(e) Non-grievable issues.

(1) An individual decision or disposition of any current or subsequent program or procedure having a written appeal mechanism which extends review to outside the facility shall be considered non-grievable.

(2) An individual decision or disposition of the temporary release committee, time allowance committee, family reunion program or media review committee is not grievable. Likewise, an individual decision or disposition resulting from a disciplinary proceeding, inmate property claim (of any amount), central monitoring case review or records review (freedom of information request, expunction) is not grievable. In addition, an individual decision or disposition of the Commissioner, or his designee, on a foreign national prisoner application for international transfer is not grievable.

Statutory Authority

Section 139(2) of Correction Law assigns to the Commissioner the authority to promulgate rules and regulations establishing procedures for the fair, simple and expeditious resolution of inmate grievances as deemed appropriate, having due regard for the constitutions and laws of the United States and the State of New York. Such procedures shall include but not be limited to setting time limitations for the filing of complaints and replies thereto and for each stage of the grievance resolution process. A person aggrieved by the decision of a grievance resolution committee may apply to the commissioner for review of the decision. The commissioner or his deputy may take such action as deemed appropriate to fairly resolve the grievance to the satisfaction of all parties.

Legislative Objective

By vesting the commissioner with the rulemaking authority as stated in section 139 of Correction Law, the legislature intended the commissioner to promulgate such rules and regulations that are in the best interest of orderly institutional operations, do not conflict with any statutes of the state and provide for the most expeditious resolution of inmate grievance complaints.

Needs and Benefits

The Inmate Grievance Program (IGP) is a non-adversarial problem resolution mechanism that allows inmates to attempt to resolve their complaints through a formal process. The IGP permits an inmate to file a complaint about the substance or application of any written or unwritten policy, regulation, procedure or rule of the Department or any of its program units, or the lack of a policy, regulation, procedure or rule. Title 7 NYCRR § 701.2(a). Under the IGP, an individual decision or disposition of any program or procedure having a written appeal mechanism that extends review to outside the facility is non-grievable in accordance with section 701.3(e)(1) of 7 NYCRR. Section 701.3(e)(2) of 7 NYCRR provides examples of several programs that have procedures whereby the decisions or dispositions rendered allow for review outside the facility level.

Correction Law § 5(4) authorizes the Commissioner to convert the sentence of a person serving an indeterminate sentence, except for a person serving a sentence with a maximum term of life imprisonment, to a determinate sentence equal to two-thirds of the maximum or aggregate maximum term imposed where such conversion is necessary to make the person eligible for transfer to Federal custody for transfer to foreign countries under treaties that provide for voluntary transfers. Correction Law § 71(1-b) confers on the Commissioner, or designee, the sole and absolute authority to approve or disapprove an inmate's application for international transfer. The Commissioner has promulgated rules and regulations at Part 130 of 7 NYCRR setting forth the procedures by which an inmate may apply to be considered for transfer to a foreign nation.

There has been some confusion regarding the ability to have such decisions reviewed through the IGP. Accordingly, the Agency has decided to revise the regulation to add foreign national prisoner application for international transfer to the list of examples of non-grievable matters for the sake of clarification. Since an inmate's application for international transfer is decided by the Commissioner or designee, and the decision is, as a matter of law, within the Commissioner or designee's sole discretion, this procedure is by definition non-grievable. Therefore, this rulemaking is clarifying an existing rule by adding another example to the list of non-grievable decisions or dispositions.

Costs

a) To agency, the state and local governments: None.

b) Costs to private regulated parties: None. The proposed amendment does not apply to private parties.

c) This cost analysis takes into account that the Department already has procedures in place for the processing of foreign national prisoner applications for international transfer. The proposed change is merely clarifying an existing regulation and the end result would be to decrease inmate grievance complaints regarding this matter.

Local Government Mandates

There are no new mandates imposed upon local governments by these proposals. The proposed amendments do not apply to local governments.

Paperwork

There are no new reports, forms or paperwork that would be required as a result of amending these rules.

Duplication

These proposed amendments do not duplicate any existing State or Federal requirement.

Alternatives

No alternatives are apparent and none have been considered. The change was determined to be necessary in order to address the specificity of the subject matter.

Federal Standards

There are no apparent minimum standards of the Federal government regarding this issue.

Compliance Schedule

The Department of Corrections and Community Supervision will achieve compliance with the proposed rules immediately.

A regulatory 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 small businesses or local governments. This proposal does not require any additional job duties for staff or changes to established procedures. It simply provides clarification to an existing regulation by providing an example of another decision made outside of the facility that is non-grievable for inmates.

A 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 does not require any additional job duties for staff or changes to established procedures. It simply provides clarification to an existing regulation by providing an example of another decision made outside of the facility that is non-grievable for inmates.

A job impact statement is not submitted because this proposed rule will have no adverse impact on jobs or employment opportunities. This proposal does not require any additional job duties for staff or changes to established procedures. It simply provides clarification to an existing regulation by providing an example of another decision made outside of the facility that is non-grievable for inmates.