CMC-41-10-00004-P Prisoner Population Counts  

  • 10/13/10 N.Y. St. Reg. CMC-41-10-00004-P
    NEW YORK STATE REGISTER
    VOLUME XXXII, ISSUE 41
    October 13, 2010
    RULE MAKING ACTIVITIES
    STATE COMMISSION OF CORRECTION
    PROPOSED RULE MAKING
    NO HEARING(S) SCHEDULED
     
    I.D No. CMC-41-10-00004-P
    Prisoner Population Counts
    PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following proposed rule:
    Proposed Action:
    Amendment of sections 7003.5 and 7003.6 of Title 9 NYCRR.
    Statutory authority:
    Correction Law, section 45(6) and (15)
    Subject:
    Prisoner population counts.
    Purpose:
    To eliminate the requirement for overlapping officer shifts in conducting prisoner population counts.
    Text of proposed rule:
    Section 7003.5 of Title 9 is amended to read as follows:
    § 7003.5 Prisoner population counts
    (a) Prisoner population counts shall:
    (1) be conducted at the completion and commencement of each regularly scheduled shift;
    (2) be conducted by the facility staff member completing such regularly scheduled shift; [in conjunction with the facility staff member beginning the next regularly scheduled shift; and]
    (3) be conducted by the facility staff member beginning the next regularly scheduled shift; and
    [(3)] (4) include an accounting of all prisoners housed in or otherwise assigned to the facility area in which such count is conducted.
    (b) The results of each prisoner population count conducted pursuant to paragraphs (2) and (3) of subdivision (a) of this section shall be recorded in writing. Such written records shall include the:
    (1) date and time of the count;
    (2) facility area in which the count was conducted;
    (3) number of prisoners accounted for; and
    (4) name[s] of facility staff member[s] conducting the count.
    (c) Subsequent to each prisoner population count conducted pursuant to paragraph (3) of subdivision (a) of this section, the written records of the results of each count compiled pursuant to subdivision (b) of this section shall be immediately forwarded to the chief administrative officer. Upon receipt of the results of all prisoner population counts, the chief administrative officer shall determine the total prisoner population count. Such total prisoner population count shall account for each prisoner committed to the facility.
    (d) Total prisoner population counts shall be made in writing and shall include the:
    (1) date and time of such count;
    (2) the results of such count; and
    (3) signature of the chief administrative officer.
    (e) The chief administrative officer shall immediately initiate appropriate emergency procedures in response to any discrepancy in the prisoner population count.
    Section 7003.6 of Title 9 is amended to read as follows:
    § 7003.6 Requirements of facility staff members prior to assuming responsibilities in an assigned facility area
    (a) Each facility staff member shall, prior to assuming responsibilities in an assigned facility area, [perform the following:] obtain all necessary keys for the assigned area in accordance with the provisions of section 7003.9 of this Part.
    [(a)] (b) Upon assuming responsibilities in an assigned facility area and following the completion of duties set forth in section 7003.5 of this Part, each facility staff member shall review the records maintained pursuant to section 7003.3(j) of this Part and, subsequent to such review, initial such written records.[;]
    [(b) obtain all necessary keys for the assigned area in accordance with the provisions of section 7003.9 of this Part;
    (c) inspect all supplies, equipment, locks, gates, bars, screens, security windows and other securing devices; and
    (d) perform any other necessary security functions as determined by the chief administrative officer.]
    (c) Where a facility staff member's assignment to a facility area is scheduled to exceed one (1) hour, such facility staff member shall, upon assuming responsibilities in the assigned facility area and following the completion of duties set forth in subdivision (b) of this section, inspect all supplies, equipment, locks, gates, bars, screens, security windows and other securing devices, and perform any other necessary security functions as determined by the chief administrative officer.
    Text of proposed rule and any required statements and analyses may be obtained from:
    Brian M. Callahan, Associate Attorney, New York State Commission of Correction, 80 Wolf Road, 4th Floor, Albany, New York 12205, (518) 485-2346, email: Brian.Callahan@scoc.state.ny.us
    Data, views or arguments may be submitted to:
    Same as above.
    Public comment will be received until:
    45 days after publication of this notice.
    Regulatory Impact Statement
    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 persons confined in correctional facilities in 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 set minimum standards regarding various aspects of security in local correctional facilities, including the performance of prisoner population counts.
    3. Needs and benefits:
    In response to Governor David A. Paterson's Executive Order No. 17, Commission of Correction Chairman Thomas A. Beilein convened a workgroup to undertake a regulatory review of the Commission's Rules, Regulations and Minimum Standards for the Management of County Jails and Penitentiaries. Participants included sheriffs, jail administrators, and representatives of the New York State Division of the Budget, New York State Sheriffs' Association and the New York State Association of Counties. Of the various issues discussed, a consensus did agree that the regulations controlling the performance of prisoner population counts could be safely relaxed.
    Current Commission regulations require that prisoner population counts be performed at the completion of each regularly scheduled shift by the oncoming officer in conjunction with the off-going officer. Such counts are generally conducted while inmates are confined to their individual cell or group housing unit, thereby minimizing facility movement and instability. To achieve and ensure this required overlap of officer shifts, several county correctional facilities have incurred significant overtime expenditures and other expenses. By amending the regulation to require separate counts by the oncoming and off-going officers, the results of which must be immediately forwarded to and reconciled by the facility's chief administrative officer, the Commission is convinced that such unnecessary county expenditures can be eliminated without sacrificing facility security and public safety.
    4. Costs:
    a. Costs to regulated parties for the implementation of and continuing compliance with the rule: None. The regulation eliminates a currently required overlap of correction officer shifts, thus potentially reducing costs associated therewith. The amendment will generate savings for some counties immediately, such as Westchester, who indicated in the workgroup that it would save in excess of $300,000.00 annually. Thereafter, the change provides an opportunity for counties to implement cost saving measures, depending on the vehicle they have in place to meet the requirements of the current regulation. If, for example, the shift overlap has been made part of a collective bargaining agreement, they will have the opportunity to negotiate it out, an opportunity which the workgroup requested. Otherwise, if it is merely a work rule issue, a county could see savings sooner rather than later in the form of reduced overtime expenditures.
    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 state agencies or governmental bodies. As set forth above in subdivision (a), there will be no additional costs to local 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 prisoner population counts, was explored by the Commission. This alternative was rejected upon the Commission's finding, as set forth above, that unnecessary county expenditures, relative to correction officer shift overlaps for the purpose of prisoner population counts, can be eliminated without sacrificing facility security and public safety.
    9. Federal standards:
    There are no applicable minimum standards of the federal government.
    10. Compliance schedule:
    Each county correctional facility is expected to be able to achieve compliance with the proposed rule immediately.
    Regulatory Flexibility Analysis
    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 eliminate the current requirement that correction officer shifts overlap for the purpose of conducting prisoner population counts. Accordingly, it will not have an adverse impact on small businesses or local governments, nor impose any additional reporting, recordkeeping, or other compliance requirements on small businesses or local governments.
    Rural Area Flexibility Analysis
    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 eliminate the current requirement that correction officer shifts overlap for the purpose of conducting prisoner population counts. Accordingly, it will not impose an adverse economic impact on rural areas, nor impose any additional recordkeeping, reporting, or other compliance requirements on private or public entities in rural areas.
    Job Impact Statement
    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 eliminate the current requirement that correction officer shifts overlap for the purpose of conducting prisoner population counts. As such, there will be no impact on jobs and employment opportunities.