(a) Policy. Any Department may apply for a variance from a specific Section or Subdivision of these minimum standards when compliance cannot be achieved or continued.
Continuing Variance. A "continuing variance" is an exemption granted by the Board from full compliance with a particular Section or Subdivision for an indefinite period of time.
Emergency Variance. An "emergency variance" as defined in 40 RCNY § 3-13(c)(3) is an exemption granted by the Board from full compliance with a particular Section or Subdivision for no more than 30 days.
Limited Variance. A "limited variance" is an exemption granted by the Board from full compliance with a particular Section or Subdivision for a specified period of time.
(b) Variances Prior to Effective Date. A Department may apply to the Board for a variance prior to the effective date of a particular Section or Subdivision when:
(1) despite its best efforts and the best efforts of other New York City officials and agencies, full compliance with the Section or Subdivision cannot be achieved by the effective date; or
(2) compliance is to be achieved in a manner other than specified in the Section or Subdivision.
(c) Limited, Continuing and Emergency Variances.
(1) A Department may apply to the Board for a limited variance when:
(i) despite its best efforts, and the best efforts of other New York City officials and agencies, full compliance with the Section or Subdivision cannot be achieved; or
(ii) compliance is to be achieved for a limited period in a manner other than specified in the Section or Subdivision.
(2) A 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 compliance cannot be achieved in the foreseeable future because:
(i) full compliance with a Section or Subdivision creates extreme practical difficulties as a result of circumstances unique to the design of a particular facility, and lack of full compliance would not create a danger or undue hardship to staff or inmates; or
(ii) compliance is to be achieved in an alternative manner sufficient to meet the intent of the Section or Subdivision.
(3) A Department may apply to the Board for an emergency variance when an emergency situation prevents continued compliance with the Section or Subdivision. An emergency variance for a period of less than 24 hours may be declared by a Department when an emergency situation prevents continued compliance with a particular Section or Subdivision. The Board or a designee shall be immediately notified of the emergency situation and the variance application.
(d) Variance Application.
(1) An application for a variance must be made in writing to the Board by the Commissioner of a 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 Section or Subdivision at issue;
(iii) the requested commencement date of the variance;
(iv) the efforts undertaken by a Department to achieve compliance;
(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 Section or Subdivision 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 subsection (1), 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 became apparent; and
(ii) the degree of compliance achieved and the Department's efforts to mitigate any possible danger or hardships attributable to 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 Section or Subdivision.
(3) In addition to the requirements of subsection (1), 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 specific facts or reasons making continued compliance impossible, and when those facts and reasons became apparent;
(ii) the specific plans, projections and timetables for achieving full compliance; and
(iii) the time period for which the variance is requested, provided that this shall be no more than thirty days.
(e) Variance procedure for limited and continuing variances.
(1) Prior to a decision on a variance application for a limited or continuing variance, whenever practicable, the Board will consider the positions of all interested parties, including correctional employees, health service professionals, inmates 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.
(f) Granting of variance.
(1) The Board shall grant a variance only if it is convinced 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.
(g) Renewal 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 40 RCNY § 3-13(c)-(f). 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 Section or Subdivision 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 officials of a Department, or its employees, inmates or their representatives. Upon receipt of a petition, the Board shall review and reevaluate 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 the 40 RCNY § 3-13(c)-(f). The Board will discontinue the variance, if after such review and consideration, it determines that:
(i) full compliance with the standard can now 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 Section or Subdivision in alternative manner as required by 40 RCNY § 3-13(b)(ii).
(3) The Board shall specify in writing and publicize the facts and reason for its decision on an application for renewal or review of a variance. The Board's decision must comply with the requirements of 40 RCNY § 3-13(f), and, in the case of limited and continuing variances, 40 RCNY § 3-13(e)(3) and (4). Where appropriate, the Board shall set an effective date for discontinuance of a continuing variance after consultation with all interested parties.