CVB-33-07-00002-P Presumption of Physical Injury When Determining the Eligibility of Victims of Human Trafficking

8/15/07 N.Y. St. Reg. CVB-33-07-00002-P

NEW YORK STATE REGISTER

VOLUME XXIX, ISSUE 33

August 15, 2007

RULE MAKING ACTIVITIES

CRIME VICTIMS BOARD

PROPOSED RULE MAKING

NO HEARING(S) SCHEDULED

 

I.D No. CVB-33-07-00002-P

Presumption of Physical Injury When Determining the Eligibility of Victims of Human Trafficking

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

Proposed action:

Addition of section 525.32 to Title 9 NYCRR.

Statutory authority:

Executive Law, section 621(5)

Subject:

Presumption of physical injury when determining the eligibility of victims of human trafficking.

Purpose:

To create the rebuttable presumption that victims of human trafficking crimes, as defined in sections 135.35 and 230.24 of the Penal Law, have suffered a physical injury for the purposes of eligibility under article 22 of the Executive Law.

Text of proposed rule:

525.32 Victims of human trafficking, presumption of physical injury. When a claimant applies as a victim of labor trafficking as defined in section 135.35 of the penal law, or sex trafficking as defined in section 230.34 of the penal law, there shall be a rebuttable presumption that such victim has suffered a physical injury for the purposes of eligibility under article 22 of the executive law.

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

John Watson, General Counsel, Crime Victims Board, One Columbia Circle, Suite 200, Albany, NY 12203, [phone], e-mail: [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

1. Statutory authority: The New York State Executive Law, section 623 creates the Crime Victims Board (the Board) and grants the Board the authority to adopt, promulgate, amend and rescind suitable rules and regulations to carry out the provisions and purposes of Article 22 of the Executive Law. Pursuant to Chapter 74 of the Laws of 2007 and effective November 1, 2007, New York State Executive Law, section 621(5) includes in the definition of “victim” a person who is the victim labor trafficking as defined in section 135.35 or sex trafficking as defined in section 230.34 of the Penal Law.

2. Legislative objectives: By adding labor trafficking as defined in section 135.35 and sex trafficking as defined in section 230.34 of the Penal Law to the Executive Law's definition of “victim” in section 621(5), the Legislature sought to ensure that victims of these crimes would be eligible for Crime Victims Board awards pursuant to Article 22 of the Executive Law.

3. Needs and benefits: Chapter 74 of the Laws of 2007, effective November 1, 2007, creates the new crimes of labor trafficking (section 135.35) and sex trafficking (section 230.34) to the Penal Law, and adds such victims to the New York State Crime Victims Board's definition of “victim” in section 621(5) of the Executive Law. For a claimant to be eligible for the most comprehensive array of Crime Victims Board awards pursuant to Article 22 of the Executive Law, a physical injury as a direct result of a crime is required in most cases. In anticipation of the effective date of this new law, and because the Board wants to ensure the victims of these newly created crimes are consistently determined by its individual Board Members to be eligible for the most comprehensive array of Crime Victims Board awards, this proposed regulation creates the rebuttable presumption that victims of human trafficking crimes have suffered a physical injury for purposes of eligibility under Article 22 of the Executive Law.

The Board however, recognizes that it should retain some ability to deny claims based on eligibility in such instances where it suspects fraud or abuse, or when the claimants themselves admit to suffering no physical injury. The rebuttable presumption contained in this proposed regulation reserves the Board's right to deny claims based on eligibility in such instances.

4. Costs: a. Costs to regulated parties. It is expected that this regulation along with Chapter 74 of the Laws of 2007 will increase the number of claimants eligible for Crime Victims Board reimbursement, thus increasing the Board's overall compensation expenditures.

b. Costs to local governments. The proposed regulation does not apply to local governments and would not impose any additional costs on local governments.

c. Costs to private regulated parties. The proposed regulation does not apply to private regulated parties and would not impose any additional costs on private regulated parties.

5. Local government mandates: The proposed regulation does not impose any program, service duty or responsibility upon any local government.

6. Paperwork: The proposed regulation does not require any additional paperwork requirements.

7. Duplication: The proposed regulation does not duplicate any other existing state or federal requirements.

8. Alternatives: Not implementing this proposed regulatory change could result in inconsistent claimant award decisions in the future. Another alternative would be an outright presumption, but the Board recognizes that it should retain some ability to deny claims based on eligibility in such instances where it suspects fraud or abuse, or when the claimants themselves admit to suffering no physical injury. The rebuttable presumption contained in this proposed regulation reserves the Board's right to deny claims based on eligibility in such instances.

9. Federal standards: Permissible under 42 USC 10602.

10. Compliance schedule: This regulation will be effective on November 1, 2007.

Regulatory Flexibility Analysis

The New York State Crime Victims Board (the Board) projects there will be no adverse economic impact or reporting, recordkeeping or other compliance requirements on small businesses or local governments in the State of New York as a result of this proposed rule change. This proposed rule change simply creates the rebuttable presumption that victims of human trafficking crimes have suffered a physical injury for purposes of eligibility under Article 22 of the Executive Law. Since nothing in this proposed rule change will create any adverse impacts on any small businesses or local governments in the state, no further steps were needed to ascertain these facts and one were taken. As apparent from the nature and purpose of this proposed rule change, a full Regulatory Flexibility Analysis is not required and therefore one has not been prepared.

Rural Area Flexibility Analysis

The New York State Crime Victims Board (the Board) projects there will be no adverse impact on rural areas or reporting, recordkeeping or other compliance requirements on public or private entities in rural areas in the State of New York as a result of this proposed rule change. This proposed rule change simply creates the rebuttable presumption that victims of human trafficking crimes have suffered a physical injury for purposes of eligibility under Article 22 of the Executive Law. Since nothing in this proposed rule change will create any adverse impacts on any public or private entities in rural areas in the state, no further steps were needed to ascertain these facts and none were taken. As apparent from the nature and purpose of this proposed rule change, a full Rural Area Flexibility Analysis is not required and therefore one has not been prepared.

Job Impact Statement

The New York State Crime Victims Board (the Board) projects there will be no adverse impact on jobs or employment opportunities in the State of New York as a result of this proposed rule change. This proposed rule change simply creates the rebuttable presumption that victims of human trafficking crimes have suffered a physical injury for purposes of eligibility under Article 22 of the Executive Law. Since nothing in this proposed rule change will create any adverse impacts on jobs or employment opportunities in the state, no further steps were needed to ascertain these facts and none were taken. As apparent from the nature and purpose of this proposed rule change, a full Job Impact Statement is not required and therefore one has not been prepared.