COMPILATION OF ALL SIX WEBPAGES ON NYS DEC’S REGULATIONS WEBSITE PASTED INTO ONE WORD
DOCUMENT, AND YELLOW HIGHLIGHTS, BY MARILYN JORDAN October 25, 2013
http://www.dec.ny.gov/regulations/2359.html
Lands and Forests Emergency, Proposed &
Recently Adopted Regulations
Emergency Regulations
Currently, there are no emergency regulations.
Proposed Regulations
6 NYCRR Part 575 Prohibited and Regulated Invasive Species
Why we are proposing the new rule:
Invasive species are having a detrimental effect upon the State's natural communities and systems
by out-competing native species, including threatened and endangered species, diminishing
biological diversity, altering community structure and, in some cases, changing ecosystem
processes. To reverse this trend, the proposed regulations were developed by the Department, in
cooperation with the Department of Agriculture and Markets. These regulations, once
implemented, are expected to help control invasive species, a form of biological pollution, by
reducing the introduction of new and spread of existing populations, thereby having a positive
impact on the environment.
Description of the rule:
The proposed regulations include a list of prohibited species which shall be unlawful to knowingly
possess with the intent to sell, import, purchase, transport or introduce; a list of regulated species
which shall be legal to possess, sell, purchase, propagate and transport but may not be knowingly
introduced into a free-living state; and require a permit for research, education and other approved
activities involving prohibited species and release of regulated species into a free-living state. The
rulemaking also specifies the criteria used in making such classifications and a means for future
classification of species. The proposed regulations also establish grace periods for certain
prohibited species to allow businesses to plan the management of existing stock. For individual
species assessments, please see the Links Leaving DEC's Website section of the right column.
Details of the rule development process and public participation process:
The Department filed a Proposed Rule Making with the Department of State to amend 6 NYCRR
by promulgating a new Part 575 pertaining to invasive species. The proposed regulations will be
published in the State Register on October 23, 2013. A sixty day public comment period will begin
on October 23, 2013 and continue through December 23, 2013. Public hearings will be held at four
locations across New York State as follows:
Buffalo Tuesday December 10, 2013 at 2:00
DEC Region 9 Headquarters, First Floor Conference Room
270 Michigan Avenue
Buffalo, NY 14203
Syracuse Wednesday December 11, 2013 at 2:00
State Fairgrounds, Martha Eddy Room
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581 State Fair Blvd
Syracuse, NY 13209
Albany Monday December 16 at 3:00
DEC Central Office, Public Assembly Room (Floor 1)
625 Broadway
Albany, NY 12233
Long Island Tuesday December 17 at 2:00
State University of NY at Stony Brook
DEC Region 1 Headquarters, Basement Conference Room
50 Circle Rd
Stony Brook, NY 11790
Agency staff will be available one half hour before the start of the hearings to answer questions.
Public comments:
Public comments on the proposed rule will be accepted through December 23, 2013 and
should be sent to Leslie Surprenant, NYS DEC, Invasive Species Coordination Unit, 625
Broadway, Floor 5, Albany, NY 12233 or email invasivesregs@gw.dec.state.ny.us.
[WEB I.D. AND PAGE NUMBERS INSERTED FOR THIS WORD DOCUMENT BY M. JORDAN]
Last 5 webpage digits
page in this doc
 Summary of Express Terms
93848
2
 Express Terms
93848 same
2
 Summary of Regulatory Impact Statement (RIS)
93900
17
 Regulatory Impact Statement (RIS)
93898
21
 Rural Area Flexibility Analysis (RAFA)
93903
29
 Regulatory Flexibility Analysis for Small Businesses and Local Governments (RFA) 93905 30
 Job Impact Statement (JIS)
93910
32
http://www.dec.ny.gov/regulations/93848.html
6 NYCRR Part 575 Prohibited and Regulated Invasive
Species Express Terms [Seems identical to Summary of Express Terms. M.J.]
The purpose of this rulemaking is to to help control invasive species, a form of biological pollution,
by reducing the introduction of new and spread of existing populations, thereby having a positive
impact on the environment.
Express Terms
Existing 6 NYCRR Subchapter C of Chapter V, Real Property and Land Acquisition, is renumbered
Subchapter D, and existing 6 NYCRR Subchapter D of Chapter V, Water Regulation and Water Regulation,
is renumbered Subchapter E. A new 6 NYCRR Subchapter C of Chapter V is added to read as follows:
'Invasive Species' . A new 6 NYCRR Part 575 is added in Chapter V, Subchapter C to read as follows:
6 NYCRR Part 575 Prohibited and Regulated Invasive Species
575.1 Purpose, scope and applicability.
(a) The purpose of this Part is to establish procedures to identify and classify invasive species and to
establish a permit system to restrict the sale, purchase, possession, propagation, introduction, importation,
and transport of invasive species in New York, as part of the Department of Environmental Conservation's
statewide invasive species management program, as required by ECL sections 9-1709 and 71-0703.
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(b) The regulations set forth in this Part may be complemented by provisions found in Titles 1 and 6 of the
New York Code of Rules and Regulations and local laws or regulations that are designed to restrict the sale,
purchase, possession, propagation, introduction, importation, transport and disposal of specific invasive
species in New York. These existing regulations apply, unless in conflict, superseded or expressly stated
otherwise in this Part.
575.2 Definitions.
As used in this Part, the following words and terms shall be defined as follows:
(a) 'Animal' means all vertebrate and invertebrate species, in any stage of development, including but not
limited to mammals, birds, reptiles, amphibians, fish, mollusks, arthropods, insects, and their eggs, larvae or
young, but excluding humans.
(b) 'Certificate of Inspection' means a valid form certifying the eligibility of regulated invasive species for
intrastate movement under the requirements of this Part.
(c) 'Commissioner' means the commissioner of the Department of Environmental Conservation as well as
meaning the Commissioner's designated agent.
(d) 'Compliance Agreement' means an approved document, executed by persons or firms, covering the
restricted movement, processing, handling, or utilization of regulated invasive species.
(e) 'Container' means any object used to contain, store or transport products.
(f) 'Control' means, as appropriate, eradicating, suppressing, reducing, or managing invasive species
populations, preventing spread of invasive species from areas where they are present, and taking steps such
as restoration of native species and habitats to reduce the effects of invasive species and prevent further
invasions.
(g) 'Cultivar' means a plant, or group of plants, of any species selected for desirable characteristics under
cultivation, and may also be referred to as 'Variety'.
(h) 'Department' means the New York State Department of Environmental Conservation.
(i) 'Disposal' means the discharge, deposit, dumping or placing of any invasive species into or on any land or
water in a manner that prevents the establishment, introduction or spread of the disposed species.
(j) 'Ecosystem' means the complex of a community of organisms and its environment functioning as an
interactive unit.
(k) 'Education' means for the purpose of instruction or training.
(l) 'Environmental Notice Bulletin (ENB)' means the publication of the department published pursuant to
section 3-0306 of the ECL, accessible on the department's Internet web site at http://www.dec.ny.gov.
(m) 'Free-living State' means unconfined and outside the control of a person, and in the case of animals
other than fish, includes the ability to fly, walk, or swim outside of human control; and
(1) Invasive species found or placed in the following locations shall be considered to be a free-living state:
(i) lands identified as public lands;
(ii) lands that are continually or intermittently connected to public lands;
(iii) natural areas
(iv) waters identified as public waters;
(v) waters that are continually or intermittently connected to public waters; or
(vi) water-using facilities, such as fish hatcheries, aquatic farms, zoos, and minnow retail or wholesale
operations, with outflows that provide direct access for species to enter public waters
(2) in the case of a fish or aquatic plant, the following locations are not considered a free-living state:
(i) artificial ponds such as water gardens that have no outlet to public waters;
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(ii) waters whose shorelines are entirely within the land owned by a person, not continually or intermittently
connected to public waters, and not identified by the Department as public waters; or
(iii) water-using facilities, such as fish hatcheries, aquatic farms, zoos, aquaria, and minnow retail or
wholesale operations, with outflows that do not provide direct access for species to enter public waters.
(n) 'Fungi' means organisms such as yeast, molds, smuts, mildews, rusts, mushrooms and toadstools that
reproduce by spores and lack chlorophyll, leaves, true stems, and roots.
(o) 'Import' means to bring into New York State or to arrange for another person to bring into New York State.
(p) 'Incidental' means an inadvertent act when performing an otherwise legal activity.
(q) 'Introduce' means the intentional or unintentional escape, release, dissemination, or placement of a
species into an ecosystem as a result of human activity.
(r) 'Invasiveness Rank' means 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.
(s) '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.
(t) 'Limited Permit' means a valid form authorizing the restricted movement of regulated invasive species for
specified processing, handling, or utilization.
(u) 'Native Species' means with respect to a particular ecosystem, a species that, other than as a result of an
introduction, historically occurred or currently occurs in that ecosystem.
(v) 'Natural Areas' means those lands that are preserved, restored, or managed for their natural features,
including but not limited to parks, forests, refuges, nature preserves, grasslands, wetlands and shorelines.
(w) 'Nonnative species' means a species not indigenous to an ecosystem under consideration or to New
York State, and includes an individual specimen.
(x) 'Person' means any individual, firm, co-partnership, association, or corporation, other than the state or a
public corporation, as the latter is defined in subdivision 1 section 3 of the General Corporation Law.
(y) 'Plant' means all plant species, in any stage of development, including, but not limited to trees, shrubs,
vines, grasses, sedges, rushes, herbs, mosses, lichens, as well as submergent, emergent, free-floating or
floating-leaf plants, and includes any part of the plant.
(z) 'Possess' includes actual and constructive possession and means to own, maintain control over, restrain,
hold, grow, raise or keep.
(aa) ' Prohibited invasive species' means a species that poses a clear risk to New York's economy,
ecological well-being and/or human health and is listed as prohibited under section 575.3.
(bb) 'Propagate' means to cause to continue to increase by sexual or asexual reproduction.
(cc) 'Propagule' means parts of a plant that are capable of producing additional plants through either sexual
or asexual reproduction, including but not limited to seeds, roots, stems, rhizomes, tubers and spores.
(dd) 'Public Lands' means land in the public domain owned by a federal, state, county, city, town or local
government entity.
(ee) 'Public Waters' means lakes, bays, sounds, ponds, impounding reservoirs, springs, rivers, streams,
creeks, estuaries, marshes, inlets, canals, the Atlantic ocean within the territorial limits of the State of New
York and all other bodies of surface water, natural or artificial, inland or coastal, fresh or salt, public or private
(except those private waters which do not combine or effect a junction with natural surface or underground
waters), which are wholly or partially within or bordering the state or within its jurisdiction.
(ff) 'Purchase' means to obtain by paying money or other valuable consideration.
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(gg) 'Reasonable Precautions' means intentional actions that prevent or minimize the possession, transport,
or introduction of invasive species.
(hh) 'Regulated Invasive Species' means a species that has the potential to cause significant harm to New
York's economy, ecological well being and/or human health and could be effectively contained through
regulatory programs and is listed as regulated under section 575.4.
(ii) 'Research' means to conduct systematic search for facts or scientific investigation for which its intended
purpose is the discovery of new facts and their correct interpretation, the revision of accepted conclusions, or
the practical application of such new or revised conclusions.
(jj) 'Sell' means to offer for sale, make or attempt to make sales, or to give up to another for money or other
valuable consideration.
(kk) 'Species' means a group of organisms all of which have a high degree of physical and genetic similarity,
generally interbreed only among themselves, and show persistent differences from members of allied groups
of organisms.
(ll) 'Transport' means to cause, or attempt to cause, an invasive species to be imported or carried or moved
within the state, and includes accepting or receiving a specimen for the purpose of transportation or
shipment.
575.3 Prohibited Invasive Species.
(a) Prohibited invasive species are identified in this section by scientific and common names and
by specific categories of species.
(b) 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.
(c) Except as otherwise provided by this Part, no person shall sell, import, purchase, transport,
introduce or propagate any prohibited invasive species.
(d) Identification of Prohibited Species.
(1) Algae and cyanobacteria. The following algae and cyanobacteria invasive species are
prohibited:
Scientific Name
Common Name
i. Caulerpa taxifolia
Killer Green Algae
ii. Didymosphenia geminata
Didymo
iii. Prymnesium parvum
Golden Algae
(2) Plants. The following plant invasive species are prohibited:
Scientific Name
Common Name
i. Acer pseudoplatanus
Sycamore Maple
ii. Achyranthes japonica
Japanese Chaff Flower
iii. Alliaria petiolata
Garlic Mustard
iv. Ampelopsis brevipedunculata
Porcelain Berry
v. Anthriscus sylvestris
Wild Chervil
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vi. Aralia elata
Japanese Angelica Tree
vii. Artemisia vulgaris
Mugwort
viii. Arthraxon hispidus
Small Carpgrass
ix. Berberis thunbergii
Japanese Barberry
x. Brachypodium sylvaticum
Slender False Brome
xi. Cabomba caroliniana
Fanwort
xii. Cardamine impatiens
Narrowleaf Bittercress
xiii. Celastrus orbiculatus
Oriental Bittersweet
xiv. Centaurea stoebe (C. biebersteinii, C. diffusa, C. maculosa misapplied, C.
xpsammogena)
Spotted Knapweed
xv. Cirsium arvense (C. setosum, C. incanum, Serratula arvensis)
Canada Thistle
xvi. Cynanchum louiseae (C. nigrum, Vincetoxicum nigrum)
Black Swallow-wort
xvii. Cynanchum rossicum (C. medium, Vincetoxicum medium, V. rossicum)
Pale Swallow-wort
xviii. Dioscorea polystachya (D. batatas)
Chinese Yam
xix. Dipsacus laciniatus
Cut-leaf Teasel
xx. Egeria densa
Brazilian Waterweed
xxi. Elaeagnus umbellata
Autumn Olive
xxii. Euphorbia cyparissias
Cypress Spurge
xxiii. Euphorbia esula
Leafy Spurge
xxiv. Ficaria verna (Ranunculus ficaria)
Lesser Celandine
xxv. Frangula alnus (Rhamnus frangula)
Smooth Buckthorn
xxvi. Glyceria maxima
Reed Manna Grass
xxvii. Heracleum mantegazzianum
Giant Hogweed
xxviii. Humulus japonicus
Japanese Hops
xxix. Hydrilla verticillata
Hydrilla, Water Thyme
xxx. Hydrocharis morus-ranae
Frogbit
xxxi. Imperata cylindrica (I. arundinacea, Lagurus cylindricus)
Cogon Grass
xxxii. Iris pseudacorus
Yellow Iris
xxxiii. Lepidium latifolium
Broad-leaved Pepper-grass
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xxxiv. Lespedeza cuneata
Chinese Lespedeza
xxxv. Ligustrium obtusifolium
Border Privet
xxxvi. Lonicera japonica
Japanese Honeysuckle
xxxvii. Lonicera maackii
Amur Honeysuckle
xxxviii. Lonicera morrowii
Morrow's Honeysuckle
xxxix. Lonicera tatarica
Tartarian Honeysuckle
xl. Lonicera x bella
Fly Honeysuckle
xli. Ludwigia hexapetala (L. grandiflora)
Uruguayan Primrose Willow
xlii. Ludwigia peploides
Floating Primrose Willow
xliii. Lysimachia vulgaris
Garden Loosestrife
xliv. Lythrum salicaria
Purple Loosestrife
xlv. Microstegium vimineum
Japanese Stilt Grass
xlvi. Murdannia keisak
Marsh Dewflower
xlvii. Myriophyllum aquaticum
Parrot-feather
xlviii. Myriophyllum heterophyllum
Broadleaf Water-milfoil
xlix. Myriophyllum x pinnatum
Broadleaf Water-milfoil
Hybrid
l. Myriophyllum spicatum
Eurasian Water-milfoil
li. Nymphoides peltata
Yellow Floating Heart
lii. Oplismenus hirtellus
Wavyleaf Basketgrass
liii. Persicaria perfoliata (Polygonum perfoliatum)
Mile-a-minute Weed
liv. Phellodendron amurense
Amur Cork Tree
lv. Phragmites australis
Common Reed Grass
lvi. Phyllostachys aurea
Golden Bamboo
lvii. Phyllostachys aureosulcata
Yellow Groove Bamboo
lviii. Potamogeton crispus
Curly Pondweed
lix. Pueraria montana
Kudzu
lx. Reynoutria japonica (Fallopia japonica, Polygonum cuspidatum)
Japanese Knotweed
lxi. Reynoutria sachalinensis (Fallopia sachalinensis, Polygonum sachalinensis)
Giant Knotweed
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lxii. Reynoutria x bohemica (Fallopia x bohemica, Polygonum x bohemica)
Bohemian Knotweed
lxiii. Rhamnus cathartica
Common Buckthorn
lxiv. Rosa multiflora
Multiflora Rose
lxv. Rubus phoenicolasius
Wineberry
lxvi. Salix atrocinerea
Gray Florist's Willow
lxvii. Silphium perfoliatum
Cup-plant
lxviii. Trapa natans
Water Chestnut
lxix. Vitex rotundifolia
Beach Vitex
(3) Fish. The following fish invasive species are prohibited:
Scientific Name
Common Name
i. Channa argus
Northern Snakehead
ii. Channa marulius
Bullseye Snakehead
iii. Channa micropeltes
Giant Snakehead
iv. Clarias batrachus
Walking Catfish
v. Gambusia affinis
Western Mosquitofish
vi. Gambusia holbrooki
Eastern Mosquitofish
vii. Hypophthalmichthys harmandi
Largescale Silver Carp
viii. Hypophthalmichthys molitrix
Silver Carp
ix. Hypophthalmichthys nobilis
Bighead Carp
x. Misgurnus anguillicaudatus
Oriental Weatherfish
xi. Mylopharyngodon piceus
Black Carp
xii. Neogobius melanostomus
Round Goby
xiii. Petromyzon marinus
Sea Lamprey
xiv. Proterorhinus semilunaris (P. marmoratus)
Tubenose Goby
(4) Aquatic invertebrates. The following aquatic invertebrate invasive species are prohibited:
Scientific Name
Common Name
i. Bellamya chinensis (Cipangopaludina chinensis)
Chinese Mystery Snail
ii. Bithynia tentaculata
Faucet Snail
iii. Bythotrephes longimanus (B. cederstroemi)
Spiny Water Flea
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iv. Cercopagis pengoi
Fishhook Water Flea
v. Corbicula fluminea
Asian Clam
vi. Crassostrea ariakensis
Suminoe Oyster
vii. Didemnum vexillum
Carpet Tunicate
viii. Dreissena polymorpha
Zebra Mussel
ix. Dreissena rostriformis bugensis
Quagga Mussel
x. Eriocheir sinensis
Chinese Mitten Crab
xi. Hemigrapsus sanguineus
Asian Shore Crab
xii. Hemimysis anomala
Bloody Red Shrimp
xiii. Orconectes rusticus
Rusty Crayfish
xiv. Potamopyrgus antipodarum
New Zealand Mud Snail
xv. Rapana venosa
Veined Rapa Whelk
xvi. Styela plicata
Asian Sea Squirt
(5) Terrestrial invertebrates. The following terrestrial invertebrate invasive species are prohibited:
Scientific Name
Common Name
i. Achatina achatina
Giant Ghana Snail
ii. Achatina fulica (Lissachatina fulica)
Giant African Land Snail
iii. Adelges tsugae
Hemlock Woolly Adelgid
iv. Agrilus planipennis
Emerald Ash Borer
v. Amynthas spp.
Asian Earthworms
vi. Anoplophora glabripennis
Asian Longhorned Beetle
vii. Apis mellifera scutellata x A. mellifera ligustica/ A. mellifera iberiensis
Africanized Honey Bee
viii. Archachatina marginata
Giant West African Snail
ix. Cryptococcus fagisuga
Beech Scale
x. Lymantria dispar
Asian and European Gypsy Moth
xi. Monochamus alternatus
Japanese Pine Sawyer
xii. Pityophthorus juglandis
Walnut Twig Beetle
xiii. Sirex noctilio
Sirex Woodwasp
(6) Terrestrial and aquatic vertebrates. The following terrestrial and aquatic vertebrate invasive
species are prohibited:
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Scientific Name
Common Name
i. Cygnus olor
Mute Swan
ii. Lepus europaeus
European Hare
iii. Myocastor coypus
Nutria
iv. Nyctereutes procyonoides
Asian Raccoon Dog
v. Oryctolagus cuniculus
European Rabbit
vi. Sus scrofa (excluding Sus scrofa domestica)
Eurasian Boar
(7) Fungi. The following fungi invasive species are prohibited:
Scientific Name
Common Name
i. Amylostereum areolatum
Sirex Wasp Fungus
ii. Geomyces destructans
White-nose Syndrome
iii. Geosmithia morbida
Thousand Canker Disease
iv. Phytophthora ramorum
Sudden Oak Death
(e) Prohibited invasive species shall only be disposed of in a manner that renders them nonliving
and nonviable.
(f) A person may possess, sell, purchase, transport or introduce for a maximum of one year
following the effective date of this Part, the prohibited invasive species listed below:
Scientific Name
Common Name
1. Berberis thunbergii
Japanese Barberry
(g) A person may possess, sell, offer for sale, distribute, transport, or otherwise market or trade live
Eurasian boars '(Sus scrofa)' until September 1, 2015. No person shall knowingly import,
propagate or introduce Eurasian boars into a free-living state.
575.4 Regulated Invasive Species.
(a) Regulated invasive species are identified in this section by scientific and common names
and by specific categories of species.
(b) Except as otherwise provided by this Part, no person shall knowingly introduce into a freeliving 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.
(c) Identification of Regulated Species.
(1) Algae and cyanobacteria. The following algae and cyanobacteria invasive species are
regulated:
Scientific Name
Common Name
i. Cylindrospermopsis raciborskii
Cylindro
ii. Grateloupia turuturu
Red Algae
(2) Plants. The following plant invasive species are regulated:
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Scientific Name
Common Name
i. Acer platanoides
Norway Maple
ii. Clematis terniflora
Japanese Virgin's Bower
iii. Euonymus alatus
Burning Bush
iv. Euonymus fortunei
Winter Creeper
v. Miscanthus sinensis
Chinese Silver Grass
vi. Robinia pseudoacacia
Black Locust
(3) Fish. The following fish invasive species are regulated:
Scientifc Name
Common Name
i. Carassius auratus
Gold Fish
ii. Cyprinella lutrensis
Red Shiner
iii. Cyprinus carpio
Common Carp, Koi
iv. Gymnocephalus cernuus
Ruffe
v. Monopterus albus
Asian Swamp Eel
vi. Oreochromis aureus
Blue Tilapia
vii. Oreochromis niloticus
Nile Tilapia
viii. Pterois miles
Common Lionfish
ix. Pterois volitans
Red Lionfish
x. Sander lucioperca (Stizostedion lucioperca)
Zander
xi. Scardinius erythrophthalmus
Rudd
xii. Tinca tinca
Tench
(4) Aquatic invertebrates. The following aquatic invertebrate invasive species are regulated:
Scientific Name
Common
i. Bellamya japonica (Cipangopaludina japonica)
Japanese Mystery Snail
ii. Carcinus maenas
European Green Crab
iii. Daphnia lumholtzi
Water Flea
iv. Hemigrapsus takanoi (H. penicillatus)
Brush-clawed Shore Crab, Grapsid Crab
(5) Terrestrial and aquatic vertebrates. The following terrestrial and aquatic vertebrate invasive
species are regulated:
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Scientific Name
Common Name
i. Alopochen aegyptiacus
Egyptian Goose
ii. Cairina moschata
Muscovy Duck
iii. Myiopsitta monachus
Monk Parakeet
iv. Trachemys scripta elegans
Red-eared Slider
v. Xenopus laevis
African Clawed Frog
575.5 Classifications.
(a) Classification. A species shall be classified and listed as prohibited or regulated by the
Department and the Department of Agriculture and Markets by applying the invasiveness ranking
system established in 'A Regulatory System for Non-Native Species, June 2010,' ("the Report")[1].
The Department and the Department of Agriculture and Markets shall consider the following
ecological and socio-economic factors to determine the invasiveness rank and whether the species
should be classified as prohibited or regulated:
(1) The species meets the definition of invasive species;
(2) The species is currently on a federal list or is listed by other states as an invasive species and
its native habitat has climatic conditions similar to that of New York State;
(3) Ecological impacts including, but not limited to, natural ecosystem processes, community
structure and composition, and impacts on other species or species groups;
(4) Biological characteristics and dispersal ability including, but not limited to, mode and rate of
reproduction, potential for dispersal and spread, characteristics which increase competitive
advantages, and known related invasive species;
(5) Ecological amplitude and distribution including, but not limited to, population status, habitats
utilized, role of disturbance in establishment, and climate in native range;
(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.
(b) Species classified as prohibited are nonnative species that pose a clear risk to New York's
economy, ecological well-being and/or human health and:
(1) are listed on a federal list as an invasive species and its native habitat has climatic conditions
similar to New York State; or
(2) are assessed using the Report's invasiveness ranking process established by the Department
and Department of Agriculture and Markets, and assigned an ecological invasive ranking of "Very
High" or "High"; or
(3) for which the results of a qualitative socio-economic assessment, using an accepted ranking
process, established by the Department and Department of Agriculture and Markets, justifies
placing a species that ranked "Moderate" or "Low" in the ecological assessment in the prohibited
category.
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(c) Grace periods may be established for species classified as prohibited by the Department and
the Department of Agriculture and Markets to allow businesses to plan for the management of
existing stock.
(d) Species classified as regulated are nonnative species that have the potential to cause
significant harm to New York's economy, ecological well being and/or human health and could be
effectively contained through regulatory programs, and:
(1) are assessed using the Report's invasiveness ranking process, established by the Department
and Department of Agriculture and Markets, and assigned an ecological invasive ranking of
"Moderate" or higher invasiveness; or
(2) for which the results of a qualitative socio-economic assessment, using an accepted ranking
process, established by the Department and Department of Agriculture and Markets justifies
placing a species that ranked "Low" in the ecological assessment in the regulated category.
(e) Invasive species that are classified pursuant to this section and are identified in sections 575.3
and 575.4, are subject to requirements of this Part consistent with the respective invasive species
classification. All future classifications of prohibited and regulated invasive species shall apply the
invasiveness ranking system established in the Report and required by this section.
575.6 Conditions Governing Regulated Invasive Species
(a) A regulated invasive species that is sold or offered for sale in New York State shall have
attached in a conspicuous place on the container used to display the regulated invasive species,
and where no container is used on the species itself, a label with the words 'Invasive SpeciesHarmful to the Environment' in at least 14 point bold type. Where it is impracticable to display a
label, written notice shall be provided upon sale to the purchaser. The label or written notice shall
be of a design prescribed by the Department of Agriculture and Markets with the approval of the
Department and shall offer alternative non-invasive species and provide instructions for the care or
tending of the invasive species to prevent their spread in the State or the introduction into a freeliving state.
(b) Before supplying or planting a regulated invasive species as part of a landscape service in the
State, a person shall give written notice to the customer that the invasive species is harmful to the
environment. Such notice shall include the common and scientific names of the invasive species
immediately followed by the words "Invasive species-Harmful to the Environment" in no less than
14 point bold type. The notice shall offer alternative non-invasive species and shall provide
instructions for the care or tending of the invasive species to prevent their spread in the State or
the introduction into a free-living state.
(c) 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 section.
(d) Any person who purchases a regulated invasive species shall be required to follow any
instructions required by this section and maintain the required instructions until the regulated
invasive species is disposed of in a manner that renders it non-living and non-viable.
575.7. Petitions to add a species to the invasive species list or remove a species
from the invasive species list.
(a) A person may petition the Department to have a species added to the invasive species list or
removed from the invasive species list found in this Part. Persons who submit a petition to add a
species to the invasive species list or remove a species from the invasive species list must provide
his or her name, address, telephone number, and e-mail address (if available). The Department
may only classify additional nonnative species that meet the established criteria in section 575.5
for prohibited or regulated as invasive species and may classify them as prohibited or regulated
13
invasive species if the commissioner, with the approval of the New York State Department of
Agriculture and Markets determines the established criteria are met. Persons who submit a petition
to remove a species from the invasive species list must provide his or her name, address,
telephone number, and (if available) e-mail address. The Department, with the approval of the New
York State Department of Agriculture and Markets, may only remove classified invasive species if
those invasive species no longer meet the established criteria in section 575.5. Persons who
submit a petition to add a species to the invasive species list or remove a species from the invasive
species list are encouraged to provide the following information, which can facilitate the review
process:
(b) Identification and background of the species.
(1) The species scientific name;
(2) Species taxonomic classification;
(3) Common synonyms;
(4) Species taxonomic classification;
(5) Common names;
(6) Summary of life history;
(7) Native and world distribution;
(8) Distribution in New York State, if any;
(9) Description of control efforts, if established in New York State; and
(10) Whether the species is regulated at the Federal or local level.
(c) Potential consequences of the species' introduction or spread.
(1) The species' habitat suitability in New York State;
(2) Dispersal potential (biological characteristics associated with invasiveness);
(3) Potential economic impacts (e.g., potential to reduce crop yields, lower commodity values, or
cause loss of markets for New York State goods); and
(4) Potential environmental impacts (e.g., impacts on ecosystem processes, natural community
composition or structure, human health, recreation patterns, property values, or use of chemicals
to control the species).
(d) Likelihood of the species' introduction or spread.
(1) Potential pathways for the species' movement into and within New York State;
(2) Description of control efforts either within New York or nearby areas where this species is
present; and
(3) The likelihood of survival and spread of the species within each pathway.
(e) Evidence that the species is distributed throughout its potential range or has spread too far to
implement effective control.
(f) Evidence that control efforts have been unsuccessful and further efforts are unlikely to succeed.
(g) For cultivars of a listed invasive species, scientific evidence that the cultivar has a combination
of risk elements that result in a low risk.
575.8 Exemptions.
(a) Compliance with the provisions of this Part do not apply to:
14
(1) a person who possesses, imports, sells, purchases, propagates, transports, or introduces a
prohibited invasive species or regulated invasive species, if the Department determines that the
possession, sale, importation, purchase, transportation, or introduction was incidental or
unknowing, and was not due to the person's failure to take reasonable precautions.
(2) a person who possesses or transports a prohibited or regulated invasive species for the
purposes of control or management of that existing invasive species that was not introduced due to
the person's failure to take reasonable precautions.
(3) a person who transports a prohibited invasive species or regulated invasive species for the
purpose of identification or disposal.
(4) a person who possesses, sells, imports, purchases, transports, or introduces a plant cultivar
whose parent species is a prohibited invasive species or regulated invasive species, for which the
Department determines:
(i) that the primary means of reproduction of the cultivar's parent species is sexual, not vegetative,
and
(ii) that the cultivar and its offspring do not revert to express the invasive characteristics of the
parent species, including,
('a') the cultivar is completely sterile or has no reproductive parts; or,
('b') demographic modeling predicts that the cultivar is unable to establish expanding populations in
natural areas.
(iii) The Department will publish a list of cultivars meeting the criteria of this subparagraph in the
State Register and Environmental Notice Bulletin. Only cultivars listed pursuant to this section are
eligible for this exemption.
(5) a person who is authorized by permit issued by the Department or Department of Agriculture
and Markets to possess, sell, import, purchase, transport or introduce a species for disposal,
control, research, or education, but the species shall not be introduced into a free-living state
unless explicitly authorized by permit pursuant to section 575.9.
(6) a person operating under a compliance agreement, limited permit, or certificate of inspection
pertaining to a prohibited or regulated invasive species, issued by the Department, Department of
Agriculture and Markets and/or the USDA Animal and Plant Health Inspection Service.
(7) a person to whom a permit has been issued by the Department or the Department of
Agriculture and Markets for importation, transport, distribution or release of a pest or biological
control agent that is a listed or designated prohibited invasive species or regulated invasive
species.
(8) wetland plant species associated with a vegetation treatment unit used in a wastewater
treatment facility authorized by a Department permit prior to the adoption of this Part.
575.9 Invasive Species Permits.
(a) A person may possess, with the intent to sell, import, purchase, transport or introduce, a
prohibited invasive species if the person has been issued a permit by the Department for research,
education, or other approved activity, under this Part.
(b) A person may only introduce a regulated invasive species into a free-living state if the person is
issued a permit under this section expressly authorizing such introduction.
(c) Written Application Required.
(1) Applications for permits under this chapter shall be submitted in writing to the Department on
forms available from the Department. The application shall include:
15
(i) the name and quantity or number of invasive species specimens for which a permit is sought;
(ii) whether the permit is sought for research, education, or other activity;
(iii) a description of other relevant permits, approvals or licenses of the applicant,
(iv) the applicant's purpose or reason for seeking the permit and;
(v) other relevant information, including control and disposal measures.
(2) The Department may request additional information including, but not limited to: location or
storage area of the invasive species, or how it will be kept or stored to prevent spreading into the
wild, how it will be disseminated, and how it will be destroyed once the applicant is done using
them.
(3) The Department shall act on complete permit applications within 45 days following receipt of
the application.
(d) Approval Criteria. The Department shall review permit applications to determine whether all of
the following criteria are met.
(1) The applicant is knowledgeable in the proper handling, control, and disposal of the invasive
species.
(2) The applicant has an adequate site or facility for containment of the invasive species.
(3) The applicant has demonstrated to the Department's satisfaction that permitted activities will
not cause significant ecologic or economic harm or harm to human health.
(4) The applicant has complied with the conditions of any previous Department permits issued
under this chapter.
(5) The Department accepts proposed disposal methods and protocols which will render the
invasive species non-viable and will prevent the introduction and spread of the invasive species.
(e) Issuance and Conditions.
(1) If the Department determines that there is significant public interest, it may hold a public
information hearing on a permit application before acting on the application.
(2) An applicant meeting the approval criteria may be issued a permit subject to conditions the
Department considers reasonable.
(f) Records and Reporting.
(1) Each permittee shall keep a current, correct and complete record of all permit activities as
required by the Department, on forms available from the Department. Permit records may be
inspected and copied by the Department at any time. Copies of records shall be provided to the
Department upon request.
(g) Permit Transfer; Alterations.
(1) Unless expressly provided by the terms of the permit or by subsequent written approval of the
Department, permits issued under this Part are not transferable. No person shall alter or deface a
permit issued under this Part.
(h) Other Permits or Approvals.
(1) A person who holds a permit or approval issued by the Department under another regulation or
a statute, other than a license or permit or order issued by the Department pursuant to section 91709 of the Environmental Conservation Law or pursuant to the provisions of this Part, is not
required to hold a permit under this Part for disposal, control, research or education involving a
prohibited or regulated invasive species if the Department determines that the following apply:
16
(i) the permit or approval expressly authorizes the disposal, control, research or education activity
involving a prohibited or regulated invasive species;
(ii) the permit or approval includes legally enforceable requirements that are at least equivalent to
those that would be contained in a permit issued by the Department under this Part; and
(iii) the person is not in violation of the permit or approval.
575.10 Penalties and Enforcement
(a) Any person who violates this Part or any license or permit or order issued by the Department, or
Department of Agriculture and Markets, pursuant to section 9-1709 of the Environmental
Conservation Law 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(9). With
respect to Eurasian boars, any person who violates this Part shall also be liable for all penalties
provided for in the Environmental Conservation Law, including section 71-0925. Such penalties
and remedies may be in addition to any other penalty or remedy available under any other law,
including but not limited to, permit revocation.
575.11 Coordination
(a) This Part does not affect the authority of the Department of Agriculture and Markets. The
Department of Agriculture and Markets shall inspect registered growers and dealers of plant
material pursuant to Agriculture and Markets Law, Article 14 section 166, for compliance with this
Part. Any violation issued by the Department of Agriculture and Markets shall be referred to the
Department of Environmental Conservation for assessment of penalties pursuant to Environmental
Conservation Law, section 71-0703.
575.12 Severability
(a) 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, such determination shall not affect or impair the
validity of the other provisions of this Part or the application to other persons and circumstances.
[1] The Report is available for inspection and copying from the Division of Lands and Forests of the
New York State Department of Environmental Conservation offices at 625 Broadway, Albany, NY
12233-4752, or can be accessed from the Department's website.
http://www.dec.ny.gov/regulations/93900.html
[3 pages. Full statement p. 13+ is 8 pages]
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 (3a). 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,
17
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
18
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 "nonnative 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
19
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 §710703(b) statutorily mandates specific penalties for first offenses.
http://www.dec.ny.gov/regulations/93898.html [full statement 8.5 pages; summary above is 3 pages]
Regulatory Impact Statement - Part 575 Prohibited
and Regulated Invasive Species
20
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 § 110507(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.
21
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 nongovernmental 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 §§ 91701 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
22
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 (0100); 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 socioeconomic 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
23
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
24
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 § 710703(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
25
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 § 710925 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 "nonnative 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,
26
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
27
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 federallyregulated 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).
http://www.dec.ny.gov/regulations/93903.html
28
Rural Area Flexibility Analysis - Part 575
Prohibited and Regulated Invasive Species
1. Types and estimated numbers of rural areas: This rule applies to the entire State and impacts
all rural areas of the State.
2. Reporting, recordkeeping and other compliance requirements; and Professional
Services: 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. Since the proposed rule provides that the New York
State Department of Agriculture and Markets (DAM) prescribes the design of the labels or notices,
there is not anticipated to be any professional assistance required to comply with these
requirements.
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 the DEC. No
professional assistance is required to prepare and submit the applications or to maintain the
required records.
3. 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 be not be charged a fee
for each permit.
4. 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. This provision provides the regulated the
community time to sell existing stocks, and the ability to transition to alternatives. Similarly, the
regulation also provides for a one year grace period for the possession, sale, purchase,
transportation or introduction of the Japanese Barberry following the effective date of this Part. 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 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.
29
5. Rural area participation: DEC has complied with the New York State Administrative Procedure
Act (SAPA) section 202-bb (7) by assuring that public and private interests in rural areas have
been given an opportunity to participate in the rule making process. This participation has occurred
through meeting and interaction with both the Invasive Species Council (Council), a nine stateagency 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 nongovernmental entities established by ECL section 9-1707. The Council is composed of individuals
from the following organizations: 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, DEC will be accepting public comments to the Notice of Proposed Rulemaking and
will be providing responses to any comments that are received. Public hearings will also be held.
http://www.dec.ny.gov/regulations/93905.html
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.
30
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 the 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 stateagency 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
31
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.
http://www.dec.ny.gov/regulations/93910.html
Job Impact Statement - Part 575 Prohibited and
Regulated Invasive Species
1. Nature of impact: At the outset, compliance with the proposed rule will result in a reduction in
the sale of certain listed invasive species. In fact, that is the intention of the proposed regulations.
With the reduced sales there may be a reduction in income for businesses selling invasive species,
and this may negatively impact jobs at such businesses. However, it is anticipated that by
providing grace periods for the management of existing stock of prohibited species, and allowing
the sale of certain regulated species subject to conditions, negative impacts to income will be
minimized and impacts on jobs will likewise be minimal. It is also anticipated that the sales of
alternative, non-invasive, species will increase, which will also act to counter any negative impacts
to jobs.
2. Categories and numbers affected: There are approximately 9,000 licensed nursery
growers/dealers in New York State that could, depending on the species they sell, be impacted by
the proposed rule. Additionally, there are an unknown number of unlicensed pet dealers that may
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be impacted by the proposed rule if they sell prohibited or regulated invasive species. Unlicensed
pet dealers are those that deal in pets other than cats or dogs.
3. Regions of adverse impact: There are no regions in the State where this rule making will have
a disproportionate adverse impact on jobs or employment opportunities.
4. 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. As described above, 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 the 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
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