(a) Policy. The Department may apply for a variance from a specific subdivision or section of these minimum standards when compliance cannot be achieved or continued. A "limited variance" is an exemption granted by the Board from full compliance with a particular subdivision or section for a specified period of time. A "continuing variance" is an exemption granted by the Board from full compliance with a particular subdivision or section for an indefinite period of time. An "emergency variance" as defined in paragraph (b)(3) of this section is an exemption granted by the Board from full compliance with a particular subdivision or section for no more than 30 days.
(b) Limited, continuing and emergency variances.
(1) The Department may apply to the Board for a variance when:
(i) despite its best efforts, and the best efforts of other New York City officials and agencies, full compliance with the subdivision or section cannot be achieved, or
(ii) compliance is to be achieved for a limited period in a manner other than specified in the subdivision or section.
(2) The Department may apply to the Board for a continuing variance when despite its best efforts and the best efforts of other New York City officials and agencies compliance cannot be achieved in the foreseeable future because:
(i) full compliance with a specific subdivision or section would create extreme practical difficulties as a result of circumstances unique to a particular facility, and lack of full compliance would not create a danger or undue hardship to staff or prisoners; or
(ii) compliance is to be achieved in an alternative manner sufficient to meet the intent of the subdivision or section.
(3) The Department may apply to the Board for an emergency variance when an emergency situation prevents continued compliance with the subdivision or section. An emergency variance for a period of less than 24 hours may be declared by the Department when an emergency situation prevents continued compliance with a particular subdivision or section. The Board or its designee shall be immediately notified of the emergency situation and the variance declaration.
(c) Variance application.
(1) An application for a variance must be made in writing to the Board by the Commissioner of the Department as soon as a determination is made that continued compliance will not be possible and shall state:
(i) the type of variance requested;
(ii) the particular subdivision or section at issue;
(iii) the requested commencement date of the variance;
(iv) the efforts undertaken by the Department to achieve compliance by the effective date;
(v) the specific facts or reasons making full compliance impossible, and when those facts and reasons became apparent;
(vi) the specific plans, projections and timetables for achieving full compliance;
(vii) the specific plans for serving the purpose of the subdivision or section for the period that strict compliance is not possible; and
(viii) if the application is for a limited variance, the time period for which the variance is requested, provided that this shall be no more than six months.
(2) In addition to the provisions of paragraph (1) of this subdivision, an application for a continuing variance shall state:
(i) the specific facts and reasons underlying the impracticability or impossibility of compliance within the foreseeable future, and when those facts and reasons become apparent, and
(ii) the degree of compliance achieved, and the Department's efforts to mitigate any possible danger or hardships attributable to the lack of full compliance; or
(iii) a description of the specific plans for achieving compliance in an alternative manner sufficient to meet the intent of the subdivision or section.
(3) In addition to the requirements of paragraph (1) of this subdivision, an application for an emergency variance for a period of 24 hours or more, (or for renewal of an emergency variance) shall state:
(i) the particular subdivision or section at issue;
(ii) the specific facts or reasons making continued compliance impossible, and when those facts and reasons became apparent;
(iii) the specific plans, projections and timetables for achieving full compliance; and
(iv) the time period for which the variance is requested, provided that this shall be no more than thirty days.
(d) Variance procedure for limited and continuing variance.
(1) Prior to a decision on an application for a limited or continuing variance, the Board shall consider the position of all interested parties, including correctional employees, prisoners and their representatives, other public officials and legal, religious and community organizations.
(2) Whenever practicable, the Board shall hold a public meeting or hearing on the variance application, and hear testimony from all interested parties.
(3) The Board's decision on a variance application shall be in writing.
(4) Interested parties shall be notified of the Board's decision as soon as practicable, and no later than 5 business days after the decision is made.
(e) Granting of variance.
(1) The Board shall grant a variance only if it is presented with convincing evidence that the variance is necessary and justified.
(2) Upon granting a variance, the Board shall state:
(i) the type of variance
(ii) the date on which the variance will commence
(iii) the time period of the variance, if any, and
(iv) any requirements imposed as conditions on the variance.
(f) Renewal and review of variance.
(1) An application for a renewal of a limited or emergency variance shall be treated in the same manner as an original application as provided in subdivisions (b), (c), (d) and (e) of this section. The Board shall not grant renewal of a variance unless it finds that, in addition to the requirements for approving an original application, a good faith effort has been made to comply with the subdivision or section within the previously prescribed time limitation, and that the requirements set by the Board as conditions on the original variance have been met.
(2) A petition for review of a continuing variance may be made upon the Board's own motion or by the Department, correctional employees, prisoners or their representatives. Upon receipt of a petition, the Board shall review and re-evaluate the continuing necessity and justification for the continuing variance. Such review shall be conducted in the same manner as the original application as provided in subdivisions (b), (c), (d) and (e) of this section. The Board will review all the facts and consider the positions of all interested parties. The Board will discontinue the variance, if after such review and consideration, it determines that:
(i) full compliance with the standard now can be achieved; or
(ii) requirements imposed as conditions upon which the continuing variance was granted have not been fulfilled or maintained; or
(iii) there is no longer compliance with the intent of the subdivision or section in an alternative manner as required by subparagraph (b)(2)(ii) of this section.
(3) The Board shall specify in writing and publicize the facts and reasons for its decision on an application for renewal or review of a variance. The Board's decision must comply with the requirements of subdivision (e) of this section, and, in the case of limited and continuing variances, paragraphs (d)(3) and (4) of this section. Where appropriate, the Board shall set an effective date for discontinuance of a continuing variance after consultation with all interested parties.
(4) The Board shall not grant more than two consecutive renewals of emergency variances.