2010-4907. National Standards To Prevent, Detect, and Respond to Prison Rape

AGENCY:

Department of Justice.

ACTION:

Advance notice of proposed rulemaking.

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: [phone]. 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 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 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.