PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following action:
Action taken:
Amendment of Part 6174 of Title 9 NYCRR.
Statutory authority:
Executive Law, section 837(13); L. 2015, section 32, ch. 368
Subject:
Victims of Human Trafficking.
Purpose:
To conform to the “Trafficking Victims Protection and Justice Act,” as added by chapter 368 of the Laws of 2015.
Text of final rule:
1. A new subdivision (f) is added to section 6174.2 of 9 NYCRR to read as follows:
(f) The term statutory referral source shall mean either (i) the law enforcement agency or district attorney's office, or (ii) an established provider of social or legal services designated by the office, the Office for the Prevention of Domestic Violence, or the Office of Victim Services that, as soon as practicable after a first encounter with a person who reasonably appears to be a human trafficking victim, refers such human trafficking victim to the division and the office for assessment as a State-confirmed human trafficking victim. Provided, however, in the case of an established provider of social or legal services, such established provider shall make a referral if the victim consents to seeking services pursuant to Article 10-D of the Social Services Law.
2. Subdivision (a) of section 6174.3 of 9 NYCRR is amended to read as follows:
(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] statutory referral source to be a human trafficking victim, that agency [or], office or provider shall notify the Human Trafficking Director and the Office on a form and in a manner prescribed by the Commissioner. Provided, however, in the case of an established provider of social or legal services, such established provider shall make the notification if the victim consents to seeking services pursuant to Article 10-D of the Social Services Law.
3. Subdivisions (e), (f) and (g) of section 6174.3 of 9 NYCRR are amended to read as follows:
(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] statutory referral source, and the Office may assist the victim and [referring law enforcement agency or a district attorney's office] statutory referral source 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] statutory referral source, 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] statutory referral source a written explanation setting forth the basis for his or her determination within 10 business days of receipt of the referral.
4. Subdivision (c) of section 6174.4 of 9 NYCRR is amended to read as follows:
(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] statutory referral source within 15 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 States 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] statutory referral source in receiving services.
5. Section 6174.5 of 9 NYCRR is amended to read as follows:
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] statutory referral source shall refer a person who reasonably appears to be a human trafficking victim.
Final rule as compared with last published rule:
Nonsubstantive changes were made in sections 6174.2(f) and 6174.3(a).
Text of rule and any required statements and analyses may be obtained from:
Natasha M. Harvin, Esq., NYS Division of Criminal Justice Services, Alfred E. Smith Building, 80 South Swan Street, Albany, New York 12210, (518) 457-8413, email: natasha.harvin@dcjs.ny.gov
Revised Job Impact Statement
The "Trafficking Victims Protection and Justice Act," as added by Chapter 368 of the Laws of 2015, amends Social Services Law § 483-cc(a), as added by Chapter 74 of the Laws of 2007, to provide that, as soon as practicable after a first encounter with a person who reasonably appears to be a human trafficking victim, an established provider of social or legal services, designated by the Office of Temporary and Disability Assistance (OTDA), the Office for the Prevention of Domestic Violence or the Office of Victim Services, in addition to a law enforcement agency or district attorney's office, shall notify OTDA and the Division of Criminal Justice Services (DCJS) that such person may be eligible for services. In the case of an established provider of social or legal services, such established provider shall notify OTDA and DCJS if the victim consents to seeking services.
This proposal merely implements or conforms to the statutory provisions. As such, it is apparent from the nature and purpose of the proposal that it will have no substantial adverse impact on jobs and employment opportunities.
Assessment of Public Comment
9 NYCRR Part 6174: Confirmation as a Victim of Human Trafficking
The Division of Criminal Justice Services (DCJS) formally proposed amendments of 9 NYCRR Part 6174. A Notice of Proposed Rule Making was published in Issue 3 of the State Register on January 20, 2016 under I.D. No. CJS-03-16-00002-P.
DCJS accepted public comments through March 7, 2016. DCJS received comments from, and on behalf of, Sanctuary for Families, Inc. (SFF). SFF is “New York’s leading service provider and advocate for survivors of domestic violence, sex trafficking and related forms of gender violence.” Although DCJS did not receive any objections to the adoption of the propose rule, it did receive suggested amendments, which were taken into consideration.
Purpose: The "Trafficking Victims Protection and Justice Act," as added by Chapter 368 of the Laws of 2015, amends Social Services Law § 483-cc(a), as added by Chapter 74 of the Laws of 2007, to provide that, as soon as practicable after a first encounter with a person who reasonably appears to be a human trafficking victim, an established provider of social or legal services, designated by the Office of Temporary and Disability Assistance (OTDA), the Office for the Prevention of Domestic Violence or the Office of Victim Services, in addition to a law enforcement agency or district attorney's office, shall notify OTDA and DCJS that such person may be eligible for services. In the case of an established provider of social or legal services, such established provider shall notify OTDA and DCJS if the victim consents to seeking services.
The regulation was proposed as consensus rule because DCJS believed that no person was likely to object to the rule because it would merely implement or conform to statutory provisions.
Comment: SSF is reluctant to being “lumped together” with law enforcement as a “statutory referral source.”
Response: DCJS’ goal is to avoid listing each referral source (law enforcement agency, district attorney’s office or established service provider) individually, each time throughout the regulation. Accordingly, DCJS will not make any changes to the definitions.
Comment: The proposed rule would mandate that the “statutory referral sources,” which includes an “established provider of social or legal services,” notify OTDA and DCJS as soon as practicable after a first encounter with a person who appears to be a human trafficking victim. However, Social Services Law § 483-cc provides that the established provider shall notify OTDA and DCJS “if such victim consents.” “SFF believes that while the statute is clear, DCJS should consider amending the proposed rules to incorporate the victim intent expressed within the statute.”
Response: Social Services Law § 483-cc, upon which the proposed rule is based, provides:
As soon as practicable after a first encounter with a person who reasonably appears to a law enforcement agency, district attorney's office, or an established provider of social or legal services designated by the office of temporary and disability assistance, the office for the prevention of domestic violence or the office of victim services to be a human trafficking victim, that law enforcement agency or district attorney's office shall notify the office of temporary and disability assistance and the division of criminal justice services that such person may be eligible for services under this article or, in the case of an established provider of social or legal services, shall notify the office of temporary and disability assistance and the division of criminal justice services if such victim consents to seeking services pursuant to this article (emphasis supplied).
Accordingly, and based upon the above, DCJS made the following non-substantial changes to the proposed regulation to clarify the text and reflect the “consent” language.
1. A new subdivision (f) is added to section 6174.2 of 9 NYCRR to read as follows:
(f) The term statutory referral source shall mean either (i) the law enforcement agency or district attorney's office, or (ii) an established provider of social or legal services designated by the office, the Office for the Prevention of Domestic Violence, or the Office of Victim Services that, as soon as practicable after a first encounter with a person who reasonably appears to be a human trafficking victim, refers such human trafficking victim to the division and the office for assessment as a State-confirmed human trafficking victim. Provided, however, in the case of an established provider of social or legal services, such established provider shall make a referral if the victim consents to seeking services pursuant to Article 10-D of the Social Services Law.
2. Subdivision (a) of section 6174.3 of 9 NYCRR is amended to read as follows:
(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] statutory referral source to be a human trafficking victim, that agency [or], office or provider shall notify the Human Trafficking Director and the Office on a form and in a manner prescribed by the Commissioner. Provided, however, in the case of an established provider of social or legal services, such established provider shall make the notification if the victim consents to seeking services pursuant to Article 10-D of the Social Services Law.
