locations and species in conjunction with the Massachusetts Avenue sidewalk reconstruction between Fottler Avenue and the Arlington town line. • Identified setback tree planting locations for the 2017 Spring tree planting. • Reviewed the Forestry Division budget and spending between 2014 and 2017 to clarify sources of funds for tree planting. Obtained a commitment from DPW management to plant 140 trees per year from appropriated and Tree Fund sources. • Reviewed the 2017 Spring and Fall tree plantings and recommended policies to address our concerns regarding the timely identification of planting locations and tree planting. • Continued work on the fourth edition of the Lexington Tree Manual. • Began work on " Best practices for tree planting in Lexington" by interviewing tree wardens from Belmont, Cambridge and Watertown. • Provided input to the Tree Warden for the request for proposal for a complete Town tree inventory. • Hosted members of Salem Tree Commission and granted approval for their use of the Lexington Tree Manual as the basis for the Salem Tree Manual. • Granted approval for the purchase of two trees for the Lincoln Park Granite Forest with funding from the Lexington Tree Fund. 0) w 0 z lt nd 10 to a 0 ru Ir, cr C) L W ln L CC L, :c r fla ..2p b 5 > lu a tU I ej cu V, i'd of V 0 tl Ij Q cu CL r i A gyp' v7a Q al Ni tp 41 nx =0 M b5 ca v 0 = 5 m VI r I LU u tj X! 'I H Q tj C� LI. V, lid, I I 7—j "ZI :Iz tj 0 -C ij APPENDIX IX Lexington Tree Manual Editors Note: ASIAN LONGHORN BEETLE FEDERAL REGULATIONS AND QUARANTINE NOTICES The Code of_1���deral._Regulatio ---( � )_��aaUal_edition is the codification of the general and permanent rules published in the Federal Register by the departments and agencies of the Federal Government. The online CFR is a joint project authorized by the publisher, the National Archives and Records Administration's (NARA) Office of the Federal Register (OFR), and the Government Publishing Office (GPO) to provide the public with enhanced access to Government information. r4t1p ./lwvw.gevap�(e� ov/fel:p/fir [online: cited 9 September 20181 Only CFR (§301.53-3)ALB Quarantine areas located inside Massachusetts are included in this Appendix.The full online CFR (including all states) may be found at c'983 & =(Iv6&vew =text ro e 7�I fl2.,8 iii �_ _ dn(_Y=7 [online: cited 14 June 2018] Electronic Code of Federal :Regulations ALB e CFR data is current as of"Dune "low 201 II'afle 7 iiuib ia.lc,1,1 — Chaaroer 11111 lIaaa 'talSubpart Title 7: Agriculture 1'°Al("I' 301::, Subpart—Asian Longhorned Beetle Contents §301,51 p I'Ir°1'ara4i(a)naa.;. 301,51 2 1,1,e a.aha ted articles" ,§M3 l151 -r...,.Quaar;RnQaOUr,Q.,,,,,,,,, §30,1,51 � l.Q.arditions governing the iaalers ale raaraaar.aaar..nt of a°rgtilaaled .aaraar.lr.,s from .1-pu.aaaraaral.araed areas,, 301,51 r lssiM,aaauc and canc,eflallon of r.cr6 icaalcs aand litaaited permiasw. 01 .51 6..,,,,,E,�QaVp9,1aaNa➢(.",&.,.... $IXnd caBlrc ��,.IlgQbr�. 301 .51 M$,d.,utalall aands ..pra pra:rnluQa"u ..,ail rQt,,,v,ua ar,r] tairfl�mc I c:`a..r. §30151 8l Aaaaacharraent aaa7d dk,p`rr sa ti0n 0 ceirflii"ic,,.to s and 11rnited Penn 4s §301 51 Costs ancharges, SOURCE: 62 FR 10416,Mar.7, 1997,unless otherwise noted. §301.51-1 Definitions. Administrator.The Administrator, Animal and Plant Health Inspection Service, or any individual authorized to act for the Administrator. Animal and Plant Health Inspection Service (APHIS).The Animal and Plant Health Inspection Service of the United States Department of Agriculture. Asian longhorned beetle.The insect known as Asian longhorned beetle (Anoplophora glabripennis) in any stage of development. Certificate.A document which is issued for a regulated article by an inspector or by a person operating under a compliance agreement, and which represents that such article is eligible for interstate movement in accordance with §301.51-5(a). Compliance agreement.A written agreement between APHIS and a person engaged in growing, handling, or moving regulated articles that are moved interstate, in which the person agrees to comply with the provisions of this subpart and any conditions imposed under this subpart. Infestation.The presence of the Asian longhorned beetle in any life stage. Inspector.Any employee of the Animal and Plant Health Inspection Service, or other individual authorized by the Administrator to enforce the provisions of this subpart. Interstate.From any State into or through any other State. Limited permit.A document in which an inspector affirms that the regulated article not eligible for a certificate is eligible for interstate movement only to a specified destination and in accordance with conditions specified on the permit. Moved (movement, move). Shipped, offered for shipment, received for transportation, transported, carried,or allowed to be moved,shipped,transported,or carried. Person.Any association, company, corporation, firm, individual,joint stock company, partnership, society,or any other legal entity. Quarantined area.Any State, or any portion of a State, listed in §301.51-3(c) of this subpart or otherwise designated as a quarantined area in accordance with §301.51-3(b) of this subpart. Regulated article.Any article listed in §301.51-2(a) of this subpart or otherwise designated as a regulated article in accordance with §301.51-2(b) of this subpart. State.The District of Columbia, Puerto Rico, the Northern Mariana Islands, or any State, territory, or possession of the United States. §301.51-2 Regulated articles. The following are regulated articles: (a) Firewood(all hardwood species),and green lumber and other material living,dead,cut,or fallen, inclusive of nursery stock,logs, stumps,roots,branches, and debris of half an inch or more in diameter of the following genera: Acer(maple),Aesculus(horse chestnut),Albizia(mimosa),Betula (birch),Cercidiphyllum(katsura),Fraxinus (ash),Koelreuteria(golde n rain tree),Platanus (sycamore),Populus (poplar),Salix(willow),Sorbus (mountain ash), and Ulmus (elm). (b) Any other article,product, or means of conveyance not covered by paragraph (a) of this section if an inspector determines that it presents a risk of spreading Asian longhorned beetle and notifies the person in possession of the article,product,or means of conveyance that it is subject to the restrictions of this subpart. [62 FR 10416,Mar.7, 1997,as amended at 62 FR 60764,Nov. 13, 1997; 68 FR 26985,May 19,2003; 75 FR 34322,June 17,2010;76 FR 52542,Aug. 23,2011; 81 FR 39176,June 16,2016] §301.51-3 Quarantined areas. (a) Except as otherwise provided in paragraph (b) of this section, the Administrator will list as a quarantined area in paragraph (c) of this section, each State or each portion of a State in which the Asian longhorned beetle has been found by an inspector,in which the Administrator has reason to believe that the Asian longhorned beetle is present, or that the Administrator considers necessary to regulate because of its inseparability for quarantine enforcement purposes from localities where Asian longhorned beetle has been found. Less than an entire State will be designated as a quarantined area only if the Administrator determines that: (1) The State has adopted and is enforcing restrictions on the intrastate movement of regulated articles that are equivalent to those imposed by this subpart on the interstate movement of regulated articles; and (2) The designation of less than an entire State as a quarantined area will be adequate to prevent the artificial interstate spread of the Asian longhorned beetle. (b) The Administrator or an inspector may temporarily designate any nonquarantined area as a quarantined area in accordance with the criteria specified in paragraph (a) of this section. The Administrator will give written notice of this designation to the owner or person in possession of the nonquarantined area,or,in the case of publicly owned land,to the person responsible for the management of the nonquarantined area. Thereafter, the interstate movement of any regulated article from an area temporarily designated as a quarantined area is subject to this subpart. As soon as practicable, this area either will be added to the list of designated quarantined areas in paragraph (c) of this section, or the Administrator will terminate the designation. The owner or person in possession of, or, in the case of publicly owned land, the person responsible for the management of, an area for which the designation is terminated will be given written notice of the termination as soon as practicable. (c) The following areas are designated as quarantined areas: MASSACHUSETTS Worcester County.The portion of Worcester County, including portions or all of the municipalities of Worcester, Holden, West Boylston, Boylston, Auburn, and Shrewsbury that is bounded by a line starting at the intersection of Route 9 (Belmont Street) and the eastern boundary of the town of Shrewsbury; then follow the Shrewsbury town boundary northerly until the Boylston town boundary; then follow the entirety of the Boylston town boundary until it comes to the West Boylston town boundary on the Massachusetts Department of Conservation and Recreation Watershed property; then along the West Boylston town boundary until it intersects Manning Street; then southwest on Manning Street in Holden to Wachusett Street (Route 31); then south on Wachusett Street to Highland Street (still Route 31); then southwest on Highland Street to Main Street; then southeast on Main Street to Bailey Road; then south on Bailey Road to Chapin Road; then south on Chapin Road to its end; then continuing in a southeasterly direction to Fisher Road; then southwest on Fisher Road to Stonehouse Hill Road; then south on Stonehouse Hill Road to Reservoir Street; then southeast on Reservoir Street until it intersects the Worcester city boundary; turn south on Oxford Street to Auburn Street; then southeast on Auburn Street crossing under the Massachusetts Turnpike (I-90) and continuing southeast on Millbury Street; at the intersection of Washington Street, turn northeast and continue along Washington Street to the northern boundary of the Massachusetts Turnpike (I-90); then east along the northern boundary of the Massachusetts Turnpike (I-90) to the Auburn town boundary; then follow the Auburn town boundary northerly to the Worcester city boundary; continue along the Worcester city boundary until the Shrewsbury town boundary; then follow the entirety of the Shrewsbury town boundary until the point of beginning. EDITORIAL NOTE: For FEDERAL REGISTER citations affecting §301.51-3, see the List of CFR Sections Affected,which appears in the Finding Aids section of the printed volume and at www.fdsys.gov. §301.51-4 Conditions governing the interstate movement of regulated articles from quarantined areas. (a) Any regulated article may be moved interstate from a quarantined area only if moved under the following conditions: (1) With a certificate or limited permit issued and attached in accordance with §§301.51-5 and 301.51-8; (2)Without a certificate or limited permit if: (i) The regulated article is moved by the United States Department of Agriculture for experimental or scientific purposes; or (ii) The regulated article originates outside the quarantined area and is moved interstate 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 is moved through the quarantined area without stopping, or has been stored, packed, or handled at locations approved by an inspector as not posing a risk of infestation by Asian longhorned beetle; and (C) The article has not been combined or commingled with other articles so as to lose its individual identity. (b) When an inspector has probable cause to believe a person or means of conveyance is moving a regulated article interstate, the inspector is authorized to stop the person or means of conveyance to determine whether a regulated article is present and to inspect the regulated article. Articles found to be infected by an inspector, and articles not in compliance with the regulations in this subpart, may be seized,quarantined,treated,subjected to other remedial measures,destroyed,or otherwise disposed of. §301.51-5 Issuance and cancellation of certificates and limited permits. (a) An inspector' or person operating under a compliance agreement will issue a certificate for the interstate movement of a regulated article if he or she determines that the regulated article: 'Inspectors are assigned to local offices of APHIS, which are listed in local telephone directories. Information concerning such local offices may also be obtained from the Animal and Plant Health Inspection Service, Plant Protection and Quarantine, Domestic and Emergency Operations, 4700 River Road Unit 134,Riverdale,Maryland 20737-1236. (1)(i) Is apparently free of Asian longhorned beetle in any stage of development, based on inspection of the regulated article; or (ii) Has been grown, produced, manufactured, stored, or handled in such a manner that, in the judgment of the inspector, the regulated article does not present a risk of spreading Asian longhorned beetle; and (2) Is to be moved in compliance with any additional conditions deemed necessary under section 414 of the Plant Protection Act (7 U.S.C. 7714)to prevent the artificial spread of the Asian longhorned beetle; and 2 A inspector may hold, seize, quarantine, treat, apply other remedial measures to, destory, or otherwise dispose of plants,plant pests,or other articles in accordance with sections 414,421,and 434 of the Plant Protection Act(7 U.S.C. 7714,7731,and 7754). (3) Is eligible for unrestricted movement under all other Federal domestic plant quarantines and regulations applicable to the regulated articles. (b) An inspector or a person operating under a compliance agreement will issue a limited permit for the interstate movement of a regulated article not eligible for a certificate if he or she determines that the regulated article: (1) Is to be moved interstate to a specified destination for specific processing, handling, or utilization (the destination and other conditions to be listed on the limited permit), and this interstate movement will not result in the spread of Asian longhorned beetle because Asian longhorned beetle will be destroyed by the specific processing,handling,or utilization; and (2) It is to be moved in compliance with any additional conditions that the Administrator may impose under section 414 of the Plant Protection Act(7 U.S.C. 7714) in order to prevent the spread of the Asian longhorned beetle; and (3) Is eligible for unrestricted movement under all other Federal domestic plant quarantines and regulations applicable to the regulated article. (c) An inspector shall issue blank certificates and limited permits to a person operating under a compliance agreement in accordance with §301.51-6 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 interstate movement of regulated articles that have met all of the requirements of paragraph (a) or(b),respectively,of this section. (d) Any certificate or limited permit may be canceled orally or in writing by an inspector whenever the inspector determines that the holder of the certificate or limited permit has not complied with this subpart or any conditions imposed under this subpart. 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. Any person whose certificate or limited permit has been cancelled may appeal the decision in writing to the Administrator within 10 days after receiving the written cancellation notice. The appeal must state all of the facts and reasons that the person wants the Administrator to consider in deciding the appeal. A hearing may be held to resolve a conflict as to any material fact. Rules of practice for the hearing will be adopted by the Administrator. As soon as practicable, the Administrator will grant or deny the appeal, in writing, stating the reasons for the decision. [62 FR 10416,Mar.7, 1997,as amended at 66 FR 21051,Apr. 27,200 1] §301.51-6 Compliance agreements and cancellation. (a) Persons engaged in growing, handling, or moving regulated articles interstate may enter into a compliance agreement if such persons review with an inspector each stipulation of the compliance agreement. Any person who enters into a compliance agreement with APHIS must agree to comply with the provisions of this subpart and any conditions imposed under this subpart. 3Compliance agreements may be initiated by contacting a local office of APHIS. The addresses and telephone numbers of local offices are listed in local telephone directories and may also be obtained from the Animal and Plant Health Inspection Service, Plant Protection and Quarantine, Domestic and Emergency Operations,4700 River Road Unit 134,Riverdale,Maryland 20737-1236. (b) Any compliance agreement may be canceled orally or in writing by an inspector whenever the inspector determines that the person who has entered into the compliance agreement has not complied with this subpart or any conditions imposed under this subpart.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. Any person whose compliance agreement has been cancelled may appeal the decision in writing to the Administrator within 10 days after receiving the written cancellation notice. The appeal must state all of the facts and reasons that the person wants the Administrator to consider in deciding the appeal. A hearing may be held to resolve a conflict as to any material fact. Rules of practice for the hearing will be adopted by the Administrator. As soon as practicable, the Administrator will grant or deny the appeal, in writing, stating the reasons for the decision. §301.51-7 Assembly and inspection of regulated articles. (a) Persons requiring certification or other services must request the services from an inspector'at least 48 hours before the services are needed. 4See footnote 1 to §301.51-5. (b) The regulated articles must be assembled at the place and in the manner that the inspector designates as necessary to comply with this subpart. §301.51-8 Attachment and disposition of certificates and limited permits. (a) A regulated article must be plainly marked with the name and address of the consignor and the name and address of the consignee and must have the certificate or limited permit issued for the interstate movement of a regulated article securely attached at all times during interstate movement to: (1) The outside of the container encasing the regulated article; (2) The article itself,if it is not in a container; or (3) The consignee's copy of the accompanying waybill; Provided, that the description of the regulated article on the certificate or limited permit, and on the waybill, are sufficient to identify the regulated article; and (b) The carrier must furnish the certificate or limited permit authorizing interstate movement of a regulated article to the consignee at the destination of the shipment. §301.51-9 Costs and charges. The services of the inspector during normal business hours will be furnished without cost to persons requiring the services. The user will be responsible for all costs and charges arising from inspection and other services provided outside of normal business hours. APPENDIX VIII Lexington Tree Manual Editors Note: EMERALD ASH BORER FEDERAL REGULATIONS AND QUARANTINE NOTICES TheCode._.::s�'._Federal.= _02 acn fia�r�; _(CER). Q nnat�zl._€dition is the codification of the general and permanent rules published in the Federal Register by the departments and agencies of the Federal Government. The online CFR is a joint project authorized by the publisher,the National Archives and Records Administration's (NARA) Office of the Federal Register (OFR), and the Government Publishing Office (GPO) to provide the public with enhanced access to Government information. 11p ;//wwv. �anfc%=gc�v/ I;p/ E`r [online: cited 9 September 2018] Only CFR (§301.53-3) EAB Quarantine areas located inside Massachusetts are included in this Appendix.The full online CFR (including all states) may be found at http�_!/ww _tiph��._u des c�_v._/apl� slaurfo�_aa Wp uri heaIltl�/ply_ t pest-area disease-pua��a��wns/Festa:= .and ashl car r[c au��r6mitut. [online: cited 9 September 2018] Electronic Code of Federal Regulations e-CFR data is current as of September 6, 2018 Title 7 � Subtitle B � Ch III III �Part 301 --> Subpart Title 7:Agriculture ART 301---DOME-- I—4��1�R6i��°IIVE No'I iC 1 Subpart—Emerald Ash Borer Contents Q➢1,53 ;3__ as tined areas,.. Q➢1. 3-4 _Ca�ndid�a:��aa �Eriu�.g1h _interstate movement 1 .11 �1 articles r U _n r1uUf L du�dd .§3Q�.S-5 Issuance and cancellation.of certificates and��p�ited,a its. §3Q1.53-7 Aseffl1y a � afls �c� pn o� ° g ll t _ac 1 ,, §3_QL53-8 �tt �aat� t� sa �t- sragyfcertificateslaut �� a��t „ .§3 . .53-9 Costs end ch r_g_t_S SOURCE: 68 FR 59088, Oct. 8, 2003,unless otherwise noted. §301.53-1 Definitions. Administrator. The Administrator,Animal and Plant Health Inspection Service, or any individual authorized to act for the Administrator. Animal and Plant Health Inspection Service(APHIS). The Animal and Plant Health Inspection Service of the United States Department of Agriculture. Certificate.A document that is issued for a regulated article by an inspector or by a person operating under a compliance agreement and that represents that such article is eligible for interstate movement in accordance with§301.53-5(a). Compliance agreement.A written agreement between APHIS and a person engaged in growing,handling, or moving regulated articles that are moved interstate,in which the person agrees to comply with the provisions of this subpart and any conditions imposed under this subpart. Emerald ash borer. The insect known as emerald ash borer (Agrilus planipennis [Coleoptera: Buprestidae]) in any stage of development. Infestation. The presence of the emerald ash borer or the existence of circumstances that make it reasonable to believe that the ash borer is present. Inspector.Any employee of the Animal and Plant Health Inspection Service, or other individual authorized by the Administrator to enforce the provisions of this subpart. Interstate. From any State into or through any other State. Limited permit.A document in which an inspector or a person operating under a compliance agreement affirms that the regulated article not eligible for a certificate is eligible for interstate movement only to a specified destination and in accordance with conditions specified on the permit. Moved(movement, move). Shipped, offered for shipment, received for transportation, transported, carried, or allowed to be moved, shipped,transported, or carried. Person.Any association, company, corporation, firm,individual,joint stock company, partnership, society, or any other legal entity. Quarantined area.Any State, or any portion of a State,listed in§301.53-3(c) or otherwise designated as a quarantined area in accordance with§301.53-3(b). Regulated article.Any article listed in §301.53-2(a) or otherwise designated as a regulated article in accordance with§301.53-2(b). State. The District of Columbia, Puerto Rico,the Northern Mariana Islands, or any State, territory, or possession of the United States. §301.53-2 Regulated articles. The following are regulated articles: (a) The emerald ash borer; firewood of all hardwood (non-coniferous) species; nursery stock,green lumber,and other material living, dead,cut, or fallen,including logs, stumps, roots,branches,and composted and uncomposted chips of the genus Fraxinus. (b)Any other article,product, or means of conveyance not listed in paragraph (a) of this section may be designated as a regulated article if an inspector determines that it presents a risk of spreading emerald ash borer and notifies the person in possession of the article, product, or means of conveyance that it is subject to the restrictions of the regulations. [68 FR 59088, Oct. 8, 2003,as amended at 70 FR 252,Jan.4, 2005] §301.53-3 Quarantined areas. (a) Except as otherwise provided in paragraph (b) of this section,the Administrator will list as a quarantined area in paragraph (c) of this section each State or each portion of a State in which the emerald ash borer has been found by an inspector, in which the Administrator has reason to believe that the emerald ash borer is present, or that the Administrator considers necessary to regulate because of its inseparability for quarantine enforcement purposes from localities where emerald ash borer has been found. Less than an entire State will be designated as a quarantined area only if the Administrator determines that: (1) The State has adopted and is enforcing restrictions on the intrastate movement of regulated articles that are equivalent to those imposed by this subpart on the interstate movement of regulated articles; and (2) The designation of less than an entire State as a quarantined area will be adequate to prevent the artificial interstate spread of the emerald ash borer. (b) The Administrator or an inspector may temporarily designate any nonquarantined area as a quarantined area in accordance with the criteria specified in paragraph (a) of this section.The Administrator will give written notice of this designation to the owner or person in possession of the nonquarantined area, or,in the case of publicly owned land,to the person responsible for the management of the nonquarantined area.Thereafter,the interstate movement of any regulated article from an area temporarily designated as a quarantined area is subject to this subpart.As soon as practicable,this area either will be added to the list of designated quarantined areas in paragraph (c) of this section, or the Administrator will terminate the designation. The owner or person in possession of, or,in the case of publicly owned land,the person responsible for the management of, an area for which the designation is terminated will be given written notice of the termination as soon as practicable. (c) The following areas are designated as quarantined areas: Massachusetts The entire State. §301.53-4 Conditions governing the interstate movement of regulated articles from quarantined areas. Regulated articles may be moved interstate from a quarantined area only if moved under the following conditions: (a) With a certificate or limited permit issued and attached in accordance with§§301.53-5 and 301.53-8; (b) Without a certificate or limited permit if: (1) The regulated article is moved by the United States Department of Agriculture for experimental or scientific purposes; or (2) The regulated article originates outside the quarantined area and is moved interstate through the quarantined area under the following conditions: (i) The points of origin and destination are indicated on a waybill accompanying the regulated article; and (ii) 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 (iii) 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 (iv) The article has not been combined or commingled with other articles so as to lose its individual identity. §301.53-5 Issuance and cancellation of certificates and limited permits. (a) An inspectorl or person operating under a compliance agreement will issue a certificate for the interstate movement of a regulated article if he or she determines that the regulated article: 1Inspectors are assigned to local offices of APHIS,which are listed in the local telephone directories. Information concerning such local offices may also be obtained from the Animal and Plant Health Inspection Service, Plant Protection and Quarantine, Domestic and Emergency Operations,4700 River Road Unit 134, Riverdale, Maryland 20737-1236. (1)(i) Is apparently free of EAB,based on inspection; or the article or (ii) Has been grown,produced,manufactured,stored,or handled in a manner that,in the judgment of the inspector,prevents the regulated article from presenting a risk of spreading EAB; and (2) Is to be moved in compliance with any additional emergency conditions that the Administrator may impose under section 414 of the Plant Protection Act(7 U.S.C. 7714)2 in order to prevent the artificial spread of emerald ash borer; and 2An inspector may hold,seize, quarantine,treat,apply other remedial measures to, destroy, or otherwise dispose of plants,plant pests, or other articles in accordance with sections 414,421,and 423 of the Plant Protection Act(7 U.S.C. 7714, 7731,and 7754). (3) Is eligible for unrestricted movement under all other Federal domestic plant quarantines and regulations applicable to the regulated articles. (b)An inspector or a person operating under a compliance agreement will issue a limited permit for the interstate movement of a regulated article not eligible for a certificate if he or she determines that the regulated article: (1) Is to be moved interstate to a specified destination for specific processing,handling, or utilization (the destination and other conditions to be listed on the limited permit),and this interstate movement will not result in the spread of emerald ash borer because emerald ash borer will be destroyed by the specific processing,handling, or utilization; and (2) Is to be moved in compliance with any additional emergency conditions that the Administrator may impose under section 414 of the Plant Protection Act(7 U.S.C. 7714) in order to prevent the spread of emerald ash borer; and (3) Is eligible for unrestricted movement under all other Federal domestic plant quarantines and regulations applicable to the regulated article. (c)An inspector shall issue blank certificates and limited permits to a person operating under a compliance agreement in accordance with§301.53-6 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 interstate movement of regulated articles that have met all of the requirements of paragraph (a) or (b),respectively,of this section. (d) Any certificate or limited permit may be canceled orally or in writing by an inspector whenever the inspector determines that the holder of the certificate or limited permit has not complied with this subpart or any conditions imposed under this subpart. 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.Any person whose certificate or limited permit has been canceled may appeal the decision in writing to the Administrator within 10 days after receiving the written cancellation notice.The appeal must state all of the facts and reasons that the person wants the Administrator to consider in deciding the appeal.A hearing may be held to resolve a conflict as to any material fact. Rules of practice for the hearing will be adopted by the Administrator.As soon as practicable,the Administrator will grant or deny the appeal,in writing,stating the reasons for the decision. (Approved by the Office of Management and Budget under control number 0579-0233) §301.53-6 Compliance agreements and cancellation. (a) Persons engaged in growing,handling,or moving regulated articles interstate may enter into a compliance agreement3 if such persons review with an inspector each provision of the compliance agreement.Any person who enters into a compliance agreement with APHIS must agree to comply with the provisions of this subpart and any conditions imposed under this subpart. 3Compliance agreements may be initiated by contacting a local office of APHIS.The addresses and telephone numbers of local offices are listed in local telephone directories and may also be obtained from the Animal and Plant Health Inspection Service, Plant Protection and Quarantine, Domestic and Emergency Operations,4700 River Road Unit 134, Riverdale, MD 20737-1236. (b)Any compliance agreement may be canceled orally or in writing by an inspector whenever the inspector determines that the person who has entered into the compliance agreement has not complied with this subpart or any conditions imposed under this subpart. 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.Any person whose compliance agreement has been canceled may appeal the decision in writing to the Administrator within 10 days after receiving the written cancellation notice.The appeal must state all of the facts and reasons that the person wants the Administrator to consider in deciding the appeal.A hearing may be held to resolve a conflict as to any material fact. Rules of practice for the hearing will be adopted by the Administrator.As soon as practicable,the Administrator will grant or deny the appeal,in writing, stating the reasons for the decision. (Approved by the Office of Management and Budget under control number 0579-0233) §301.53-7 Assembly and inspection of regulated articles. (a) Persons requiring certification or other services must request the services from an inspector4 at least 48 hours before the services are needed. 4See footnote 1 to §301.53-5. (b) The regulated articles must be assembled at the place and in the manner that the inspector designates as necessary to comply with this subpart. (Approved by the Office of Management and Budget under control number 0579-0233) §301.53-8 Attachment and disposition of certificates and limited permits. (a) A regulated article must be plainly marked with the name and address of the consignor and the name and address of the consignee and must have the certificate or limited permit issued for the interstate movement of a regulated article securely attached at all times during interstate movement to: (1) The regulated article; (2) The container carrying the regulated article; or (3) The consignee's copy of the accompanying waybill: Provided, that the description of the regulated article on the certificate or limited permit,and on the waybill, are sufficient to identify the regulated article; and (b) The carrier must furnish the certificate or limited permit authorizing interstate movement of a regulated article to the consignee at the destination of the shipment. (Approved by the Office of Management and Budget under control number 0579-0233) §301.53-9 Costs and charges. 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