PKR-18-11-00013-P Presence of Level 2 or 3 Sex Offenders at State Parks' Campsites and Cabins

5/4/11 N.Y. St. Reg. PKR-18-11-00013-P

NEW YORK STATE REGISTER

VOLUME XXXIII, ISSUE 18

May 04, 2011

RULE MAKING ACTIVITIES

OFFICE OF PARKS, RECREATION AND HISTORIC PRESERVATION

PROPOSED RULE MAKING

NO HEARING(S) SCHEDULED

 

I.D No. PKR-18-11-00013-P

Presence of Level 2 or 3 Sex Offenders at State Parks' Campsites and Cabins

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

Proposed Action:

Addition of section 372.7(g)(16) to Title 9 NYCRR.

Statutory authority:

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

Subject:

Presence of Level 2 or 3 sex offenders at State Parks' campsites and cabins.

Purpose:

Authorize OPRHP to direct a Level 2 or Level 3 sex offender who is occupying a campsite or cabin to leave the campground.

Text of proposed rule:

Add a new paragraph (16) to Section 372.7(g) of 9 NYCRR to read as follows:

(16) Upon discovering that an occupant of a campsite or cabin is registered as a Level 2 or Level 3 sex offender under Article 6-C of the Correction Law, the office is authorized to direct such occupant to leave the campground and may revoke the camping permit for the campsite or cabin.

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

Karen R. Kaufmann, General Counsel, OPRHP, Empire State Plaza, Agency Building 1, Albany, NY 12238, [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.

Regulatory Impact Statement

This Regulatory Impact Statement (RIS) describes and analyzes the Office of Parks, Recreation, and Historic Preservation's (OPRHP) proposal to adopt a statewide regulation authorizing the Office to direct a Level 2 or Level 3 sex offender who is occupying a campsite or cabin in a State Park to leave the campground.

Statutory authority: Subdivisions 5 and 8 of Section 3.09 of the Parks, Recreation and Historic Preservation Law direct OPRHP to "provide for the health, safety and welfare of the public using facilities under its jurisdiction" and to adopt rules and regulations necessary to exercise the agency's powers and duties. Article 6-C of the Correction Law establishes a Sex Offender Registry within the New York State Division of Criminal Justice Services (DCJS).

Legislative objectives: Existing OPRHP regulations (9 NYCRR § 372.7(g)) establish rules and requirements for the public's use of State Park campsites and cabins under the agency's jurisdiction. The proposed rule would add a new paragraph (16) to 9 NYCRR § 372.7(g) stating that "Upon discovering that an occupant of a campsite or cabin is registered as a Level 2 or Level 3 sex offender under Article 6-C of the Correction Law, the office is authorized to direct such occupant to leave the campground and may revoke the camping permit for the campsite or cabin." Removing Level 2 and Level 3 sex offenders from State Park campgrounds will protect the public health, safety, and well-being in furtherance of OPRHP's statutory mission.

Needs and benefits: New York's Sex Offender Registration Act (SORA) establishes a Sex Offender Registry within DCJS. SORA, which took effect in January, 1996, requires the registration of individuals convicted of certain sex offenses in New York State (as well as the registration of individuals convicted in another state or federal jurisdiction if the offense is equivalent to a New York State registerable offense).

Upon conviction of a sex offense, the court assigns the individual one of three risk levels, based on the court's assessment regarding whether a particular offender is likely to repeat the same or similar registerable sex offense and the danger the offender poses to the community:

Level 1 (low risk of repeat offense);

Level 2 (moderate risk of repeat offense); or

Level 3 (high risk of repeat offense and a threat to public safety exists).

SORA reflects the distinction made by the Legislature between the risk to the public posed by Level 1 offenders as opposed to those designated Level 2 and Level 3. DCJS is required by SORA to maintain a publicly-accessible directory on its website containing detailed identifying information about Level 2 and Level 3 offenders and their convictions. By contrast, information about Level 1 offenders is required to be provided by law enforcement to entities with "vulnerable populations" such as schools, but is not otherwise readily available to the public.

OPRHP operates 66 State Park campgrounds encompassing 8,586 campsites and 790 rental cabins that host more than 700,000 campers annually. State law directs OPRHP to provide for the health, safety and welfare of the public using facilities under its jurisdiction, including its public campgrounds.

Campsites and cabins are modestly developed and sites may be in remote locations. At a campground, members of the public cannot take security measures that they would implement in their home to protect themselves, their family members, or their children. They cannot lock their pup-tents. They do not have security systems or hard-wired telephone lines. Cell phone service is spotty or non-existent in some campgrounds. There is relatively little lighting, meaning that campsites, roads, and paths are dark during nighttime hours.

In the past three years, there have been several incidents where OPRHP has become aware that individuals on the Sex Offender Registry are staying in State Park campsites. These incidents have typically occurred when a member of the public informs park staff of an individual's SORA status. Currently, OPRHP does not have any regulation governing the presence of sex offenders in State Park facilities.

The agency has concluded that - due to the unique nature of campground facilities - individuals listed as Level 2 or Level 3 sex offenders present an unacceptable risk to the health, safety, and welfare of members of the public staying in State Park campsites and cabins. The proposed regulation would authorize the Office to direct a Level 2 or Level 3 sex offender who is occupying a campsite or cabin to leave the campground.

The proposed regulation takes the narrowest approach necessary to provide for public health and safety:

• It would apply only to Level 2 and Level 3 offenders, whom SORA identifies as posing a qualitatively higher risk to public safety than those designated Level 1. The regulation would not apply to Level 1 offenders (who are defined as individuals with a low risk of repeat offense).

• The regulation would not preclude Sex Offender Registry individuals from visiting State Parks and Historic Sites outside of campgrounds. These individuals would continue to be allowed to visit and enjoy New York's 213 State Parks and Historic Sites in the same manner available to all members of the public. Rather, the regulation recognizes the unique public health, safety and welfare concerns in campgrounds.

To inform the public, OPRHP would publish the sex offender regulation on the agency's website and in materials made available to members of the public reserving campsites and cabins (including internet, telephone, and walk-up reservations). OPRHP would not attempt to implement a Sex Offender Registry "prescreening" process at the time individuals reserve a campsite or cabin. OPRHP does not have the capacity to do so, and prescreening presents a number of technical issues. For example, campsites are reserved in one person's name but the agency allows multiple people to stay on each site (typically 6 or more people are allowed per site), meaning pre-screening often would not identify SORA individuals. Once OPRHP became aware that a Level 2 or Level 3 sex offender was staying in a campsite or rental cabin, the agency would be authorized to direct that individual to leave the campground.

Costs: The proposed rule does not impose any additional costs to OPRHP or regulated entities.

Local government mandates: The proposed rule does not affect local governments.

Paperwork: The proposed rule does not create any additional reporting or paperwork requirements.

Duplication: None.

Alternatives: OPRHP considered two alternatives to this proposal: a) including Level 1 sex offenders in the regulation; and b) including a broader range of OPRHP day-use facilities (in addition to campgrounds) in the authorization. The agency concluded that the proposed regulation presents the narrowest possible approach to achieve OPHRP's statutory mandate of providing for the health, safety, and welfare of the public using facilities under its jurisdiction.

Federal standards: There are no federal standards applicable to the proposed regulation.

Compliance schedule: This rule will take effect upon publication of the Notice of Adoption in the State Register.

Regulatory Flexibility Analysis

This regulation adds a new paragraph (16) to subdivision (g) of Section 372.7 that pertains to rules at campgrounds. It authorizes OPRHP to direct a Level 2 or Level 3 sex offender who is occupying a campsite or cabin to leave the campground. It pertains to internal operations at parks and will not affect small businesses or local governments or recordkeeping requirements.

Rural Area Flexibility Analysis

This rule making adds a new paragraph (16) to Section 372.7(g) of OPRHP’s camping rules and authorizes OPRHP to direct a Level 2 or Level 3 sex offender who is occupying a campsite or cabin to leave the campground. The proposed rule will not affect small businesses or local governments or recordkeeping requirements in rural areas.

Job Impact Statement

The existing regulation at 9 NYCRR subdivision g of Section 372.7 pertaining to camping rules does not affect jobs or employment opportunities and the addition of a new paragraph (16) would not affect jobs or employment opportunities.