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Summary of 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. 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.