DEPARTMENT OF CORRECTIONS AND COMMUNITY SUPERVISION
NOTICE OF ADOPTION
I.D No. CCS-25-12-00012-A
Filing No. 878
Filing Date. Aug. 24, 2012
Effective Date. Sept. 12, 2012
Media Review
PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following action:
Action taken:
Amendment of sections 712.1, 712.2, 712.3 and 712.5 of Title 7 NYCCR.
Statutory authority:
Correction Law, section 112
Subject:
Media Review.
Purpose:
To clarify and enhance existing procedures consistent with Penal Law and established regulations and to update the agency name.
Text of final rule:
The following represents a summary of the rule making actions as listed in the Text of Rule for 7 NYCRR Part 712, Media Review.
The amendment to subdivision 712.2(a) is being made to improve grammar and clarity. The amendment of subdivision 712.2(b) is being made to expand upon and clarify what constitutes unacceptable printed materials consistent with the provisions of Penal Law Article 263, “Sexual Performance by a Child.”
The amendment of paragraph 712.2(h)(3) adds maps that could aid in an inmate escape from a correctional facility to the listing of prohibited materials.
A new paragraph 712.2(h)(7) is added to prohibit any gang related identifiers or text that would promote the formation of gangs or other unauthorized groups inside a correctional facility.
The note after subdivision 712.2(i) is being moved to follow the new paragraph 712.2(h)(7) and it is also being amended to specifically reference that paragraph for the sake of clarity.
The amendment to paragraph 712.3(a)(1) is being made to add recreation staff to the list of staff that may serve on the media review committee. The amendment of paragraph 712.3(a)(2) is being made to reflect current Department procedures in that the Office of the Deputy Commissioner for Program Services is the Executive Team member with direct oversight and administration of the media review program.
The amendment of paragraph 712.3(b)(3) includes minor changes to improve clarity and adds a clause to safeguard the confidentiality of a related ongoing investigation.
The amendments of paragraph 712.3(c)(4) includes a minor changes to improve clarity. The amendment of paragraph 712.3(c)(5) adds a clause to safeguard the confidentiality of a related ongoing investigation.
The addition of new paragraph 712.3(c)(6) introduces provisions for the “sender” of a publication or printed materials to be notified in the event that the facility media review committee disapproves a publication, or any portion thereof, and allows for the sender to appeal the disapproval to the central office media review committee.
The minor amendment of subdivision 712.3(d) simply improves clarity. The amendment of paragraph 712.3(d)(2) clarifies current procedure in that the decision regarding the option of blotting out or removing material that does not meet the guidelines as established in section 712.2 of 7 NYCRR is made at the discretion of the facility.
The addition of a new note after paragraph 712.3(d)(4) provides instructions for facility staff to hold disapproved publications for a reasonable period of time pending a possible appeal by the sender.
The amendment to subdivision 712.3(e) clarifies the inmate appeal process and also introduces the appeal process for the sender of the publication or printed materials.
The amendment to subdivision 712.3(f) adds a representative from the Department’s counsel’s office to the central office media review committee.
The amendment of subdivision 712.3(g)(1) is being made to reflect current procedures.
The amendments to subdivision 712.3(g)(4) introduce the procedures for notification to the inmate, the sender, or both, of the central office media review appeal determination. They also reflect current procedure in that the Facility Media Review Chairperson functions as the Superintendent’s designee in the capacity for oversight of the facility media review committee and clarify current practice with regard to the processing and distribution of Central Office Media Review Committee decisions.
The amendment of subparagraph 712.3(g)(5)(iv) reflects current procedure in that the superintendent can designate a staff person to carry out the disposal of disapproved materials, if a disposable option is not chosen by the inmate.
The amendments to subdivision 712.3(h) are made to name the Deputy Superintendent for Programs as the facility point of contact for the receipt and distribution of the listing of approved publications that is published by the Central Office Media Review Committee. This listing is used as a reference tool for the facility media review committees which function on behalf of the Superintendent and Deputy Superintendent for Programs.
The amendments to paragraph 712.3(d)(3) and subparagraph 712.3(g)(5)(ii) reflect the new agency name resulting from the merger with the former Division of Parole.
The amendment of subdivision 712.3(j), Exhibit A, clarifies the title of the initial referral notice.
Subdivision 712.3(k), Exhibit B, is repealed and replaced with a new subdivision 712.3(k) in order to reflect the amended disposal options as outlined in the new note after paragraph 712.3(d)(4).
A new subdivision 712.3(l), Exhibit C, is introduced to provide notice to the sender when materials are disapproved by the facility media review committee. This notice also provides the sender with the guidelines by which literature for inmates is reviewed.
New paragraph 712.3(m), Exhibit D (previously subdivision 712.3(l)), is amended by adding an appropriate title to the form and removes a disposal option that is no longer applicable due to the 30 day waiting period that is introduced to allow for the sender to possibly submit an appeal.
A new paragraph 712.3(n), Exhibit E, is added to reflect the new sender central office media review appeal determination that was introduced in the amendments to paragraph 712.3(g)(4).
The amendments to subdivision 712.5(c)(1) clarify existing policy with regard to limitations on the amount of materials that can be received, and also serves to allow materials printed from the internet to be subject to the media review process.
Final rule as compared with last published rule:
Nonsubstantive changes were made in sections 712.1(a), 712.3(c)(6) and (h).
Text of rule and any required statements and analyses may be obtained from:
Maureen E. Boll, Deputy Commissioner and Counsel, NYS Department of Corrections and Community Supervision, The Harriman State Campus - Building 2, 1220 Washington Avenue, Albany, NY 12226-2050, (518) 457-4951, email: Rules@doccs.ny.gov
Revised Regulatory Impact Statement
A revised regulatory impact statement is not submitted because this proposed rule with three non-substantive changes will have no adverse impact to the previously published RIS. This proposal is clarifying, expanding and updating existing procedures for the administration of the inmate media review program.
Revised Regulatory Flexibility Analysis
A revised regulatory flexibility analysis is not required for this proposal since it will not impose any adverse economic impact or reporting, record keeping or other compliance requirements on small businesses or local governments. This proposal is clarifying, expanding and updating existing procedures for the administration of the inmate media review program.
Revised Rural Area Flexibility Analysis
A revised 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 clarifying, expanding and updating existing procedures for the administration of the inmate media review program.
Revised Job Impact Statement
A revised job impact statement is not submitted because this proposed rule will have no adverse impact on jobs or employment opportunities, nor does it place any excess burden on staff. This proposal is clarifying, expanding and updating existing procedures for the administration of the inmate media review program.
Assessment of Public Comment
Since publication of the Notice of Proposed Rule Making (I.D. No. CCS-25-12-00012-P), in the State Register on June 20, 2012, the Department of Corrections and Community Supervision (DOCCS) received comments in the form of a letter from a legal advocacy organization. The comments are summarized below, followed by the department’s response:
Comment: There is an incorrect citation in the proposal and two improper references to “directive” rather than “regulation.”
Response: These non-substantive corrections have been made.
Comment: The proposed regulation should include a definition of the term “gang.”
Response: The term “gang” is defined in 7 NYCRR § 270.2(B)(6)(iv) as “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.” Appropriate correctional facility staff are well versed in this definition and, consequently, a definition of the term “gang” in the proposed section is not deemed necessary.
Comment: For the sake of clarity and simplicity Subdivision (h) of § 712.3 of the proposed regulation that currently reads, “will be expected to share,” should be changed to read, “shall share.”
Response: The requested non-substantive change has been made.
