PKR-27-14-00002-P Aquatic Invasive Species Control at OPRHP Facilities

7/9/14 N.Y. St. Reg. PKR-27-14-00002-P

NEW YORK STATE REGISTER

VOLUME XXXVI, ISSUE 27

July 09, 2014

RULE MAKING ACTIVITIES

OFFICE OF PARKS, RECREATION AND HISTORIC PRESERVATION

PROPOSED RULE MAKING

NO HEARING(S) SCHEDULED

 

I.D No. PKR-27-14-00002-P

Aquatic Invasive Species Control at OPRHP Facilities

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

Proposed Action:

Addition of section 377.1(i)(8), (9) and (10) to Title 9 NYCRR.

Statutory authority:

Parks, Recreation and Historic Preservation Law, sections 3.09(2), (5), (8), (15) and (18) and 13.13; Environmental Conservation Law, section 9-1701

Subject:

Aquatic invasive species control at OPRHP facilities.

Purpose:

To control the introduction and spread of aquatic invasive species at facilities under OPRHP jurisdiction.

Text of proposed rule:

Subdivision (i) of § 377.1 of Title 9 NYCRR is amended by adding new paragraphs (8), (9) and (10) to read as follows:

(8) Prior to launching, or attempting to launch a boat or watercraft from a boat launch site, a fishing access site, or any other site from which a boat or watercraft can be launched, or leaving such site, the operator shall:

(i) inspect the boat or watercraft for plants, aquatic life, animals, or parts thereof, which are visible, in, on, or attached to any part, including livewells and bilges; the motor, rudder, anchor or other appurtenants; any equipment or gear; or the trailer or any other device used to transport or launch the boat or watercraft that may come into contact with the waterbody; and

(ii) remove any plant, aquatic life or animal, or parts thereof, observed during inspection prior to launching or leaving the site and dispose of it in designated receptacles provided at the site, or if no such receptacle is provided dispose of it in such a manner to avoid contact of the material with the waterbody.

(9)(i) An operator of a boat or watercraft shall not arrive at a boat launch site, a fishing access site, or any other site from which a boat or watercraft can be launched, or leave such a site after exiting a waterbody, without having drained the boat or watercraft, including bilge areas, livewells, bait wells and ballast tanks.

(ii) An operator of a boat or watercraft shall drain the watercraft, including bilge areas, livewells, bait wells and ballast tanks at a distance from the waterbody and in such a manner to avoid contact of the drainage with the waterbody.

(10) The provisions of paragraphs 8 and 9 of this subdivision shall not apply to:

(i) plants not otherwise defined in law or regulation as invasive species affixed to or transported in watercraft for use as camouflage for hunting or wildlife viewing purposes;

(ii) bait, including baitfish, legally used on a waterbody and possessed consistent with all applicable laws and regulations;

(iii) the use of plants or animals for habitat restoration, weed control, scientific research, or other activity approved by the office, consistent with all applicable laws and regulations; or

(iv) a dog or other companion animal as defined in section 350 of the Agriculture and Markets Law.

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

Kathleen L. Martens, Associate Attorney, OPRHP, Albany, NY 12238 (USPS mail), 625 Broadway, Albany, NY 12207 (courier delivery), [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

The proposed amendment to 9 NYCRR Part 377.1 seeks to control the introduction and spread of invasive species by prohibiting the launching or attempt to launch of a boat or watercraft from boat launch facilities, fishing access sites and other sites from which a boat or watercraft can be launched under the jurisdiction of the Office of Parks, Recreation and Historic Preservation (Parks), unless the boat or watercraft is drained and visible plant or animal life attached to it or to its trailer or associated equipment have been removed. It also requires that the boat or watercraft be drained and visible plant or animal life attached be removed prior to leaving the site.

Parks, Recreation and Historic Preservation Law (PRHPL) Section 3.09(2) vest Parks with the duty to operate and maintain the sites, parks, and recreational facilities under its jurisdiction. PRHPL Section 3.09(5) requires that Parks provide for the health, safety and welfare of the public using facilities under its jurisdiction. PRHPL Section 3.09(8) empowers Parks to adopt, amend, or rescind such regulations as are necessary for the performance of its duties. PRHPL Section 3.09(15) provides that Parks shall enhance the natural resources on lands under its jurisdiction and Section 3.09(18) provides that Parks shall identify, protect, manage, and conserve important ecological and natural resources located on lands under its jurisdiction. PRHPL Section 13.13 provides that the Commissioner of Parks may regulate water sports and the operation, speed, or mooring of boats in or upon the waters or waterways under its jurisdiction.

2. Legislative Objectives

PRHPL Section 3.01 declares that the natural, ecological, historical, cultural, and recreational resources within the State park, recreation and historic site system are integral components of the State’s environment and contribute substantially to the quality of that environment and to the quality of our lives. This section further declares that stewardship of the natural, ecological, historic, cultural and recreational resources within this system is a primary responsibility of the State. PRHPL Section 3.09 provides that the Office shall operate and maintain the State park, recreation and historic site system to conserve, protect and enhance these resources in a manner which will protect them for future generations.

Environmental Conservation Law (ECL) Section 9-1701 states the findings of the New York State Legislature concerning the threat that invasive species represent to the environment and economy of New York State. Specifically, the Legislature found that invasive species detrimentally affect the State's fresh and tidal wetlands, water bodies and waterways, forests, agricultural lands, meadows and grasslands, and other natural communities and systems by out-competing native species, diminishing biological diversity, altering community structure and, in some cases, changing ecosystem processes. Further, ECL Section 9-1701 states that the Legislature recognizes that the ecological integrity of an increasing number of publicly and privately owned parks and preserves is being adversely affected by invasive plants and animals, challenging the ability of land management agencies to effectively manage these sites.

The proposed amendment to 9 NYCRR Part 377.1 would provide a means for Parks to protect the natural and ecological resources of State Parks. By controlling the transport of aquatic invasive species by a boat or watercraft, trailer and associated equipment used at Parks’ boat launches, fishing sites and other sites because this rule would address one of the primary pathways by which aquatic invasive species can be introduced from waterbody to waterbody.

Parks previously initiated new signage and outreach programs that advise boaters and anglers to follow clean, drain, dry voluntary protocols for controlling invasive species. Now, however, under the proposed rule the cleaning of watercraft would be mandated. The launching or removal of a boat or watercraft from State lands with visible plant or animal parts on the watercraft would be prohibited. Prior to launching or leaving the boat or watercraft would be drained at a sufficient distance from the waterbody. Preferably, the boat or watercraft would be drained prior to arrival at a Parks site; however, Parks staff or signs would indicate the appropriate location at the site for draining if an operator forgets to do it. The proposed rule would help Parks prevent further introduction and spread of aquatic invasive species transported between waterbodies.

The proposed rule would also complement the Department of Environmental Conservation’s (DEC) regulatory efforts to control the introduction and spread of invasive species at its facilities. See, http://www.dec.ny.gov/regulations/34113.html#Part59Sect594Part190Sect19024p.

3. Needs and Benefits

Boats, watercraft, trailers and associated equipment are primary transport mechanisms for aquatic invasive species. Unless they are properly cleaned, drained and dried before used in a new waterbody, there is a high risk that aquatic invasive species could be introduced into that waterbody. Once introduced, aquatic invasive species such as zebra mussel and Eurasian water milfoil are extremely difficult or impossible to control or eliminate. Additionally, efforts to control or eliminate invasive species once established are costly and may not achieve the intended results. Populations of aquatic invasive species can grow to the point that they have a severe impact on recreational and commercial use of a waterbody. Excessive growth of aquatic invasive species can also substantially impact the tourism-based economies associated with these waterbodies. The proposed regulation would strengthen the State’s ability to control the spread of aquatic invasive species. Newly developed educational signage placed at these sites includes recommended measures on preventing the spread of aquatic invasive species. These signs were developed for the existing voluntary compliance program and will continue in place for the regulatory program.

The New York State Park Police could issue a ticket to any user for failing to drain a boat or watercraft or failing to remove any visible plants and animals attached to it, the trailer or associated equipment prior to launching, or for failing to drain a boat or watercraft or remove visible plants and animals attached to it prior to departing a launch site. If ticketed, existing law establishes the penalty for non-compliance as a violation and payment of a fine up to $250 and a mandatory local surcharge. PRHPL Section 27.11 (b). Alternatively, non-compliance could result in imposition of imprisonment up to 15 days or imposition of both a fine and imprisonment. See, Parks, Recreation and Historic Preservation Law Sections 27.11 and 27.12; Penal Law Sections 10.00(3) and 80.05(4); see also, Criminal Procedure Law Section 1.20(39) definition of a “petty offense.”

4. Costs

DEC estimates costs associated with the spread of aquatic invasive species amount to more than nine billion dollars annually in the U.S. http://www.dec.ny.gov/regulations/95116.html. There would be minimal cost to Parks for additional signage, and no costs to regulated boaters or local governments from this regulation.

5. Local Government Mandates

This regulation would not impose any programs, services, duties or responsibilities upon any county, city, town, village, school district or fire district.

6. Paperwork

No additional paperwork or record keeping would result from the proposed rule.

7. Duplication

No other State or federal regulations govern the transportation of aquatic invasive species associated with boats or watercraft, and trailers and associated equipment used at lands under Parks’ jurisdiction. DEC has proposed similar regulations to amend 6 NYCRR Parts 59 and 190 that would be implemented at the boat launch sites and fishing access sites under its jurisdiction.

8. Alternatives

Continuing to rely on voluntary compliance with outreach to reduce the spread of aquatic invasive species would likely result in the continual expansion of aquatic invasive species introduction in New York State. The Parks Commissioner is a member of the New York Invasive Species Council (Council) created by the Legislature (ECL Section 9-1705). The proposed mandatory regulatory alternative was recommended by the Council’s Advisory Committee in 2010 in its final report titled "New York State Invasive Species Advisory Committee Recommendations of the Aquatic Invasive Species Transport Law Ad-Hoc Workgroup."

9. Federal Standards

There are no federal standards that apply to the transport of aquatic invasive species in New York State.

10. Compliance Schedule

This regulation, if adopted, would become effective immediately upon publication of the Notice of Adoption in the State Register. No time would be needed to enable regulated persons to achieve compliance with this rule.

Regulatory Flexibility Analysis

This rule would help control the introduction and spread of invasive species by requiring an operator to drain a boat or watercraft and remove visible plant or animal life attached to it, and the trailer or associated equipment before launching the boat or watercraft from boating facilities under the jurisdiction of the Office of Parks, Recreation and Historic Preservation (Parks) and prior to leaving such facilities.

Parks has determined that the proposed rule would not impose any adverse economic impact or reporting, record keeping or compliance requirements on small businesses or local governments. The proposed rule would help reduce the spread of aquatic invasive species by boats, watercraft and trailers in New York State. Prolific growth of aquatic invasive species can seriously impact tourism-based economies associated with waters throughout New York State. This rule, by helping to reduce the spread of invasive species, would have a positive impact on water-based tourism, and the small businesses and local economies which rely on such tourism.

Boat owners and operators regulated by the proposed rule would have the ability to immediately satisfy the requirements of the rule and thereby prevent the imposition of penalties as soon as the rule takes effect. No cure period or opportunity for ameliorative action beyond the language already contained in the rule is necessary to provide boaters with the ability to immediately comply with the rule.

Since this rule would not impose an adverse impact on small businesses or local governments, a regulatory flexibility analysis is not required.

Rural Area Flexibility Analysis

This rule would help control the introduction and spread of invasive species by requiring an operator to drain a boat or watercraft and remove visible plant or animal life attached to it, and the trailer or associated equipment before launching the boat or watercraft from boating facilities under the jurisdiction of the Office of Parks, Recreation and Historic Preservation (Parks), and prior to leaving such facilities.

Parks has determined that the rule would not impose any adverse impact on rural areas or any reporting or recordkeeping requirements on public or private entities in rural areas. Compliance with the rule would only be required at Parks’ facilities, many of which are located in rural areas. Compliance with the rule, however, is only required of persons using a watercraft at a Parks facility and, therefore, would not impose significant compliance requirements on public or private entities in rural areas.

Prolific growth of aquatic invasive species can seriously impact tourism-based economies in rural areas. The proposed rule would help reduce the spread of aquatic invasive species by boat, watercraft and trailers in New York State which would have a positive impact on rural water-based tourism.

Since the proposed rule would not impose an adverse impact on public or private entities in rural areas, a rural area flexibility analysis is not required for this regulatory proposal.

Job Impact Statement

This rule would help control the introduction and spread of invasive species by requiring an operator to drain a boat or watercraft and remove visible plant or animal life attached to it, and the trailer or associated equipment before launching the boat or watercraft from boating facilities under the jurisdiction of the Office of Parks, Recreation and Historic Preservation (Parks), and prior to leaving such facilities.

The rule would not have an adverse impact on jobs or employment in New York State. Reducing the spread of aquatic invasive species and maintaining quality aquatic recreation opportunities in New York could have a positive impact on jobs associated with water-based tourism. Parks, therefore, concludes that a job impact statement is not required.