PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following proposed rule:
Proposed Action:
Amendment of Part 722 of Title 7 NYCRR.
Statutory authority:
Correction Law, section 112
Subject:
Forwarding Inmate Mail.
Purpose:
To provide clarity and to update current department policy and practice with US Postal Service Rules and practices.
Text of proposed rule:
The Department of Correctional Services amends, adds to and repeals and reserves the following sections of 7 NYCRR, Part 722.
Amend section 722.1(c) as indicated below:
(c) No mail will be forwarded to a released inmate unless a change of address order is on file. Mail will be forwarded for a period of two months.
Add new sections (d) and (e) to Part 722.2, renumber existing section 722.2(d) to (f) and amend the newly numbered 722.2(f) as indicated below:
(d) Facilities must comply with the United States Postal Service Requirements which require the facility to assume financial responsibility for forwarding any inmate mail it opens. Each facility will be required to establish a procedure to verify the presence of inmates at the facility prior to opening inmates' mail. When the facility opens the letter of an inmate no longer at the facility, it has the option of using the facility mail pouch or returning it to the Post Office for forwarding. When it is returned to the Post Office for forwarding, it must be placed in a new envelope, be properly addressed and be stamped with the appropriate amount of postage.
(e) Facilities are also required to assume responsibility for any accountable mail for which they sign. Accountable mail is deemed to be any mail which requires a signature to be received. Once the facility signs for accountable mail, it will assume responsibility for any financial cost of forwarding it to the inmate. The facility will forward legal (i.e., from a judge, clerk of court or attorney), accountable mail forthwith and assume financial liability if forwarded through the Post Office. Non-legal accountable mail may be forwarded in the facility's mail pouch if forwarded within five business days.
[d](f) The correspondence unit at the facility which receives the mail is responsible for checking to see if the inmate is in the facility and for the proper delivery or forwarding of all inmate mail.
Add new section (b) to Part 722.3, renumber existing sections 722.3 (b), (c) & (d) to 722.2 (c), (d) & (e) and amend the newly numbered section 722.3(c) as indicated below:
(b) Forwardable mail is considered to be: first class mail; mail with endorsements, i.e., special services requested to forward or provide address correction; second and personal third class mail whereby an inmate has completed a Change of Address Order, Form 2101, guaranteeing postage.
[b](c) Non-forwardable mail is considered to be: [G]general distribution mail addressed to "Box Holder," "Occupant," or similar impersonal addresses and second and personal third class mail for which the inmate has not completed a Change of Address Order, form 2101. [should not be accepted at the facility but rather returned in bulk to the post office.]Non-forwardable mail should be disposed of as it cannot be returned to the Post Office.
[c](d) Holding of mail or disposing of it other than as outlined herein may be construed as a violation of statutes concerning obstruction of mails. It is therefore extremely important that mail be forwarded without delay following the instructions set forth below.
[d](e) The correspondence unit is responsible for forwarding inmate mail.
Amend sections 722.4(a)(1), (a)(2), (a)(3)(ii); add a new note following section 722.4(a)(3)(iii); amend sections 722.4(b)(2) and (b)(4), as indicated below; and repeal and reserve section 722.4(c).
(a) Reception facility. An employee delegated by the superintendent shall inform newly received inmates of:
(1) the department's correspondence procedures as set forth in Part 720 of this[e] Title;
(2) United States postal regulations regarding forwarding of mail (see section 722.7subdivision [a[c]] of this part[section]); and
(3) their responsibilities regarding the forwarding of mail when transferred or discharged which are to:
(ii) complete a Change of Address Order, Form 2101 at the current facility prior to transfer, when possible, to guarantee the postage for the forwarding of second class mail (magazines and newspapers), and/or personal third class materials (i.e., catalogues, newsletters, and photographs); and[notify the facility from which he/she is transferred of what mail, other than first class or legal mail, to redirect and what charges will be accepted; and]
(iii) consider the possibility of transfer before ordering publications or subscriptions or placing mail orders.
Note: When the Change of Address Order, Form 2101 cannot be completed prior to transfer, the inmate should fill out the form and send it to the Correspondence Unit of the receiving facility. The receiving facility will mail it back to the transferring facility.
(b) Other facilities. An employee designated by the superintendent shall:
(2) provide incoming inmates with change of address order, form 2101, to inmates who did not complete the form at the transferring facility[to be returned to the correspondence unit at the facility from which he/she was transferred];
(4) collect completed forms, send to the correspondence unit and forward to the appropriate transferring facility.
(c) Repeal and reserve this section.
Add new section 722.5(a)(1) and renumber existing sections (a) (1)-(3) to (a)(2)-(4), amend newly numbered section 722.5(a)(4) and add new section 722.5(a)(5) as indicated below:
(a) Transfer.
(1) An employee designated by the Superintendent shall provide transferring inmates with a Change of Address Order, Form 2101, to be sent to the Correspondence Unit of the transferring facility.
(2)[1] The correspondence unit of the transferring facility shall, upon notification via the facility "Change Sheet," pull the file card(s) for the inmate(s) transferred from the active file noting facility transferred to and refile in the transfer file.
(3)[2] Forward all first-class and legal mail to the inmate at his/her new facility.
(4)[3] If a completed change of address order, form 2101, is filled out at the facility or received from the inmate after transfer, readdress all other forwardable mail as specified by the inmate. The receiving facility shall pay any postage due and debit the inmate's account, or encumber it if the inmate does not have enough money to cover the charges.
(5) If the inmate refuses to guarantee postage for some or all personal third class mail, it will be disposed of, as it cannot be returned to the Post Office.
Amend section 722.5(b)(1); add new section 722.5(b)(3)(iii) and renumber existing sections (b)(3)(iii) and (b)(3)(iv) to (b)(3)(iv) and (b)(3)(v); amend section 722.5(b)(4)(ii); and add new section 722.5(b)(4)(iii) as indicated below:
(b) Releases.
(1) When the inmate to be released signs for his/her property, he/she shall be given a change of address order, form 2101, and instructed to complete it and turn it in when the inmate picks up and signs for his/her money.
(3) If the inmate files a change of address order, form 2101, the correspondence unit shall:
(iii) Dispose of second or personal third class mail for which the inmate has refused to guarantee postage;
(iv)[iii] after a two-month period, stamp all mail received "Not Here" and return to the post office; and
(v)[iv] retain the change of address order, form 2101, in a dead file for a year to document inmate's instructions.
(4) If a completed change of address order, form 2101, has not been filed:
(ii) stamp all first class and forwardable mail received for that particular inmate "Not Here" and return to the post office.
(iii) Dispose of any second or personal third class non-forwardable mail received for that particular inmate.
Amend section 722.5(c)(3)(ii); and repeal and reserve section 722.5(c)(3)(iii) as indicated below:
(c) "Out-to-Court."
(3)(i) If an inmate does not file a change of address order (form 2101), all mail, including legal mail, will be held until the inmate's return.
(ii) The senders of legal mail shall be advised by form letter (see section 722.7 subdivision (b) [subparagraph [iii]] of this part[paragraph]) that the inmate is temporarily absent from the facility and that the legal mail received for the inmate will be held until the inmate's return.
(iii) Repeal and reserve this section.
Amend sections 722.5(d)(3) and (e)(ii); add new section 722.5(e)(iii) and renumber existing section (e)(iii) to (e)(iv); and amend 722.5(e)(2); and as indicated below:
(d) "Out to Hospital Inmates".
(3) If the inmate has not filed a change of address order (form 2101), all mail, including legal mail, will be held until the inmate's return. The senders of legal mail shall be advised by form letter (see section 722.7, subdivision (b)[] of this part[]) that the inmate is temporarily absent from the facility and that the legal mail received for the inmate will be held until the inmate's return.
(e) Turned over to another jurisdiction.
(1) If the inmate files a change of address order, form 2101, the correspondence unit shall:
(i) readdress forwardable mail, as specified by the inmate, for a period of six months;
(ii) after a six-month period, stamp all mail received "Not Here" and return to the post office; [and]
(iii) dispose of any second or personal third class non-forwardable mail received for that particular inmate, and
(iv)[iii] retain the change of address order, form 2101, in a dead file for a year to document inmate's instructions.
(2) If a completed change of address order, form 2101, has not been filed, stamp all first class and forwardable mail received for that particular inmate "Not Here" and return to the post office.
Dispose of non-forwardable second and personal third class mail for that particular inmate.
Amend section 722.6 (a) to include a copy of form 2101 and amend section 722.6 (b)(5) as indicated below:
(a) Complete a change of address order, form 2101.
See Appendix in this issue of the Register.
(b) Give particular attention to:
(1) legible printing of date;
(2) effective date of change;
(3) name and department identification number (DIN);
(4) new facility for transferred inmates or new addresses for released inmates;
(5) check ()[line out] "do" or "do not" as it relates to guarantee of postage; and
(6) ensure that the form is signed and dated.
Add new Part 722.7 as indicated below.
Section 722.7. Attachments.
722.7(a) Attachment "A", US Postal Service Forwarding Rules and Rates.
Class
Rules
Rates
. . . 1st. (Including Post Cards) and Priority Mail
Will not be forwarded if it has been opened.
No additional fees.
. . . 2nd. . . . (Magazines, Newspapers)
Subject to additional postage for forwarding at the transient rate computed on each individually addressed copy.
The transient rate is for the first two ounces and each additional ounce or fraction, or at the 4th Class rate, whichever is lower. Should be marked "2nd Class."
Subject to collection of additional postage, must weigh less than 16 oz.
Rates based on each 2 oz. or fraction of 2 oz.
. . . 4th. (Parcel Post)
Subject to collection of forwarding postage at 4th Class rate upon delivery.
Rates vary according to distance and weight. Outsize and over 15 pound items have different rate schedule.
Certified, C.O.D. Insured, Registered Special Delivery and Special Handling
Subject to any ordinary forwarding postage charges. Will not be forwarded to a foreign country.
No additional fees.
722.7(b). Form Letter.
DATE
ADDRESSEE
RE: Legal Mail for Inmate
INMATE NAME, DIN
Dear Sir/Madam:
Legal mail for the above-named inmate was recently received from your office. Please be advised that this inmate is temporarily absent from this facility, and may not return in the immediate future. To avoid the confusion and delay that can accompany repeated attempts to forward this mail, it will be held at this facility until the inmate's return. If your correspondence requires a timely response from the inmate, you may wish to ascertain the current whereabouts of the inmate by contacting the Inmate Records Coordinator of this facility at (phone number). You may then direct a second copy to the inmate at the temporary location.
Sincerely,
Superintendent
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 12226-2050, (518) 457-4951, email: Maureen.Boll@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 the Correction Law assigns to the commissioner of correction the powers and duties of management and control of correctional facilities, the inmates confined therein and the government and fiscal concerns thereof.
Legislative Objective:
By vesting the commissioner with this rulemaking authority, the legislature intended the commissioner prescribe regulations that are reasonable with respect to implementation by staff and are consistent with state and federal mandates.
Needs and Benefits:
Local post offices provide mail to correctional facilities with bulk delivery service only, sorting all mail by facility address. The US Postal Service's responsibility ends when such mail is delivered to the facility address. It then becomes the responsibility of department staff to ensure that each inmate receives all mail that is addressed to them. A postal change of address form is not honored by the US Postal Service for the forwarding of inmate mail in the event of an inmate transfer or release from custody. Therefore the Commissioner has promulgated this regulation to develop procedures to ensure timely and accurate forwarding of inmate mail within reasonable timeframes and at reasonable costs to the Department. The Commissioner has previously determined that the Department will bear any associated postage costs for the forwarding of first class and legal mail ("forwardable mail"), as long as the inmate remains within the custody of the department. New sections 722.2(d), 722.2(e), 722.3(b) and amended section 722.3(c) center on the Department's responsibility with regard to the forwarding of first class and legal mail as opposed to second and third class mail. Amended sections 722.4(a)(3)(ii), the new note after section 722.4(a)(3)(iii), new sections 722.5(a)(1), 722.5(a)(5) and 722.5(e)(iii), and amended sections 722.5(b)(3)(iii), 722.5(b)(4)(iii) and 722.5(e)(2), provide clarification with regard to the duty of staff to inform inmates of their responsibility to assume postage costs for the forwarding of second and third class mail, via the completion of Department form 2101, "Change of Address Order" and clarify the disposition of second and third class mail in the event the inmate refuses to bear these postage costs or is indigent, since the Post Office will not accept the return of such mail.
These changes were necessary in order for the regulation to accurately reflect the Department's current policies and practices with regard to the forwarding of inmate mail, as well as the rules and practices of the Unites States Postal Service as they impact the Department with regard to the forwarding of inmate mail. A new section 722.7 was created for the purpose of including the "US Postal Service Forwarding Rules and Rates" chart and department form letter as attachments, rather than leave them in the text. This is consistent with how the department generally attaches forms and/or exhibits to policy statements.
Costs:
a. To regulated parties: There are no new costs associated to the regulated parties. The regulation currently requires inmates to accept any associated postage costs to forward their second and third class mail if they want to receive them at their new facility. The maximum cost of mailing a magazine or newspaper which weighs over three pounds is $4.80 for first class mail. The inmate can decline to have his or her second and third class mail forwarded or they can contact the vendor to advise them of their new address.
b. To agency, the state and local governments: There are no new costs associated to the agency. The regulation currently requires the department to bear any associated postage costs for the forwarding of first class, legal and accountable mail as long as the inmate remains in the custody of the department. Costs can be eliminated or reduced by using the interdepartmental mail system for forwarding inmate mail which is not time sensitive.
c. Source of information: Bureau of Internal Controls.
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:
The department considered not promulgating these rules, but it was determined that it was in the best interest of all concerned parties that this regulation should better define the types of mail to be forwarded and the responsibilities of staff and inmates in having their mail forwarded upon the inmate's transfer to another facility, if the inmate leaves the custody of the department or the inmate is temporarily away from the facility, (i.e. out to court, out to hospital, furlough, etc.).
The department considered using the interdepartmental mail system to forward inmates' second and third class mail, however, this is not feasible due to the volume, size, weight and number of magazines, newspapers, catalogues, etc. received on a daily basis for approximately 60, 000 inmates. This would be an unreasonable burden to facility staff to forward thousands of second and third class pieces of mail a day. The department also expects inmates to take responsibility for their second and third class mail by either paying the cost associated in forwarding it or by contacting the vendor in order to change their mailing address. If the department assumed responsibility for forwarding an inmate's second and third class mail, there would be little or no motivation for inmates to contact vendors to change their mailing address subsequently creating a growing volume of bulk mail to be forwarded as more inmates are transferred.
Federal Standards:
There are no minimum standards of the Federal government for this or 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 or reporting, recordkeeping or other compliance requirements on small businesses or local governments. This proposal is merely updating and clarifying the regulation with regard to policies and procedures that are currently in practice for the forwarding of inmate mail.
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 is merely updating and clarifying the regulation with regard to policies and procedures that are currently in practice for the forwarding of inmate mail.
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 is merely updating and clarifying the regulation with regard to policies and procedures that are currently in practice for the forwarding of inmate mail.
