ENV-10-13-00007-P Exemption for the Possession and Sale of Bighead Carp

3/6/13 N.Y. St. Reg. ENV-10-13-00007-P

NEW YORK STATE REGISTER

VOLUME XXXV, ISSUE 10

March 06, 2013

RULE MAKING ACTIVITIES

DEPARTMENT OF ENVIRONMENTAL CONSERVATION

PROPOSED RULE MAKING

NO HEARING(S) SCHEDULED

 

I.D No. ENV-10-13-00007-P

Exemption for the Possession and Sale of Bighead Carp

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

Proposed Action:

Amendment of section 180.9 of Title 6 NYCRR.

Statutory authority:

Environmental Conservation Law, sections 3-0301, 11-0303, 11-0305, 11-0507 and 11-0511

Subject:

Exemption for the Possession and Sale of Bighead Carp.

Purpose:

Repeal the current exemption for the sale of bighead carp.

Text of proposed rule:

Existing subdivision 180.9(c) is repealed and exiting subdivisions 180.9(d) and 180.9(e) are renumbered as the new 180.9(c) and 180.9(d)

[(c) Exceptions. Notwithstanding the prohibitions contained in this section, bighead carp may be sold, possessed, transported, imported and exported in the five boroughs of the City of New York (Manhattan, Bronx, Queens, Brooklyn, and Staten Island) and the Westchester County Towns of Rye, Harrison, and Mamaronek and all the incorporated cities or villages located therein. Live bighead carp offered for sale in any retail establishment shall be killed by the seller before the purchaser takes possession of said fish. Failure of a retail seller to kill a live bighead carp before transferring possession of the fish to the retail purchaser shall constitute a violation of this section.]

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

Shaun Keeler, New York State Department of Environmental Conservation, 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:

45 days after publication of this notice.

Regulatory Impact Statement

1. Statutory Authority

Sections 3-0301 of the Environmental Conservation Law (ECL) establishes the general functions, powers and duties of the Department of Environmental Conservation (Department) and the Commissioner, including general authority to adopt regulations. Sections 11-0303 and 11-0305 of the Environmental Conservation Law (ECL) authorize the Department to provide for the management and protection of the State’s fisheries resources, taking into consideration ecological factors, public safety, and the safety and protection of private property. Section 11-0511 empowers the Department to regulate the possession and importation of species of wildlife or fish. Section 11-0507 empowers the Department to guard against the liberation of fish and wildlife in NY.

2. Legislative Objectives

Section 11-0511 empowers the Department to protect against the possession and importation of species of wildlife or fish that would present a danger to the health or welfare of the people of the state, or to an individual resident or indigenous fish or wildlife population. Prohibitions are in place for the possession and sale of fish species, including snakehead fish and three species of Asian Carp, determined to be a present danger to indigenous fish populations. Current prohibitions in the NYCRR do include an exception however, allowing for bighead carp (one of the Asian carp species) to be sold, possessed, transported, imported and exported in the five boroughs of the City of New York (Manhattan, Bronx, Queens, Brooklyn, and Staten Island) and the Westchester County Towns of Rye, Harrison, and Mamaronek and all the incorporated cities or villages located therein. Bighead carp offered for sale in any retail establishment shall be killed by the seller before the purchaser takes possession of said fish.

3. Needs and Benefits

As a result of federal action, the exceptions in section 180.9 are no longer legal and should be repealed. Legal counsel at DEC have already advised that the 6 NYCRR Part 180.9 exception for possession, sale, import, export, and transport of bighead carp in New York City and certain towns in Westchester County should be repealed because this regulation is preempted by the federal Asian Carp Prevention and Control Act. This federal act went into effect in December 2010.

4. Costs

No cost to DEC or local governments. Those in the food market, and sellers of bighead carp for human consumption, have already been impacted by federal legislation in December 2010 preventing the possession and sale of bighead carp.

5. Local Government Mandates

These amendments of 6 NYCRR will not impose any programs, services, duties or responsibilities upon any county, city, town, village, school district or fire district.

6. Paperwork

Not Applicable, as the removal of this exception will not result in any required paperwork of any sort.

7. Duplication

The federal Asian Carp Prevention and Control Act prohibits the possession and sale of bighead carp. This federal act went into effect in December 2010.

8. Alternatives

Not amending Part 180.9 will result in a regulation in NYCRR which is no longer valid and is inconsistent with Federal law. Not removing the exception language from State regulation will also make it more difficult to cease the sale of bighead carp in the food markets in the NYC area and to prosecute violators.

9. Federal Standards

None, as possession and sale are prohibited altogether.

10. Compliance Schedule

These regulations, if adopted, will become effective immediately, and compliance by the regulated parties will be required.

Regulatory Flexibility Analysis

As a result of federal action, the exceptions in 6 NYCRR Section 180.9, subdivision 180.9(c) are no longer legal and should be repealed. The exceptions allow for bighead carp to be sold, possessed, transported, imported and exported in New York City and the immediate vicinity; but, this has since been preempted by the federal Asian Carp Prevention and Control Act that went into effect in December 2010.

Since the purpose of the department’s proposed rule making is to remove a regulation from NYCRR that is no longer valid as a result of federal action, a rural flexibility analysis is not required. Any impacts to small businesses will have already resulted by the federal action and this proposal does not add any additional restrictions to those that are already in place.

Rural Area Flexibility Analysis

As a result of federal action, the exceptions in 6 NYCRR Section 180.9, subdivision 180.9(c) are no longer legal and should be repealed. The exceptions allow for bighead carp to be sold, possessed, transported, imported and exported in New York City and the immediate vicinity; but, this has since been preempted by the federal Asian Carp Prevention and Control Act that went into effect in December 2010. Since the previous exceptions were limited to New York City and immediate vicinity there are no impacts on public or private entities in rural areas and a Rural Area Flexibility Analysis is not required.

Secondly, the purpose of the department’s proposed rule making is to remove a regulation from NYCRR that is no longer valid as a result of federal action. Any impacts will have already resulted by the federal action and this proposal does not add any additional restrictions to those that are already in place.

Job Impact Statement

As a result of federal action, the exceptions in 6 NYCRR Section 180.9, subdivision 180.9(c) are no longer legal and should be repealed. The exceptions allow for bighead carp to be sold, possessed, transported, imported and exported in New York City and the immediate vicinity; but, this has since been preempted by the federal Asian Carp Prevention and Control Act that went into effect in December 2010.

Since the purpose of the department’s proposed rule making is to remove a regulation from NYCRR that is no longer valid as a result of federal action, a Job Impact Statement is not required. Any adverse impact on jobs or employment opportunities in New York will have already resulted by the federal action and this proposal does not add any additional restrictions to those that are already in place.