COR-16-11-00001-P Temporary Release Program and Short Term Temporary Release Program

4/20/11 N.Y. St. Reg. COR-16-11-00001-P

NEW YORK STATE REGISTER

VOLUME XXXIII, ISSUE 16

April 20, 2011

RULE MAKING ACTIVITIES

DEPARTMENT OF CORRECTIONAL SERVICES

PROPOSED RULE MAKING

NO HEARING(S) SCHEDULED

 

I.D No. COR-16-11-00001-P

Temporary Release Program and Short Term Temporary Release Program

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

Proposed Action:

Amendment of sections 1900.3(a)(1), 1901.1(a) and (c)(2)(i)(a) of Title 7 NYCRR.

Statutory authority:

Correction Law, sections 112 and 851(2)

Subject:

Temporary Release Program and Short Term Temporary Release Program.

Purpose:

To add language to recognize same-sex marriages under certain circumstances.

Text of proposed rule:

Section 1900.3(a)(1) of Title 7 NYCRR is amended as follows:

To visit his/her spouse, child, brother, sister, grandchild, parent, grandparent or ancestral aunt or uncle during his or her last illness if death appears imminent; (For the purposes of this section the term "spouse" shall also include a person who is the same sex as the inmate if the same-sex marriage or civil union was performed in an outside jurisdiction that authorizes such marriages or unions. Counsel's Office may be consulted to determine whether the outside jurisdiction does authorize same-sex marriages or civil unions.)

Section 1901.1(a) of Title 7 NYCRR is amended as follows:

(a) Leave of absence program. Any inmate may apply for this program, regardless of time criteria, as long as all other requirements are satisfied. The point score must, however, be at least 30. A leave of absence lets the inmate leave an institution to visit his/her spouse, child, brother, sister, grandchild, parent (natural or legally adoptive), grandparent or ancestral aunt or uncle during his or her last illness if death appears to be imminent; to attend the funeral of such individual, or to undergo surgery or to receive medical or dental treatment not available in a correctional institution only if deemed absolutely necessary to the health and well-being of the inmate and where approval is granted by the commissioner or his designee. (For purposes of this section the term "spouse" shall also include a person who is the same sex as the inmate if the same-sex marriage or civil union was performed in an outside jurisdiction that authorizes such marriages or union. Counsel's Office may be consulted to determine whether the outside jurisdiction does authorize same-sex marriages or civil unions.) A temporary release committee form 4188 must be completed and signed by the facility health services director in the last instance.

Section 1901.1(c)(2)(i)(a)(4) of Title 7 NYCRR to be amended and a new subclause (5) added as follows:

(4) common law spouse where the relationship had existed more than one year before incarceration[.];

(5) same-sex spouse where the same-sex marriage or civil union was performed in an outside jurisdiction that authorizes such marriages or unions. Counsel's Office may be consulted to determine whether the outside jurisdiction authorizes same-sex marriage or civil union.

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

Maureen E. Boll, Deputy Commissioner and Counsel, New York State Department of Correctional Services, 1220 Washington Avenue, Building 2 - State Campus, Albany, NY 12206-2050, [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.

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 851(2) requires the commissioner to promulgate regulations to give direction to the temporary release committees at each facility.

Legislative Objective

By vesting the commissioner with this rulemaking authority, the legislature intended the commissioner to ensure that the agency complies with all court decisions and directions provided from the Governor's Office in legally defining spousal relationships.

Needs and Benefits

These rules are being proposed, in accordance with the Governor's direction, in order to bring the agency into compliance with the recent Appellate Division decision that dealt with the recognition of same-sex marriage or civil union under certain circumstances. Specifically, if a same-sex marriage or civil union was performed in another jurisdiction that authorizes such marriages or unions, then under the full faith and credit clause of the United States Constitution, New York must also recognize the validity of such marriage or civil union.

Costs

a) To agency, the state and local governments: None.

b) Costs to private regulated parties: None. The proposed amendment does not apply to private parties.

c) This cost analysis is based upon the fact that this proposal merely defines spousal relationships.

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

No alternatives are apparent and none have been considered as this is a legal court ruling.

Federal Standards

None.

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 merely adds language to recognize same-sex marriage under certain circumstances.

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 merely adds language to recognize same-sex marriages under certain circumstances.

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 merely adds language to recognize same-sex marriages under certain circumstances.