Addition of two new sections 270.2(B)(6)(iv) and 270.2(B)(6)(v) to read as follows:

Amend Section 712.2(i) of Title 7 NYCRR by adding a note to read as follows:

(i) The department reserves the right to deny the inmate publications which may be held noninciteful or nonadvocative, as the case may be, during the media review process, but which actually result in violence or disobedience after entrance into a facility, as is clearly set forth in paragraphs (h)(3) and (6) of this section. Such items shall be referred to the Facility Media Review Committee, and if appealed, referred to the Central Office Media Review Committee, for decision.

Revisions to the Regulatory Impact Statement, Regulatory Flexibility Analysis, Rural Area Flexibility Analysis and Job Impact Statement are not required. The technical changes made to the previously published proposed rule are non-substantive in nature. The structure of one sentence was changed for grammatical reasons and the employee title “Deputy Superintendent of Program Services” was changed to the correct title of “Deputy Superintendent for Program Services”.

Since publication of the Notice of Proposed Rule Making, (COR-10-08-00001-P) in the State Register on March 5, 2008, the Department of Correctional Services (DOCS) received the following comments.

Comment: Current Rule 105.12 was appropriately proposed for repeal.

Response: Without admitting any infirmity with the current rule, the Department is in agreement.

Comment: The respective notes following the text of Rule 105.13 and 105.14 should each include a provision that possession of published materials an inmate has obtained through approved courses be excluded from the scope of the rules as there are instances in which educational programs sanctioned by correctional facilities will distribute documents for learning purposes.

Response: Not every circumstance that may militate against the application of an Inmate Rule of Conduct can or should be captured in a note. Notwithstanding the foregoing, written instructions will accompany the initial distribution of the rules to inform staff that if an inmate can show he or she received published material from a teaching professional employed by the Department or employed by an educational entity under contract with the Department, possession of such material shall not subject the inmate to discipline under Rule 105.13 or Rule 105.14. The material may, however, be subject to the Media Review process.

Comment: The definition of an “unauthorized organization” as it appears in the note following the text of Rule 105.14 is too broad. For example, nonprofit organizations, including publicly funded legal service agencies, may on occasion distribute by-laws, or other materials listed in the note as “prohibited.” Because these organizations are not organizations approved by the Deputy Commissioner for Program Services, these materials could be deemed to facilitate organizational activity and could result in an inmate being charged with a violation of Rule 105.14.

To address this concern it is suggested that the scope of the proposed rule as well as the proposed note to the regulations governing Media Review be amended to only cover material that could facilitate organization activity within the institution by an unauthorized organization, if that organization promotes, expressly or by clear implication, violence or disobedience.

Response: Perhaps the most obvious rights that are necessarily curtailed by the operational realities of a correctional facility are association rights among inmates. The Department can lawfully prohibit an inmate from organizing or operating an inmate organization, irrespective of the stated purpose of said organization, in the absence of prior authorization. Where a hearing officer believes that an inmate's possession of a membership roster, organizational chart, constitution or by-laws is indicative of an effort to circumvent said prohibition, the inmate may be subject to discipline under Rule 105.14. The Department doubts that nonprofit organizations, including publicly funded legal services agencies, such as your own, will, in the normal course, be providing inmates with a membership roster, organizational chart, constitution or by-laws. Moreover, unless the hearing officer believes that said material could be used by the inmate to facilitate organizational activity within the institution, the inmate will not be found guilty of violating Rule 105.14. The Department believes that with training and direction inappropriate application of the rule can be avoided.

Comment: Inmates that obtain or prepare materials for the purpose of seeking approval of organizations pursuant to Department Directive #4760, “Inmate Organizations,” could be wrongfully disciplined for a violation of Rule 105.14.

Response: On March 25, 2008, the inmate “Request for Approval to Form an Inmate Organization,” included as “Attachment A” to the Directive referenced in the above comment, was amended to specifically instruct inmates not to create or possess, in connection with the application process or for any other purpose, a membership roster, organizational chart, constitution, by-laws or any other material that could facilitate organizational activity within the institution unless and until the organization has been approved by the Deputy Commissioner for Program Services.

The only exception is if the Deputy Superintendent for Program Services, First Deputy Superintendent or Superintendent requests that the specific material is submitted as part of the application.

Comment: The note section following the text of Rule 105.14 should include language similar to what appears in the Regulatory Impact Statement which states, in pertinent part, “any publication relating to an unauthorized organization, other than a gang, be forwarded to media review in accordance with 7 NYCRR § 712.3(b)(2), prior to the possible imposition of inmate discipline.”

In addition, in light of the frequency of inmate transfers, Title 7 NYCRR Part 712 and DOCS Directive #4572, “Media Review,” should be revised to create consistency in decision making. A stamp or other notice should be used to establish that Facility Media Review Committee approved a specific publication. Similarly, if the Central Office Media Review Committee reverses the denial of a publication, a system should be created that notifies every other facility. Once the publication is approved at one facility it should be considered approved statewide.

Response: A large amount, if not most, of the material subject to Rule 105.14 is expected to be handwritten or typed and therefore generally not a “publication” subject to Media Review under 7 NYCRR § 712.3(b)(2). For publications regarding an unauthorized organization, other than a gang, instruction issued by the Department should be sufficient to ensure that the publications are forwarded to media review in accordance with 7 NYCRR § 712.3(b)(2), prior to the possible imposition of inmate discipline. As was noted in the Regulatory Impact Statement, the prohibited material in proposed Rule 105.14 is narrowly circumscribed and in the accompanying note to Rule 105.13, the term gang is well-defined. Consequently, with or without Media Review Committee involvement, possession of only limited and identified printed or handwritten material may subject an inmate to possible disciplinary action.

The note section following the text of Rule 105.13 and 105.14 both exclude from discipline published material that the inmate obtained through the facility library or that has been approved for the inmate to possess through the media review process. Inmates are not permitted to exchange property, including written material, without prior authorization. Consequently, an inmate is likely to know what published material in his or her possession was obtained through the mail or package room. Once the inmate raises the issue that the published material was approved for the inmate to possess, the Media Review Committee alleged by the inmate to having given such approval can be contacted to verify the same. Any attempt to coordinate the publication approvals statewide and to stamp every item approved through the Media Review process, as sought by the commenters, would be extremely difficult and costly to effectuate and labor intensive. In addition, it is not required for the enforcement of the rules at issue in this proposal.