ENV-30-15-00004-P Qualifications for License Issuing Agents and Wildlife Rehabilitators

7/29/15 N.Y. St. Reg. ENV-30-15-00004-P

NEW YORK STATE REGISTER

VOLUME XXXVII, ISSUE 30

July 29, 2015

RULE MAKING ACTIVITIES

DEPARTMENT OF ENVIRONMENTAL CONSERVATION

PROPOSED RULE MAKING

NO HEARING(S) SCHEDULED

 

I.D No. ENV-30-15-00004-P

Qualifications for License Issuing Agents and Wildlife Rehabilitators

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

Proposed Action:

Amendment of Parts 183 and 184 of Title 6 NYCRR.

Statutory authority:

Environmental Conservation Law, sections 11-0305, 11-0713, 11-0515 and 11-0919

Subject:

Qualifications for License Issuing Agents and Wildlife Rehabilitators.

Purpose:

To remove regulatory requirements that exclude individuals with felonies from obtaining certain licenses and authorizations.

Text of proposed rule:

Title 6 of the Codes, Rules and Regulations of the State of New York, Part 184, Wildlife Rehabilitators, is amended as follows:

Paragraph 184.3(a)(1) is amended; paragraph 184.3(a)(2) is removed and paragraphs (3) and (4) of subdivision (a) are renumbered as paragraphs (2) and (3) and a new paragraph (4) is added. Subdivision (a) of section 184.4 is amended. Paragraphs 184.6(a)(4), (5), (7) and (8) are amended; subdivision 184.6(b) is amended.

§ 184.3 Qualifications for appointment

(a) The Class I Wildlife Rehabilitator and Class II Wildlife Rehabilitator must:

(1) be over the age of 16 years[,] and a resident of New York State[, of good character and reputation in the community as judged by two character references written by persons not related to the applicant or to each other;

(2) not have been convicted of or pleaded guilty to a violation or misdemeanor under the Environmental Conservation Law or settled and compromised a civil liability therefor, nor have been convicted of any misdemeanor or felony within the previous three years];

[(3)](2) receive a grade of 80 percent or higher on a written examination administered by the department and designed to test knowledge in the field of wildlife rehabilitation;[ and]

[(4)](3) be interviewed, by a regional department employee responsible for the wildlife rehabilitation program, to assess the applicant's proficiency in wildlife rehabilitation[.]; and

(4) if convicted of one or more criminal offenses, be found eligible after a balancing of the factors set out in Article 23-A of Correction Law. In accordance with that Article, no license shall be denied by reason of the applicant having been previously convicted of one or more criminal offenses unless (i) there is a direct relationship between one or more of the previous criminal offenses and the duties required of the license or (ii) licensing the applicant would involve an unreasonable risk to property or the safety or welfare of a specific individual or the general public. In determining these questions, the agency will look at all factors listed under New York State Correction Law Section 753.

§ 184.4 Additional criteria for appointments

(a) The Class II Wildlife Rehabilitator may be assisted by and provide training to one or more assistant wildlife rehabilitators upon approval by the department of an outline of training methods and procedures to assure control over the activities of appointed assistant wildlife rehabilitators, [but]and the Class II Wildlife Rehabilitator [must]shall be responsible for the proper performance of duties of all assistant wildlife rehabilitators under their supervision[whom he or she nominated, trained, and employs].

§ 184.6 Duties

(a) The wildlife rehabilitator must:

(4) comply with applicable provisions of the Environmental Conservation Law and rules and regulations adopted pursuant thereto and with the department's instructions concerning methods of wildlife rehabilitation, reporting requirements and any conditions contained in [his/her]their license;

(5) display in a prominent place the license provided by the department. A wildlife rehabilitator identification card must be carried by the [permittee]licensee when in possession of wildlife afield;

(7) notify the department at least 90 days in advance of moving [his/her]their place of operation to a new location;

(8) allow authorized department employees to inspect [his/her]their wildlife rehabilitation operations and records at any reasonable time; and

(b) Additionally, the wildlife rehabilitator may distribute, if appropriate, to persons who submit wildlife to [him/her]them, any material supplied by the department relating to wildlife rehabilitation.

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

Joseph Therrien, New York State Department of Environmental Conservation, 625 Broadway, Albany, NY 12233-4752, [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.

Additional matter required by statute:

A programmatic environmental impact statement is on file with the Department of Environmental Conservation.

This rule was not under consideration at the time this agency submitted its Regulatory Agenda for publication in the Register.

Regulatory Impact Statement

1. Statutory Authority

Subdivision 2 of Section 11-0305 of the Environmental Conservation Law authorizes the department to issue licenses and designate agents to sell and promote the sale of licenses. Paragraph 1.a. of Section 11-0713 provides for the qualifications and regulatory compliance requirements of license issuing officers.

Subdivision 3 of Section 11-0515 of the Environmental Conservation Law directs the department to promulgate regulations pertaining to the rehabilitation of wildlife. Subdivision 2 of Section 11-0919 provides the criteria for a licensed wildlife rehabilitator to handle rabies vector species (skunks, raccoons and bats).

2. Legislative Objectives

The legislative objectives of the statutory provisions listed above are to establish, or authorize the department to establish, qualifications and duties of becoming a license issuing agent and of becoming a wildlife rehabilitator in New York State.

3. Needs and Benefits

The purpose of this rulemaking is to amend both 6 NYCRR Part 183 and 184 by ensuring that Correction Law Article 23-A balancing test will be used in evaluating applicants for these licenses who have criminal convictions.

4. Costs

There are no costs to the department or local governments. The proposed changes will not alter any existing programs and will not increase requirements or fees associated with these licenses.

5. Local Government Mandates

These amendments will not impose any programs, services, duties or responsibilities upon any county, city, town, village, school district or fire district.

6. Paperwork

The proposed rule will not impose any additional paperwork requirements. Individuals seeking license from the department will be required to complete and submit a license application. Applicants for a wildlife rehabilitation license are also required to pass a written minimum standards test administered by the Department.

7. Duplication

There are no other regulations similar to this proposal.

8. Alternatives

There are no additional alternatives.

9. Federal Standards

The federal rehabilitation standards appear in Title 50 of the Code of Federal Regulations Section 21.31. The proposed rule does not exceed any minimum standards of the federal government. There are no federal standards associated with license issuing agents.

10. Compliance Schedule

These regulations, if adopted, will become effective immediately. No additional steps will be required of current license holders.

Regulatory Flexibility Analysis

The proposed regulation would amend the Department of Environmental Conservation’s (department) regulations governing the qualifications and appointment as a License Issuing Officer and Wildlife Rehabilitator found in Title 6 of the New York Codes Rules Regulations, Parts 183 and 184, by allowing individuals who have been convicted of or pled guilty to a misdemeanor or felony to apply for and become a license issuing officer or a wildlife rehabilitator.

The proposed rule will ensure that Correction Law Article 23-A balancing test will be used in evaluating applicants for these licenses who have criminal convictions. The rulemaking removes the restrictions which currently prohibit the acquisition of these licenses by any individual that has been convicted of or pled guilty to a misdemeanor or felony. The rulemaking will allow store proprietors or employees, who were previously prohibited from becoming License Issuing Officers, to offer this service at their stores. The proposed rulemaking may increase sales at these businesses as proprietors will be able to offer the additional service of sport license sales. In addition, the rulemaking will allow individuals, who were previously prohibited from becoming wildlife rehabilitators, to create their own rehabilitation center where they can develop their business and professional images. The proposed changes will not impose any new record keeping or compliance requirements.

Based on the proposed regulations having little to no impact on businesses and, the potential for enhanced business opportunities, the department has determined that the proposed rule will not impose an adverse economic impact or reporting, record keeping, or other compliance requirements on small business or local governments. There will be no impacts on local governments. The regulation removes previous restrictions to obtaining a license from the department.

Since the department’s proposed rule making will not impose an adverse impact on businesses or local governments, including little effect on current reporting, record-keeping or compliance requirements, the department has concluded that this proposed regulation does not require a Regulatory Flexibility Analysis.

Rural Area Flexibility Analysis

1. Types and estimated numbers of rural areas:

The proposed rule will ensure that Correction Law Article 23-A balancing test will be used in evaluating applicants for these licenses who have criminal convictions. The rule allows individuals in New York State who have a felony record to become a License Issuing Officer or Wildlife Rehabilitator. Consequently, the proposed regulation impacts rural areas throughout the state.

2. Reporting, recordkeeping and other compliance requirements; and professional services:

The proposed rule does not add any additional requirements for record keeping or requirements for obtaining a license.

3. Costs:

There are no application or license fees associated with the License Issuing Officer or Wildlife Rehabilitation licenses. There are no additional costs associated with obtaining these licenses. To qualify for a Wildlife Rehabilitation license an applicant must first pass a written exam administered by the department which tests the knowledge and skill of potential licensees. There is no fee for this examination and a free study guide is available on line to aide in preparation for the exam.

4. Minimizing adverse impact:

The proposed rulemaking will allow individuals who were previously prohibited from obtaining these licenses to now obtain them. The proposed changes will provide new opportunities to a percentage of the population that was previously excluded from these activities thereby having a positive effect on rural areas. The proposed rule may also have a beneficial impact on small businesses as some business owners may opt to provide the additional service of selling sport licenses.

5. Rural area participation:

The regulation removes previous restrictions to obtaining a license from the department.

Job Impact Statement

The purpose of this rulemaking is to amend both 6 NYCRR Part 183 and 184 by ensuring that Correction Law Article 23-A balancing test will be used in evaluating applicants for these licenses who have criminal convictions. The proposed rulemaking will provide opportunities to individuals who have been convicted of or pled guilty to a misdemeanor or felony by allowing them to obtain department issued licenses that will enable them to integrate back into the work force. The proposed rulemaking will provide regulatory relief by removing the requirement that individuals applying to be license issuing agents or wildlife rehabilitators must not have been found guilty or pled to a felony or misdemeanor charge within three years of application.

The proposed rulemaking will allow access to individuals who previously could not partake in these activities. The proposed rulemaking will not have a substantial adverse impact on jobs or employment opportunities. Moreover, this rule making is not expected to adversely affect the number of participants or frequency of participation in the regulated activities.

For these reasons, the department anticipates that the proposed regulatory changes will not have an adverse impact on jobs or employment opportunities in New York, and that a Job Impact Statement is not required.