CMC-18-12-00016-P Agreements for Custody of Inmates from Other States

5/2/12 N.Y. St. Reg. CMC-18-12-00016-P

NEW YORK STATE REGISTER

VOLUME XXXIV, ISSUE 18

May 02, 2012

RULE MAKING ACTIVITIES

STATE COMMISSION OF CORRECTION

PROPOSED RULE MAKING

NO HEARING(S) SCHEDULED

 

I.D No. CMC-18-12-00016-P

Agreements for Custody of Inmates from Other States

PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following proposed rule:

Proposed Action:

Amendment of section 7002.2; and addition of Part 7205 to Title 9 NYCRR.

Statutory authority:

Correction Law, sections 45(6), 45(15) and 500-o

Subject:

Agreements for custody of inmates from other states.

Purpose:

To standardize the Commission's approval process for agreements of local correctional facilities to detain out of state inmates.

Text of proposed rule:

Subdivision (a) of section 7002.2 of Title 9 is amended to read as follows:

(a) Prior to the admission of any prisoner, facility staff performing receiving and admissions functions shall examine the committing instrument or document which serves as the basis for the admission. Prisoners shall be admitted to a facility only when:

(1) an examination of available prisoner identification confirms that a prisoner's identity corresponds with any information accompanying such document;

(2) reasonable efforts have been made to confirm that the prisoner is of proper age for admission to a correctional facility in the State of New York. If the prisoner has not reached his or her 16th birthday, such prisoner shall not be admitted to the facility, except in accordance with section 304.1 of the Family Court Act or section 510.15 of the Criminal Procedure Law;

(3) reasonable efforts have been made to confirm that the commitment document bears the signature of a magistrate or other appropriate authority;

(4) it has been confirmed that the prisoner has been committed or otherwise authorized for admission to the receiving facility, and is not intended for commitment to another facility; [and]

(5) it has been determined that the commitment document is not otherwise defective so as to render the admission of a prisoner unlawful[.]; and

(6) an examination of the sentencing commitment, for eligible inmates of another state detained by agreement pursuant to Part 7205 of this Title, confirms that such inmate has been sentenced by a court of the other state to a term of imprisonment in excess of ninety (90) days but no more than one (1) year.

A new Part 7205 of Title 9 is added to read as follows:

Part 7205

Agreements for Custody of Inmates from Other States

(Statutory authority: Correction Law §§ 45(6), 45(15), 500-o)

§ 7205.1 Purpose.

The purpose of this Part shall be to provide a mechanism and procedure by which a local correctional facility may seek and acquire Commission approval of an agreement to detain the inmates of another state pursuant to section 500-o of the Correction Law.

§ 7205.2 Definitions.

As used in this Part, the following definitions shall apply to the terms listed below:

(a) Commission shall mean the State Commission of Correction.

(b) Facility shall mean a county jail or penitentiary or a correctional facility under the jurisdiction of the New York City Department of Correction.

(c) Eligible inmate shall mean an inmate, sentenced by the court of another state, to a term of imprisonment in excess of 90 days but no more than one (1) year.

(d) Legislature shall mean the county legislature, board of supervisors or, with regard to the City of New York, the city council.

(e) Chief executive officer shall mean the chief executive officer of the county or, with regard to the City of New York, the mayor.

(f) Agreement shall mean an agreement by the sheriff, warden, superintendent, local commissioner of correction or other person in charge of a facility, with a correctional institution located in another state, to provide for the custody of eligible inmates in such facility.

§ 7205.3 Policy.

(a) Except as provided by an agreement, approved by the legislature, chief executive officer and Commission, or pursuant to any other applicable law or regulation, a facility shall not detain an inmate committed or sentenced by the court of another state.

(b) Each eligible inmate confined to a facility shall be dealt with in all respects in the same manner as an inmate committed to the facility pursuant to paragraph (e) of Correction Law section 500-a.

(c) Notwithstanding the requirements of subdivision (b) of this section, an eligible inmate shall not be deprived of any legal right which such inmate would have had if confined in a correctional institution in the jurisdiction in which he or she was convicted.

(d) A facility's agreement to detain eligible inmates shall not have a detrimental effect upon the safety, security and good order of the facility, nor shall it result in a facility's violation of applicable laws and regulations, including, but not limited to, regulations controlling maximum facility capacity, inmate classification and staffing.

§ 7205.4 Application for Commission approval.

Any application for Commission approval of an agreement shall be made in writing by the sheriff, warden, superintendent, local commissioner of correction or other person in charge of a facility, and shall include:

(a) a complete copy of the entire agreement, including all exhibits, appendices and any other record referenced therein;

(b) a copy of the approval of the legislature and chief executive officer;

(c) a written analysis by the facility's county attorney, or attorney representing the facility's chief administrative officer, which serves to identify each and every legal right, apart from those normally provided to inmates committed to the custody of the facility, that an eligible inmate would enjoy if confined in a correctional institution of the jurisdiction in which the eligible inmate was convicted;

(d) a written analysis by the facility's county attorney, or attorney representing the facility's chief administrative officer, which provides legal authority for the manner in which eligible inmates will be transported to and from the facility pursuant to the agreement;

(e) a written plan by the facility's chief administrative officer, including relevant policies and procedures, to provide eligible inmates each additional right identified in the analysis required by subdivision (c) of this section, including an analysis of the effect such additional provisions will have on staffing, inmate classification, facility capacity, and the overall safety, security and good order of the facility; and

(f) any further information and records deemed relevant by the facility's chief administrative officer.

§ 7205.5 Commission review of application.

Upon receipt of an application, submitted pursuant to the requirements of section 7205.4 of this Part, the Commission shall conduct a review thereof, with consideration given to:

(a) the effect the agreement would have upon the safety, security and good order of the facility;

(b) the facility's ability to comply with the requirements of section 7205.3 of this Title; and

(c) the current state of the facility, including, but not limited to:

(1) inmate classification and capacity limitations;

(2) facility staffing;

(3) physical plant issues; and

(4) past compliance with relevant laws and regulations.

§ 7205.6 Commission determination.

(a) Following an application review pursuant to section 7205.5 of this Title, the Commission shall render a determination. Such determination shall be in writing to the sheriff, warden, superintendent, local commissioner of correction or other person in charge of the facility, and shall signify the Commission's decision to either deny approval of the agreement, approve the agreement as submitted, or approve the agreement subject to required amendments or modifications.

(b) Any Commission determination granting approval pursuant to subdivision (a) of this section shall pertain only to the submitted agreement. Any amendment, modification, renewal or extension of the agreement, other than amendments or modifications required as a condition of Commission approval, shall require the submission of an application pursuant to the requirements of this Part.

(c) Following a determination granting approval pursuant to subdivision (a) of this section, and at any time during the duration of the agreement, the Commission may, for good cause, revoke such approval. The Commission's determination to revoke approval of the agreement may be based upon the following considerations:

(1) the effect the agreement has had upon the safety, security and good order of the facility;

(2) the facility's inability to comply with the requirements of section 7205.3 of this Title; or

(3) the current state of the facility, including, but not limited to:

(i) inmate classification and capacity limitations;

(ii) facility staffing;

(iii) physical plant issues; or

(iv) compliance with relevant laws and regulations.

§ 7205.7 Annual report.

On or before the 15th day of February of each year, the chief administrative officer of a facility, which detained eligible inmates in the previous year pursuant to an agreement, shall forward a written report to the Commission setting forth:

(a) a description of each agreement; and

(b) the number of inmates confined pursuant to each agreement.

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, Alfred E. Smith State Office Building, 80 S. Swan Street, 12th Floor, Albany, New York 12210, [phone], email: [e-mail]

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 person confined in the correctional facilities of 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. Correction Law section 500-o provides that any agreement by a local correctional facility to provide custody of inmates from another state is subject to the approval of the Commission of Correction.

2. Legislative objectives:

By vesting the Commission with this rulemaking authority, the Legislature intended the Commission to promulgate minimum standards which provide a mechanism and procedure by which a local correctional facility may submit and seek Commission approval of an agreement to provide custody of inmates of another state.

3. Needs and Benefits:

Effective September 23, 2011, a new Correction Law § 500-o has been added to allow Sheriffs, Commissioners of Correction and other persons in charge of a local correctional facility to enter into an agreement with a correctional institution of another state to house inmates serving a sentence exceeding ninety (90) days but less than one year. L.2011, Ch. 573. Pursuant to the provisions of Correction Law § 500-o, any such agreement is subject to the approval of the Commission of Correction.

To provide a mechanism and procedure by which a local correctional facility may submit and seek Commission approval of such an agreement, and given the various and complicated issues surrounding such interstate agreements, including transportation, custody exchange and the provision of foreign state rights, the Commission has determined it beneficial and necessary to promulgate rules and regulations.

4. Costs:

a. Costs to regulated parties for the implementation of and continuing compliance with the rule: None. By statute, a local correctional may, but is not required to, enter into an agreement with a correctional institution of another state to house inmates The rule will provide a mechanism and procedure by which a local correctional facility may submit and seek Commission approval of such an agreement.

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 local 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 no regulations regarding agreements for the custody of inmates of another state, was explored by the Commission. This alternative was rejected upon the Commission's finding that it would greatly benefit both the Commission and the local correctional facilities to provide a standardized mechanism and procedure by which a local correctional facility may submit and seek Commission approval of such an agreement.

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 provide a mechanism and procedure by which a local correctional facility may submit and seek Commission approval of an agreement to provide custody of inmates of another state. Accordingly, it will not have an adverse impact on small businesses or local governments, nor impose any additional significant 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 provide a mechanism and procedure by which a local correctional facility may submit and seek Commission approval of an agreement to provide custody of inmates of another state. Accordingly, it will not impose an adverse economic impact on rural areas, nor impose any additional significant 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 provide a mechanism and procedure by which a local correctional facility may submit and seek Commission approval of an agreement to provide custody of inmates of another state. As such, there will be no impact on jobs and employment opportunities.