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.
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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.
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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.
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.
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