PKR-49-12-00011-P No-Smoking Areas at OPRHP Parks, Recreational Facilities and Historic Sites

12/5/12 N.Y. St. Reg. PKR-49-12-00011-P

NEW YORK STATE REGISTER

VOLUME XXXIV, ISSUE 49

December 05, 2012

RULE MAKING ACTIVITIES

OFFICE OF PARKS, RECREATION AND HISTORIC PRESERVATION

PROPOSED RULE MAKING

NO HEARING(S) SCHEDULED

 

I.D No. PKR-49-12-00011-P

No-Smoking Areas at OPRHP Parks, Recreational Facilities and Historic Sites

PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following proposed rule:

Proposed Action:

Addition of Part 386 to Title 9 NYCRR.

Statutory authority:

Parks, Recreation and Historic Preservation Law, section 3.09(2), (5) and (8)

Subject:

No-smoking areas at OPRHP parks, recreational facilities and historic sites.

Purpose:

To allow OPRHP to designate and enforce non-smoking areas at parks, historic sites and facilities.

Text of proposed rule:

A new Part 386 is added to 9 NYCRR as follows:

Part 386

NO SMOKING AREAS

§ 386.1 No Smoking Areas

(a) Smoking of tobacco or any other product is prohibited in the following outdoor locations under the jurisdiction of the office:

(1) any No Smoking Area designated by the commissioner. Examples of areas that may be designated as No Smoking Areas include: playgrounds, swimming pool decks, beaches, sport or athletic fields and courts, recreational facilities, picnic shelters, fishing piers, marinas, historic sites, group camps, park preserves, gardens, concessions, educational programming, or other areas where visitors congregate, including within fifty feet of entrances to buildings; and

(2) each state park in New York City, with the exception that the commissioner may allow smoking in limited areas within each park.

(b) The commissioner shall approve and periodically update a statewide list of designated No Smoking Areas that shall be published on the office's public website.

(c) The office shall install signage at each designated No Smoking Area, informing the public that smoking is prohibited in such areas.

Text of proposed rule and any required statements and analyses may be obtained from:

Kathleen L. Martens, Associate Counsel, Office of Parks, Recreation and Historic Preservation, OPRHP, Albany, NY 12238 (for USPS mailing), 625 Broadway, Albany NY 12207 (for physical delivery), [phone], email: [e-mail]

Data, views or arguments may be submitted to:

Same as above.

Public comment will be received until:

45 days after publication of this notice.

Consensus Withdrawal Objection

An advocacy organization that enforces smokers' rights through litigation contends the proposed regulation exceeds the Office of Parks, Recreation and Historic Preservation's delegated statutory authority.

Regulatory Impact Statement

1. Statutory Authority

The Office of Parks, Recreation and Historic Preservation (State Parks) proposes a rule that authorizes the Commissioner to establish and enforce no-smoking areas in certain designated outdoor locations in state parks, historic sites and other facilities under the agency's jurisdiction. Section 3.09 of the Parks, Recreation and Historic Preservation Law (PRHPL) grants general authority to State Parks to regulate, operate and maintain properties under its jurisdiction as follows:

• PRHPL § 3.09(2) requires State Parks to operate and maintain historic sites and objects, parks, parkways, and recreational facilities under its jurisdiction.

• PRHPL § 3.09(5) authorizes the Office of Parks, Recreation and Historic Preservation to provide for the health, safety and welfare of the public using facilities under its jurisdiction.

• PRHPL § 3.09(8) authorizes State Parks to adopt, amend, or rescind rules, regulations, and orders as necessary or convenient for the performance or exercise of the functions, powers, and duties of the office.

Additionally, subdivision (3) of section 1399-r of the Public Health Law (the Clean Indoor Air Act) states, in part, that smoking may not be permitted where prohibited by any other law, rule or regulation of any state agency or political subdivision of the state.

2. Legislative Objectives

The rule would implement the Legislature's broad grant of authority to State Parks to manage and operate its facilities to protect public health, safety and welfare.

3. Needs and Benefits

State Parks oversees 179 state parks, 35 historic sites and other facilities, providing diverse recreational opportunities and educational programming to more than 58 million annual visitors. The proposed rule would allow the Commissioner to establish and enforce smoke-free areas in limited outdoor spaces within some (but not all) facilities in settings primarily where people congregate. State Parks anticipates that outdoor areas designated as "no-smoking" would be limited to less than five percent of the total 330,000-acre state park system, and smoking would continue to be allowed in most campsites, open air picnic areas, parking areas and throughout undeveloped areas.

Additionally, in New York City, with limited exceptions, Riverbank, Roberto Clemente, East River, Clay Pit Ponds, Gantry Plaza, Bayswater and Four Freedoms State Parks would be designated entirely smoke-free parks. These state parks are small in comparison to parks in the rest of the State and these parks would be regulated in a manner consistent with other public parks in New York City, where smoking is prohibited in all city-run parks.

The rule is needed to allow all of our patrons to enjoy the outdoors, breathe fresh air, walk, swim, exercise and experience State Parks' amenities and programs without being exposed to secondhand tobacco smoke and tobacco litter. Specifically, the proposed rule would provide the following public benefits:

1. Public Health. There is a broad body of scientific evidence documenting the public health hazards of exposure to second hand tobacco smoke (http://www.surgeongeneral.gov/library/reports/tobaccosmoke/index.htm (last visited 11/01/ 2012)). By allowing the Commissioner to establish and enforce smoke-free areas, the proposed regulation would reduce exposure to second hand tobacco smoke for patrons and staff in facility locations where large numbers of people congregate.

2. Public Enjoyment of State Parks and Historic Sites. In addition to potential health risks, exposure to tobacco smoke negatively impacts the experience of park visitors, as does litter from discarded cigarette and cigar butts. Visitors to playgrounds, beaches, swimming pool decks, picnic shelters, and other areas where large numbers of people congregate, prefer not to have their park experience degraded by unhealthy and irritating exposure to second hand tobacco smoke and litter. A recent survey of patrons at Lake Welch Beach, Jones Beach and Walkway on the Hudson State Parks found strong support for designation of no-smoking areas.

3. Healthy Lifestyles. State parks provide a vital setting to promote healthy lifestyles for the more than 58 million people who visit them each year. Adoption of the rule would promote smoking cessation efforts, and assist in preventing children from becoming addicted to tobacco because they would be viewing smoking less frequently in outdoor recreational settings. (http://www.tobaccofreekids.org/research/factsheets/pdf/0103.pdf (last visited 11/01/2012)).

4. Operational Savings. State Parks staff expends time and operational resources each year cleaning up cigarette butt litter - for example, cleaning up cigarette butts in the sand on swimming beaches. Establishing smoke-free areas would reduce agency costs.

5. Fully Implement Successful Pilot Programs. Managers at various State Parks facilities had been establishing voluntary no-smoking areas on an ad hoc basis in response to operational and maintenance needs, together with patron requests, long before Parks initiated this rulemaking, and patrons there have supported these designations. For example, the 2-year pilot program designating swimming beaches in our Saratoga-Capital region as no-smoking on a voluntary basis has been successful with the public, and has significantly reduced cigarette butt litter on these beaches.

Sixty percent of New York State adults favored limiting smoking outdoors (http://www.health.ny.gov/prevention/tobacco_control/reports/statshots/volume5/n5_eliminating_smoking_from_public_parks.pdf (last visited 11/01/2012)). And, restricting smoking in parks and playgrounds is becoming the norm in New York State. More than 240 municipalities have adopted rules limiting smoking in outdoor settings. http://www.tobaccofreenys.org/Outdoor-Tobacco-Use-Policies-NY.html (last visited 11/01/2012)). New York City has prohibited smoking in all of its parks. Other states are considering similar measures, for example, the State of Maine prohibits smoking on state beaches and parks.

It is important to stress that the proposed rule would not prohibit people who smoke from visiting state parks and historic sites or from participating in recreational, cultural, or educational activities offered at these facilities. At virtually all designated no-smoking areas, such as playgrounds, beaches and picnic shelters, visitors who choose to smoke will have access to other areas where smoking is not prohibited. New York City is the only State Park Region where all parks would be designated smoke-free. The state parks there are modest in size (the largest is 28 acres) and visitors can easily walk to a sidewalk or area outside of the park where smoking is allowed.

It is also important to note that the proposed rule would only apply to and affect use of properties operated and maintained by State Parks. The rule does not regulate activities on parkland owned by the federal government, county or municipal governments or private entities. The proposed regulation would be no different in application from the many other rules adopted and enforced by the agency to promote the public's overall enjoyment of state parks, historic sites and recreational facilities. (See, 9 NYCRR § 370.1(c) and (d)) Examples of similar regulations include: prohibiting loud playing of music, enforcing quiet hours in campgrounds after 10:00 pm, keeping pets on leashes, prohibiting consumption of alcoholic beverages except under certain controlled circumstances, prohibiting glass containers on swimming beaches and pool decks, allowing fires only in grills and fireplaces, and so forth. (See, 9 NYCRR §§ 375.1; 385.1).

4. Costs

a. Costs to State Government - None.

b. Costs to Local Government - None.

c. Costs to Private Regulated Parties - A person who fails to comply with the rule could be issued a ticket for a violation that usually includes a fine up to $250 and may also require payment of a mandatory local surcharge. (See, PRHPL §§ 27.11 and 27.12; Penal Law §§ 10.00(3) and 80.05(4); see also, Criminal Procedure Law § 1.20(39) - definition of a "petty offense.")

d. Costs to the Office of Parks, Recreation and Historic Preservation - the only costs to the agency are those minimal costs associated with signage for designated no-smoking areas.

5. Local Government Mandates

The proposed rule does not impose any additional program, service, duty, or responsibility upon local governments.

6. Paperwork

The proposed rule does not impose any additional paperwork requirements.

7. Duplication

The proposed rule does not duplicate, overlap, or conflict with any other State or federal statute or regulation.

8. Alternatives

State Parks has considered three alternatives. The first alternative would have continued the practice of voluntary compliance with State Parks' no-smoking guidelines. Voluntary compliance is currently achieved through the posting of "no smoking" signs without any enforcement mechanism. Since more than 80% of adult New Yorkers do not smoke, however, not smoking has become the cultural norm. State Parks is compelled, therefore, to recognize that public sentiment on the smoking issue has evolved to the point that a majority of visitors would support a narrowly-drawn, enforceable rule enforcing no-smoking areas where people (especially children) congregate. (http://www.health.ny.gov/prevention/tobacco_control/reports/statshots/volume5/n6_survey_method_change_indications.pdf (last visited 11/01/2012)).

In contrast to continuing the existing voluntary alternative, the proposed rule would create a reasonable enforceable prohibition on smoking in certain delineated areas where large numbers of people congregate and it would provide greater certainty for park patrons who do not want to be exposed to second-hand tobacco smoke and tobacco litter.

The second alternative would have adopted an outright ban on smoking in all State Parks facilities, similar to the approach that New York City and other local governments have adopted. Given that State Parks are typically much larger than these municipal parks (several state parks exceed 10,000 acres), the agency concluded that a system-wide ban is not practical.

Under the third alternative the Commissioner would have designated and enforced no-smoking areas through signage and staff directions only. Failure to obey would have been addressed through a general citation for disorderly conduct. See, 9 NYCRR § 375.1(f)(1). However, State Parks decided that it would be fairer and clearer to the public to formally adopt a specific narrowly-drawn regulation authorizing the designation of no-smoking areas through publication and signage. It would be enforced through a citation for violation of the specific rule proposed here.

9. Federal Standards

There are no applicable federal statutes regulating smoking in State Parks' facilities, and the proposed rule does not exceed federal standards.

10. Compliance Schedule

Enforcement will occur upon publication of the Notice of Adoption in the State Register.

Regulatory Flexibility Analysis

This rule allows the Commissioner of the Office of Parks, Recreation and Historic Preservation to designate and enforce No Smoking Areas at parks, historic sites and recreational facilities. It does not affect small businesses or local governments or recordkeeping requirements.

Rural Area Flexibility Analysis

This rule allows the Commissioner of the Office of Parks, Recreation and Historic Preservation to designate and enforce No Smoking Areas at parks, historic sites and recreational facilities. It does not affect small businesses or local governments or recordkeeping requirements.

Job Impact Statement

A Job Impact Statement is not submitted with this notice because the rule will have no impact on jobs and employment opportunities.