§ 7603.2 Conditions for applying for a variance

(a) The commissioner may apply to the commission for a variance to requirements of this Chapter when:

(1) compliance with a specific rule or regulation cannot be achieved by the effective date of such rule or regulation;

(2) due to a temporary condition or situation, compliance with a specific rule or regulation cannot be achieved; or

(3) compliance is to be achieved in a manner other than that which is specified in such rule or regulation.

([b]c) The provisions of this Part shall not apply to any requirements of this Chapter where it is specifically stated that variances to such requirements are prohibited.

A new paragraph (5) of subdivision (b) of section 7603.3 of Title 9 is added to read as follows:

(5) when the application is made for reasons stated in section 7603.2(b) of this Part, the specific program(s) or need(s) in question shall be described in detail, together with an explanation as to why such program(s) or need(s) cannot reasonably be met, would be inordinately delayed, or cannot be established at an alternate correctional facility sufficient to meet the needs of the inmate population.

1.) Statutory authority:

Subdivision (6) of section 45 of the Correction Law authorizes the Commission of Correction to promulgate rules and regulations establishing minimum standards for the care, custody, correction, treatment, supervision, discipline, and other correctional programs for all person confined in the correctional facilities of New York State. Subdivision (15) of section 45 of the Correction Law allows the Commission to adopt, amend or rescind such rules and regulations as may be necessary or convenient to the performance of its functions, powers and duties.

2.) Legislative objectives:

By vesting the Commission with this rulemaking authority, the Legislature intended the Commission to promulgate minimum standards to provide a mechanism by which the New York State Department of Corrections and Community Supervision (DOCCS) may apply for a variance to the Commission's regulations when situations exist or arise that would prevent or alter the department's ability to meet such requirements.

3.) Needs and benefits:

In 2011 alone, DOCCS closed a total of seven (7) correctional facilities. In the preceding years, DOCCS closed several other correctional facilities and numerous annexes. The residual inmate populations have been dispersed throughout the remaining facilities. Although these measures were understandably taken to improve economic efficiencies, it has resulted in a prison system that is undergoing a period of adjustment.

Notwithstanding this adjusting inmate population, DOCCS has continued to provide, and in some instances expand, an array of inmate programs. For example, with the passage of the Sex Offender Management and Treatment Act, DOCCS was required to significantly expand its residential sex offender treatment programs. Despite best efforts, the increased inmate populations caused by the influx of displaced prisoners has had a negative effect on the inmate programs situated at a certain few correctional facilities.

The Commission recognizes that, given the current population adjustment, strict enforcement of facility capacity regulations set forth in Part 7621 of Title 9 NYCRR would deny, or inordinately delay, the programming or other important needs of many DOCCS inmates. As presently constructed, the Commission's authority to grant a variance to DOCCS, as set forth in 9 NYCRR Part 7603, would not be available solely on the grounds of inmate programming or important need.

Provided that the Commissioner can provide a detailed description of the affected program, establish that inmate programming or other important needs cannot be met, or would be inordinately delayed, and explain why such a program or important need cannot reasonably be established at another correctional facility sufficient to meet the needs of the inmate population, the Commission submits that the proposed authority to grant a variance to facility capacity regulations would be in the best interest of the correctional system as a whole.

4.) Costs:

a. Costs to regulated parties for the implementation of and continuing compliance with the rule: None. The regulation allows, but does not require, DOCCS to apply for a variance to facility capacity regulations when necessary to meet inmate programming or other important needs.

b. Costs to the agency, the state and local governments for the implementation and continuation of the rule: None. The regulation does not apply to local governments. As set forth above in subdivision (a), there will be no additional costs to state governments.

c. This statement detailing the projected costs of the rule is based upon the Commission's oversight and experience relative to the operation and function of a county correctional facility.

5.) Local government mandates:

None.

6.) Paperwork:

This rule does not require any additional paperwork on regulated parties.

7.) Duplication:

This rule does not duplicate any existing State or Federal requirement.

8.) Alternatives:

The alternative, maintaining the current regulations relative to allowable DOCCS variances, was explored by the Commission. This alternative was rejected upon the Commission's finding, as set forth above, that the proposed amendment, allowing for a variance to facility capacity regulations to meet inmate programming or other important needs, would be in the best interest of the correctional system as a whole.

9.) Federal standards:

There are no applicable minimum standards of the federal government.

10.) Compliance schedule:

DOCCS is expected to be able to achieve compliance with the proposed rule immediately.

A regulatory flexibility analysis is not required pursuant to subdivision three of section 202-b of the State Administrative Procedure Act because the rule does not impose an adverse economic impact on small businesses or local governments. The proposed rule seeks only to allow the New York State Department of Corrections and Community Supervision (DOCCS) to apply for a variance to facility capacity regulations when necessary to meet inmate programming or other important needs. Accordingly, it will not have an adverse impact on small businesses or local governments, nor impose any additional significant reporting, recordkeeping, or other compliance requirements on small businesses or local governments.

A rural area flexibility analysis is not required pursuant to subdivision four of section 202-bb of the State Administrative Procedure Act because the rule does not impose an adverse impact on rural areas. The proposed rule seeks only to allow the New York State Department of Corrections and Community Supervision (DOCCS) to apply for a variance to facility capacity regulations when necessary to meet inmate programming or other important needs. Accordingly, it will not impose an adverse economic impact on rural areas, nor impose any additional significant recordkeeping, reporting, or other compliance requirements on private or public entities in rural areas.

A job impact statement is not required pursuant to subdivision two of section 201-a of the State Administrative Procedure Act because the rule will not have a substantial adverse impact on jobs and employment opportunities, as apparent from its nature and purpose. The proposed rule seeks only to allow the New York State Department of Corrections and Community Supervision (DOCCS) to apply for a variance to facility capacity regulations when necessary to meet inmate programming or other important needs. As such, there will be no impact on jobs and employment opportunities.