CJS-46-07-00007-E Confirmation of a Victim of Human Trafficking
11/14/07 N.Y. St. Reg. CJS-46-07-00007-E
NEW YORK STATE REGISTER
VOLUME XXIX, ISSUE 46
November 14, 2007
RULE MAKING ACTIVITIES
DIVISION OF CRIMINAL JUSTICE SERVICES
EMERGENCY RULE MAKING
I.D No. CJS-46-07-00007-E
Filing No. 1199
Filing Date. Oct. 30, 2007
Effective Date. Nov. 01, 2007
Confirmation of a Victim of Human Trafficking
PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following action:
Action taken:
Addition of Part 6174 to Title 9 NYCRR.
Statutory authority:
Executive Law, section 837(13); and L. 2007, ch. 74, section 14
Finding of necessity for emergency rule:
Preservation of public safety.
Specific reasons underlying the finding of necessity:
The proposed rule provides a mechanism to a allow victim of human trafficking to receive interim State services pending certification by the federal government that they are a victim of a severe form of trafficking and therefore eligible for federal services. As part of the federal Trafficking Victims Protection Act of 2000, the federal government provides social services and immigration assistance to persons who are certified to be victims of a severe form of human trafficking. Domestic trafficking victims are eligible to receive social services from existing federal, state, and local social services programs. These services include case management, emergency temporary housing, and language and translation services, as well as law enforcement coordination with the federal government to help victims obtain special visas that allow them to remain in the United States. These services are crucial to ensuring victim's assistance in investigating and prosecuting traffickers.
There was a gap in the provisions of services, however, for pre-certified victims. Chapter 74 of the Laws of 2007 (effective November 1, 2007) addresses this gap in services by authorizing access to a broad range of services to pre-certified victims of human trafficking, but only if the Division of Criminal Justice Services, in consultation with the Office of Temporary and Disability Assistance, determines that victim appears to meet the criteria for certification under the federal Trafficking Victims Protection Act of 2000 or is otherwise eligible for federal, state, or local benefits (see Social Services Law section 483-cc). This rule provides the procedure for the Division to make such determination as required by Social Services Law section 483-cc.
The services authorized by Social Services Law section 483-cc are integral to ensuring victims' assistance in investigating and prosecuting human traffickers. Failure to promulgate this rule on an emergency basis may jeopardize prosecution of human trafficking crimes in New York State.
Subject:
Confirmation of a victim of human trafficking.
Purpose:
To implement the provision of Social Services Law section 483-cc by establishing a procedure to determine whether a person appears to be a victim of a severe form of trafficking or appears to be eligible for any Federal, State, or local benefits.
Text of emergency rule:
A new Part 6174 is added to Title 9 NYCRR to read as follows:
Part 6174
Confirmation as a Victim of Human Trafficking
§ 6174.1 Purpose. The provisions of this Part shall govern the Division's determination whether an individual appears to meet the criteria for certification as a victim of a severe form of trafficking in persons as defined in section 7105 of Title 22 of the United States Code or appears to be otherwise eligible for any federal, state or local benefits and services and, if so, referral for services, as provided in Social Services Law § 483-cc.
§ 6174.2 Definitions. When used in this Part:
(a) The term human trafficking victim shall mean a person who is a victim of sex trafficking as defined in section 230.34 of the Penal Law or a victim of labor trafficking as defined in section 135.35 of the Penal Law.
(b) The term Division shall mean the Division of Criminal Justice Services.
(c) The term Commissioner shall mean the commissioner of the Division of Criminal Justice Services.
(d) The term Human Trafficking Director shall mean the Human Trafficking Director within the Division of Criminal Justice Services.
(e) The term Office shall mean the Office of Temporary and Disability Assistance.
§ 6174.3 Confirmation as a human trafficking victim. (a) As soon as practicable after a first encounter with a person who reasonably appears to a law enforcement agency or a district attorney's office to be a human trafficking victim, that agency or office shall notify the Human Trafficking Director and the Office on a form and in a manner prescribed by the Commissioner.
(b) Within three business days after receipt of such referral, the Human Trafficking Director, after consultation with the Office, shall make a determination whether the person appears to either:
(1) meet the criteria for certification as a victim of a severe form of trafficking in persons as defined in section 7105 of Title 22 of the United State Code; or
(2) be otherwise eligible for any federal, state, or local benefits and services.
(c) If upon good cause, and after consultation with the Office, the Director of Human Trafficking determines that more time is required to make such determination, the Director of Human Trafficking may extend the time period set forth in subdivision (b) of this section.
(d) In making such determination, the Human Trafficking Director shall consider, among other things:
(1) the age and citizenship of the person, if known;
(2) the facts and circumstances surrounding the victimization upon which the referral is based;
(3) the facts and circumstances regarding the Penal Law trafficking crime committed against the victim;
(4) whether the person had been recruited, harbored, transported, provided, or obtained for labor or services through the use of force, fraud or coercion for the purpose of subjection to involuntary servitude, peonage, debt bondage or slavery;
(5) whether the person had been recruited, harbored, transported, provided, or obtained for the purpose of a commercial sex act induced by force, fraud, or coercion; or
(6) whether the person had been recruited, harbored, transported, provided, or obtained for the purpose of a commercial sex act and the person induced to perform such act was less than 18 years old; and
(7) whether the person:
(i) is willing to assist in every reasonable way with respect to the investigation and prosecution of severe forms of trafficking or of state and local crimes where severe forms of trafficking in persons appear to have been involved; and
(ii) whether the person appears to meet the criteria for a bona fide application for a visa under section 1101(a)(15)(T) of Title 8 of the United States Code or is a person whose continued presence in the United States the United States Attorney General and the United States Secretary of Homeland Security are likely to ensure in order to effectuate prosecution of trafficking in persons.
(e) If the Human Trafficking Director determines that the person appears to meet the criteria for certification as a victim of a severe form of trafficking in persons, as defined in section 7105 of Title 22 of the United States Code, or appears to be otherwise eligible for any federal, state or local benefits and services, he or she shall immediately notify the Office in writing which shall thereafter notify the victim and the referring law enforcement agency or district attorney's office, and the Office may assist the victim and referring law enforcement agency or a district attorney's office in making services available to the victim.
(f) If the Human Trafficking Director determines that the person does not appear to meet the criteria for certification as a victim of a severe form of trafficking in persons, as defined in section 7105 of Title 22 of the United States Code, or does not appear to be otherwise eligible for any federal, state or local benefits and services, he or she shall immediately notify in writing the victim, the referring law enforcement agency or district attorney's office, and the Office.
(g) The Human Trafficking Director shall issue to the victim, the Office, and referring law enforcement agency or district attorney's office a written explanation setting forth the basis for his or her determination within ten business days of receipt of the referral.
§ 6174.4 Appeal. (a) A determination by the Human Trafficking Director that the person does not appear to either meet the criteria for certification as a victim of a severe form of trafficking in persons as defined in section 7105 of Title 22 of the United State Code or be otherwise eligible for any federal, state, or local benefits and services may be appealed to the Commissioner.
(b) Such appeal shall set forth the reasons why the appellant believes the determination rendered by the Human Trafficking Director was incorrect, and shall be filed with the Commissioner in writing within twenty business days of issuance of the Human Trafficking Director's written explanation.
(c) The Commissioner, after consultation with the Office, shall issue a written response to the appellant, the Office, and the referring law enforcement agency or district attorney's office within fifteen business days of receipt of the written appeal. If the Commissioner determines that the appellant does appear to either meet the criteria for certification as a victim of a severe form of trafficking in persons as defined in section 7105 of Title 22 of the United State Code or be otherwise eligible for any federal, state, or local benefits and services, the Office may assist the victim and referring law enforcement agency or district attorney's office in receiving services.
§ 6175.5 Consultation with the Office. The Division shall consult with the Office regarding the confirmation of human trafficking victims pursuant to Social Services Law section 483-cc, including, but not limited to, the form and manner in which a law enforcement agency or district attorney's office shall refer a person who reasonably appears to be a human trafficking victim.
This notice is intended
to serve only as a notice of emergency adoption. This agency does not intend to adopt the provisions of this emergency rule as a permanent rule. The rule will expire January 27, 2008.
Text of emergency rule and any required statements and analyses may be obtained from:
Mark Bonacquist, Division of Criminal Justice Services, Four Tower Place, Albany, NY 12203, (518) 457-8413
Regulatory Impact Statement
1. Statutory authority: Executive Law section 837(13); chapter 74, section 14, of the laws of 2007.
2. Legislative objectives: Executive Law section 837(13) authorizes the Commissioner of the Division of Criminal Justice Services to promulgate regulations necessary or convenient to the performance of the functions, powers, and duties of the Division. Chapter 74, section 14, of the laws of 2007 authorizes the Division to promulgate regulations necessary for the timely implementation of the provisions of Social Services law section 483-cc.
3. Needs and benefits: In 2007, the United States Department of State estimated that approximately 14,500 to 17,500 people are trafficked into the United States each year for forced labor, involuntary domestic servitude, or sexual exploitation. New York is a frequent hub of such activity. Trafficking also originates domestically, and both types of trafficking frequently involve children. In fact, the Office of Children and Family Services recently estimated that over 2,500 children in New York State are exploited for purposes of commercial sexual activity each year.
The rule provides a mechanism to a allow a victim of human trafficking to receive interim State services pending certification by the federal government that they are a victim of a severe form of trafficking and therefore eligible for federal services. As part of the federal Trafficking Victims Protection Act of 2000, the federal government provides social services and immigration assistance to persons who are confirmed to be victims of a severe form of human trafficking. Domestic trafficking victims are eligible to receive social services from existing federal, state, and local services programs. These services include case management, emergency temporary housing, and language and translation services, as well as law enforcement coordination with the federal government to help victims obtain special visas. These services are crucial to ensure victims' assistance in investigating and prosecuting human trafficker crimes.
There was a gap in the provision of services, however, for pre-certified victims. Chapter 74 of the Laws of 2007 addressed this gap in services by authorizing access to a broad range of services to pre-certified victims of human trafficking, but only if the Division of Criminal Justice Services, in consultation with the Office of Temporary and Disability Assistance (OTDA), determines that victim appears to meet the criteria for certification under the federal Trafficking Victims Protection Act of 2000 or is otherwise eligible for federal, state, or local benefits (see Social Services Law section 483-cc). This rule provides the procedure for the Division to make such determinations as required by Social Services Law section 483-cc.
The services authorized by Social Services Law section 483-cc are integral to ensuring victims' assistance in investigating and prosecuting human trafficker crimes. Failure to promulgate this rule on an emergency basis may jeopardize prosecution of human trafficking crimes in New York State.
4. Costs:
a. Costs to regulated parties for the implementation of and continuing compliance with the rule: There should be minimal costs to law enforcement agencies and district attorneys who will be referring potential victims of human trafficking to the Division and the OTDA.
b. Costs to the agency, the state and local governments for the implementation and continuation of the rule: None. Implementation of the confirmation process will be accomplished using existing resources.
c. The information, including the source(s) of such information and the methodology upon which the cost analysis is based: The cost analysis is based on the fact that law enforcement agencies and district attorneys are required only to fax a form containing victim information to the Division and the OTDA.
5. Local government mandates: This proposal would implement the mandate of Social Services Law section 483-cc that law enforcement agencies and district attorneys notify the Division and the OTDA as soon as practicable after their first encounter with a person who reasonably appears to be a human trafficking victim, and provide certain information regarding such victim.
6. Paperwork: The rule requires law enforcement agencies and district attorneys to complete and fax a referral form, prescribed by the Division, as soon as practicable after their first encounter with a person who reasonably appears to be a human trafficking victim which will provide certain information regarding such victim.
7. Duplication: None. There are currently no services available to pre-certified victims of human trafficking.
8. Alternatives: The Commissioner considered not promulgating regulations to implement the provisions of Social Services Law section 483-cc. This alternative was rejected, however, because the Commissioner believes it is necessary to clarify the procedures for law enforcement agencies, district attorneys, and victims to follow in order to implement this new law.
9. Federal standards: As part of the federal Trafficking Victims Protection Act of 2000, the federal government provides social services and immigration assistance to persons who are certified to be victims of a severe form of human trafficking. Domestic trafficking victims are eligible to receive social services from existing federal, state, and local services programs. These services include case management, emergency temporary housing, and language and translation services, as well as law enforcement coordination with the federal government to help victims obtain special visas that allow them to remain in the United States to testify against traffickers. Services are not available, however, for pre-certified, non-citizen victims.
10. Compliance schedule: Regulated parties are expected to be able to comply with the rule immediately.
Regulatory Flexibility Analysis
1. Effect of rule: The rule provides a mechanism to a allow a victim of human trafficking to receive interim State services pending certification by the federal government that they are a victim of a severe form of trafficking and therefore eligible for federal services. As part of the federal Trafficking Victims Protection Act of 2000, the federal government provides social services and immigration assistance to persons who are confirmed to be victims of a severe form of human trafficking. Domestic trafficking victims are eligible to receive social services from existing federal, state, and local services programs. These services include case management, emergency temporary housing, and language and translation services, as well as law enforcement coordination with the federal government to help victims obtain special visas. These services are crucial to ensuring that victims assist with the investigation and prosecution of human trafficking crimes.
There was a gap in the provision of services, however, for pre-certified victims. Chapter 74 of the Laws of 2007 addressed this gap in services by authorizing access to a broad range of services to pre-certified victims of human trafficking, but only if the Division of Criminal Justice Services, in consultation with the Office of Temporary and Disability Assistance (OTDA), determines that victim appears to meet the criteria for certification under the federal Trafficking Victims Protection Act of 2000 or is otherwise eligible for federal, state, or local benefits (see Social Services Law section 483-cc). This rule provides the procedure for the Division to make such determinations as required by Social Services Law section 483-cc.
2. Compliance requirements: This rule would implement the mandate of Social Services Law section 483-cc that law enforcement agencies and district attorneys notify the Division and the OTDA as soon as practicable after their first encounter with a person who reasonably appears to be a human trafficking victim, and provide certain information regarding such victim. The rule requires law enforcement agencies and district attorneys to complete and fax a referral form, prescribed by the Division, as soon as practicable after their first encounter with a person who reasonably appears to be a human trafficking victim which will provide certain information regarding such victim.
3. Professional services: No professional services are required to comply with the rule.
4. Compliance costs: There should be minimal costs to law enforcement agencies and district attorneys who will be referring potential victims of human trafficking to the Division and the OTDA.
5. Economic and technological feasibility: No economic or technological impediments to compliance have been identified.
6. Minimizing adverse impact: The Division attempted to minimize adverse impact on regulated parties by clarifying and standardizing the referral process for law enforcement agencies and district attorneys offices. Representatives of law enforcement agencies and district attorneys offices were consulted regarding the language of the rule.
7. Small business and local government participation: Representatives of law enforcement agencies and district attorneys offices were consulted regarding the language of the rule. Their comments and suggestions were considered in formulating the rule. The rule does not apply to small businesses.
Rural Area Flexibility Analysis
1. Types and estimated numbers of rural areas: The rule applies to every law enforcement agencies and district attorney office in New York State, many of which are located in rural areas.
2. Reporting, record keeping and other compliance requirements and professional services: This rule would implement the mandate of Social Services Law section 483-cc that law enforcement agencies and district attorneys notify the Division and the OTDA as soon as practicable after their first encounter with a person who reasonably appears to be a human trafficking victim, and provide certain information regarding such victim. The rule requires law enforcement agencies and district attorneys to complete and fax a referral form, prescribed by the Division, as soon as practicable after their first encounter with a person who reasonably appears to be a human trafficking victim which will provide certain information regarding such victim. No professional services not already being utilized will be needed to comply with the rule.
3. Costs: There should be minimal costs to law enforcement agencies and district attorneys who will be referring potential victims of human trafficking to the Division and the OTDA.
4. Minimizing adverse impact: The Division attempted to minimize adverse impact on regulated parties by clarifying and standardizing the referral process for law enforcement agencies and district attorneys offices.
5. Rural area participation: Representatives of law enforcement agencies and district attorneys offices, many of whom serve rural areas of the State, were consulted regarding the language of the rule. Their comments and suggestions were considered in formulating the rule.
Job Impact Statement
The rule provides a mechanism to a allow a victim of human trafficking to receive interim State services pending certification by the federal government that they are a victim of a severe form of trafficking and therefore eligible for federal services. As such, it is apparent from the nature and purpose on the proposal that it will have no impact on jobs and employment opportunities.
