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Regulatory Flexibility Analysis for Small Businesses and Local Governments - Part 575 Prohibited and Regulated Invasive Species

1. Effect of rule: The proposed rule takes prohibited invasive species out of commerce and allows certain regulated species to be sold under conditions.

2. Compliance requirements: 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. The proposed rule allows a person to possess, with intent to sell, import, purchase, transport or introduce prohibited invasive species; and the introduction of regulated invasive species into a free-living state if a permit has been issued by the New York State Department of Environmental Conservation (DEC). A written application for such permits is required; and permitees must keep a current record of all permit activities as required by DEC on forms available from DEC.

3. Professional services: There are no professional services that a small business or local government is likely to need to comply with the changes associated with this rule. The proposed rule provides that the New York State Department of Agriculture and Markets (DAM) prescribes the design of the required labels or notices for regulated species.

4. Compliance costs: There are limited initial capital costs or annual costs to comply with the rule. Persons who sell or offer for sale regulated species will incur minimal costs for required labels or written notices. Persons who seek permits for prohibited or regulated species will not be charged a fee for each permit.

5. Economic and technological feasibility: The proposed rule does not require any specialized technology for compliance; and is otherwise both economically and technologically feasible to comply with.

6. Minimizing adverse impact: 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. The regulation specifically provides for a grace period until September 1, 2015 to possess, sell, trade and market Eurasian boars, which will allow current operators of Eurasian boar shooting preserves to recover their initial investments. Similarly, the regulation 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.

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 will 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.

7. Small business and local government participation: DEC has complied with the New York State Administrative Procedure Act (SAPA) section 202-b (6) by assuring that small businesses and local governments have been given an opportunity to participate in the rule making. This participation has occurred through meetings and interaction with both the Invasive Species Council (Council), a nine state-agency body established by Environmental Conservation Law (ECL) section 9-1705 and co-led by DEC and DAM, and the Invasive Species Advisory Committee (ISAC), a body of 25 non-governmental entities established by ECL section 9-1707.

The Council is composed of representatives from the following agencies: DEC, DAM, Department of Transportation, Office of Parks, Recreation, and Historic Preservation, Department of Education, Department of State, New York State Thruway Authority, New York State Canal Corporation, and the Adirondack Park Agency.

The ISAC is composed of representatives from the following organizations: American Society of Landscape Architects - New York Upstate Chapter, Associated General Contractors of America - New York Chapter, Audubon, New York, Biodiversity Research Institute, Cornell University, Darrin Freshwater Institute, RPI Empire State Forest Products Association, Empire State Marine Trades Association, Environmental Energy Alliance of New York, Lake Champlain Basin Program, New York Association of Conservation Districts, New York City Department of Environmental Protection New York Farm Bureau, New York Natural Heritage Program, New York Sea Grant New York State Association of Counties, New York State Federation of Lakes Associations, New York State Flower Industries, Inc., New York State Forest Owners Association, New York State Nursery and Landscape Association, New York State Turfgrass Association / Council of Agricultural Organizations, Partnerships for Regional Invasive Species Management, State University of New York College of Environmental Science and Forestry, The Nature Conservancy, and the Wildlife Society - New York Chapter.

DEC met with ISAC on March 23, June 11, and July 19; 2013. DEC met with the Council on May 13 and July 19, 2013. DEC also met separately with the New York Farm Bureau on September 3, 2012 and with The Nature Conservancy on June 26, 2013.

DAM met with representatives of the Nature Conservancy (TNC), New York State Nursery and Landscape Association (NYSNLA) and New York Farm Bureau (NYFB) in October and November of 2012, to assist in the development of socio-economic assessments for the plant species that ranked "Very High" for ecological invasiveness. In similar fashion, DAM reached out again in July of 2013, to TNC, NYSNLA and NYFB as well as the entire Invasive Species Advisory Committee to assist in completing the socio-economic assessments for the plant species that ranked "High" for ecological invasiveness.

Furthermore, the DEC will be accepting public comments to the Notice of Proposed Rulemaking and will be providing responses to any comments that are received. A public hearing will also be held. The regulations will be available for review on the DEC's website.

8. Cure Period: Consistent with SAPA section 202-b, the proposed regulations provided for a cure period through ECL section 71-0703 enforcement provisions. In this regard, ECL section 71-0703 provides that "any person who transports, sells, imports or introduces invasive species, in violation of the regulations promulgated pursuant to [ECL] section 9-1709" may be "issued a written warning" in lieu of a penalty. With respect to any nursery grower or an operator of a commercial fishing vessel no cure period has been provided because ECL section 71-0703(b) statutorily mandates specific penalties for first offenses. However, as indicated above, the proposed regulations provide for a grace period until September 1, 2015 for the possession, sale, transportation, distribution and marketing of Eurasian boars and a one year grace period for Japanese Barberry.