Department of Corrections and Community Supervision

Rules & Regulations

Media Review (Section 712 of 7 NYCRR)

Date filed with the Department of State (DOS): 6/7/2012

DOS #:CCS-25-12-00012

Date adopted:9/12/2012

Description:To clarify and enhance existing procedures consistent with Penal Law and established regulations and to update the agency name.

TEXT OF RULE

The Department of Corrections and Community Supervision is making the following amendments to 7 NYCRR, Part 712:

Amend subdivision 712.[2]1(a) as indicated below:
(a) It is departmental policy to encourage inmates to read publications from varied sources if such material does not encourage them to engage in behavior that might be disruptive to orderly facility operations. Accordingly, inmates shall be allowed to subscribe to and possess a wide range of printed matter such as books, magazines and newspapers, subject to the provisions of this regulation[directive], as[because]these items may promote constructive individual development.

Amend subdivision 712.2(b) as indicated below:
(b) Publications which contain child pornography or which promote a sexual performance of a child in violation of Penal Law, article 263 are unacceptable. Publications in which models of any age are depicted or portrayed as underage persons in sexually provocative poses or engaged in sexual activity are unacceptable. Publications depicting nude children in a non-pornographic context, but which would promote or encourage prurient interest in the sexual performance of children, are unacceptable. Publications which, taken as a whole, by the average person applying contemporary community standards, appeal to prurient interest, and which depict or describe in a patently offensive way sexual bestiality, sadism, masochism, necrophilia, or incest and which taken as a whole, lack serious literary, artistic, political or scientific value are obscene and are unacceptable.

Amend paragraph 712.2(h)(3) and add a new paragraph 712.2(h)(7) as follows:
(h) The publication should not:
(1) contain information which appears to be written in code; or
(2) depict or describe methods of lock picking; or
(3) depict or describe methods of escape from correctional facilities or which contain maps which could aid an inmate in an escape from a correctional facility (i.e. immediate area of the facility, detailed road maps, etc.) ; or
(4) depict or describe procedures for the brewing of alcoholic beverages or the manufacture of drugs or use of illegal drugs; or
(5) depict or describe methods or procedures for smuggling prison contraband; or
(6) depict or describe techniques or methods for rioting and/or information instructive in hostage or riot negotiation techniques; [.]or
(7) depict or describe hand signs, insignias, graffiti, or any other identifiers depicting or pertaining to a gang, or text that describes or depicts gang or other unauthorized group activity in such a way that it would promote or instruct in the formation of such groups inside a correctional facility.
Move the note that presently follows subdivision 712.2(i) to follow the new paragraph 712.2(h)(7) and amend the note as indicated below:

Note: The above paragraph includes [There also may exist certain]written material that, if observed by a fellow inmate in the inmate’s possession, could result in an inference being drawn about the inmate’s gang affiliation and thereby target him or her for assault or result in other disruptive conduct. It also includes [There likewise may exist] certain written material that could facilitate organizational activity within an institution by an organization that has not been approved by the deputy commissioner for program services to operate within that institution. Material that could facilitate organizational activity includes, but is not limited to, a membership roster, organizational chart, constitution or bylaws. All such material [described in this note] can be disallowed although otherwise determined not to incite or advocate for violence or disobedience.

Amend paragraphs 712.3(a)(1) and (2), as indicated below:
(a) Establishment of Facility Media Review Committee (FMRC).
(1) Each institution will establish a media review committee and designate a Facility Media Review Committee Chairperson, who will be responsible for the oversight of the day to day operations of the FMRC . It is suggested that this committee consist of representatives from program services (for example, representatives from the guidance unit, mental health[hygiene] staff, chaplains’ office, education staff, recreation staff, and library staff) and representatives from security staff. All FMRC activities will be reported monthly to the Central Office Media Review Committee (COMRC).
(2) The superintendent will inform the deputy commissioner for program services or his or her designee of the membership of the Facility Media Review Committee. The superintendent will also inform the deputy commissioner for program services or his or her designee of any changes in said membership.

Amend Paragraph 712.3(b)(3) as follows:
(3) Publications referred to the FMRC shall be delivered promptly to the FMRC. Notice to the inmate is made by using Exhibit A (see subdivision (j) of this section) which[advising of such referral] must be placed in the institutional mail at the same time as the publication is referred , unless doing so would interfere with an ongoing investigation .

Amend paragraphs 712.3(c)(4) and (c)(5) as follows:
(4) Should the FMRC disapprove a publication, such decision shall be set forth [in the form provided] in Exhibit B (see subdivision (k) of this section) and include a brief statement of reasons explaining why the publication is deemed to violate one or more of the media review guidelines and identifying by page number, article title, and location on the page, the contents objected to. (The FMRC shall not state that a publication is unacceptable in its entirety.) An example concerning such brief statement of reasons is set forth below:
(5) Notice to Inmate. When the FMRC disapproves a publication or any portion thereof , a copy of Exhibit B (see subdivision (k) of this section) shall be sent promptly to the inmate , unless doing so would interfere with an ongoing investigation .
Add a new paragraph 712.3(c)(6) as follows:
(6)Notice to Sender: When the FMRC disapproves a publication, or any portion thereof, a copy of the “Inmate Disposition Notice,” Exhibit B, together with a copy of Form #4572C, “Sender Disapproval Notice,” Exhibit C, notifying the sender of the right to appeal, shall be sent to the sender at the same time that the “Inmate Disposition Notice” is sent to the inmate, unless doing so would interfere with an ongoing investigation. No notice to the sender is required if the FMRC previously provided notice to the same sender of an identical FMRC decision regarding the same publication, notwithstanding that the intended inmate recipient is not the same. For purposes of this regulation[directive], the term “sender” shall refer to the person or entity that sent the inmate the publication, if known, or if that person or entity is unknown, then the publisher, if known.

Amend subdivision 712.3(d) and paragraphs 712.3(d)(2) and (d)(3) as follows:
(d) Inmate options regarding appeal or other disposition when notified that a publication has been disapproved by Facility Media Review Committee. When the FMRC disapproves a publication, the inmate shall be permitted to select one of the following options [methods of disposition] (see Exhibit B, subdivision (k) of this section):
(1) Appeal to the [Central Office Media Review Committee] [(]COMRC[)]. The inmate shall not be entitled to appeal unless he chooses this option within 30 days of the FMRC decision.
(2) Receive the publication with the objectionable matter removed or blotted out. This option shall be available only if the objectionable portions of the publication constitute eight or fewer individual pages or if they constitute a single chapter, article or section of any length. This option need not be made available if the publication is in a form other then a book, magazine, or newspaper, and if removing or blotting out portions would present physical difficulties. The choice between blotting out or removing objectionable material is made at the discretion of the facility.
(3) Have the publication sent, at the inmate’s expense, to a person of the inmate’s choice, not another inmate or a Department of Corrections and Community Supervision[Correctional Services]official, either immediately or after 30 days.

Add the following note after paragraph 712.3(d)(4) as follows:
Note: If the inmate chooses not to appeal, the publication will be held, as is, for at least 30 days from the date of the “Inmate Disposition Notice” to allow time for the sender to submit an appeal, if any. If the sender submits an appeal, the publication will be held, as is, pending the COMRC determination.
If neither the inmate nor the sender submits a timely appeal and the inmate has not made a choice among disposal options, disposal of the material(s) will be at the discretion of the Superintendent or his or her designee.

Amend subdivision 712.3(e) as follows:
(e) Appeals to Central Office Media Review Committee. When an inmate elects to appeal the FMRC's disapproval of a publication, the inmate [he] shall check the appropriate box on the inmate disposition notice, Exhibit B (see subdivision (k) of this section). The inmate [He] may also, at his or her option, include [submit] an appeal letter. [All appeal letters to the COMRC and FMRC disposition notice (Exhibit [b]B) must be submitted to the FMRC. The FMRC shall forward the appeal notice and letter, if any, with the publication in question to the COMRC. Appeals shall be forwarded at facility expense by first class mail or equally prompt means.]
When the sender elects to appeal the FMRC’s disapproval of a publication, the sender shall provide a written statement in support of the appeal, a copy of the inmate disposition notice (Exhibit B), and, if available, a copy of the issue of the publication found to be unacceptable.
An appeal by the inmate or sender must be submitted to the FMRC within 30 days of the date of the inmate disposition notice. After 30 days from the date of the inmate disposition notice, the FMRC shall forward any appeal received from the inmate and/or sender along with the “Inmate Disposition Notice” and the publication in question to the COMRC. Appeals shall be forwarded at facility expense by first class mail or equally prompt means.

Amend subdivision 712.3(f) as follows:
(f) Establishment of COMRC: The COMRC will consist of representatives of Program Services, Security Services, Counsel’s Office and Administrative Services. The Committee will be chaired by the Deputy Commissioner for Program Services or his or her designee.

Amend paragraphs 712.3(g)(1) and (4) and add a note after paragraph 712.3(g)(4) as follows
(1) The COMRC shall meet at least bi-[once] weekly unless there are no publications awaiting review.
(4) If the inmate has appealed, he or she shall receive the inmate appeal determination (see subdivision (m) of this section, Exhibit D), which will set forth the COMRC appeal determination along with the reason for the determination. If both the sender and the inmate have appealed the FMRC determination, the sender will be notified by attaching a copy of Exhibit D to the sender appeal determination (see subdivision (n) of this section, Exhibit E). If only the sender has appealed, then the COMRC will notify the sender of its determination via Exhibit E, and set forth the reason for the determination on the form. [The COMRC decision shall be in the form provided in Exhibit C (see subdivision (l) of this section)]. The COMRC will notify the FMRC chairperson, in addition to the inmate and/or sender [superintendent and he, in turn, will also notify the inmate of the decision]. The COMRC shall return its appeal determination (Exhibit D, E or both) and the publication in question to the FMRC chairperson. The inmate will receive a copy of the inmate appeal determination (Exhibit D) only.
In cases where the COMRC has approved a publication the FMRC shall return material directly to the inmate.

Amend paragraphs 712.3(g)(5)(ii) and 712.3(g)(5)(iv) as follows:

(5) When the COMRC disapproves a publication, the inmate shall have the following options:
(i) Receive the publication with the objectionable portions blotted or cut out. This option is available only if the objectionable portion is eight pages or less, or a single chapter, article, or section of any length.
(ii) Have the publication sent, at the inmate’s expense, to a person of the inmate's choice, not another inmate or a Department of Corrections and Community Supervision [Correctional Services]official, either immediately or after 30 days.
(iii) Have the publication destroyed.
(iv) Have the publication retained at the facility for 30 days while the inmate makes arrangements for its disposition, including being picked up by a visitor during the period. If a choice is not made within 30 days, disposal of the material will be at the discretion of the superintendent or his or her designee.

Amend subdivision 712.3(h) as indicated below:
(h) List of approved publications approved by the Central Office Media Review Committee. On a monthly[weekly] basis, the COMRC shall prepare a list of all the publications it has approved [in the past week,] and forward a copy of that list to each Deputy Superintendent for Programs. Each Deputy Superintendent for Programs shall[will be expected to] share that list with the respective FMRC chairperson.[ shall mail a copy of that list to the chairman of each FMRC.]

Amend subdivision 712.3(j) as follows:

(j) Exhibit A.

INMATE REFERRAL NOTICE
FACILITY MEDIA REVIEW COMMITTEE
____________________________ CORRECTIONAL FACILITY

Date: _____________

Inmate Name: _________________________
Identification No.: _____________________
Cell Location: ________________________
The following publication _____________________________________________________________
                                                          (Title)
_____________________________________________________________________________________

(Author, Date or Volume and Number)

has arrived at the facility addressed to you and has been held for review by the Facility Media Review Committee. You are invited to submit a written statement in support of the admission of the publication. Address your comments to:
_______________________________________________________________________________________
Chairperson of the Facility Media Review Committee, promptly, since the committee must reach a decision usually within ten working days of the date of this notice.

Repeal paragraph 712.3(k) and replace it with a new paragraph 712.3(k) as indicated below:

(k) Exhibit B.

INMATE DISPOSITION NOTICE
FACILITY MEDIA REVIEW COMMITTEE
______________________________CORRECTIONAL FACILITY

DATE OF NOTICE: __________________

_______________________________________________________________________________________
INMATE NAME                                                      NUMBER                                 CELL LOCATION
The publication ________________________________________________________________________

(Title)

______________________________________________________________________________________
(Author, Date or Volume & Number)

has been reviewed by the Facility Media Review Committee and the following portions:
_______________________________________________________________________________________

(Pages, Articles, or Location of Offensive Portions)

have been found unacceptable for the following reasons:
_______________________________________________________________________________________
_______________________________________________________________________________________
(Guideline Number and Reason)

Do you wish to appeal this disposition?
( ) Yes. Appeal to the Central Office Media Review Committee by checking this box and sending this form and (if you desire) a letter in support of your appeal to the Facility Media Review Committee (FMRC).
( ) No. Choose only one the following disposal options:
( ) Receive the publication with the objectionable portions blotted or cut out. This option is available only if the objectionable portion is eight pages or less, or is a single chapter, article, or section of any length.
( ) Have the publication sent to a person of your choice, not another inmate or a Department of Corrections and Community Supervision official, at your expense.
Send to (include name and address): _________________________________________________
_______________________________________________________________________________
( ) Have the publication destroyed. If the FMRC receives notice that the publication has been approved based upon an appeal by the sender, you will receive it.
Note: If you choose not to appeal, the publication will be held, as is, for at least 30 days from the date of this notice to allow time for the sender to submit an appeal if any. If the sender submits an appeal, the publication will be held, as is, pending the COMRC appeal determination. For the purposes of this notice, the term “sender” shall refer to the person or entity that sent you the publication, if known, and if that person or entity is unknown, then the term “sender” refers to the publisher, if known.
If you do not make a choice and the sender does not submit a timely appeal, disposal of your material will be at the discretion of the Superintendent or his or her designee.
__________________________________________ _______________________________
Inmate Signature                                                            Date

Renumber current paragraph 712.3(l) as a new paragraph 712.3(m) and add the following new paragraph 712.3(l) as indicated below:

(l) Exhibit C.

SENDER DISAPPROVAL NOTICE
FACILITY MEDIA REVIEW COMMITTEE
[Name and address of the correctional facility should be printed here]

This is to advise you that a publication, or a portion thereof, that was sent to one or more inmates at this correctional facility has been found unacceptable by our Facility Media Review Committee (FMRC) for the reason(s) set forth in the attached Inmate Disposition Notice (IDN). Included in this notice is a listing of the Department’s guidelines by which the publication was evaluated.

As sender, you have 30 days from the date of the IDN to appeal the FMRC’s decision. The appeal shall consist of a copy of the IDN, a written statement in support of your appeal, and, if available, a copy of the issue of the publication found unacceptable. The appeal must be submitted to the FMRC at the address above. The FMRC will forward your appeal to the Central Office Media Review Committee (COMRC) for a determination.

In the event that the inmate also appealed the decision, you will be provided with a copy of the COMRC decision that was sent to the inmate. If only you appealed the decision, you will be sent the COMRC decision using Attachment E, “Sender Appeal Determination Notice.”

If your appeal is granted, the inmate will be given the publication still in the FMRC’s facilities possession. If the inmate had previously elected to dispose of the publication and the Department does not have a copy of the publication, you may send the inmate another copy.

For purposes of this notice, the term “sender” shall refer to the person or entity that sent the inmate the publication, if known, and if that person or entity is unknown, then the term “sender” refers to the publisher, if known.

SENDER DISPOSITION NOTICE - GUIDELINES

The Department adopts the following guidelines by which literature for inmates will be evaluated.
A. In general, the materials must be acceptable for regular mailing according to United States Postal Law and regulations.
B. Publications which contain child pornography or which promote a sexual performance of a child in violation of Penal Law Article 263 are unacceptable. Publications in which models of any age are depicted or portrayed as underage persons in sexually provocative poses or engaged in sexual activity are unacceptable. Publications depicting nude children in a non-pornographic context, but which would promote or encourage prurient interest in the sexual performance of children, are unacceptable. Publications which, taken as a whole, by the average person applying contemporary community standards, appeal to prurient interest, and which depict or describe in a patently offensive way sexual bestiality, sadism, masochism, necrophilia or incest, and which taken as a whole, lack serious literary, artistic, political or scientific value are obscene and are unacceptable.
C. The publication should not incite violence based on race, religion, sex, sexual orientation, creed, or nationality. “Incite violence,” for purposes of this guideline, means to advocate, expressly or by clear implication, acts of violence.
D. Any publication which advocates and presents a clear and immediate risk of lawlessness, violence, anarchy, or rebellion against governmental authority is unacceptable.
E. The publication should not incite disobedience towards law enforcement officers or prison personnel. “Incite disobedience,” for purposes of this guideline, means to advocate, expressly or by clear implication, acts of disobedience.

F. The publication should not give instruction in the use or manufacture of firearms, explosives, and other weapons, or depict or describe their manufacture. Mere depictions of the use of hunting and/or military weapons which reasonably would not affect the safety and/or security of the facility are not prohibited.
G. The publication should not provide instruction by word(s) or picture(s) regarding martial arts skills. Martial arts include, but are not limited to, aikido, jujitsu, judo, karate, kung fu, and tai chi chu’an. Publications which discuss martial arts without providing instruction are acceptable.
H. The publication should not:
1. Contain information which appears to be written in code; or
2. Depict or describe methods of lock picking; or
3. Depict or describe methods of escape from correctional facilities or contain maps which could aid an inmate in an escape from a correctional facility (i.e. immediate area of the facility, detailed road maps, etc.); or
4. Depict or describe procedures for the brewing of alcoholic beverages or the manufacture of drugs or use of illegal drugs; or
5. Depict or describe methods or procedures for smuggling prison contraband; or
6. Depict or describe techniques or methods for rioting and/or information instructive in hostage or riot negotiation techniques.
7. Depict or describe hand signs, insignias, graffiti, or any other identifiers depicting or pertaining to a gang, or text that describes or depicts gang or other unauthorized group activity in such a way that it would promote or instruct in the formation of such groups inside a correctional facility.
The Department reserves the right to deny the inmate publications which may be held non-inciteful or non-advocative, 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 guidelines 3 and 6 above. Such items shall be referred to the Facility Media Review Committee (FMRC), and if appealed, referred to the Central Office Media Review Committee (COMRC), for decision.
Publications which discuss different political philosophies and those dealing with criticism of Governmental and Departmental authority are acceptable as reading material provided they do not violate the above guidelines. For Example, publications such as Fortune News, The Militant, The Torch/La Antorcha, Workers World , and Revolutionary Worker shall generally be approved unless matter in a specific issue is found to violate the above guidelines.
The purposes of the foregoing guidelines are to facilitate access by inmates to a wide range of literature.
Superintendents and staff of correctional facilities are urged to use whatever means they have available to provide facility libraries with literature which presents differing points of view relevant to the issues of the day.

Amend the newly renumbered paragraph 712.3(m) as indicated below:
712.3(m) Exhibit D.

INMATE APPEAL DETERMINATION
DEPARTMENT OF CORRECTIONS AND COMMUNITY SUPERVISION[CORRECTIONAL SERVICES]
CENTRAL OFFICE MEDIA REVIEW COMMITTEE
Building 2, Harriman State Campus
Albany, New York 12226 -2050

Date: ______________________
_______________________________________________________________________________________
INMATE NAME                                                            NUMBER                                              FACILITY
The decision of the _______________________ Facility Media Review Committee denying you the right to receive the publication_______________________________________________________________________________
(Title)                                                                                  (Author, Date, or Volume and Number)
has been affirmed () reversed () by the Central Office Media Review Committee for the following reason:
_______________________________________________________________________________________
_______________________________________________________________________________________
If the decision was reversed, you should receive the publication with this form. If the decision was upheld, you now have the following options:
() 1. Receive the publication with the objectionable portions blotted or cut out. This option is
available only if the objectionable portion is eight pages or less, or is a single chapter, article, or
section of any length.
() 2. Have the publication sent to a person of your choice, not to another inmate or a Department
of Corrections and Community Supervision [Correctional Services ]Official, at your expense. Send to:
Name: _________________________________________________________________________________
Address: _________________________________________________________________________________
() 3. Have the publication destroyed.
[() 4. Have the publication retained at the facility for 30 days while you make arrangements for its disposition.]
If you do not make this choice within 30 days, disposal of the material will be at the discretion of the Superintendent or his or her designee.
Send this form to your Facility Media Review Committee, since all censored publications are returned to this committee.

Add a new paragraph 712.3(n) as indicated below:
712.3(n) Exhibit E.

SENDER APPEAL DETERMINATION

DEPARTMENT OF CORRECTIONS AND COMMUNITY SUPERVISION
CENTRAL OFFICE MEDIA REVIEW COMMITTEE
Building 2, Harriman State Campus
1220 Washington Avenue
Albany, NY 12226 - 2050

Date:_____________________

The decision of the __________________________Facility Media Review Committee (FMRC) that denied the receipt, or portion(s) thereof, of the publication:
_________________________________________________________________________________________
(Title)                                                                 (Author, Date or Volume and Number)

that was sent to:
_________________________________________________________________________________________
Inmate Name                                                                  Number                                                                  Facility

has been ( ) affirmed ( ) reversed by the Central Office Media Review Committee (COMRC) for the reason(s) stated on the attached “Inmate Appeal Determination” or, if no inmate appeal was submitted, for the following reason(s):
____________________________________________________________________________________________
____________________________________________________________________________________________

If the denial was also appealed by the inmate, please see the reasons.

If the appeal is granted, the inmate will be given the publication in the FMRC’s possession. If the inmate had previously elected to dispose of the publication and the Department does not have a copy of the publication, another copy may be sent to the inmate.

Amend paragraph 712.5(c)(1) as indicated below:

Section 712.5. Source of publication.

(c) Printed or photocopied materials.
(1) No more than[A limit of] five newspaper clippings or five pages of printed or photocopied materials including materials printed off of the internet[(an individual newspaper clipping will be considered one page)] may be received from other than the publisher within a piece of regular correspondence.

Changes in the proposed text are indicated by underlining new text and [bracketing] text to be deleted. Rules that are new are presented as regular text without underlining or brackets. New and/or repealed rules are noted in the description heading at the top of the document.

The complete listing of New York Codes, Rules, and Regulations (NYCRR) is available online through the NYS Department of State website.