NOTICES
INDEPENDENT REGULATORY REVIEW COMMISSION
Notice of Comments Issued
[34 Pa.B. 4656] Section 5(g) of the Regulatory Review Act (71 P. S. § 745.5(g)) provides that the Independent Regulatory Review Commission (Commission) may issue comments within 30 days of the close of the public comment period. The Commission comments are based upon the criteria contained in section 5.2 of the Regulatory Review Act (71 P. S. § 745.5b).
The Commission has issued comments on the following proposed regulation. The agency must consider these comments in preparing the final-form regulation. The final-form regulation must be submitted within 2 years of the close of the public comment period or it will be deemed withdrawn.
IRRC Close of the Public Comments Reg. No. Agency/Title Comment Period Issued 19-6 Department of Corrections Administration, State Correctional 7/12/04 8/11/04 Institutions and Facilities and Release and Prerelease Programs (34 Pa.B. 3010 (June 12, 2004))
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Department of Corrections Regulation # 19-6
(IRRC # 2403)
Administration, State Correctional Institutions and Facilities and Release and Prerelease Programs
August 11, 2004 We submit for consideration the following comments that include references to the criteria in the Regulatory Review Act (71 P. S. § 745.5b) which have not been met. The Department of Corrections (Department) must respond to these comments when it submits the final-form regulation. The public comment period for this regulation closed on July 12, 2004. If the final-form regulation is not delivered within 2 years of the close of the public comment period, the regulation will be deemed withdrawn.
1. Section 91.6. Use of force and restraints.--Reasonableness; Clarity.
Subsection (a)
Subsection (a)(2)(i) allows for the use of deadly force if an inmate attempts to ''escape from a correctional facility or while in immediate pursuit of an inmate escaping from a correctional facility.'' The term ''correctional facility'' is not defined. The term ''facility'' is defined under § 91.6 as ''An institution, motivational boot camp or community corrections center operated or contracted by the Department.'' The Department has indicated that this provision does not apply to an escape from a community corrections center. For clarity, the final-form regulation should define the term ''correctional facility'' and it should not include the term community corrections center. Alternatively, the defined term ''facility'' should be substituted for ''correctional facility'' and subsection (a)(2)(i) should be amended to specifically exempt community corrections centers.
Subsection (a)(2)(ii) allows the use of deadly force if an inmate who has been convicted of a forcible felony attempts to ''escape from a work detail, transport or other approved temporary absence when deadly force is necessary to prevent the escape . . . .'' The term ''forcible felony'' is not defined in regulation or statute. However, it is defined in Department Policy Statement No. DC ADM-201--Use of Force as ''an offense involving the threat of physical force or violence against any individual.'' The Department should include this definition in the final-form regulation.
Subsection (c)
This subsection establishes the procedures for the use of chemical munitions. It requires staff to follow procedures in Administrative Directives. The Department should include the name and form number of the applicable documents in the final-form regulation.
2. Section 93.2. Inmate correspondence.--Clarity.
Subsection (f) relates to the rejection of correspondence. It states, in part, ''The letter may be held for at least 7 business days after mailing of the notification to permit reasonable opportunity to protest the decision.'' The word ''may'' suggests that this provision is optional. The Department has indicated that they routinely hold letters for 7 business days. The final-form regulation should make this provision a requirement by changing the word ''may'' to ''will.''
3. Section 93.3. Inmate visiting privileges.--Reasonableness; Clarity.
Subsection (a)
This subsection relates to the approved list of visitors. We have three areas of concern.
First, the opening sentence is being amended to state ''A list of approved visitors may contain at least 20 names or more if permitted by the Department.'' This change seems to require an inmate to have at least 20 visitors on the list. To avoid this confusion, the Department should retain the existing language that stated, in part, ''A list of approved visitors may contain up to 20 names . . . .''
Second, under the existing regulation, a child under 12 years of age may visit an inmate when accompanied by an adult. The proposed amendment would require a child under 18 years of age to be accompanied by a parent, legal guardian or county children/youth services agency staff. The Department's current policy statement and handbook are inconsistent with this provision in the proposed regulation.
Section (VI)(A)(2)(f) of Department Policy Statement No. DC ADM-812--Inmate Visiting Privileges provides that an immediate family member approved by the parent or legal guardian may accompany a minor when visiting an inmate. In addition, section (VI)(C)(2) allows a minor to visit only when accompanied by a parent/legal guardian, county children/youth services agency staff or an adult approved by the parent/legal guardian.
The Handbook for the Families and Friends of Pennsylvania Department of Corrections Prison Inmates permits an adult on an inmate's approved visiting list to accompany a child visiting an inmate. The Department should explain the inconsistencies between the proposed regulation and the documents previously noted.
Third, the provision regarding the removal of visitors from an approved list is being amended by deleting the phrase ''for good cause.'' The Department should retain this phrase, or explain the basis on which the facility manager will remove the name of a visitor.
Subsections (b), (c) and (j)
These subsections relate to visitations by religious advisers, attorneys and media representatives. They all contain the phrase ''. . . the total designated by the Department.'' The Department has indicated that they do not ''designate'' lists of visitors. Instead, they approve lists of visitors. These subsections should be amended to read ''. . . the total approved by the Department.''
Subsection (h)
Subsection (h)(1) and (2) provides that visiting days and hours will be ''at the discretion of the facility manager.'' Representative Kathy Manderino, a member of the House Judiciary Committee, is concerned that this new language would make it more difficult for family members to visit inmates who are confined to facilities far from their homes. She suggests the Department establish minimum standards for all facilities that would allow reasonable access for family visits. We agree that visiting days and hours should reasonably accommodate family members.
4. Section 93.6. Religious activities.--Reasonableness; Clarity.
Subsection (a)
This subsection is being amended to delete language which permits inmates to ''possess approved religious items'' and be granted ''reasonable accommodation for dietary restrictions.'' The Department should explain the reason for deleting this language.
Subsection (b)
This subsection relates to religious advisers. The rulemaking is deleting a provision that allows qualified representatives of a faith from the outside community to hold regular services in the correctional facility if the facility contains a sufficient number of inmates of the same faith. This provision is being replaced with the following sentence: ''Staff or volunteers will be permitted to hold services that are consistent with the security needs and orderly administration of the facility.'' The Department has indicated that qualified representatives who have received endorsement from their faith group will still be allowed to hold services. The final-form regulation should be amended to reflect this fact.
Subsection (c)
This subsection in the existing regulation specifies how requests for accommodations of faith will be handled. Why is this subsection being deleted?
5. Section 93.7. Telephone calls.--Clarity.
Subsection (a) references 18 Pa.C.S. Chapter 57 (relating to wiretapping and electronic surveillance). The Department has indicated that the applicable provision is 18 Pa.C.S. § 5704. The final-form regulation should be amended to include a reference to 18 Pa.C.S. § 5704.
6. Section 93.9. Inmate complaints.--Reasonableness; Clarity.
This section has been amended to add that an inmate who submits a ''frivolous'' grievance may be subject to appropriate disciplinary procedures. The definition of ''frivolous grievance'' is in DC-ADM 804--Inmate Grievance System. The final-form regulation should include this definition. Also, the Department should reference DC-ADM 804, which explains who determines if a grievance is frivolous and when that determination is made.
7. Section 93.10. Inmate discipline.--Reasonableness; Clarity.
Subsection (a)
This subsection states, in part, that ''Rules which define expectations and prohibitions for inmate behavior will be established by the Department and made available to the inmate population.'' (Emphasis added.) This sentence implies that rules will be established sometime in the future. However, the Department indicated that rules have been established and are contained in the Department of Corrections Inmate Handbook (Handbook). The final-form regulation should include a reference to that document.
Representative Manderino has expressed concern over the insertion of the phrase ''made available'' which replaces the existing term ''distributed.'' The concern is that since inmates will be held responsible for complying with the rules and may be disciplined for infractions, they should receive a complete copy of the rules. We agree.
Additionally, we note that the phrase ''made available'' or ''available'' appears in subsection (b)(2), as well as the following sections of the proposed regulation: the definition of ''contraband'' in § 91.1; § 93.2(e)(1); § 93.3(h)(6); and § 94.3(a)(1) and (6). The same concern applies to these sections. The final-form regulation should specify when the complete Handbook will be provided to inmates and how inmates will be informed of updates to the Handbook and other Department policy statements.
Subsection (b)
Subsection (b)(2) adds language pertaining to an ''informal resolution process'' for inmate misconduct charges. The Department should explain how this process will be implemented.
Under existing subsection (b)(5), written statements of a decision and the reasoning of the hearing body must be based on the ''preponderance of the evidence.'' The Department is proposing to replace ''preponderance of the evidence'' with ''some evidence.'' However, ''some evidence'' is not a legal standard for basing a finding of guilt. The Department should explain why it is not substituting another legal standard, such as ''substantial evidence,'' on which a finding of guilt will be based.
8. Section 93.12. Prison Medical Services Program.--Need; Reasonableness; Clarity.
Subsection (d)
This subsection lists medical services that will be provided to an inmate without charge. Subsection (d)(8) states that ''Infirmary care in a Department facility excluding organ transplantation.'' Based on discussion with Department staff, we understand that this provision was intended to address organ donation by an inmate. However, this procedure would not take place in a Department facility. Therefore, the exclusion listed in this subsection is unnecessary and should be deleted.
Subsection (e)
Under this subsection, the fee for medical services is being increased from $2 to $3 with subsequent increases of an additional $1 on July 1, 2005, and July 1, 2007. The Department should explain the basis for the fee increases.
9. Section 94.3. Procedures for participating in prerelease programs.--Clarity
Subsection (a) establishes the criteria for eligibility for prerelease programs. Subsection (a)(1) is being amended to add that inmates sentenced to ''other offenses as specified in State or Federal statutes or specified by the Department in the Commonwealth of Pennsylvania Department of Corrections Inmate Handbook'' are not eligible. The final-form regulation should include references to the applicable State and Federal statutes.
10. Section 94.5. Notification process.--Clarity.
Subsection (b) establishes the procedures to be followed if a judge or court objects to the prerelease of an inmate. If the Department and the judge or court cannot reach an agreement, the Department will refer the matter to the Board for ''a hearing.'' The existing regulation uses the word ''arbitration.'' Why has ''arbitration'' been replaced with ''a hearing''? Also, what does the arbitration process entail?
JOHN R. MCGINLEY, Jr.,
Chairperson
[Pa.B. Doc. No. 04-1568. Filed for public inspection August 20, 2004, 9:00 a.m.]
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