Regulatory Impact Statement - Part 575 Prohibited and Regulated Invasive Species
1. Statutory authority: The proposed regulations establish requirements for the sale, importation, purchase, transportation or introduction of invasive species that pose an unacceptable risk to New York State's environment and economy. These draft regulations are jointly proposed by the New York State Department of Environmental Conservation (DEC) and the Department of Agriculture and Markets (DAM), as both agencies have a clear interest (and authority) in reducing the adverse environmental and economic impacts of invasive species. DEC's statutory authority, as well as DAM's 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. ECL § 9-1709, promulgated in 2008 and amended in 2012, directs DEC, in cooperation with DAM, to take action with respect to nonnative animal and plant species by strengthening controls regarding the prevention, spread, and control of invasive species. ECL § 71-0703(9)(a-b), amended in 2012, establishes penalties for violations of the regulations.
Moreover, ECL § 11-0514 was recently amended to prohibit the importation, breeding or introduction into the wild of the Eurasian boar (Sus scrofa). The amendment, provided for a grace period for the possession, sale, distribution, transportation and trade of Eurasian boar until September 1, 2015, after which all of these activities and actions would be prohibited. ECL § 11-0507(4) also makes it unlawful to liberate zebra mussels (Dreissena polymorpha) and to 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, and any action that could cause the spread or growth of water chestnut.
DEC is also empowered to guarantee the beneficial use of the environment without risk to health and safety (ECL § 1-0101(3)(b)), promote and coordinate the management of water, land, fish, wildlife, and air resources (ECL § 3-0301(1)(b)), provide for the propagation, protection, and management of fish and other aquatic life and wildlife (ECL § 3-301(1)(c)), provide for the protection and management of marine and coastal resources and of wetlands, estuaries and shorelines (ECL § 3-0301(1)(e)), promote sound practices for the use of agricultural land, river valleys, and open land (ECL § 3-0301(1)(f)), promote control of weeds and aquatic growth, and develop methods of prevention and eradication assuring the preservation and enhancement of natural beauty and man-made scenic qualities (ECL § 3-0301(1)(k)).
In conjunction with this broad authority, ECL § 3-0301(2)(m) empowers DEC to "[a]dopt such rules, regulations and procedures as may be necessary, convenient or desirable to effectuate the purposes of [the ECL]." Moreover, ECL § 9-1303 provides DEC with the authority to issue an Order designed for the purpose of controlling forest insects. In addition, ECL § 11-0511 provides that, except under license or permit issued by the DEC, no person shall possess, transport, import or export species of wildlife or fish that would present a danger to the health or welfare of the people of the state or to the indigenous fish or wildlife population. Finally, ECL § 9-0105 (3) authorizes DEC to "make necessary rules and regulations to secure proper enforcement of the provisions hereof."
Agriculture and Markets Law (AML) § 167 (3-a), adopted by Chapter 267 of the Laws of 2012, requires that DAM, in cooperation with DEC, restrict the sale, purchase, possession, propagation, introduction, importation, transport and disposal of invasive species pursuant to ECL § 9-1709. DAM also has various powers pertaining to the management of related programs under AML including: Article 9- Inspection and Sale of Seeds, Article 11 - Integrated Pest Management Program, Article 14 -Prevention and Control of Disease in Trees and Plants; Insect Pests; and Sale of Fruit Bearing Trees. Related regulations are found at 1 NYCRR Chapter II, Animal Industry and 1NYCRR Chapter III, Plant Industry. Section 18 of the Agriculture and Markets Law provides, in part, that the Commissioner may enact, amend and repeal necessary rules which shall provide generally for the exercise of the powers and performance of the duties of DAM as prescribed in AML.
2. Legislative objectives: The legislature recognized that nearly half of the populations of the various species on the federal list of endangered species are in decline, in part, due to the adverse impact of invasive species. The legislature additionally found that invasive species adversely impact on the New York State economy; in particular, water supplies, and the agricultural and recreational sectors of the State's economy. In this respect, ECL § 9-1701 states that "invasive plant and animal species pose an unacceptable risk to New York State's environment and economy and that this risk is increasing through time as more invasive species become established within the state." In order to help reduce the devastating environmental and economic impacts of invasive species, ECL § 9-1709, empowers 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.
ECL § 9-1709 requires DEC and DAM to restrict the sale, purchase, possession, propagation, introduction, importation and transport of invasive species; and to jointly promulgate regulations, in consultation with the Invasive Species Council, 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 to knowingly possess with the intent to sell, import, purchase, transport, or introduce; 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. The law also states that DEC and DAM shall consider establishing grace periods for prohibited and regulated species so businesses can plan the management of existing stock. 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 seek to restrict the spread of certain invasive species.
Indeed, this rule making process continues the work initiated by the Invasive Species Council (Council), a nine state-agency body established pursuant to ECL § 9-1705 and co-led by DEC and DAM in cooperation with the Invasive Species Advisory Committee (ISAC), a body of 25 non-governmental entities. 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 revision to ECL §§ 9-1701 through 1709, granting regulatory authority to DEC and DAM, followed the submission of a Council report to the governor and legislature in 2010 titled, A Regulatory System for Non-native Species (Report), as directed by the 2008 statute [ECL § 9-1705 (h)]. The report was developed with the participation of many stakeholders and described a regulatory system and assessment process for preventing the importation or release of invasive animal and plant species. The draft report was posted on DEC's website, announced in the Environmental Notice Bulletin and subjected to a 45 day Public Comment period. The vast majority of comments received in the context of this process expressed support for the Report. Comments were summarized and addressed in the final Report which is posted on DEC's website at http://www.dec.ny.gov/docs/lands_forests_pdf/invasive062910.pdf . This proposed rulemaking was based, in part, on the ecological and socio-economic assessment processes presented in the Report whereby regulatory classifications were assigned, based on the outcomes of the assessments. The proposed regulations applied the Report's invasiveness ranking system to generate a list of prohibited and regulated species that would be subject to the proposed regulatory conditions of this new Part. Furthermore, any future classifications and regulatory listing of prohibited or regulated species would be subject to the same process.
More specifically, in generating the proposed list of prohibited and regulated invasive species the two agencies first applied a science-based ecological risk assessment to each species. The ecological assessment considered the ecological impacts of the species on ecosystems processes, ecological communities and on other species. Among the considerations were: ease of dispersal, reproductive potential, distribution, similarity of species' native climate to New York's climate, and difficulty of controlling the species. A scoring system based on the ecological assessment determined the species' relative ecological risks and each species was assigned one of five ranks of invasiveness: "Insignificant", "Low", "Moderate", "High," or "Very High.": Species ranking "Insignificant" or "Low" are not assessed further, and are not regulated.
Species ranking "Moderate" or higher invasiveness in the ecological assessments were further assessed for their socio-economic benefit or harm. The socioeconomic assessments were conducted to determine the economic, human health, cultural and societal impacts (whether positive or negative) associated with the species. Socio-economic ranks were assigned from "Significantly Positive" value, "Significantly Negative" value, or "Equal Outcome" value.
Specifically, 6 NYCRR § 575.5 identifies the criteria DEC and DAM utilized in classifying and listing invasive species as either prohibited or regulated. The process and criteria identified in § 575.5 are consistent with protocols set forth in the Report submitted to the governor and legislature in 2010, for ranking invasiveness. "Invasiveness Rank" is defined in this Part as meaning a rank assigned to a nonnative species to signify its level of invasiveness based on the relative maximum score (0-100); points are accrued as a percent of the maximum possible points for four categories: ecological impacts, biological characteristics and dispersal ability, ecological amplitude and distribution, and difficulty of control. Based on points species are ranked Very High, High, Medium, Low or Insignificant. Species ranked "Moderate" or a higher invasiveness in the ecological assessment are classified as either "Regulated" or "Prohibited" based on the outcomes of the 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."
Furthermore, § 6 NYCRR 575.5(c) is consistent with the legislative directive that DEC and DAM consider establishing grace periods for prohibited and regulated species. In this regard, the proposed regulations explicitly allow DEC and DAM to establish grace periods for species classified as prohibited. Section 6 NYCRR 575.3(f), identifies the following species for which a one year grace period would apply after the effective date of the proposed regulations: Japanese Barberry (Berberis thunbergii). The proposed regulations also specifically adhere to the legislative directive provided for in recently amended ECL § 11-0514 and provide for a grace period for the possession, sale, transportation and marketing of Eurasian boar (Sus scrofa). Here, while the regulations immediately prohibit the importation, breeding and introduction of Eurasian boars, reducing the potential spread of this invasive species in New York State, the regulated community will have until September 1, 2015 to recoup investments by selling, trading and marketing Eurasian boars.
6 NYCRR § 575.3 achieves the legislative goal of identifying and listing prohibited invasive species. In accordance with ECL § 9-1709, this section would prohibit 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 in this section, unless otherwise provided for in the proposed regulation -- namely by permit. Prohibited invasive species consist of algae and cyanobacteria, plants, fish, terrestrial and aquatic invertebrates, terrestrial and aquatic vertebrates, and fungi. All of the species classified as prohibited pose a clear risk to New York's economy, ecological well being and/or human health. For example, the Eurasian boar (Sus scrofa) is proposed to be prohibited due to its highly negative ecological impacts, including significant alteration of ecosystems and habitats, particularly wetlands; strongly negative impacts on other species, high reproductive potential, strong competition with native species, and difficulty in controlling populations. While there are limited social and economic benefits of this species in trade to support hunting preserves and the cultural benefits of hunting boar, the overall socio-economic factors are negative. It was determined that there are no human health benefits, a moderate risk of injury from human encounters with boar, and the potential to transfer diseases to humans and to farm animals and pets. The ecological impacts caused by Eurasian boar are not compensated for by socio-economic benefits; therefore, they are proposed to be prohibited. The same analysis was applied to the other invasive species classified as prohibited.
6 NYCRR § 575.9 provides the mechanism for issuing a permit that would allow a person to possess a prohibited species with the intent to sell, purchase, propagate, transport, import, or introduce. In accordance with ECL § 9-1709, permits can only be issued for research, education, or other approved activities. A process for applying for a permit, criteria for approval, records and reporting, and relationship to other permits or approvals are described in this section. 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 their spread of invasive species in New York State.
6 NYCRR § 575.4 achieves the legislative goal of identifying and listing regulated invasive species. In accordance with ECL § 9-1709, this section would list species that 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." Release into a free-living state is only authorized under a permit that expressly authorizes such release. The proposed regulations define "free-living state" as unconfined and outside the control of a person, and provide that public lands and waters, as well as natural areas are considered "free-living state." Like prohibited invasive species, regulated invasive species consist of algae and cyanobacteria, plants, fish, aquatic invertebrates, and terrestrial and aquatic vertebrates. Regulated invasive species have the potential to cause significant harm to New York's economy, ecological well being or human health but can effectively be contained through practicable and meaningful regulatory programs. For example, Norway maple (Acer platanoides) ranked "Very High" in invasiveness due to its negative ecological impact on ecosystems, natural communities and native species; its high reproductive capacity, its abilities to compete with native species and to survive in New York's climate; its distribution, and the effort required to control established populations. While this species had overwhelming negative ecological impacts, significantly positive socio-economic benefits result in this species being listed as "Regulated." Norway maple is economically important to the nursery and landscape industry, and due to its drought and pollution tolerance, is an important shade tree in urban areas. The same analysis was applied to the other invasive species classified as regulated.
6 NYCRR § 575.6 achieves the legislative goal by establishing conditions that sellers and purchasers must adhere to that would prevent or minimize the risk of the spread of regulated invasive species into free-living states. Specifically, this section establishes conditions on sellers of regulated invasive species by requiring labels informing consumers that regulated invasive species are harmful and providing instructions for care and tending to prevent the spread of these species in the state or introduction to a free-living state. This section also establishes conditions on landscape services by requiring them to provide written notice to inform customers that the regulated invasive species is harmful and to provide instructions for the care or tending of the species to prevent the spread in the state or to a free-living state. This section prohibits removing the label or notice. Further, this section requires purchasers of regulated invasive species to follow any instructions and maintain the instructions until the species is disposed of by means that renders it non-living and non-viable. Collectively these conditions 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 that have been classified as regulated.
6 NYCRR § 575.7 complements the legislative directive to DEC and DAM to identify and list regulated invasive species by encouraging and providing a means for the public to alert and petition DEC to classify or remove a species from the lists of regulated or prohibited species. Section 575.7 lists specific information the public should provide to DEC to facilitate the review process, including identifying the species, indicating the potential likelihood and consequences of the species' introduction, and whether control measures could effectively prevent the spread of the species. This information should further expedite the process of classification and help prevent potential harm to the State's environment, economy and public health.
6 NYCRR § 575.8 provides exemptions from compliance with Part 575 and clarifies that certain activities (or the introduction related to regulated and prohibited species) are not prohibited, such as: 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. "Reasonable precautions" is defined in the proposed regulations as meaning "intentional actions that prevent or minimize the possession, transport, or introduction of invasive species." Reasonable precautions include complying with any local law, rule, or requirement aimed at preventing the spread of invasive species and implementing accepted best management practices (BMPs). Moreover, to the extent that the transportation or sale of an invasive species is incidental because the invasive species is attached or contained in an underlying product that is not invasive, such transportation or sale of the underlying product (and consequently the invasive species) would not be restricted by these proposed regulations. However, if there are specific BMPs or quarantines addressing the transportation or sale of the underlying product to minimize the movement of invasive species, those BMPs would have to be followed to avoid potential liability. The incidental transportation or sale of an invasive species can occur, for example, in the harvesting and transport of wood products which may contain hemlock woolly adelgid (Adelges tsugae) or emerald ash borer (Agrilis planipennis). This meets the legislative goal of preventing the spread of invasive species, yet allowing certain reasonable activities involving regulated and prohibited invasive species that do not pose an undue threat of spreading such species. This section further recognizes that the primary goal of ECL § 9-1709 is to prevent the spread of invasive species by prohibiting or regulating the sale or importation of invasive species, rather than mandating certain management practices that would control or eradicate pre-existing invasive species. By providing exceptions for the control or disposal of pre-existing invasive species, DEC expects that the regulated community would be more likely to undertake efforts to prevent the spread of invasive species because it would remove the burden of having to obtain a DEC- issued permit.
The legislation also established penalties for violations of the regulations. Under ECL § 71-0703(9)(a), a person who violates the regulations may be issued a written warning for a first violation and, at DEC's discretion, issue educational materials related to invasive species and the requirements of these regulations. For all subsequent violations a person would be fined no less than $250. Under ECL § 71-0703(9)(b), a licensed nursery grower pursuant to AML Article 14, any owner or operator of a public vessel, as defined in Navigation Law Article 1 § 2 subdivision 6 (a), 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 for a first violation and not less than $2,000 for a second violation. For subsequent violations, and after a hearing or an opportunity to be heard, 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. With respect to Eurasian boars, ECL § 71-0925, calls for a fine up to $500 for a first or second violation. The proposed regulations, 6 NYCRR § 575.10, explicitly state that a person shall be subject to the penalties enumerated in ECL § 11-0703 for any violation of conditions set forth in the proposed regulations. The proposed regulations also indicate that a violation of the regulations with respect to Eurasian boars would subject the person to the penalties indicated in ECL § 71-0925 up to $500 for the first and second violation and the greater of "(a) a fine of $1000 for each animal for each act of importation, breeding, possession, introduction, sale, offer for sale, distribution, transportation or otherwise marketing or trading or (b) an amount equal to three times (1) the financial security provided by customers for the opportunity to take the animal or (2) the value of a boar for meat production or as breeding stock." Furthermore, 6 NYCRR § 575.11 provides for coordination between DEC and DAM, and requires DAM to refer the violation to DEC for assessment of penalties.
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. The recent legislation, cited above, finds that invasive plant and animal species pose an unacceptable risk to New York State's environment, economy, and human health, and that this risk is increasing. In fact, a recent United States Department of Agriculture study ranked New York the fourth most-vulnerable state for invasive species infestations among all 50 states.
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. They are costly to every business, homeowner, tax payer, outdoor enthusiast, farmer, and consumer. Economic losses associated with invasive species are about $120 billion per year in the United States. In New York, 44 facilities with water intakes spent an estimated $9 million over a six year period due to zebra mussels (Dreissena polymorpha). In the New York State Canal and Hudson River system, an estimated $500 million in economic losses occur each year from at least 154 non-indigenous species with 80% of that loss in commercial and sport fishing.
Negative impacts to our environment include competition with native species, impeding ecosystem functions, and contributing to the decline of threatened and endangered species. It has been found that invasive species such as hydrilla (Hydrilla verticillata), emerald ash borer (Agrilus planipennis), and Eurasian boar (Sus scrofa) are harming the State's natural resources and agricultural lands. The fungus killing our bats is an invasive species from Europe. Losing bats not only negatively impacts our ecosystems, the agriculture industry loses the insect pest consuming services of the bats, potentially costing this industry more in pesticide purchases.
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 like recreational boating, construction, and transportation.
Implementation of the proposed rulemaking is expected to help stop 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 Council, whose membership is stakeholder state agencies (DEC, DAM, Department of Transportation, Department of State, Canal Corporation; Office of Parks, Recreation, and Historic Preservation, Adirondack Park Agency, Department of Education, and Thruway Authority) and two meetings with the ISAC, 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. The Council and ISAC were presented with draft language and conceptual objectives and were given an opportunity to ask questions and provide comments on the proposed regulations.
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. Minor costs for obtaining permits for certain activities may be incurred by some regulated parties. Specifically, costs to industry will include costs to the nursery and landscape industry as a result of lost sales of some popular species that will be listed as prohibited or regulated. Additionally, the pet industry may see loses 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. Furthermore, the proposed regulations reduce costs by providing for grace periods for certain identified prohibited invasive species. As described above, the regulation specifically provides a grace period until September 1, 2015 to possess, sell, trade and market Eurasian boars (Sus scrofa), which will allow current operators of Eurasian boar shooting preserves to recover their initial investments. Similarly, the regulation also 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 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.
DEC and DAM will incur costs for staff time for all rulemaking activities. Consultant contracts for species assessments are needed to determine appropriate classifications. Paired ecological and socio-economic assessments of non-native animal species cost $595 each, under the current contract, and socio-economic assessments of plant species that have been already assessed for ecological risk cost $365 each, under the current contract. 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: 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.
6. Paperwork: A person applying for a permit would need to submit an application that contains the necessary information that meets approval criteria. In addition, 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.
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 would 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, although the Federal programs focus on movement between states and the proposed regulations focus on activities within the state.
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. DEC and DAM considered not providing an exemption for persons who engaged in activities that resulted in the importation, sale, purchase, propagation, transportation, or introduction of prohibited species, but did so unknowingly, and had taken reasonable precautions. Similarly, DEC and DAM considered not providing for an exemption to transport for disposal or identification, and an exemption for the control or management of invasive species. Such an alternative, however, would place an unreasonable burden upon the regulated community by assuming knowledge of the presence of invasive species and imposing strict liability. This alternative would also be at odds with the primary goal of ECL § 9-1709 to prevent the spread of invasive species by prohibiting or regulating the sale or importation of invasive species, rather than mandating certain management practices that would control or eradicate invasive species. Furthermore, as discussed above, without exceptions for the control or disposal of invasive species, there is the possibility that the regulated community would forego normal management efforts for fear of being in violation of these regulations. 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. For Federally-listed species, standards are well established and relate to interstate transport only. These regulations would not supersede or replace federal standards for permit issuance. Applicants for state permits who are engaged in interstate transport of federally-regulated species that are classified as prohibited or regulated in New York must obtain the appropriate Federal permit allowing interstate transport before a state permit is issued for the federally restricted species.
The proposed regulations also classify as prohibited or regulated a number of non-native species that are not federally-regulated. DEC and DAM have determined that this is necessary to protect the State's resources from invasive species.
10. Compliance schedule: The regulated community is required to comply with the proposed regulations six months after notice of adoption in the State Register. In addition, grace periods will be provided for select prohibited species. Consistent with the State Administrative Procedures Act (SAPA) § 202-b, the proposed regulations provided for a cure period through ECL § 71-0703 enforcement provisions. In this regard, ECL § 71-0703 provides that "any person who transports, sells, imports or introduces invasive species, in violation of the regulations promulgated pursuant to [ECL] § 9-1709" may be "issued a written warning" in lieu of a penalty for a first offense. 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. Likewise, ECL § 71-0925 does not provide for a cure period for persons who violate the Eurasian boar provision set forth in ECL § 11-0514. However, as indicated above, ECL § 11-0514 provides for a grace period until September 1, 2015 for the possession, sale, transportation, distribution and marketing of Eurasian boars (Sus scrofa) and similarly the proposed regulations provide for a one year grace period for Japanese Barberry (Berberis thunbergii).