ENV-43-13-00013-P Prohibited and Regulated Invasive Species

10/23/13 N.Y. St. Reg. ENV-43-13-00013-P

NEW YORK STATE REGISTER

VOLUME XXXV, ISSUE 43

October 23, 2013

RULE MAKING ACTIVITIES

DEPARTMENT OF ENVIRONMENTAL CONSERVATION

PROPOSED RULE MAKING

HEARING(S) SCHEDULED

 

I.D No. ENV-43-13-00013-P

Prohibited and Regulated Invasive Species

PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following proposed rule:

Proposed Action:

Addition of Part 575 to Title 6 NYCRR.

Statutory authority:

Environmental Conservation Law, art. 9, title 17; sections 1-0101, 3-0301, 9-0105, 9-1303, 9-1701, 9-1705, 9-1707, 9-1709, 11-0507, 11-0509, 11-0511, 71-0703; and Agriculture and Markets Law, section 167(3-a), arts. 9, 11 and 14

Subject:

Prohibited and Regulated Invasive Species.

Purpose:

To control invasive species by reducing the introduction of new and the spread of existing populations in the State.

Public hearing(s) will be held at:

2:00 p.m., December 10, 2013 at Department of Environmental Conservation, Region 9 Headquarters, 1st Fl. Conference Rm., 270 Michigan Ave., Buffalo, NY; 2:00 p.m., December 11, 2013 at State Fairgrounds, Martha Eddy Rm., 581 State Fair Blvd., Syracuse, NY; 3:00 p.m., December 16, 2013 at Department of Environmental Conservation, Central Office, Public Assembly Rm. (Fl. 1), 625 Broadway, Albany, NY; 2:00 p.m., December 17, 2013 at State University of NY at Stony Brook, Department of Environmental Conservation, Region 1 Headquarters, Basement Conference Rm., 50 Circle Rd., Stony Brook, NY.

Interpreter Service:

Interpreter services will be made available to hearing impaired persons, at no charge, upon written request submitted within reasonable time prior to the scheduled public hearing. The written request must be addressed to the agency representative designated in the paragraph below.

Accessibility:

All public hearings have been scheduled at places reasonably accessible to persons with a mobility impairment.

Substance of proposed rule (Full text is posted at the following State website:www.dec.ny.gov):

A new Part 575 will be adopted under 6 NYCRR Chapter V, Subchapter C. Existing Subchapter C, Real Property and Land Acquisition, will become Subchapter D, and existing Subchapter D, Water Regulation, will be placed in a new Subchapter E. This document provides a summary of the proposed invasive species regulations. The Express Terms of proposed Part 575 control should a conflict exist between this summary document and the Express Terms.

Section 575.1: Purpose, scope and applicability

The purpose of the proposed invasive species regulations is to provide rules and procedures to identify, classify and establish a permit system in an effort to restrict the sale, purchase, possession, propagation, introduction, importation, and transport of invasive species in New York, as part of the New York State Department of Environmental Conservation's (“DEC”) statewide invasive species management program, as required by Environmental Conservation Law (ECL) sections 9-1709 and 71-0703. The regulations set forth in this Part may be complemented by existing regulations promulgated by the DEC and the New York State Department of Agriculture and Markets (“DAM”) and local laws or regulations designed to restrict the sale, purchase, possession, propagation, introduction, importation, transport and disposal of specific invasive species in New York. These existing regulations continue to apply, unless in conflict, superseded or expressly stated otherwise in this Part.

Section 575.2: Definitions

As used in this Part, the following words and terms have the meanings ascribed in the proposed rule under section 575.2: Animal, Certificate of Inspection, Commissioner, Compliance Agreement, Container, Control, Cultivar, Department, Disposal, Ecosystem, Education, Environmental Notice Bulletin, Free-living State, Fungi, Import, Incidental, Introduce, Invasive Species, Limited Permit, Native Species, Natural Areas, Nonnative Species, Person, Plant, Possess, Prohibited Invasive Species, Propagate, Propagule, Public Lands, Public Waters, Purchase, Reasonable Precautions, Regulated Invasive Species, Research, Sell, Species, and Transport. "Invasive Species" means a species that is nonnative to the ecosystem under consideration, and whose introduction causes or is likely to cause economic or environmental harm or harm to human health. For the purposes of this Part, the harm must significantly outweigh any benefits. The remainder of the definitions are not included in this summary.

Section 575.3: Prohibited invasive species

Prohibited invasive species are identified in section 575.3 by scientific and common names and by specific categories of species including: algae and cyanobacteria, plants, fish, terrestrial and aquatic invertebrates, and terrestrial and aquatic vertebrates, and fungi. Species are not listed in this summary. Except as otherwise provided by this Part, no person shall knowingly possess with the intent to sell, import, purchase, transport, or introduce any prohibited invasive Species. Except as otherwise provided by this Part, no person shall sell, import, purchase, transport, introduce or propagate any prohibited invasive species. Prohibited invasive species shall only be disposed of in a manner that renders them nonliving and nonviable. A person may possess, sell, purchase, transport or introduce for a maximum of one year following the effective date of this Part, Japanese Barberry, a prohibited invasive species. Furthermore, a person may possess, sell, offer for sale, distribute, transport, or otherwise market or trade live Eurasian boars until September 1, 2015; however, no person shall knowingly import, propagate or introduce Eurasian boars into a free-living state. “Free-living state” is defined as unconfined and outside the control of a person, and provides that species released to public lands and waters, as well as natural areas, are considered to be in a “free-living state.”

Section 575.4: Regulated invasive species

Regulated invasive species are identified in section 575.4 by scientific and common names and by specific categories of species including: algae and cyanobacteria, plants, fish, aquatic invertebrates, and terrestrial and aquatic vertebrates. Species are not listed in this summary. Except as otherwise provided by in this Part, no person shall knowingly introduce into a free-living state or introduce by a means that one knew or should have known would lead to the introduction into a free-living state any regulated invasive species, although such species shall be legal to possess, sell, buy, propagate and transport.

Section 575.5: Classifications

Section 575.5 provides that in classifying a nonnative species as either a Prohibited or Regulated species, DEC and DAM apply the invasiveness ranking system established in ‘A Regulatory System for Non-Native Species, June 2010, and consider one or more of the following ecological and socio-economic factors to determine the invasiveness rank of a species and whether it should be listed as prohibited or regulated: (1) whether a species meets the definition of an invasive species; (2) whether the species is currently on a federal list or listed in other states as an invasive species and its native habitat has climatic conditions similar to that of New York State; (3) ecological impacts; (4) biological characteristics and dispersal ability; (5) ecological amplitude and distribution; (6) difficulty of control; (7) economic benefits or negative impacts of the species; (8) human health benefits or negative impacts of the species; and (9) cultural or societal significance of the benefits or harm caused by the species. “Invasiveness Rank” means a rank assigned to a nonnative species, applying the criteria described above, to signify its level of invasiveness (Very High, High, Medium, Low or Insignificant). Species ranking “Moderate” or higher invasiveness in the ecological assessment are classified as “Regulated” or “Prohibited” based on the outcomes of the assessments, including a socio-economic assessment. Species that have been determined to be “High” or “Very High” invasiveness, posing a clear risk to New York’s ecological well being, and for which the subsequent socio-economic assessments have determined that social or economic benefits are not significantly positive, are classified as “Prohibited.” Species that have been determined to have “Moderate” invasiveness and the socio-economic assessments have determined there is no significantly negative or positive socio-economic harm or benefit are classified as “Regulated.” Those species that have ranked “High” or “Very High” invasiveness in the ecological assessment, and pose a clear risk to New York’s ecological well-being, but have significantly positive socio-economic benefit may be classified as “Regulated.” In other instances, species ranking “Moderate,” but have significantly negative socio-economic value, may be classified as “Prohibited.” Grace periods may be established for species classified as Prohibited by DEC and DAM to allow businesses to plan for the management of existing stock. All future classifications of prohibited and regulated invasive species shall apply the invasiveness ranking system established in the Report and required by this section.

Section 575.6: Conditions governing regulated invasive species

Pursuant to section 575.6, a regulated invasive species that is sold or offered for sale shall have attached, a label with the words "Invasive Species-Harmful to the Environment" in at least 14 point bold font and will offer alternative non-invasive species information and provide instructions to prevent the spread of invasive species. Where it is impracticable to display a label, written notice shall be provided upon sale to the purchaser. Before supplying or planting a regulated invasive species as part of a landscape service, a person shall give written notice to the customer that the invasive species is harmful to the environment, including the common and scientific names of the invasive species immediately followed by the words "Invasive Species-Harmful to the Environment" in 14 point bold type or greater. The notice shall offer alternative non-invasive species and shall provide instructions to prevent the spread of invasive species. No person selling or offering for sale a regulated species shall conceal, detach, alter, deface, or destroy any label, sign, or notice required under this subpart. Any person who purchases a Regulated invasive species shall be required to follow any instructions required by this subpart and maintain the required instructions until the Regulated species is disposed of in a manner that renders it nonliving and nonviable.

Section 575.7: Petitions to add a species to the invasive species list or remove a species from the invasive species list

Under section 575.7, a person may petition DEC to have a species added to or removed from the invasive species list. DEC may only classify additional nonnative species that meet the established criteria in section 575.5 for prohibited or regulated invasive species and may only remove previously classified invasive species if those invasive species no longer meet the established criteria in section 575.5. Under both circumstances, DEC must get concurrence from DAM.

Section 575.8: Exemptions

Section 575.8 provides exemptions from compliance with Part 575 for certain activities related to regulated and prohibited species, such as: if the DEC determines such activities or introduction were incidental or unknowing and not due to a person’s failure to take reasonable precautions; transportation for disposal or identification; the control or management of invasive species; cultivars that meet certain criteria; persons authorized by permit or compliance agreements from DEC, DAM, or US Department of Agriculture; and wetland plant species associated with a vegetation treatment unit used in a wastewater treatment facility authorized by a DEC permit prior to the adoption of this Part. “Reasonable Precautions” is defined in this Part as “intentional actions that prevent or minimize the possession, transport, or introduction of invasive species.”

Section 575.9: Invasive species permits

Under section 575.9, a person may possess, with intent to sell, import, purchase, transport or introduce a prohibited or regulated invasive species if the person has been issued a permit by DEC for research, education, or other approved activity. This section describes permit conditions and requirements for issuance of invasive species permits including: written application requirements, approval criteria, issuance and conditions, records and reporting, permits transfer/ alterations, violations and other permits or approvals. The permit would require that the applicant demonstrate to DEC’s satisfaction that adequate safeguards are in place to control and dispose of the invasive species to prevent the potential spread of invasive species in New York State. Specific language has not been included in this summary document.

Section 575.10: Penalties and enforcement

Section 575.10 provides that any person who violates this Part or any license or permit or order issued by the DEC pursuant to section 9-1709 of the ECL or pursuant to the provisions of this Part shall be liable for all penalties and other remedies provided for in the Environmental Conservation Law, including section 71-0703. Such penalties and remedies may be in addition to any other penalty available under other laws, including, but not limited to, permit revocation.

575.11: Coordination

Section 575.12 clarifies that Part 575 does not affect the existing authority of DAM and that DAM will be responsible for the inspection of registered growers and dealers of plant material for compliance with this Part. Furthermore, any violation issued by DAM shall be referred to the DEC for assessment of penalties pursuant to Environmental Conservation Law section 71-0703.

Section 575.12: Severability

If a provision of this Part or its application to any person or circumstance is determined to be contrary to law by a court of competent jurisdiction, pursuant to section 575.13, such determination shall not affect or impair the validity of the other provisions of this Part or the application to other persons and circumstances.

Text of proposed rule and any required statements and analyses may be obtained from:

Leslie Surprenant, Division of Lands and Forests, 625 Broadway, Albany, NY 12233, [phone], email: [e-mail]

Data, views or arguments may be submitted to:

Same as above.

Public comment will be received until:

Five days after the last scheduled public hearing.

Additional matter required by statute:

A Negative Declaration has been prepared in compliance with Article 8 of the Environmental Conservation Law.

This rule was not under consideration at the time this agency submitted its Regulatory Agenda for publication in the Register.

Summary of Regulatory Impact Statement

1. Statutory authority: The proposed regulations establish requirements for the sale, importation, purchase, transportation or introduction of invasive species. These draft regulations are jointly proposed by the New York State Department of Environmental Conservation (DEC) and the Department of Agriculture and Markets (DAM). Statutory authority to promulgate Part 575 of Title 6 of the Codes, Rules and Regulations of the State of New York (6 NYCRR) is explicitly found in Environmental Conservation Law (ECL) § 9-1709 and Agriculture and Markets Law (AML) § 167 (3-a). ECL § 9-1709, mandates the strengthening of controls regarding the prevention, spread, and control of invasive species. ECL § 71-0703(9)(a-b), establishes penalties for violations of the regulations.

Moreover, ECL § 11-0507(4) makes it unlawful to liberate, buy or sell, or offer to buy or sell zebra mussels without a DEC issued permit. Similarly, ECL § 11-0509 prohibits the planting, transportation, sale, or any action that could cause the spread or growth of water chestnut. Other statutory authority includes: ECL Sections 1-101, 3-303, 9-0105, 9-1303, 11-0511 and AML Articles 9, 11 and 14.

2. Legislative objectives: In order to help reduce the devastating environmental and economic impacts of invasive species, ECL § 9-1709, provides the DEC and DAM with explicit authority to regulate the sale, purchase, possession, introduction, importation and transport of invasive species and establishes penalties for those who violate such regulations. The proposed 6 NYCRR Part 575 regulation achieves the legislative goal of reducing the adverse environmental and economic impacts of invasive species by identifying invasive species and prohibiting or regulating the importation, sale, purchase, propagation, transportation, or introduction of invasive species that pose a clear risk, or the potential to cause harm, to New York’s economy, ecological well being or human health. The proposed regulations used the ecological and socio-economic assessment processes presented in the 2010 report titled "A Regulatory System for Non-native Species," to assign regulatory classifications to assessed species.

Assessments consist of an ecological risk and a socio-economic cost/benefit analysis. The ecological assessment considers ecological impacts on ecosystems processes, ecological communities, and on other species. Among the considerations are: ease of dispersal, reproductive potential, distribution, similarity of species’ native climate to New York’s climate, and difficulty of controlling the species. The socio-economic assessments are conducted to determine the species economic, human health and cultural impacts and importance.

Based on these assessments, ECL § 9-1709 requires the DEC to jointly promulgate regulations with the DAM, that: (1) list prohibited invasive species, which are unlawful to knowingly possess with the intent to sell, import, purchase, transport, or introduce, and unlawful to import, sell, purchase, propagate, transport, or introduce; (2) provide for permits that would authorize the possession of invasive species for research and education that would otherwise be prohibited; and (3) list regulated species, which shall be legal to possess, sell, buy, propagate and transport but may not be introduced into a free-living state.

ECL § 71-0703(9) established penalties for violations of the regulations: starting with a written warning for a first violation, and a fine of no less than $250 for subsequent violations. A licensed nursery grower, any owner or operator of a public vessel, or any person who owns or operates a commercial fishing vessel who violates the regulations by transporting, selling, importing, or introducing invasive species will be subject to a fine of not less than $600 dollars for a first violation and not less than $2,000 for a second violation. For subsequent violations, a nursery grower may be subject to license revocation; an owner or operator of a public vessel may have their vessel registration suspended; and a commercial fishing vessel owner or operator may have their fishing permit revoked.

The proposed regulations achieve the legislative goal of preventing the spread of invasive species and complement DEC’s and DAM’s existing regulations, as well as local laws that also seek to restrict the spread of certain invasive species. 6 NYCRR Part 575 identifies the criteria DEC and DAM applied for classifying invasive species as either prohibited or regulated (this same criteria is required to be applied for future classification as well); lists both prohibited and regulated invasive species; provides a means for the public to petition DEC to classify or remove a species from the lists of regulated or prohibited species; establishes grace periods for certain prohibited species so businesses can manage existing stock; and, provides exemptions for certain activities involving prohibited and regulated species.

All of the species classified as prohibited pose a clear risk to New York’s economy, ecological well being and/or human health. As such, the proposed regulation prohibits the possession with the intent to sell, import, purchase, transport, or introduce, as well as the importation, sale, purchase, propagation, transportation, or introduction of any species listed as prohibited, unless otherwise provided for elsewhere in the proposed regulation, namely by permit. Conversely, while regulated invasive species have the potential to cause significant harm to New York’s economy, ecological well being or human health, these species can be effectively contained through practicable and meaningful regulatory programs. Regulated invasive species can be sold, purchased, propagated, and transported, but not knowingly introduced into a free-living state or introduced by means that one knew or should have known would lead to introduction into a “free-living state.” The proposed regulations establish conditions that sellers and purchasers must adhere to that would prevent or minimize the risk of the spread of regulated invasive species and, consequently, would serve to limit any potential significant harm to New York’s economy, ecological well being or human health that could be caused by those invasive species.

As indicated above, the regulations provide for exemptions for certain activities and a permit process for other activities. These provisions should provide necessary flexibility to the regulated community and reduce costs, while still providing the necessary protections to prevent the spread and introduction of invasive species. The following activities would not be subject to the proposed regulatory requirements: if the DEC determines such activities or introduction were unknowing or not due to failure to take reasonable precautions; transportation for disposal or identification; the control or management of invasive species; cultivars that meet certain criteria; or persons authorized by permit or compliance agreements from DEC, DAM, or US Department of Agriculture. The proposed regulations also provides for the issuance of a permit for research, education, or other approved activities concerning prohibited invasive species. The permit would require that the applicant demonstrate that adequate safeguards are in place to control and dispose of the invasive species to prevent their potential spread in New York State.

3. Needs and benefits: Invasive species are defined in ECL § 9-1703 as species that are “non-native to the ecosystem under consideration and whose introduction causes or is likely to cause economic or environmental harm or harm to human health” which “must significantly outweigh any benefits.” Invasive species are almost entirely spread by human activities and are increasing with growing global trade and travel. Invasive species harm all sectors of our economy through direct impacts, including reducing the quality and quantity of forest and agricultural products, damaging infrastructure such as water intakes for municipal water supplies and power generation and reducing recreational opportunities. Negative impacts to our environment include competition with native species, impeding ecosystem functions, and contributing to the decline of threatened and endangered species.

Invasive species are introduced and transported through “pathways”. Pathways may be natural and uncontrollable such as wind, currents, and extreme weather events. Other invasive species pathways are human made resulting from intentional introductions of non-native species from activities like gardening and landscape planting, hunting preserve management, and religious/cultural releases of live animals. Unintentional introductions by humans are associated with certain activities such as recreational boating, construction, and transportation.

Implementation of the proposed rulemaking is expected to impede the introduction and spread of invasive species, primarily through regulating trade in live organisms, resulting in a positive impact on the environment.

Outreach related to this proposed rulemaking included at least two meetings with the Invasive Species Council, a nine state-agency body, and two meetings with the Invasive Species Advisory Committee, an advisory body, whose membership consists of 25 diverse non-governmental stakeholders, including the landscape, nursery and forest industries, Farm Bureau, conservation organizations, lake associations, local government, and academia.

4. Costs: Regulated parties selling live non-native organisms will incur short-term costs for eliminating their stocks of prohibited species and complying with requirements for regulated species. Costs to the nursery and landscape industry may result from lost sales of some popular species that will be listed as prohibited or regulated. Additionally, the pet industry may see losses as a result of the listing of certain animal and fish species. Costs to industry may be offset for the nursery industry by continuing to allow the sale of certain regulated species with conditions attached. Minor costs for obtaining permits for certain activities may be incurred by some regulated parties. Grace periods for select prohibited species will reduce the negative impact to the regulated entities.

DEC and DAM will incur costs for staff time for all rulemaking activities. Consultant contracts for species assessments are needed to determine appropriate classifications. Costs will continue into the future for reviewing and updating prohibited and regulated species lists, reviewing and issuing new permits, and for enforcement. Local governments should not incur costs.

5. Local government mandates: None. Local governments currently using species that are listed as prohibited or regulated would however need to avoid using prohibited species and comply with requirements for regulated species.

6. Paperwork: A person applying for a permit pursuant to the proposed regulation would need to submit an application to the DEC and provide all the necessary information. In addition, the proposed rule requires labeling or written notices for regulated invasive species that are sold or offered for sale to prevent its spread or introduction into a free-living state.

7. Duplication: The proposed regulations do not expressly duplicate any State requirement, except several invasive species and related topics are addressed in law or regulations elsewhere. Some overlap may exist at the local level because executive orders, resolutions and local laws for invasive species have been enacted and minor inconsistencies may exist, although the jurisdictional applications of the laws and regulations minimize conflicts. Some permit duplication of Federal requirements may exist where there is overlap with species listed by the United States Fish and Wildlife Service as injurious in the Lacey Act or the United States Department of Agriculture's Plant Pest Program.

8. Alternatives: Adoption of Part 575 is necessary to meet the express legislative directive to “promulgate regulations to implement the provisions of this act”, ECL § 9-1709(4). If DEC and DAM take no action, the Departments could be considered in violation of the law. Therefore, there are no significant alternatives.

9. Federal standards: New York’s definition of an invasive species was adopted from the Federal Executive Order 13112. The proposed regulations also classify as prohibited or regulated a number of non-native species that are not federally-regulated. These regulations would not supersede or replace federal standards for permit issuance.

10. Compliance schedule: The regulated community is required to comply with the proposed regulations six months after notice of adoption in the State Register. Consistent with NYS State Administrative Procedures Act (SAPA) § 202-b, a cure period is provided through ECL § 71-0703 that allows for a written warning for first offenses. With respect to any nursery grower or an operator of a commercial fishing vessel no cure period has been provided because ECL § 71-0703(b) statutorily mandates specific penalties for first offenses.

Regulatory Flexibility Analysis

1. Effect of rule: The proposed rule takes prohibited invasive species out of commerce and allows certain regulated species to be sold under conditions.

2. Compliance requirements: The proposed rule requires labeling or written notices for regulated invasive species that are sold or offered for sale; and further requires that any person who purchases a regulated species maintain required instructions for care or tending of the invasive species to prevent its spread or introduction into a free-living state. The proposed rule allows a person to possess, with intent to sell, import, purchase, transport or introduce prohibited invasive species; and the introduction of regulated invasive species into a free-living state if a permit has been issued by the New York State Department of Environmental Conservation (DEC) . A written application for such permits is required; and permitees must keep a current record of all permit activities as required by DEC on forms available from DEC.

3. Professional services: There are no professional services that a small business or local government is likely to need to comply with the changes associated with this rule. The proposed rule provides that the New York State Department of Agriculture and Markets (DAM) prescribes the design of the required labels or notices for regulated species.

4. Compliance costs: There are limited initial capital costs or annual costs to comply with the rule. Persons who sell or offer for sale regulated species will incur minimal costs for required labels or written notices. Persons who seek permits for prohibited or regulated species will not be charged a fee for each permit.

5. Economic and technological feasibility: The proposed rule does not require any specialized technology for compliance; and is otherwise both economically and technologically feasible to comply with.

6. Minimizing adverse impact: Costs to industry may be offset for the nursery industry by continuing to allow the sale of certain regulated species with conditions attached. Furthermore, the proposed regulations reduce costs by providing for grace periods for certain identified prohibited invasive species. The regulation specifically provides for a grace period until September 1, 2015 to possess, sell, trade and market Eurasian boars, which will allow current operators of Eurasian boar shooting preserves to recover their initial investments. Similarly, the regulation provides for a one year grace period for the possession, sale, purchase, transportation or introduction of Japanese Barberry following the effective date of this Part. This provision provides the regulated the community time to sell existing stocks, and the ability to transition to alternatives. In this regard, costs may also be offset by offering alternatives to invasive species.

The proposed regulations do not impose any direct programs, services, duties or responsibilities upon any county, city, town, village, school district or other special district. Local governments currently using species that will are listed as prohibited or regulated will need to avoid using prohibited species and comply with requirements for regulated species. However, the proposed regulation would provide local governments the ability to continue to use regulated invasive species for landscaping on public lands under a DEC issued permit. A permit would only be issued if DEC determined that the issuance of the permit would not lead to the spread of the regulated invasive species.

7. Small business and local government participation: DEC has complied with the New York State Administrative Procedure Act (SAPA) section 202-b (6) by assuring that small businesses and local governments have been given an opportunity to participate in the rule making. This participation has occurred through meetings and interaction with both the Invasive Species Council (Council), a nine state-agency body established by Environmental Conservation Law (ECL) section 9-1705 and co-led by DEC and DAM, and the Invasive Species Advisory Committee (ISAC), a body of 25 non-governmental entities established by ECL section 9-1707.

The Council is composed of representatives from the following agencies: DEC, DAM, Department of Transportation, Office of Parks, Recreation, and Historic Preservation, Department of Education, Department of State, New York State Thruway Authority, New York State Canal Corporation, and the Adirondack Park Agency.

The ISAC is composed of representatives from the following organizations: American Society of Landscape Architects - New York Upstate Chapter, Associated General Contractors of America - New York Chapter, Audubon, New York, Biodiversity Research Institute, Cornell University, Darrin Freshwater Institute, RPI Empire State Forest Products Association, Empire State Marine Trades Association, Environmental Energy Alliance of New York, Lake Champlain Basin Program, New York Association of Conservation Districts, New York City Department of Environmental Protection New York Farm Bureau, New York Natural Heritage Program, New York Sea Grant New York State Association of Counties, New York State Federation of Lakes Associations, New York State Flower Industries, Inc., New York State Forest Owners Association, New York State Nursery and Landscape Association, New York State Turfgrass Association / Council of Agricultural Organizations, Partnerships for Regional Invasive Species Management, State University of New York College of Environmental Science and Forestry, The Nature Conservancy, and the Wildlife Society – New York Chapter.

DEC met with ISAC on March 23, June 11, and July 19; 2013. DEC met with the Council on May 13 and July 19, 2013. DEC also met separately with the New York Farm Bureau on September 3, 2012 and with The Nature Conservancy on June 26, 2013.

DAM met with representatives of the Nature Conservancy (TNC), New York State Nursery and Landscape Association (NYSNLA) and New York Farm Bureau (NYFB) in October and November of 2012, to assist in the development of socio-economic assessments for the plant species that ranked “Very High” for ecological invasiveness. In similar fashion, DAM reached out again in July of 2013, to TNC, NYSNLA and NYFB as well as the entire Invasive Species Advisory Committee to assist in completing the socio-economic assessments for the plant species that ranked “High” for ecological invasiveness.

Furthermore, the DEC will be accepting public comments to the Notice of Proposed Rulemaking and will be providing responses to any comments that are received. A public hearing will also be held. The regulations will be available for review on the DEC's website.

8. Cure period: Consistent with SAPA section 202-b, the proposed regulations provided for a cure period through ECL section 71-0703 enforcement provisions. In this regard, ECL section 71-0703 provides that “any person who transports, sells, imports or introduces invasive species, in violation of the regulations promulgated pursuant to [ECL] section 9-1709” may be “issued a written warning” in lieu of a penalty. With respect to any nursery grower or an operator of a commercial fishing vessel no cure period has been provided because ECL section 71-0703(b) statutorily mandates specific penalties for first offenses. However, as indicated above, the proposed regulations provide for a grace period until September 1, 2015 for the possession, sale, transportation, distribution and marketing of Eurasian boars and a one year grace period for Japanese Barberry.

Rural Area Flexibility Analysis

1. Types and estimated numbers of rural areas: This rule applies to the entire State and impacts all rural areas of the State.

2. Reporting, recordkeeping and other compliance requirements; and professional services: The proposed rule requires labeling or written notices for regulated invasive species that are sold or offered for sale; and further requires that any person who purchases a regulated species maintain required instructions for care or tending of the invasive species to prevent its spread or introduction into a free-living state. Since the proposed rule provides that the New York State Department of Agriculture and Markets (DAM) prescribes the design of the labels or notices, there is not anticipated to be any professional assistance required to comply with these requirements.

The proposed rule allows a person to possess, with intent to sell, import, purchase, transport or introduce prohibited invasive species; and the introduction of regulated invasive species into a free-living state if a permit has been issued by the New York State Department of Environmental Conservation (DEC). A written application for such permits is required; and permitees must keep a current record of all permit activities as required by DEC on forms available from the DEC. No professional assistance is required to prepare and submit the applications or to maintain the required records.

3. Costs: There are limited initial capital costs or annual costs to comply with the rule. Persons who sell or offer for sale regulated species will incur minimal costs for required labels or written notices. Persons who seek permits for prohibited or regulated species will be not be charged a fee for each permit.

4. Minimizing adverse impact: Costs to industry may be offset for the nursery industry by continuing to allow the sale of certain regulated species with conditions attached. Furthermore, the proposed regulations reduce costs by providing for grace periods for certain identified prohibited invasive species. The regulation specifically provides for a grace period until September 1, 2015 to possess, sell, trade and market Eurasian boars, which will allow current operators of Eurasian boar shooting preserves to recover their initial investments. This provision provides the regulated the community time to sell existing stocks, and the ability to transition to alternatives. Similarly, the regulation also provides for a one year grace period for the possession, sale, purchase, transportation or introduction of the Japanese Barberry following the effective date of this Part. In this regard, costs may also be offset by offering alternatives to invasive species.

The proposed regulations do not impose any direct programs, services, duties or responsibilities upon any county, city, town, village, school district or other special district. Local governments currently using species that are listed as prohibited or regulated will need to avoid using prohibited species and comply with requirements for regulated species. However, the proposed regulation would provide local governments the ability to continue to use regulated invasive species for landscaping on public lands under a DEC issued permit. A permit would only be issued if DEC determined that the issuance of the permit would not lead to the spread of the regulated invasive species.

5. Rural area participation: DEC has complied with the New York State Administrative Procedure Act (SAPA) section 202-bb (7) by assuring that public and private interests in rural areas have been given an opportunity to participate in the rule making process. This participation has occurred through meeting and interaction with both the Invasive Species Council (Council), a nine state-agency body established by Environmental Conservation Law (ECL) section 9-1705 and co-led by DEC and DAM, and the Invasive Species Advisory Committee (ISAC), a body of 25 non-governmental entities established by ECL section 9-1707.

The Council is composed of individuals from the following organizations: DEC, DAM, Department of Transportation, Office of Parks, Recreation, and Historic Preservation, Department of Education, Department of State, New York State Thruway Authority, New York State Canal Corporation, and the Adirondack Park Agency.

The ISAC is composed of representatives from the following organizations: American Society of Landscape Architects - New York Upstate Chapter, Associated General Contractors of America - New York Chapter, Audubon, New York, Biodiversity Research Institute, Cornell University, Darrin Freshwater Institute, RPI, Empire State Forest Products Association, Empire State Marine Trades Association, Environmental Energy Alliance of New York, Lake Champlain Basin Program New York Association of Conservation Districts, New York City Department of Environmental Protection, New York Farm Bureau, New York Natural Heritage Program, New York Sea Grant New York State Association of Counties, New York State Federation of Lakes Associations, New York State Flower Industries, Inc., New York State Forest Owners Association, New York State Nursery and Landscape Association, New York State Turfgrass Association / Council of Agricultural Organizations, Partnerships for Regional Invasive Species Management, State University of New York College of Environmental Science and Forestry, The Nature Conservancy, and the Wildlife Society – New York Chapter.

DEC met with ISAC on March 23, June 11, and July 19; 2013. DEC met with the Council on May 13 and July 19, 2013. DEC also met separately with the New York Farm Bureau on September 3, 2012 and with The Nature Conservancy on June 26, 2013.

DAM met with representatives of the Nature Conservancy (TNC), New York State Nursery and Landscape Association (NYSNLA) and New York Farm Bureau (NYFB) in October and November of 2012, to assist in the development of socio-economic assessments for the plant species that ranked “Very High” for ecological invasiveness. In similar fashion, DAM reached out again in July of 2013, to TNC, NYSNLA and NYFB as well as the entire Invasive Species Advisory Committee to assist in completing the socio-economic assessments for the plant species that ranked “High” for ecological invasiveness.

Furthermore, DEC will be accepting public comments to the Notice of Proposed Rulemaking and will be providing responses to any comments that are received. Public hearings will also be held.

Job Impact Statement

1. Nature of impact: At the outset, compliance with the proposed rule will result in a reduction in the sale of certain listed invasive species. In fact, that is the intention of the proposed regulations. With the reduced sales there may be a reduction in income for businesses selling invasive species, and this may negatively impact jobs at such businesses. However, it is anticipated that by providing grace periods for the management of existing stock of prohibited species, and allowing the sale of certain regulated species subject to conditions, negative impacts to income will be minimized and impacts on jobs will likewise be minimal. It is also anticipated that the sales of alternative, non-invasive, species will increase, which will also act to counter any negative impacts to jobs.

2. Categories and numbers affected: There are approximately 9,000 licensed nursery growers/dealers in New York State that could, depending on the species they sell, be impacted by the proposed rule. Additionally, there are an unknown number of unlicensed pet dealers that may be impacted by the proposed rule if they sell prohibited or regulated invasive species. Unlicensed pet dealers are those that deal in pets other than cats or dogs.

3. Regions of adverse impact: There are no regions in the State where this rule making will have a disproportionate adverse impact on jobs or employment opportunities.

4. Minimizing adverse impact: Costs to industry may be offset for the nursery industry by continuing to allow the sale of certain regulated species with conditions attached. Furthermore, the proposed regulations reduce costs by providing for grace periods for certain identified prohibited invasive species. As described above, the regulation specifically provides for a grace period until September 1, 2015 to possess, sell, trade and market Eurasian boars, which will allow current operators of Eurasian boar shooting preserves to recover their initial investments. Similarly, the regulation provides for a one year grace period for the possession, sale, purchase, transportation or introduction of the Japanese Barberry following the effective date of this Part. This provision provides the regulated community time to sell existing stocks, and the ability to transition to alternatives. In this regard, costs may also be offset by offering alternatives to invasive species. Moreover, new businesses promoting commerce in non-invasive and native species may start up.