PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following action:
Action taken:
Amendment of sections 723.3(d), (e) and 723.5(b), (c) of Title 7 NYCRR.
Statutory authority:
Correction Law, section 112
Subject:
Inmate telephone calls.
Purpose:
To better document public requests not to be contacted by specific inmates, prohibit inmates from contacting their victims or people with court orders of protection.
Text or summary was published
in the notice of proposed rule making, I.D. No. COR-38-07-00004-P, Issue of Sept. 19, 2007.
Final rule as compared with last published rule:
No changes.
Text of rule and any required statements and analyses may be obtained from:
Anthony J. Annucci, Executive Deputy Commissioner, Department of Correctional Services, 1220 Washington Avenue, Albany, NY 12226-2050, (518) 485-9613, e-mail: AJAnnucci@docs.state.ny.us
Assessment of Public Comment
Since publication of a Notice of Proposed Rule Making in the State Register on September 19, 2007, the Department of Correctional Services (DOCS) received the following comment on the proposed amendment.
COMMENT:
One letter was received from an incarcerated inmate with comments to the proposed amendments concerning inmate telephone calls (COR-38-07-00004P), inmate correspondence program (COR-38-07-00005P) and packages and articles sent or brought to institutions (COR-24-07-00008E).
The first comment stated that the filing of any proposed rule by DOCS should include an urban area flexibility analysis and not just a rural area flexibility analysis since the majority of the prison population is comprised of minority groups from urban areas.
The second comment stated that DOCS does not hold public hearings when proposing rules and believes that public hearings should be held in every urban community because these proposed rules directly effect them.
The third comment stated that the New York State Register is not available in urban areas which should be investigated by the New York State Legislature.
Two additional comments concerned the filing of amendment for packages and articles sent or brought to institutions (COR-24-07-00008E).
The first comment stated that this rule continues to be more restrictive as to what is allowed and permitted since some facilities allowed the inmate population to vote as to whether they will become a television facility (inmates who elect to become a television facility are allowed personal televisions in their cells but agree to restrict their package room privileges in exchange).
The second comment stated that DOCS usage of emergency rulemaking as unjustified and an attempt to adopt a rule without public comment.
RESPONSE:
No revision to the proposed regulation is necessary. The comments to these amendments are based upon procedural requirements and filings of the proposed rules and not on the content or subject matter of the proposed regulations.
The submission of a rural area flexibility analysis statement by DOCS is required by the Department of State in accordance with the State Administrative Procedure Act (SAPA), § 202-bb. The legislative intent for requiring a rural area flexibility analysis is noted in the beginning of this section and explains why agencies' proposed rules should be analyzed as to its possible impact on rural areas as compared to suburban and metropolitan areas of the state. A change to this filing requirement is beyond the purview of DOCS.
SAPA itself does not require DOCS to have public hearings on any proposed rules. Regulated parties and the public are given at least 45 days to comment on a rule after it has been published in the New York State Register. Most proposed rules submitted by DOCS directly effect the inmate population with little or no impact on the majority of the public citizens of New York. To hold public hearings in every urban community would add significant costs and extend the processing time for adopting rules submitted by DOCS. The comments presented have not demonstrated any benefit in having public hearings as compared to the current process which has served the public and DOCS well.
Executive Law, article 6-a, §§ 146 & 148, requires the New York State Register to be the primary publication for proposed and adopted rules by agencies and is distributed to the office of the clerk of every county, to every library designated by the commissioner of education, and upon written request, to the office of the clerk of any city, town or village. Such copies shall be made available for public inspection by such offices and libraries for not less than one year. Additionally, access to the New York State Register is available to the public on the Department of State (DOS) website. Again, the comment for a different publication is beyond the purview of DOCS. DOCS does provide copies of the New York State Register for all of its correctional facilities' law libraries, except for work release facilities since the inmates have access to outside libraries. Inmates do have access to the New York State Register as demonstrated when the letter DOCS received had attached current photocopies of the proposed amendments.
The comment that DOCS use of emergency rulemaking is an attempt to adopt a rule without public comment, as noted in the emergency rulemaking filing for packages and articles sent or brought to institutions, is inaccurate. DOCS does acknowledge that the publication of both the emergency rule and adoption of the same rule on September 12, 2007 may have been confusing. This was an unusual circumstance since the notice of emergency/proposed rule was filed on May 29, 2007 and published on June 13, 2007. The time period for public comment expired on August 13, 2007. The emergency rule expired on August 26, 2007. There was insufficient time to file and publish the adoption prior to August 26, 2007 so DOCS was required to file another emergency rule on August 24, 2007 to avoid the expiration of the earlier emergency rule. Subsequently, both the adoption and the second emergency rule were published in the September 12, 2007 issue of the New York State Register. There was an opportunity for public comment on this proposed rule.
Finally, the justification for filing this emergency rule was noted in a four paragraph statement under “Specific reasons underlying the finding of necessity” during the June 13, 2007 and September 12, 2007 publications.
