CMC-31-09-00005-P Inmate Institutional Fund Accounts

8/5/09 N.Y. St. Reg. CMC-31-09-00005-P

NEW YORK STATE REGISTER

VOLUME XXXI, ISSUE 31

August 05, 2009

RULE MAKING ACTIVITIES

STATE COMMISSION OF CORRECTION

PROPOSED RULE MAKING

NO HEARING(S) SCHEDULED

 

I.D No. CMC-31-09-00005-P

Inmate Institutional Fund Accounts

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

Proposed Action:

Amendment of Part 7016 of Title 9 NYCRR.

Statutory authority:

Correction Law, section 45(6) and (15)

Subject:

Inmate institutional fund accounts.

Purpose:

To allow for automated and electronic deposits to inmate institutional fund accounts in county correctional facilities.

Text of proposed rule:

The title of Part 7016 of Title 9 is amended to read as follows:

PART 7016. COMMISSARY AND INMATE ACCOUNTS

A new section 7016.2 of Title 9 is added to read as follows:

§ 7016.2 Inmate accounts.

(a) As required by subdivision (7) of section 500-c of the Correction Law, an institutional fund account shall be maintained on behalf of every inmate, and deposits shall be made into such accounts of any prisoner funds received.

(b) For the purpose of receiving prisoner funds, the sheriff or chief administrative officer may utilize, or cause to be utilized, electronic kiosks, automated teller machines, or other similar devices or systems capable of allowing members of the public to deposit funds into an inmate's institutional fund account. Members of the public depositing prisoner funds in such a manner may be charged a service fee not to exceed five ($5.00) dollars per transaction.

(c) Devices and systems utilized pursuant to subdivision (b) of this section shall comply with all applicable laws, codes, rules and regulations, including the New York State Banking Law and the rules and regulations of the New York State Banking Department.

(d) Nothing contained in this section shall otherwise relieve a facility of the requirement to receive and deposit prisoner funds, without imposition of a service fee, pursuant to sections 7002.4(f), 7004.6(b)(4) and 7025.4(c) of this Title.

(e) Notice shall be conspicuously posted by, on, or proximate to any device or system utilized pursuant to subdivision (b) of this section, advising members of the public:

(1) the amount of any service fee associated therewith;

(2) that acceptable funds mailed to an inmate in correspondence or a package will be deposited into the intended inmate's institutional fund account without the imposition of a service fee;

(3) facility policy regarding the acceptance of cash, checks, money orders, and other instruments of payment; and

(4) any other facility rule or regulation concerning inmate account deposits which, in the opinion of the chief administrative officer, should be so conveyed to the public.

Text of proposed rule and any required statements and analyses may be obtained from:

Brian M. Callahan, New York State Commission of Correction, 80 Wolf Road, 4th Floor, Albany, New York 12305, [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 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. Finally, subdivision (7) of Correction Law § 500-c references "written procedures established by the commission" with regard to the receipt of prisoner funds by a sheriff.

2.) Legislative objectives:

By vesting the Commission with this rulemaking authority, the Legislature intended the Commission to set minimum standards regarding various aspects of inmate care and custody in local correctional facilities, including the maintenance of inmate institutional accounts.

3.) Needs and benefits:

Recently, the Commission has encountered, through inmate grievances and inquiries from facility administrators, a novel issue concerning inmate institutional accounts. Specifically, it appears that several county correctional facilities have contracted for the use of an electronic "kiosk." Operating similarly to an automated teller machine (ATM), the sole function of such kiosk is to accept deposits into a specified inmate's institutional account, a portion of which is often deducted to satisfy a "service fee" paid to the machine's owner and operator. Both the inmate grievances and inquiries concerned the propriety of such a fee. Current Commission regulations require only that an inmate's institutional account be supplemented by funds confiscated upon admission [9 NYCRR § 7002.4(f)], contained in incoming correspondence [9 NYCRR § 7004.6(b)(4)] or included in an incoming prisoner package [9 NYCRR § 7025.4(c)].

In 2001, Correction Law section 500-c and other statutes were amended to enhance New York State's "Son of Sam Law" (L.2001, c.62). Taken as a whole, such statutes allow a crime victim to seek legal redress from a convicted perpetrator and, upon successful conclusion, allow the victim to access money and property obtained by the criminal from any source. With specific regard to Correction Law § 500-c, a new subdivision (7) was added to require a sheriff (or commissioner) to maintain an institutional fund account on behalf of every prisoner and "for the benefit of the person make deposits into said accounts of any prisoner funds."

Correction Law § 500-c(7) goes on to define "prisoner funds" as funds in the prisoner's possession upon admission, an inmate's earnings while incarcerated, or "any other funds received by or on behalf of the prisoner and deposited with such sheriff or municipal official in accordance with the written procedures established by the [Commission of Correction]." Current Commission regulations only provide for deposits into an inmate's institutional account of all funds confiscated upon admission [9 NYCRR § 7002.4(f)], contained in incoming correspondence [9 NYCRR § 7004.6(b)(4)] or included in an incoming prisoner package [9 NYCRR § 7025.4(c)].

When funds are deposited using a kiosk or similar device, it seems evident that such funds are "received … on behalf of the prisoner and deposited with such sheriff or municipal official." Thus constituting "prisoner funds" as defined in Correction Law § 500-c(7), it would appear that, absent Commission regulation to the contrary, the statute requires the entire amount to be deposited into the inmate's institutional account, and the deduction of any sum to satisfy a service fee would violate such obligation. For such reason, inmate grievances relating to the imposition of a fee have been upheld and the Commission has advised administrators of county correctional facilities to forgo imposing such fees until reconciliatory regulations may be adopted.

The Commission recognizes that there are inherent efficiencies related to the use of such devices, including decreased burden on staff to accept and account for such deposits, the elimination of potential issues related to the acceptance of cash by officers, the ability for the public to use debit and credit cards, and a more expedient verification and availability of such funds.

To provide such efficiencies and to recoup costs associated with the operation and maintenance of such devices, whether by the county or a contracted vendor, the Commission finds it reasonable to charge the public a nominal fee per transaction, not to exceed five ($5.00) dollars. The limit was determined following an informal inquiry into the arrangements both proposed and agreed to between vendors and various counties throughout the State. It should be noted that nothing in the Commission's Minimum Standards and Regulations for Management of County jails and Penitentiaries requires a county correctional facility to employ the use of such an electronic kiosk, nor even accept funds from members of the public visiting the jail. Further, should a county elect to provide an electronic kiosk, it does not dispense the facility regulatory obligation to make deposits into an inmate's institutional account, at no cost to the inmate or depositor, of all funds confiscated upon admission [9 NYCRR § 7002.4(f)], contained in incoming correspondence [9 NYCRR § 7004.6(b)(4)] or included in an incoming prisoner package [9 NYCRR § 7025.4(c)]. As set forth in the proposed regulation, notice of the alternative means of deposit, together with the applicable fees charged, must be conspicuously posted by, on, or proximate to any device or system utilized for the purpose of depositing inmate funds.

4.) Costs:

a. Costs to regulated parties for the implementation of and continuing compliance with the rule: None. The regulation allows for, but does not require, the use of electronic kiosks, automated teller machines, or other similar devices to allow members of the public to deposit funds into an inmate's institutional fund account.

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 handling of inmate funds, was explored by the Commission. This alternative was rejected upon the Commission's finding, as set forth above, that the absence of regulation allowing electronic or automated inmate account deposits prohibited such practice where a nominal service fee is incurred. Given the inherent efficiencies and convenience associated with such use, the Commission finds the same to be beneficial to both the facility and the inmate population.

In developing the regulation, the Commission sought input from the Counsel's Office of the New York State Sheriff's Association, a not-for-profit corporation comprised of all of the elected and appointed Sheriffs of New York State, formed in 1934 for the purpose of assisting Sheriffs in the efficient and effective delivery of Sheriffs' services to the public. Recognizing the inherent efficiencies and convenience associated with the use of such systems, there was minor dissent regarding the five dollar service fee limit proposed. While one member felt the limit was too low and should be tied to prevailing ATM rates, another member opined the limit to be excessive and would undermine counties trying to bargain a lower rate from vendors. Despite such minor dissent, the leadership of the Association indicated that that it would have no objection to the regulation as written.

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 allow for automated and electronic deposits to inmate institutional fund accounts in county correctional facilities. 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 allow for automated and electronic deposits to inmate institutional fund accounts in county correctional facilities. 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 allow for automated and electronic deposits to inmate institutional fund accounts in county correctional facilities. As such, there will be no impact on jobs and employment opportunities.