PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following proposed rule:
Proposed Action:
Amendment of sections 1010.3, 1010.4(b), (c), (e), (f) and 1010.5; addition of sections 1010.5(e), 1010.6, 1010.7 and 1010.8; and repeal of section 1010.4(h) and (i) of Title 7 NYCRR.
Statutory authority:
Correction Law, section 112
Subject:
Contraband Drugs.
Purpose:
Provide clarity for staff and ensure consistency between departmental internal policy and the corresponding section of 7 NYCRR.
Text of proposed rule:
Amend Section 1010.3, as follows:
The possession by [inmates or visitors] anyone of contraband drugs presents a serious threat to the safety and security of a correctional facility. The [attendant] importation of and trafficking in contraband drugs provides an opportunity for the demoralization of inmates and the corruption of correctional staff. The accurate identification of suspected contraband drugs and the use of appropriate disciplinary sanctions for the possession of contraband drugs can assist facility administrators in detecting and suppressing this threat.
Amend sections 1010.4(b), 1010.4(c), 1010.4(e) and 1010.4(f), as indicated below:
When a substance is found which is suspected of being a contraband drug, the following steps shall be taken.
(a) Place the substance in a sealed container and label it with the following information:
(1) date and time found;
(2) place where found; and
(3) name and badge number of the officer, security supervisor, executive team member with peace officer status or name and title of the employee (if civilian) finding the substance.
(b) Initiate a request for test of suspected contraband drugs (see [subdivision [h]] section 1010.8(a) of this part [section]) to include details of circumstances leading to request. Each person handling the suspected substance shall make an appropriate notation on the form to document the action taken as well as the chain of custody of the substance until it is identified or, if applicable, placed in control of the Inspector General's Narcotics staff or a police agency or [forwarded to ]the State Police laboratory.
(c) If the substance is not to be identified immediately, it shall be secured in a locked contraband locker or other appropriate secure place with limited documented access.
(d) If the substance is in tablet or capsule form, it shall be inspected at the facility pharmacy for possible identification.
(e) If the substance has not been conclusively identified at the facility pharmacy, it shall be tested by the use of the narcotics identification kit (NIK®) manufactured by Public Safety, Inc. Always begin Polytesting with Test A and continue from test to test until a positive or negative result is obtained. Tests E, L, M, N, P, Q and R are exceptions to this rule and are designed as stand alone tests (see section 1010.8(c) of this part, NIK® Tests list.
(f) The individual performing the test shall have been appropriately trained in the use of the testing materials and shall follow the procedures recommended by the manufacturer. The testing sequence followed and the results obtained shall be noted on the contraband test procedure form (see [subdivision [i]] section 1010.8(b) of this part [section]).
(g) Any substance remaining after testing at the facility may, but need not, be forwarded to a State Police laboratory for further testing.
Repeal sections 1010.4(h) Form 2080 and 1010.4(i) Form 2081.
Amend section 1010.5 and add new section 1010.5(e) as indicated below:
In a subsequent disciplinary hearing, the positive result of a test of suspected contraband drugs may be used as evidence that the suspected substance is what the test result indicates. In addition to the misbehavior report, the inmate shall be served with the following documents and the record of the hearing must include:
(a) the request for test of suspected contraband drugs form, see section 1010.8(a) of this part;
(b) the contraband test procedure form, see section 1010.8(b) of this part;
(c) the test report prepared by an outside agency subsequent to testing of the substance; if any;
(d) a statement of the scientific principals and validity of the testing materials and procedures used (for the Public Safety, Inc. NIK® system, see [below] section 1010.8(c) of this part.
(e) a photocopy of the individual test instructions for each test used.
Repeal the remaining text in current section 1010.5(d).
Create a new section 1010.6 as follows:
§ 1010.6 LEFTOVER DRUG SUBSTANCES. Substances remaining after testing and/or disciplinary proceedings should be disposed of in accordance with NYSDOCS Departmental Directive #4910, "Control of and Search for Contraband."
Create a new section 1010.7 as follows:
§ 1010.7 POSITIVE TEST REPORTING. A positive test for suspected contraband drugs must be reported as an Unusual Incident in accordance with Directive #4004, when any one of the following conditions apply:
- A positive test result for cocaine, heroin, or marijuana, even if no perpetrator is identified.
- Any positive test result in which an inmate has been identified as a perpetrator of the incident.
- Any positive test result which results in the arrest of any individual, i.e., visitor, volunteer, contractor, employee, etc., by the Department's Inspector General's Office or any outside police agency.
Create a new Section 1010.8 as indicated below:
1010.8 Forms.
(a) Form 2080, Request for Test Of Suspected Contraband Drugs. See Appendix (page 109) in this issue of the Register.
(b) Form 2081, Contraband Test Procedure. See Appendix (page 110) in this issue of the Register.
(c) NIK® System, statement of principals, procedures and tests
NIK® Public Safety developed the NIK® System of Narcotics Identification as a means of rapidly screening and presumptively identifying substances suspected of being abused drugs, narcotics and hallucinogens. Designed to be a completely self-contained system, the kit in its several configurations, provides all necessary elements to perform chemical color tests for the commonly known and most frequently abused narcotics and dangerous drugs.
Each test pack contains the chemical required to perform the desired test in pre-filled, hermetically sealed glass ampoules. This eliminates the need for measuring, mixing and dispensing of reagents while affording a maximum of protection to the investigator. Reagent shelf life is also substantially prolonged by this method of packaging. Chemicals used are ACS grade or better, providing the highest rate of accuracy.
The NIK® System is designed to function as a transportable-mininarcotics identification laboratory. It may be carried with you and is, therefore, available for use wherever and whenever the need may arise.
"COLORIMETRIC CHEMICAL TESTING"
The NIK® System employs chemical colorimetric comparison as the means by which narcotics and other controlled substances are screened and presumptively identified. Each test pack contains one or more chemical reagents which will predictably develop a color or a series of colors in the presence of the most commonly known narcotics and dangerous drugs. When the predicted color reaction occurs while following the recommended test sequence, a positive identification is presumed. A positive identification is considered a component of probable cause and generally recognized within our legal system as being presumptive in nature.
"NIK® POLYTESTING SYSTEM"
The NIK® System of Narcotics Identification is based upon a poly testing procedure whereby a suspect material is subjected to a series of progressively discriminating screening tests. The results of a single test may or may not yield a valid result. However, the sequential results of several tests, if they all indicate a positive reaction for a particular substance, provides a high degree of certainty that the suspect material is in fact what the NIK® Poly testing System indicates it to be.
Experiments have been and continue to be conducted with hundreds of licit and illicit chemical compounds in a continuing effort to eliminate false positive results. No chemical reagent system, adaptable to field use exists, that will completely eliminate the occurrence of an occasional invalid test result. A complete forensic laboratory would be required to qualitatively identify an unknown suspect substance. In absence of such a laboratory facility, the NIK® System, utilizing the recommended Poly testing procedure, is your best assurance that the presumptive results of a positive identification are what they appear to be.
"NIK® TESTING CAPABILITY"
The NIK® System will presumptively identify most substances which fall within the following general groups of abused drugs:
A. Cannabis sativa L. B. Depressants C. Hallucinogens
D. Narcotics E. Stimulants
NIK® NARCOTICS IDENTIFICATION SYSTEM - NIK® TESTS
Test A Marquis Reagent - for the presumptive identification of Opiates (Morphine, Codeine or Heroin), Demerol, Black Tar, Amphetamine-type compound, including Methamphetamine & Methylenedioxymethamphetamine (MDMA or Ecstacy), Amphetamines and as a general screening agent for other drugs
Test B Nitric Acid Reagent - always used with test A for the confirmation of Opiates (Morphine, Codeine or Heroin) and Amphetamine-type compound as well as well as a general screening test for other drugs
Test C Modified Dille-Koppanyl Reagent - for the presumptive identification of Barbiturates
Test D Modified Ehrlich's Reagent - for the presumptive identification of LSD (Lysergic Acid Diethylamide)
Test E Duquenois-Levine Reagent - for the presumptive identification of Marijuana, Hashish and "Hash Oil"
Test G Modified Scott Reagent - for the presumptive identification of Cocaine, Crack or Free Base
Test H Proprietary formula - for the presumptive identification of Methadone
Test I Proprietary formula - for the general screening to presumptively identify PMA, Ketamine, Barbiturates and Methadone
Test J Proprietary formula - for the presumptive identification of PCP (Phencyclidine)
Test K Proprietary formula - for the presumptive identification of Heroin, Black Tar, Codeine and Morphine, (easier to distinguish between the four Opiates, than using test B) -test screens out Methapyrilene and Propoxyphene
Test L Modified Mecke's Reagent - for the presumptive identification of all forms of Heroin, including White, Brown and Black Tar, and Ecstacy (MDMA), as well as detecting the presence of certain dye combinations designed to give false positives with the Marquis Test (Test A)
Test M Proprietary formula - for the presumptive identification of Methaqualone (Quaaludes, Sopor, Somnafac, Opitimll and Parest are the trade names)
Test N Proprietary formula - for the presumptive identification of Pentazocine, cornmonly known under the trade name Talwin Nx or Talacen
Test O Proprietary formula - for the presumptive identification of GHB (gammahydroxybytyrate)
Test P Proprietary formula - for the presumptive identification of Propoxyphene
Test Q Proprietary formula - for the presumptive identification of Ephedrine and Pseudoephedrine
Test R Proprietary formula - for the presumptive identification of Valium (Daizepam), Rohpnol (Flunitrazepam) and Methcathinone
Test T Propietary Formula - for the presumptive identification of Ketamine.
Test U Proprietary formula - for the presumptive identification of secondary amines, such as Methamphetamine and MDMA (Ecstacy)
Test W Proprietary formula - for the presumptive identification of amphetamines and Methadone, as well as screening for PMA and Ketamine with Test I
Text of proposed rule and any required statements and analyses may be obtained from:
Maureen E. Boll, Deputy Commissioner And Counsel, New York State, Department of Correctional Services, 1220 Washington Avenue, Albany, NY 12226-2050, (518) 457-4951, email: Maureen.Boll@Docs.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
Section 112 of Correction Law grants the Commissioner of DOCS the superintendence, management and control of the correctional facilities and inmates confined therein and to promulgate rules and regulations for this purpose.
2. Legislative Objective
By vesting the commissioner with this rulemaking authority, the legislature intended the commissioner to promulgate such rules, regulations and disciplinary standards so as to provide for the safe, secure and orderly operation of correctional facilities for both staff and inmates and to help ensure public safety.
3. Needs and Benefits
The possession of contraband drugs by anyone presents a serious threat to the safety and security of a correctional facility. Therefore, the accurate identification of suspected contraband drugs and the use of appropriate disciplinary sanctions can assist facility administrators in detecting and suppressing this threat. Due to the potential for disciplinary sanctions and the paramount safety and security concerns associated with contraband drug testing, DOCS considers it prudent to ensure that its internal policy mirrors the corresponding part of 7NYCRR Part 1010.
4. Costs
a. To agency, state and local government: No discernable costs are anticipated.
b. Cost to private regulated parties: None. The proposed rule changes do not apply to private parties.
c. This cost analysis is based upon the fact that the rule changes merely clarify and expand upon previously established rules regarding internal management and Standards of Inmate Behavior. No additional procedures or new staff are necessary to implement the proposed changes.
5. Paperwork
There are no new reports, forms or paperwork that would be required as a result of amending these rules.
6. Local Government Mandates
There are no new mandates imposed upon local governments by these proposals. The proposed amendments do not apply to local governments.
7. Duplication
These proposed amendments do not duplicate any existing State or Federal requirement.
8. Alternatives
DOCS considered the alternative of not promulgating this rule. However, DOCS decided that this rule making was important to ensure that departmental policy (Directive #4938) mirrors Part 1010, 7 NYCRR. To this purpose departmental policy (Directive #4938) is also undergoing minor revisions accordingly.
9. Federal Standards
There are no minimum standards of the Federal government for this or a similar subject area.
10. Compliance Schedule
The Department of Correctional Services will achieve compliance with the proposed rules immediately.
Regulatory Flexibility Analysis
A regulatory flexibility analysis is not required for this proposal since it will not impose any adverse economic impact or reporting, recordkeeping or other compliance requirements on small businesses or local governments. This proposal seeks to provide consistency between departmental internal policy and the corresponding section of 7NYCRR, as well as to provide clarity with regard to the affected procedures.
Rural Area Flexibility Analysis
A rural area flexibility analysis is not required for this proposal since it will not impose any adverse economic impact or reporting, recordkeeping or other compliance requirements on rural areas. This proposal seeks to provide consistency between departmental internal policy and the corresponding section of 7NYCRR, as well as to provide clarity with regard to the affected procedures.
Job Impact Statement
A job impact statement is not submitted because this proposed rule will have no adverse impact on jobs or employment opportunities. This proposal seeks to provide consistency between departmental internal policy and the corresponding section of 7NYCRR, as well as to provide clarity with regard to the affected procedures.
