ENV-34-15-00028-A Qualifications for License Issuing Agents and Wildlife Rehabilitators

9/14/16 N.Y. St. Reg. ENV-34-15-00028-A

NEW YORK STATE REGISTER

VOLUME XXXVIII, ISSUE 37

September 14, 2016

RULE MAKING ACTIVITIES

DEPARTMENT OF ENVIRONMENTAL CONSERVATION

NOTICE OF ADOPTION

 

I.D No. ENV-34-15-00028-A

Filing No. 815

Filing Date. Aug. 25, 2016

Effective Date. Sept. 14, 2016

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 action:

Action taken:

Amendment of Parts 183 and 184 of Title 6 NYCRR.

Statutory authority:

Environmental Conservation Law, sections 11-0305, 11-0515, 11-0713 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 or summary was published

in the August 26, 2015 issue of the Register, I.D. No. ENV-34-15-00028-P.

Final rule as compared with last published rule:

No changes.

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

Joseph Therrien, NYS Department of Environmental Conservation, 625 Broadway, Albany, NY 12233, [phone], email: [e-mail]

Initial Review of Rule

As a rule that requires a RFA, RAFA or JIS, this rule will be initially reviewed in the calendar year 2021, which is the 4th or 5th year after the year in which this rule is being adopted. This review period, justification for proposing same, and invitation for public comment thereon, were contained in a RFA, RAFA or JIS.

Attached is an assessment of public comment on the issue of the 4 or 5-year initial review period.

Assessment of Public Comment

The Department of Environmental Conservation (department) received comments from 20 individuals and from two organizations representing the sport hunting community on the proposed amendments to the New York State Wildlife Rehabilitation and License Issuing Agents regulations during the sixty day public comment period, August 26 to November 24, 2015. The amended regulations allow individuals who have been convicted of one or more criminal offenses to become wildlife rehabilitators or license issuing agents provided there is not a direct relationship between one or more of the criminal offenses and the duties required of the license or, licensing the applicant would not involve an unreasonable risk to property or the safety or welfare of a specific individual or the general public.

All individuals and groups who provided comments were opposed to the proposed regulations, specifically access to hunters, anglers and trappers personal and financial information by individuals convicted of crimes should they be allowed to become license issuing officers. No comments were received opposing individuals convicted of crimes being allowed to become wildlife rehabilitators. Eight of the comments received expressed concern about individuals convicted of crimes having knowledge of private (hunters) residences likely to have guns. Among the comments received was concern for the integrity of DEC’s license sales system and the likelihood that sport hunters, anglers and trappers may not have confidence in using the system to obtain their licenses.

Department response: The public policy of the state encourages employment and licensure of people with criminal convictions as set forth in New York Corrections Law Article 23-A. Environmental Conservation Law § 11-0713 authorizes license issuing officers to issue sporting licenses and privileges for hunting, fishing and trapping. License issuing officers are entrusted with, among other things, the licensees’ personal and financial information. Therefore, New York State has a responsibility to ensure that license issuing officers exhibit a high level or integrity in the exercise of their duties. This responsibility must be balanced with laws prohibiting discrimination against persons previously convicted of one or more criminal offenses.

In order to overcome the presumption and deem an individual with a prior conviction ineligible to be appointed as a license issuing officer, the department must consider the following statutory factors:

1. The public policy of New York State to encourage the licensure and employment of persons previously convicted of one or more criminal offenses;

2. The specific duties and responsibilities necessarily related to the license issuing officer;

3. The bearing, if any, the criminal offense or offenses for which the person was previously convicted will have on his or her fitness or ability to perform one or more of such duties or responsibilities;

4. The time which has elapsed since the occurrence of the criminal offense or offenses;

5. The age of the person at the time of occurrence of the criminal offense or offenses;

6. The seriousness of the offense or offenses;

7. Any information produced by the person, or produces on their behalf, in regard to their rehabilitation and good conduct; and

8. The legitimate interest of the public agency or private employer in protecting property, and the safety and welfare of specific individuals or the general public.

The department feels that through the proper review of applications for license issuing officers, incorporating the statutory factors, and after a balancing of the factors set out in the Corrections Law, the department can appoint an otherwise qualified applicant with a prior criminal conviction or convictions as a license issuing officer ensuring that appointing the individual as a license issuing officer would not involve an unreasonable risk to property or to the safety or welfare of specific individuals or the general public and, ensure the integrity of the license sales system.