A Notice of Proposal to repeal 7 NYCRR § 100.21 lacked a sufficient description for the Statement Explaining Consensus Rule Making In Accordance With SAPA, Section 201 (1)(B)(i), when published in the July 23, 2008 issue of the State Register. Submitted below is a proper description.

STATEMENT EXPLAINING CONSENSUS RULE MAKING IN ACCORDANCE WITH SAPA, SECTION 201 (1)(B)(i)

The Department of Correctional Services has determined that no person is likely to object to the proposed action because it merely repeals a regulatory provision which is no longer applicable to any person. See SAPA § 102 (11)(a).

7 NYCRR § 100.21 provides that Green Haven Correctional Facility is designated as the institution for execution of a death sentence. The New York State Court of Appeals in People v. Taylor, 9 N.Y.3d 129 (2007), determined that the New York State death penalty sentencing statute enacted in 1995 violates the New York State Constitution on its face and that it is not within the power of the judiciary to save statute. Since then, the New York State Legislature has not passed a new death penalty statute. Therefore, the designation of Green Haven as the institution for executions is unnecessary.

The Department's authority resides in section 70 of Correction Law, which mandates that each correctional facility must be designated in the rules and regulations of the Department and assigns the Commissioner the duty to classify each facility with respect to the type of security maintained and the function as specified. See Correction Law § 70(6).