[Federal Register Volume 75, Number 46 (Wednesday, March 10, 2010)]
[Proposed Rules]
[Pages 11077-11079]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-4907]
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DEPARTMENT OF JUSTICE
28 CFR Part 115
[Docket No. OAG-131; AG Order No. 3143-2010]
RIN 1105-AB34
National Standards To Prevent, Detect, and Respond to Prison Rape
AGENCY: Department of Justice.
ACTION: Advance notice of proposed rulemaking.
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SUMMARY: The Department of Justice (Department) is reviewing national
standards for enhancing the prevention, detection, and response to
sexual abuse in confinement settings that were prepared by the National
Prison Rape Elimination Commission (Commission) pursuant to the Prison
Rape Elimination Act of 2003 (PREA) and recommended by the Commission
to the Attorney General. The Department is issuing this Advance Notice
of Proposed Rulemaking to solicit public input on the Commission's
proposed national standards and to receive information useful to the
Department in publishing a final rule adopting national standards for
the detection, prevention, reduction, and punishment of prison rape, as
mandated by PREA.
DATES: Written comments must be postmarked on or before May 10, 2010,
and electronic comments must be sent on or before midnight Eastern Time
May 10, 2010.
ADDRESSES: To ensure proper handling of comments, please reference
``Docket No. OAG-131'' on all written and electronic correspondence.
Written comments being sent via regular or express mail should be sent
to Robert Hinchman, Senior Counsel, Office of Legal Policy, Department
of Justice, 950 Pennsylvania Avenue, NW., Room 4252, Washington, DC
20530. Comments may also be sent electronically through http://www.regulations.gov using the electronic comment form provided on that
site. An electronic copy of this document is also available at the
http://www.regulations.gov Web site. The Department will accept
attachments to electronic comments in Microsoft Word, WordPerfect,
Adobe PDF, or Excel file formats only. The Department will not accept
any file formats other than those specifically listed here.
Please note that the Department is requesting that electronic
comments be submitted before midnight Eastern Time on the day the
comment period closes because http://www.regulations.gov terminates the
public's ability to submit comments at midnight Eastern Time on the day
the comment period closes. Commenters in time zones other than Eastern
Time may want to consider this so that their electronic comments are
received. All comments sent via regular or express mail will be
considered timely if postmarked on the day the comment period closes.
FOR FURTHER INFORMATION CONTACT: Robert Hinchman, Senior Counsel,
Office of Legal Policy, Department of Justice, 950 Pennsylvania Avenue,
NW., Room 4252, Washington, DC 20530; telephone: (202) 514-8059. This
is not a toll-free number.
SUPPLEMENTARY INFORMATION: Posting of Public Comments: Please note that
all comments received are considered part of the public record and made
available
[[Page 11078]]
for public inspection online at www.regulations.gov and in the
Department's public docket. Such information includes personal
identifying information (such as your name, address, etc.) voluntarily
submitted by the commenter.
If you want to submit personal identifying information as part of
your comment, but do not want it to be posted online or made available
in the public docket, you must include the phrase ``PERSONAL
IDENTIFYING INFORMATION'' in the first paragraph of your comment. You
must also place all the personal identifying information you do not
want posted online or made available in the public docket in the first
paragraph of your comment and identify what information you want
redacted.
If you want to submit confidential business information as part of
your comment, but do not want it to be posted online or made available
in the public docket, you must include the phrase ``CONFIDENTIAL
BUSINESS INFORMATION'' in the first paragraph of your comment. You must
also prominently identify confidential business information to be
redacted within the comment. If a comment has so much confidential
business information that it cannot be effectively redacted, all or
part of that comment may not be posted online or made available in the
public docket.
Personal identifying information and confidential business
information identified and located as set forth above will be redacted
and the comment, in redacted form, will be posted online and placed in
the Department's public docket file. Please note that the Freedom of
Information Act applies to all comments received. If you wish to
inspect the agency's public docket file in person by appointment,
please see the instructions at the FOR FURTHER INFORMATION CONTACT
caption.
Background
The Prison Rape Elimination Act of 2003, 42 U.S.C. 15601 et seq.,
requires the Attorney General to promulgate regulations that adopt
national standards for the detection, prevention, reduction, and
punishment of prison rape. PREA established the Commission to carry out
a comprehensive legal and factual study of the penological, physical,
mental, medical, social, and economic impacts of prison rape in the
United States, and to provide to the Attorney General and the Secretary
of Health and Human Services national standards for enhancing the
detection, prevention, reduction, and punishment of prison rape. The
Commission published its recommended national standards in a report
dated June 23, 2009. The Commission's report and recommended national
standards are available at http://www.ncjrs.gov/pdffiles1/226680.pdf.
The Commission set forth four sets of recommended national standards
for eliminating prison rape and other forms of sexual abuse applicable
to (1) Adult prisons and jails, including facilities with immigration
detainees; (2) juvenile facilities; (3) community corrections; and (4)
lockups (i.e., temporary holding facilities). The Commission's proposed
standards apply to federal, state, and local correctional and detention
facilities. The standards developed by the Commission for each category
of confinement facility address prevention and response planning;
prevention; detection and response; and monitoring. Each standard
developed by the Commission contains requirements that the Commission
believes should be mandatory. Accompanying each standard is an
assessment checklist, which is not considered mandatory by the
Commission but is designed as a tool to provide agencies and facilities
with examples of how to meet the requirements of the standards. The
Commission's assessment checklists, along with a glossary of terms and
discussion sections providing explanations for the rationale of the
standards and, in some cases, guidance for achieving compliance, are
available at http://www.ncjrs.gov/pdffiles1/226682.pdf (adult prisons
and jails), http://www.ncjrs.gov/pdffiles1/226684.pdf (juvenile
facilities), http://www.ncjrs.gov/pdffiles1/226683.pdf (community
corrections), and http://www.ncjrs.gov/pdffiles1/226685.pdf (lockups).
Pursuant to PREA, the final rule adopting national standards
``shall be based upon the independent judgment of the Attorney General,
after giving due consideration to the recommended national standards
provided by the Commission * * * and being informed by such data,
opinions, and proposals that the Attorney General determines to be
appropriate to consider.'' 42 U.S.C. 15607(a)(2). PREA expressly
mandates that the Department shall not establish a national standard
``that would impose substantial additional costs compared to the costs
presently expended by Federal, State, and local prison authorities.''
42 U.S.C. 15607(a)(3). The Department ``may, however, provide a list of
improvements for consideration by correctional facilities.'' 42 U.S.C.
15607(a)(3).
PREA Working Group
The Attorney General has established a PREA Working Group to review
each of the Commission's proposed standards and to prepare a draft
final rule. The Working Group includes representatives from a wide
range of Department components, including the Bureau of Justice
Assistance, the Bureau of Justice Statistics, the Federal Bureau of
Prisons, the Civil Rights Division, the National Institute of
Corrections, the National Institute of Justice, the Office of Legal
Policy, the Office of Legislative Affairs, the Office of Juvenile
Justice and Delinquency Prevention, the Office of Justice Programs, the
Office for Victims of Crime, and the Office on Violence Against Women.
The Working Group is completing an in-depth initial review of the
standards proposed by the Commission, and is currently examining
whether the Department may be able to implement certain standards on an
interim basis before a final rule is published.
The Working Group has conducted a number of listening sessions, at
which a wide variety of individuals and groups have provided
preliminary input prior to the start of the regulatory process.
Participants have included representatives of state and local prisons
and jails, juvenile facilities, community corrections programs,
lockups, state and local sexual abuse associations and service
providers, national advocacy groups, survivors of prison rape, and
members of the Commission.
Because PREA prohibits the Department from establishing a national
standard that would impose substantial additional costs compared to the
costs presently expended by federal, state, and local prison
authorities, 42 U.S.C. 15607(a)(3), the Department must carefully
examine the potential cost implications of the standards proposed by
the Commission. Accordingly, the Department has commissioned an
independent contractor to perform a cost analysis of the Commission's
proposed standards. The contractor is expected to complete the cost
analysis in the coming months.
The Department is also working to address the other recommendations
put forth by the Commission. For example, the Attorney General has
designated a Senior Counsel in the Office of the Deputy Attorney
General to monitor and coordinate the Department's PREA implementation
efforts. The Department is also in the process of developing a
corollary to the 2004 ``National Protocol for Sexual Assault Medical
Forensic Examinations'' that will be customized to the conditions of
confinement. In
[[Page 11079]]
addition, via a separate rulemaking process, the Department intends to
remove the current ban on Victims of Crime Act funding for treatment
and rehabilitation services for incarcerated victims of sexual abuse.
The Department's Request for Comments
The Department is soliciting public input on the Commission's
proposed national standards. The Department welcomes all comments,
including any comments addressing specific standards proposed by the
Commission. In addition, the Department specifically requests comments
regarding three general questions listed below.
1. The Commission's proposed standards are intended to prevent,
detect, and respond to ``sexual abuse,'' which is defined in the
glossary that precedes each checklist. PREA directed the Department to
publish a final rule adopting national standards for the detection,
prevention, reduction, and punishment of prison ``rape,'' which is
defined in section 10 of Public Law 108-79 (42 U.S.C. 15609(9)). What
would be the implications of referring to one term as opposed to the
other in the Department's consideration of the Commission's proposed
national standards?
2. PREA mandates that the Attorney General shall not establish a
national standard ``that would impose substantial additional costs
compared to the costs presently expended by Federal, State and local
prison authorities.'' Would any of the Commission's proposed standards
impose ``substantial additional costs''? How should any such standards
be revised so as not to impose such costs? The Department welcomes all
cost data or cost estimations that would help it determine whether
particular proposed standards would--or would not--impose substantial
additional costs. In assessing costs, please consider whether and to
what extent implementation of particular standards would mitigate costs
currently expended.
3. Should the Department consider differentiating within any of the
four categories of facilities for which the Commission proposed
standards (i.e., adult prisons and jails; juvenile facilities;
community corrections facilities; and lockups) with compliance
requirements dependent on size, personnel or resource limitations, or
any other factors?
Regulatory Certifications
This action is an Advance Notice of Proposed Rulemaking (ANPRM).
Accordingly, the requirement of Executive Order 12866 to assess the
costs and benefits of this action does not apply. Similarly, the
requirements of section 603 of the Regulatory Flexibility Act do not
apply to this action because, at this stage, it is an ANPRM and not a
``rule'' as defined in section 601 of the Regulatory Flexibility Act.
Following review of the comments received to this ANPRM, as the
Department promulgates a Notice of Proposed Rulemaking regarding this
issue, the Department will conduct all analyses required by the
Regulatory Flexibility Act, Executive Order 12866, and any other
statutes or Executive Orders relevant to those rules and in effect at
the time of promulgation.
Dated: March 3, 2010.
Eric H. Holder, Jr.,
Attorney General.
[FR Doc. 2010-4907 Filed 3-9-10; 8:45 am]
BILLING CODE 44120-05-P; 4410-18-P