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Summary of Final Rule Chapter V, Subchapter C, Invasive Species, Part 575, Prohibited and Regulated Invasive Species

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 final invasive species regulations. The Express Terms of Part 575 control should a conflict exist between this summary document and the Express Terms.

As a result of public comments received, and an effort to clarify the proposed regulations, the following changes were made to the final regulations: modified the definitions of "Native Species", "Natural Areas" and "Person" in 575.2; the common name of Small Carpet Grass, the common name of European Frogbit, the scientific name of Border Privet Ligustrum obtusifolium, and the scientific name of Broadleaf Water-milfoil Hybrid Myriophyllum heterophyllum x M. laxum in 575.3 (d)(2). Tench Tinca tinca was changed from regulated to prohibited in 575.3 (d)(3). The Japanese Mystery Snail Bellamya japonica was changed from regulated to prohibited and the scientific name of Carpet Tunicate Didemnum spp. was modified to include several species, in 575.3 (d)(4). The common name of Goldfish was corrected in 575.4 (c)(3). Also, the European Rabbit Oryctolagus cuniculus was changed from prohibited to regulated in 575.4 (c)(5). A duplication error was corrected under 575.7 Petitions; and two minor clarifications were made under 575.8. These non-substantive changes will not have a significant impact on the regulated public and do not require a revised or new rulemaking.

Section 575.1: Purpose, scope and applicability

The purpose of the final 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 final 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 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. 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.

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