PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following proposed rule:
Proposed Action:
Amendment of section 7063.6 of Title 9 NYCRR.
Statutory authority:
Correction Law, section 45(6) and (15)
Subject:
Maintenance of chemical agents.
Purpose:
To extend the intervals within which certain chemical agents must be inspected.
Text of proposed rule:
Section 7063.6 of Title 9 is amended to read as follows:
§ 7063.6 Storage and maintenance of chemical agents
(a) All chemical agent equipment, munitions or devices stored within a facility shall be maintained in a safe and secure manner. Such storage shall ensure that only persons trained in the use of such articles have access to them.
(b) Equipment, munitions and devices which exclusively contain or administer oleoresin capsicum (OC) shall be inspected at intervals not to exceed six (6) months. [Quarterly i]Inspections of all other such equipment, munitions or devices shall be conducted at intervals not to exceed three (3) months.
(c) A written record of all such inspections shall be maintained which shall include, but need not be limited to:
(1) the name of the person(s) inspecting the articles;
(2) the date of inspection;
(3) the type and quantity of articles stored and inspected; and
(4) a description of their condition.
(d) Munitions and devices which have passed their predetermined expiration date shall be stored separately from the useful stock.
(e) Such munitions and devices shall be disposed of in compliance with accepted practices or used for training purposes only.
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 necessary maintenance and inspection of chemical agents.
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 relative to the inspection of chemical agents stored within a county correctional facility could be safely relaxed.
Current Commission regulations allow only for the storage and use of oleoresin capsicum (OC), chloroacetophenone (CN) and orthochlorobenzalmalonitrile (CS) in a county correctional facility. While OC, commonly referred to as "pepper spray", is a non-toxic product, both CS and CN are toxic substances that can cause serious injury or death with significant exposure. Presently, the Commission's regulations require a quarterly inspection of all chemical agent equipment, munitions and devices to ensure proper working order and the absence of leaks. Given the generally harmless characteristics of OC, the agent exclusively used by the vast majority of county correctional facilities within the state (approximately 90% of jurisdictions statewide), the Commission finds it entirely reasonable to extend the intervals within which mandatory inspections must be conducted to six months.
4. Costs:
a. Costs to regulated parties for the implementation of and continuing compliance with the rule: None. The regulation extends the intervals within which certain chemical agents must be inspected, thus reducing the number of inspections that the vast majority of county correctional facilities must perform annually from four (4) to two (2).
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 the inspection of chemical agents, was explored by the Commission. This alternative was rejected upon the Commission's finding, as set forth above, that the generally harmless characteristics of OC, the agent used by the majority of county correctional facilities within the state, allowed the Commission to safely extend the intervals within which mandatory inspections must be conducted to six months.
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 extend the intervals within which certain chemical agents must be inspected in county correctional facilities. Accordingly, it will not have an adverse impact on small businesses or local governments, nor impose any additional reporting, record keeping, 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 extend the intervals within which certain chemical agents must be inspected in county correctional facilities. Accordingly, it will not impose an adverse economic impact on rural areas, nor impose any additional record keeping, 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 extend the intervals within which certain chemical agents must be inspected in county correctional facilities. As such, there will be no impact on jobs and employment opportunities.
