PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following proposed rule:
Proposed action:
Repeal of section 270.2(B)(6)(iii), addition of sections 270.2(B)(6)(iv)–(v) and amendment of section 712.2(i) of Title 7 NYCRR.
Statutory authority:
Correction Law, sections 112 and 138
Subject:
Standards of inmate behavior, classification of each infraction, institutional rules of conduct and media review.
Purpose:
To clarify and expand the types of unauthorized materials that can result in disciplinary action if possessed by inmates, and amend media review standards accordingly.
Text of proposed rule:
Repeal and reserve section 270.2(B)(6)(iii) of Title 7 NYCRR (Rule 105.12).
Addition of two new sections 270.2(B)(6)(iv) and 270.2(B)(6)(v) to read as follows:
270.2(B)(6)(iv)
105.13
An inmate shall not engage in or encourage others to engage in gang activities or meetings, or display, wear, possess, distribute or use gang insignia or materials including, but not limited to, printed or handwritten gang or gang related material.
I, II, III
Note:
For purposes of this rule, a gang is a group of individuals, having a common identifying name, sign, symbol or colors, who have individually or collectively engaged in a pattern of lawlessness (e.g., violence, property destruction, threats of harm, intimidation, extortion, or drug smuggling) in one or more correctional facilities or that are generally recognized as having engaged in a pattern of lawlessness in the community as a whole. For purposes of this rule, printed or handwritten gang or gang related material is written material that, if observed in the inmate's possession, could result in an inference being drawn about the inmate's gang affiliation, but excludes published material that that the inmate has obtained through the facility library or that has been approved for the inmate to possess through the media review process.
270.2(B)(6)(v)
105.14
An inmate shall not engage in or encourage others to engage in unauthorized organizational activities or meetings, or possess printed or handwritten material relating to an unauthorized organization where such material advocates either expressly or by clear implication, violence based upon race, religion, sex, sexual orientation, creed, law enforcement status or violence or acts of disobedience against department employees or that could facilitate organizational activity within the institution by an unauthorized organization.
I, II, III
Note:
For purposes of this rule an unauthorized organization is any organization which has not been approved by the deputy commissioner for program services. Printed or handwritten material that could facilitate organizational activity includes, but is not limited to, a membership roster, organizational chart, constitution or by-laws. This rule excludes possession of published material that the inmate has obtained through the facility library or that has been approved for the inmate to possess through the media review process. During the pendency of an application to obtain authorization for a proposed inmate organization, the rule also excludes specific printed or handwritten material that the Deputy Superintendent of Programs or higher ranking employee has requested in writing the inmate submits as part of the application process.
Amend Section 712.2(i) of Title 7 NYCRR by adding a note to read as follows:
(i) The department reserves the right to deny the inmate publications which may be held noninciteful or nonadvocative, as the case may be, during the media review process, but which actually result in violence or disobedience after entrance into a facility, as is clearly set forth in paragraphs (h)(3) and (6) of this section. Such items shall be referred to the Facility Media Review Committee, and if appealed, referred to the Central Office Media Review Committee, for decision.
Note:
There also may exist certain written material that, if observed by a fellow inmate in the inmate's possession, could result in an inference being drawn about the inmate's gang affiliation and thereby target him or her for assault or result in other disruptive conduct. There likewise may exist certain written material that could facilitate organizational activity within an institution by an organization that has not been approved by the deputy commissioner for program services to operate within that institution. Material that could facilitate organizational activity includes, but is not limited to, a membership roster, organizational chart, constitution or by-laws. All such material described in this note can be disallowed although otherwise determined not to incite or advocate for violence or disobedience.
Text of proposed rule and any required statements and analyses may be obtained from:
Anthony J. Annucci, Deputy Commissioner and Counsel, Department of Correctional Services, Bldg. 2, State Campus, Albany, NY 12226-2050, (518) 457-4951, e-mail: AJAnnucci@docs.state.ny.us
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
Statutory Authority
Section 112 of Correction Law grants the Commissioner of DOCS the superintendence, management and control of the correctional facilities and inmates confined therein and to promulgate rules and regulations for this purpose. Section 138 of Correction Law grants the Commissioner the ability to establish institutional rules and regulations that define and prohibit inmate misconduct provided such rules are published and posted so that all inmates are given notice of the prohibited conduct and the range of disciplinary sanctions that may occur due to violations of said rules.
Legislative Objective
By vesting the commissioner with this rulemaking authority, the legislature intended the commissioner to promulgate such rules, regulations and disciplinary standards so as to provide for the safe, secure and orderly operation of correctional facilities for both staff and inmates and to help ensure public safety.
Needs and Benefits
Rule 105.12 is one of the rules of conduct that collectively make up the standards of inmate behavior. The rule makes subject to inmate discipline certain activities and materials associated with gangs and other unauthorized organizations. The proposed rulemaking takes what was previously one rule and replaces it with two separate rules, each with an accompanying note. The new rules and accompanying notes will enhance clarity regarding the scope of the prohibited conduct. It is expected that this will allow for better inmate compliance and more uniform statewide enforcement. Proposed Rule 105.13 is limited to the activities and materials associated with gangs. Proposed Rule 105.14 is limited to the activities and materials associated with other unauthorized organizations. The only other change is the addition of a clarifying note added to the regulations governing media review. The note reiterates the security concerns associated with an inmate's possession of gang related written material as well as written material that could facilitate organizational activity within a correctional facility by other unauthorized organizations.
Costs
a. To agency, state and local government: No discernable costs are anticipated.
b. Cost to private regulated parties: None. The proposed rule changes do not apply to private parties.
c. This cost analysis is based upon the fact that the rule changes merely clarify and expand upon previously established rules regarding internal management and Standards of Inmate Behavior. No additional procedures or new staff are necessary to implement the proposed changes.
Local Government Mandates
There are no new mandates imposed upon local governments by these proposals. The proposed amendments do not apply to local governments.
Paperwork
There are no new reports, forms or paperwork that would be required as a result of amending these rules.
Duplication
These proposed amendments do not duplicate any existing State or Federal requirement.
Alternatives
One alternative would be to leave Rule 105.12 of the inmate rules of conduct unchanged and omit the note to the regulations governing the media review process. This alternative would reduce the ability to provide enhanced consistency and clarity regarding the operation of the rule.
Another alternative would require all printed or handwritten material found in an inmate's possession processed through media review, see Part 712 of Title 7 NYCRR, prior to the possible imposition of inmate discipline. Media Review, however, governs “publications” or portions thereof and generally not handwritten or typed material. Expanding the role of media review committees to cover any handwritten or typed pieces of paper that may be found in the possession of the over 62,000 inmates under State custody would overwhelm the current media review process. Furthermore, to the extent that gang or gang related material is involved, such material constitutes an undue risk to safety and security irrespective of its overall content. This is the case because the mere possession of gang or gang related material, if observed in an inmate's possession by other inmates, could result in an inference being drawn about the inmate's gang affiliation and thereby target the inmate for assault or result in other disruptive conduct. Concomitant with the implementation of the proposed rules, however, the Department will issue instructions that any publication relating to an unauthorized organization, other than a gang, be forwarded to media review in accordance with 7 NYCRR § 712.3(b)(2), prior to the possible imposition of inmate discipline. Finally, it should be noted that prohibited material in proposed Rule 105.14 is narrowly circumscribed and in the accompanying note to Rule 105.13, the term gang is well defined. Consequently, with or without media review committee involvement, possession of only limited and identified printed or handwritten material may subject an inmate to possible disciplinary action.
Federal Standards
There are no minimum standards of the Federal government for this or a similar subject area.
Compliance Schedule
The Department of Correctional Services will achieve compliance with the proposed rules immediately.
Regulatory Flexibility Analysis
A regulatory flexibility analysis is not required for this proposal since it will not impose any adverse economic impact or reporting, recordkeeping or other compliance requirements on small businesses or local governments. This proposal clarifies Internal Management issues with regard to the Department's Institutional Rules of Conduct and the Department's Media Review Standards, specifically, but not limited to, the definition of a “gang”.
Rural Area Flexibility Analysis
A rural area flexibility analysis is not required for this proposal since it will not impose any adverse economic impact or reporting, recordkeeping or other compliance requirements on rural areas. This proposal clarifies Internal Management issues with regard to the Department's Institutional Rules of Conduct and the Department's Media Review Standards, specifically, but not limited to, the definition of a “gang”.
Job Impact Statement
A job impact statement is not submitted because this proposed rule will have no adverse impact on jobs or employment opportunities. This proposal clarifies Internal Management issues with regard to the Department's Institutional Rules of Conduct and the Department's Media Review Standards, specifically, but not limited to the definition of a “gang”.
