[Federal Register Volume 66, Number 242 (Monday, December 17, 2001)]
[Proposed Rules]
[Pages 64934-64946]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-30937]


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DEPARTMENT OF JUSTICE

Office of the Attorney General

28 CFR Part 97

[OAG 100P; AG Order No. 2539-2001]
RIN 1105-AA77


Establishment of Minimum Safety and Security Standards for 
Private Companies That Transport Violent Prisoners

AGENCY: Office of the Attorney General, Department of Justice.

ACTION: Notice of proposed rulemaking.

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SUMMARY: In the Interstate Transportation of Dangerous Criminals Act of 
2000 (``the Act''), Congress instructed the Department of Justice 
(``the Department'') to promulgate regulations providing minimum safety 
and security standards for private companies that transport violent 
prisoners on behalf of State and local jurisdictions. The Act provides 
that the regulations shall not impose stricter standards with respect 
to private prisoner transport companies than are applicable to certain 
Department agencies that transport violent prisoners under comparable 
circumstances. This rule proposes minimum standards in only those areas 
that Congress identified in the Act.

DATES: Comment date: Comments must be submitted on or before February 
15, 2002.

ADDRESSES: Please submit written comments to Lizette Benedi, Office of 
Legal Policy, U.S. Department of Justice, 950 Pennsylvania Avenue, NW, 
Washington, DC 20530. Comments may also be submitted by fax at (202) 
353-9164 and by electronic mail at [email protected]. To 
ensure proper handling, please reference ``Jeanna's Act'' on your 
correspondence.

FOR FURTHER INFORMATION CONTACT: For matters relating to this proposed 
rule, please contact Lizette Benedi, (202) 514-3824.

SUPPLEMENTARY INFORMATION:   

A. Background

What Does This Rule Propose?

    This rule proposes a limited number of minimum safety and security 
standards for private companies that engage in the business of 
transporting violent prisoners on behalf of State and local 
jurisdictions. The proposed rule requires private prisoner transport 
companies to establish measures designed to improve public safety by 
preventing escapes of violent prisoners and establishing appropriate 
safeguards and procedures in the event of the escape of a violent 
prisoner.
    In addition, the rule proposes minimum standards to ensure the 
safety of violent prisoners during transportation.

Why Is This Rule Needed?

    In enacting the Interstate Transportation of Dangerous Criminals 
Act of 2000, Public Law 106-560 (114 Stat. 2784)(enacted December 21, 
2000), Congress found that State and local jurisdictions are 
increasingly turning to private companies to transport their violent 
prisoners, and that escapes have occurred. Congress determined that 
minimum regulations for the private prisoner transport industry were 
necessary to provide protection against risks to the public that are 
inherent in the transportation of violent prisoners and to assure the 
safety of those being transported.

Does Compliance With These Regulations Mean That Private Prisoner 
Transport Companies Have Met All of Their Legal Obligations?

    No. These regulations implement the Act and do not pre-empt any 
applicable Federal, State, or local law that may impose additional 
obligations on private prisoner transport companies or otherwise 
regulate the transportation of violent prisoners. For example, all 
Federal laws and regulations governing interstate commerce (e.g., 
Federal laws regulating the possession of weapons and Federal Aviation 
Administration rules and regulations governing travel on commercial 
aircraft) will continue to apply to private prisoner transport 
companies.
    Because these regulations implement the Act, they affect only 
limited aspects of a private prisoner transport company's operations. 
Therefore, these regulations are not intended to be model guidelines or 
a complete set of standards for the private prisoner transport 
industry. Private prisoner transport companies should be aware that 
compliance with these regulations will mean only that they will not be 
subject to the sanctions established in the Act. The regulations are 
not meant to prevent or discourage private prisoner transport companies 
from adopting additional or more stringent standards relating to the 
transportation of prisoners. Similarly, these regulations do not limit 
the authority of Federal, State, or local governments to impose 
additional safety requirements or impose a higher standard of care upon 
private companies that transport violent prisoners.
    The purpose of these regulations is to enhance public security and 
the safety of both prisoners and guards during transportation. The 
regulations are not intended to create a defense to any civil action, 
whether initiated by a unit of government or any other party. Thus, for 
example, compliance with these regulations is not intended to and does 
not establish a defense against an allegation of negligence or breach 
of contract. Regardless of whether a contractual agreement establishes 
minimum precautions, the companies affected by these regulations will 
remain subject to the standard of care that is imposed by statute and 
common law upon their activities (or other activities of a similarly 
hazardous nature).

Overview of the Standards That This Rule Proposes

    This proposed rule would (1) require that private prisoner 
transport companies comply with minimum standards for fingerprint-based 
criminal background checks and preemployment drug testing for potential 
employees; (2) provide minimum standards for the length and type of 
employee training; and (3) establish restrictions on the number of 
hours that transportation employees can be on duty during a given time 
period.
    This rule also proposes that private prisoner transport companies 
comply with minimum standards for the use of restraints while 
transporting violent prisoners, and it establishes categories of 
violent offenders required to wear identifying clothing. Further, the 
rule proposes a minimum guard-to-prisoner ratio that must be observed 
while transporting violent prisoners, and proposes that private 
prisoner transport companies comply with standards regarding employee 
uniforms and employee identification.
    In addition, the rule proposes to require private prisoner 
transport

[[Page 64935]]

companies to notify local law enforcement officials 24 hours in advance 
of any scheduled stops in their jurisdiction when transporting violent 
prisoners. In the event of the escape of a violent offender, the 
proposed rule requires that the private prisoner transport company 
personnel immediately notify appropriate law enforcement officials in 
the jurisdiction where the escape occurs, as well as the governmental 
entity that contracted with the private prisoner transport company for 
the transport of the escaped violent prisoner.
    Finally, the rule proposes that private prisoner transport 
companies adopt certain minimum standards to protect the safety of 
violent prisoners in accordance with applicable Federal and State law.
    Pursuant to section 4(c) of the Act, except for the standards 
regarding the categories of violent prisoners required to wear brightly 
colored clothing, these proposed standards are not stricter than the 
standards applicable to the United States Marshals Service (USMS), 
Immigration and Naturalization Service (INS), and the Federal Bureau of 
Prisons (BOP) when transporting violent prisoners under comparable 
circumstances.

Who Is Covered by This Proposed Rule?

    The proposed rule only covers ``private prisoner transport 
companies,'' which are defined in Section 3 of the Act as ``any entity, 
other than the United States, a State, or an inferior political 
subdivision of a State, which engages in the business of the 
transporting for compensation, individuals committed to the custody of 
any State or of an inferior political subdivision of a State, or any 
attempt thereof.''
    Section 3 of the Act defines a ``violent prisoner'' as ``any 
individual in the custody of a State or an inferior political 
subdivision of a State who has previously been convicted of or is 
currently charged with a crime of violence or any similar statute of a 
State or the inferior political subdivisions of a State, or any attempt 
thereof.''
    The term ``crime of violence'' has the same meaning as in section 
924(c)(3) of title 18, United States Code. Pursuant to this subsection, 
a crime of violence is an offense that is a felony and (a) has as an 
element the use, attempted use, or threatened use of physical force 
against the person or property of another, or (b) that by its nature, 
involves a substantial risk that physical force against the person or 
property of another may be used in the course of committing the 
offense.

Does This Rule Affect Companies That Only Transport Violent Prisoners 
Within the Boundaries of One State, Only Those Companies That Transport 
Prisoners Across State Lines, or All Private Prisoner Transport 
Companies?

    If a company meets the definition of ``private prisoner transport 
company'' as defined in section 3(2) of the Act, the company must 
comply with this rule even if it does not transport prisoners across 
state lines. Congress passed the Act in order to impose regulations 
upon a previously federally unregulated industry that operates across 
the United States and engages in a potentially dangerous activity. In 
section 2 of the Act, Congress found that, ``when a government entity 
opts to use a private prisoner transport company to move violent 
prisoners, then the company should be subject to regulation in order to 
enhance public safety.'' This finding by Congress indicates that the 
threat that it intended to remedy was that posed by an unregulated 
industry engaging in business that could potentially affect the safety 
of citizens in all states.
    Although the Act is officially titled the ``Interstate 
Transportation of Dangerous Criminals Act of 2000,'' it is the 
Department's view that limiting the Act's provisions to only those 
companies that cross state borders would create the unacceptable result 
of leaving unregulated certain members of the industry that Congress 
clearly intended to regulate. In addition, the definition that Congress 
provided for ``private prisoner transport company'' does not require 
that the company engage in the interstate transportation of violent 
prisoners in order to be covered by the Act's provisions.
    The statutory direction of Congress to the Department was clear on 
this point. Section 4(a) of the Act states that the Department ``shall 
promulgate regulations relating to the transportation of violent 
prisoners in or affecting interstate commerce.'' A company that only 
operates intrastate can affect interstate commerce in several ways 
(e.g., by using interstate highways, by utilizing communications 
systems that rely on interstate modes of communications or satellites, 
by transporting prisoners who generally seek to cross state lines 
during escapes, by relying on the law enforcement agencies of nearby 
states in the event of an escape, etc.). Therefore, it is the 
Department's view that Congress clearly contemplated that, viewed 
either singly or in the aggregate, private companies that engage in the 
commercial activity of transporting violent prisoners within a state 
sufficiently affect interstate commerce to be covered by the 
requirements of this proposed rule.

What Are the Penalties For Noncompliance With the Regulations?

    Section 5 of the Act states that violators shall be fined up to 
$10,000 per violation and the costs of prosecution. Violators also will 
be responsible for making restitution to any public entity that expends 
funds for the purpose of apprehending any violent prisoner who escaped, 
in whole or in part, because of a violation of the Act. As discussed 
above, conduct constituting a violation of these regulations may also 
result in unrelated penalties as a result of criminal, administrative, 
or civil process pursuant to local, State, or other Federal laws.

Additional Considerations

    There is considerable variation in the classification of prisoners 
that the Department transports and the circumstances under which those 
prisoners are transported. For example, unlike private prisoner 
transport companies, INS at times transports entire family groups (of 
both sexes and of different ages) who have been apprehended after 
illegally entering the United States. Under other circumstances, INS 
(along with BOP and USMS) transports offenders who have committed very 
violent crimes and are considered to be a high security risk. 
Accordingly, the Department's components that transport prisoners have 
developed differing standards for prisoner transport that are 
appropriately tailored to their roles and missions.
    By requiring the Department to promulgate regulations in this area, 
Congress appears to have at least two goals in mind. First, uniform 
standards for transporting prisoners serve to improve public security 
and the safety of the prisoners and guards during transportation. 
Second, by providing that the Department's regulations for the private 
sector not be stricter than those governing the Department's own 
components, Congress appears to have been concerned that the 
regulations not be unduly burdensome.
    The Department shares Congress' concerns that any regulations that 
the Department issues should not unduly burden private industry, 
especially small entities, while still addressing the problems that 
motivated the passage of this Act. However, regulations that fully 
reflect the considerable variation of the Department's own prisoner 
transport activities might be so complex as to be burdensome on the 
affected entities and,

[[Page 64936]]

nonetheless, still not fully comply with congressional intent in 
certain areas.
    Therefore, consistent with section 4(c) of the Act, for some of the 
specific requirements of the Act (e.g., that prisoners ordinarily be 
required to wear brightly colored clothing) the rule proposes standards 
somewhat more stringent than the Department uses itself for the 
transport of prisoners, under certain circumstances. Moreover, for 
certain requirements that Congress imposed on private entities, the 
Department may have greater flexibility in its comparable internal 
procedures because the functions of Departmental agencies differ 
significantly from those of private prisoner transport companies, and 
therefore the circumstances are not comparable.
    For other requirements of the Act (e.g., the guard-to-prisoner 
ratio), the Department is proposing for comment a one-guard-to-six-
violent-prisoner ratio for promulgation in the final rule. The 
Department specifically invites comments from private prisoner 
transport companies, from State and local law enforcement entities, and 
from the general public concerning what ratio the Department should 
adopt in the final rule.
    The Department also seeks comment on the potential impacts that 
these regulations may have on the ability of sheriffs' departments and 
other operators of local jails to arrange safe and efficient violent 
prisoner transport in response to writs or other requirements.

How Does the Rule Affect the Transportation of Juveniles?

    It is the Department's view that the provisions of the Act do not 
apply to the transportation of juveniles unless the juvenile has been 
charged or convicted as an adult for a crime of violence as defined in 
18 U.S.C. Sec. 924(c)(3).
    The Act defines a violent prisoner as one ``who has previously been 
convicted of or is currently charged with a crime of violence.'' The 
Act gives the term ``crime of violence'' the same meaning as that term 
has in 18 U.S.C. Sec. 924(c)(3). Section 924(c)(3) includes in its 
definition of ``crime of violence'' the requirement that it be ``an 
offense that is a felony.'' This should be understood as referring to 
adults convicted of or facing felony criminal charges and to juveniles 
who previously have been convicted of or who are being prosecuted as 
adults for violent felony offenses. Unless juvenile offenders have been 
or are being tried as adults under federal law, they generally are not 
considered to have been ``convicted'' or ``charged'' with a ``crime of 
violence'' as defined in 18 U.S.C. 924(c)(3). Instead, they are 
considered to have been adjudicated delinquent or found guilty (or 
found ``involved'') in a juvenile delinquency proceeding, rather than 
convicted of a crime. E.g., United States v. Frasquillo-Zomosa, 626 
F.2d 99, 101 (9th Cir. 1980)(``A successful prosecution under the 
[Federal Juvenile Delinquency] Act results not in a conviction of a 
crime but rather in adjudication of a status''). Although some 
provisions under federal law create an exception to this general 
understanding by explicitly providing that a ``conviction'' includes 
certain juvenile adjudications, e.g., 18 U.S.C. 
Sec. 924(e)(2)(B)(``violent felony'' includes ``any act of juvenile 
delinquency involving the use or carrying of a firearm, knife, or 
destructive device that would be punishable by imprisonment for [a term 
exceeding one year] if committed by an adult''), neither 18 U.S.C. 
924(c)(3) nor the Act itself contain any language that would support 
interpreting the Act as including within its scope the transportation 
of juvenile offenders who have been adjudicated or who are to be tried 
as juveniles.

Who Was Consulted During the Development of This Proposed Rule?

    In accordance with the Act, Department of Justice officials met 
with several representatives of the private prisoner transport 
industry, the American Correctional Association (ACA), and law 
enforcement groups, including the National Sheriffs' Association, 
American Jail Association, National Association of Police 
Organizations, and the National Association of Government Employees 
International Brotherhood of Police Officers. During this rulemaking 
process, the Department looks forward to hearing additional comments 
from law enforcement groups, the public, and the private prisoner 
transport industry.

B. Detailed Discussion of the Proposed Requirements Covering 
Private Prisoner Transport

1. Background Checks and Drug Testing Standards for Potential Employees

    Under the proposed rule, potential employees of private prisoner 
transport companies will have to pass a preliminary fingerprint-based 
criminal background check prior to being hired. This background check 
will disqualify from employment those applicants convicted of a 
misdemeanor crime of domestic violence or any felony conviction. The 
fingerprint-based criminal background check would be performed by 
providing the applicant's fingerprints to the governmental agency that 
is contracting with the private prisoner transport company, for 
submission through the state history record repository to the FBI. The 
background check also must include a credit report check, a physical 
examination, and a personal interview.
    Also, potential employees of private prisoner transport companies 
must undergo testing to detect the prior or current use of controlled 
substances as a condition of employment. The pre-employment drug 
testing must be done in accordance with applicable State law. In the 
event that there is no applicable State law, private prisoner transport 
companies must comply with the pre-employment drug testing requirements 
that apply to commercial drivers (See, 49 CFR 382.301).

2. Length and Type of Employee Training

    The Act states that the Department may require that employees of 
private prisoner transport companies participate in up to 100 hours of 
preservice training relating to the transportation of prisoners. This 
training must be in the following areas: use of restraints, searches, 
use of force (including use of appropriate weapons and firearms), CPR, 
map reading, and defensive driving. This rule proposes to require 
private prisoner transport companies to provide their employees with 
100 hours of preservice training in those areas.
    The training of Department personnel who transport violent 
prisoners is notably more rigorous in length and in type than the 100-
hour maximum that Congress established in the Act for private prisoner 
transport companies. For instance, the BOP requires any employee who 
assists with prisoner bus transport to have successfully completed, at 
a minimum, one ``probationary'' year of service and attended 80 hours 
of Institutional Familiarization, 120 hours of Introduction to 
Correctional Techniques, 24 hours of Basic Prisoner Transport, and 80 
hours of Bus Operations Training. In addition, a BOP employee must 
undergo 40 hours of refresher training annually and must possess a 
commercial drivers license.
    Similarly, INS employees who transport prisoners must undergo a 
minimum of 196 hours of training, including 20 hours of driving-related 
training, 16 hours of first-aid training and CPR, 6 hours of training 
on conducting searches, 48 hours of training on the use of firearms, 
and 88

[[Page 64937]]

hours of training on the proper use of force.
    The USMS also requires that its employees who transport prisoners 
undergo rigorous training, including follow-up courses. As part of its 
required training regimen, the USMS requires over 100 hours of training 
in the areas of prisoner handling, prisoner searches, proper 
application and removal of restraints, tactical training in dealing 
with combative subjects, the proper escalation and de-escalation of 
force, vehicle operation, and firearms safety.
    The proposed rule does not address the minimum quality standards 
required for training programs, the need for in-service training, or 
instructor qualifications, although these are critical factors that 
enable Department agencies to transport prisoners safely. In its 
consultations with ACA and private prisoner transport companies, the 
Department has learned that there is currently no accredited training 
program to serve the function of training the employees of private 
prisoner transport companies. The ACA has reported that it has begun to 
develop standards for such training. The Department seeks comment from 
the private prisoner transport industry, the public, and law 
enforcement officials on the manner in which this training should be 
conducted and its quality assured.

3. Number of Hours an Employee May Be on Duty During a Given Time 
Period

    This proposed rule sets requirements to ensure that drivers of 
private prisoner transport companies comply with Federal standards that 
limit the amount of time a commercial driver may be on duty during a 
given time period. Pursuant to 49 CFR 395.3, no driver of a commercial 
vehicle may drive more than 10 hours following 8 consecutive hours off 
duty. A commercial driver will be barred from driving if the driver has 
been on duty (regardless of whether the employee drove) for 15 hours 
following 8 consecutive hours off duty.
    If the motor vehicle carrier operates commercial vehicles every day 
of the week, a driver will be barred from driving if the driver has 
been on duty for 70 hours in any period of 8 consecutive days. If the 
motor vehicle carrier does not operate commercial vehicles every day of 
the week, a driver will be barred from driving if the driver has been 
on duty for 60 hours in any period of 7 consecutive days.

4. The Number of Personnel That Must Supervise Violent Prisoners

    The Act directs the Department to develop minimum standards for the 
number of private prisoner transport personnel that must supervise 
violent prisoners. The Act states that these minimum standards shall 
not exceed a requirement of one agent for every six violent prisoners. 
In addition, the Act states that the Department must not impose 
stricter standards on private prisoner transport companies than are 
applicable, without exception, to the USMS, BOP, and INS. As a minimum 
standard, the Department believes that a one-agent-to-six-violent-
prisoner ratio is the most appropriate standard to protect the public 
from the threat of violent prisoner escapes.
    Although the Act states that the Department should establish a 
minimum guard-to-prisoner ratio, the Act also permits the Department to 
give private prisoner transport companies ``appropriate discretion'' in 
this area. The Department seeks comment from law enforcement entities, 
private prisoner transport industry members, and the public as to the 
proper level of discretion that private prisoner transport companies 
should have in relation to the one-guard-to-six-violent-prisoner ratio 
proposed by this regulation.
Department Practices and Procedures
    When Justice Department components transport high-risk, maximum 
custody, or violent offenders, the guard-to-prisoner ratios are often 
significantly more strict than one guard for every six prisoners. For 
instance, when BOP personnel transport their maximum custody inmates on 
escorted trips (for medical treatment or other purposes), the BOP 
policy guidelines require that for each such inmate, there must be 
three BOP staff escorts, one of whom must be a Lieutenant. The 
guidelines also require that additional BOP staff ride along for the 
duration of the trip in a follow vehicle. Because BOP policy guidelines 
recommend that two BOP staff ride in the follow vehicle, the guard-to-
prisoner ratio in this case is five guards to one prisoner. BOP policy 
guidelines require that this guard-to-prisoner ratio be maintained 
regardless of the number of prisoners being transported. When BOP 
transports prisoners who do not pose the highest security risk 
(regardless of the purpose of the trip), the BOP still requires that 
two employees ride in the van or car in which the prisoners are being 
transported, but without a requirement for a follow vehicle.
    Similarly, when USMS transports prisoners in a sedan (with a 
maximum capacity of three prisoners), USMS guidelines require a minimum 
of two armed deputies, for a minimum ratio of two guards to three 
prisoners. If only two prisoners are being transported by the USMS in a 
sedan, the two-deputy requirement still applies, yielding a ratio of 
one guard to one prisoner. If, for any reason, a sedan or van with a 
safety screen is not available, USMS guidelines require a minimum of a 
one-guard-to-one-prisoner ratio. Similar to the BOP policy, when the 
USMS transports prisoners in a van, USMS guidelines require that a 
minimum of two armed deputies accompany the prisoner. The resulting 
ratio will be at least two armed USMS deputies for 12 prisoners, 
yielding a ratio of one guard for six prisoners.
    INS guidelines require that if an INS detainee is being transported 
in an unsecured sedan, van, or utility vehicle by one INS officer, 
there is a minimum guard-to-detainee ratio of one guard for every two 
INS detainees. If there are more than two INS detainees being 
transported, there must be another INS guard present. The maximum 
capacity of an unsecured INS van is six detainees, resulting in a 
minimum possible guard-to-detainee ratio of one guard to three 
detainees for travel in an unsecured INS van. For secured sedans, vans, 
and utility vehicles, there is a minimum requirement of one officer 
unless the trip is over a long distance or requires stops for food or 
fuel. In that case, another officer would normally be required.
    There are instances where Department personnel must transport 
prisoners in buses, and in these cases, the guard-to-prisoner ratio 
typically diminishes. At times, this ratio may decrease to less than 
one guard for every six prisoners. The BOP guidelines require that 
three BOP staff accompany bus movements (not including the 
transportation of high risk offenders described above). Similarly, USMS 
policy mandates that a minimum of two armed deputies and a driver be 
used during bus transportation. Regulations of the INS require a 
minimum of two INS agents on each bus; however, the regulations also 
state that the minimum number of agents should be increased, or an 
escort vehicle added, if INS agents determine that the risk level of 
detainees warrants it.
    Despite any decrease in the guard-to-prisoner ratio, there are 
numerous Department operating procedures that are not required of 
private prisoner transport companies that ensure the security of the 
Department vehicles,

[[Page 64938]]

officers, and prisoners. For instance, there are Department operating 
procedures that require buses and other vehicles to have the rear cage 
door locked while inmates are aboard, to be equipped with security 
screens that separate the driver from the prisoners, to have steel mesh 
over the windows and doors, to have inside door handles removed, and to 
be searched for contraband before and after each prisoner movement. 
There are extensive Department guidelines that govern the movement of 
prisoners to and from buses, and also govern prisoner seating 
arrangements once on the bus. There are additional policies and 
procedures for monitoring and controlling prisoner conduct while on the 
bus and during stops. In addition, Department personnel have extensive 
training and knowledge of proven safety techniques (e.g., rules that 
handcuff keys are to be carried on separate key rings from vehicle 
ignition keys). This proposed rule will not require that any of these 
measures be adopted by private prisoner transport companies.
Simplified Guard-To-Prisoner Ratio for Industry
    As discussed in the preceding paragraphs, the Department's guard-
to-prisoner ratio varies depending upon the nature and security 
classification of the offender, the escape risk, and other factors. 
This ratio is often significantly more strict than the maximum ratio 
the Act permits the Department to require for private companies. The 
Department's ratio is also sometimes less strict than the one-to-six 
ratio referred to in the Act. The Department's own excellent record in 
transporting prisoners safely and securely with ratios lower than one 
guard to six prisoners is due in large measure to the extensive 
training that custodial and transport personnel receive (training that 
greatly exceeds the maximum training that the Department is permitted 
to require by regulation), to the carefully designed physical 
configuration of the transport vehicles, and to the elaborate 
procedures set forth in the Department's guidelines.
    It should be noted that this proposed rule does not require that 
private transport companies adhere to all of the Department's own 
guidelines regarding prisoner transport. Compliance with such 
guidelines would likely be very expensive for private companies. 
Further, a multi-tiered approach that the Department follows for 
conducting its own transport of prisoners would be administratively 
burdensome for private companies and require them to obtain information 
about each prisoner (such as their escape risk or security 
classification) which they are not at present likely to receive from 
the committing authority. But in the absence of mandated compliance 
with all of these safeguards, private prisoner transport does not 
involve ``comparable circumstances'' that would permit use of ratios 
more lenient than one to six.
    In an effort to comply both with the statutory requirement that the 
guard-to-prisoner ratio not exceed one to six and the statutory 
requirement that the Department not impose on private companies 
stricter requirements than it adheres to without exception, the 
Department proposes to require that private companies transporting 
offenders not exceed a ratio of one agent to six violent prisoners.
    The Department believes that this ratio provides a security level 
consistent with congressional intent but without imposing an elaborate 
set of multi-tiered ratios, compliance with which would be complex for 
private entities lacking the Department's resources. The Department 
further believes that the circumstances under which it transports 
prisoners with a ratio less stringent than one to six are fully 
justified by the additional security precautions that the Department 
takes that will not be imposed upon private companies.
    The Department recognizes that the private prisoner transport 
industry may experience significant variations in the carrying capacity 
of vehicles used, the number of prisoners transported per trip, and the 
security levels of the prisoners being transported. The variation among 
these factors may complicate the construction of a workable guard-to-
violent-offender ratio; therefore, the Department seeks input from 
industry, law enforcement, and the public as to the factors that should 
guide the development of a minimum guard-to-violent-prisoner ratio.

5. Employee Uniforms and Identification

    The rule proposes to require that private prisoner transport 
companies comply with certain minimum requirements for employee 
uniforms and identification. These standards will require the wearing 
of a uniform with a badge or insignia that identifies to the prisoners 
and others that the employee is a transportation officer.
    While engaged in the transportation of violent prisoners, private 
prisoner transport company employees must wear a uniform that clearly 
identifies them as such. The uniforms should be readily distinguishable 
in color and style from uniforms worn by Department of Justice 
personnel who transport violent prisoners.
    The rule also proposes that private prisoner transport companies 
require their employees to have identification credentials on their 
uniform that are visible at all times while engaged in the 
transportation of violent prisoners. The identification credentials 
must have a photograph of the employee that is at least one inch 
square, and a printed personal description of the employee, including 
the employee's name, the signature of the employee, and date of 
issuance. This standard is in accordance with Department regulations 
that require Department employees to carry proper identification (and a 
badge under certain circumstances).
    While Department regulations require its employees to possess 
proper identification at all times, under the proposed rule private 
prisoner transport company employees will only be required to possess 
and display proper identification while transporting violent prisoners.

6. Uniforms for Violent Prisoners

    The Act directs the Department to create standards establishing 
categories of violent prisoners required to wear brightly colored 
clothing clearly identifying them as prisoners. Congress has observed 
that a number of violent prisoners have escaped from private prisoner 
transport companies while wearing civilian clothing. An escaped violent 
prisoner wearing civilian clothing presents a much more serious risk to 
the public than an escaped prisoner who is clearly identified as a 
prisoner. The absence of any requirement for transported prisoners to 
wear distinctive and brightly colored clothing has unnecessarily 
hindered law enforcement officers in their search for escaped 
prisoners.
    After consulting with representatives of the law enforcement 
community, the private prisoner transport industry, and the ACA, the 
Department has determined that the category of prisoners required to 
wear distinctive prisoner uniforms should consist of all violent 
prisoners covered by the Act. Therefore, this rule proposes to require 
all violent prisoners transported by private prisoner transport 
companies to wear distinctive clothing that clearly identifies them as 
prisoners. As currently defined, this category is sufficiently broad to 
encompass those prisoners who may constitute a threat to public safety 
without requiring private companies to conduct intensive individualized 
risk assessments for each prisoner transported. This rule will not 
prohibit or in any way impede the

[[Page 64939]]

ability of private prisoner transport companies to require the wearing 
of uniforms by some or all other prisoners. The Department welcomes 
comments from interested parties as to whether it would be beneficial 
to broaden or narrow the category of prisoners required to wear such 
clothing.
    The Department recognizes that there are circumstances when it may 
be inappropriate or impractical to transport violent prisoners in 
distinctive brightly colored clothing (e.g., traveling on commercial 
aircraft, to a court appearance, or in the case of a particular 
physical disability). In keeping with the intent of the Act, any 
exceptions to the prisoner clothing requirement will be narrow. The 
Department seeks comment from the public, law enforcement, and industry 
as to what types of security or other specific considerations may 
warrant exceptions to the prisoner clothing requirement. Nothing in 
this proposed rule or in the final rule will supersede any applicable 
Federal Aviation Administration rules or regulations concerning the 
transportation of prisoners on commercial aircraft.
    The Department also learned from its consultations with the 
industry that it might be advisable for the Department to establish a 
standardized, brightly colored, and distinctive prisoner uniform that 
all private prisoner transport companies would be required to use. 
Industry representatives indicated that a standardized style, color, or 
pattern of prisoner uniform could have practical advantages, such as 
being easier and less expensive for the companies to purchase in bulk 
and making a more definite impression in the mind of the public to help 
them easily identify a prisoner in transit. The Department seeks 
comment from all interested parties as to whether a standardized 
prisoner uniform would be a useful or valuable element of prisoner 
transportation by private companies.
    From those entities who believe that the concept of a standardized 
prisoner uniform should be pursued, the Department welcomes 
recommendations as to the color (bright yellow, black and white 
striped, etc.) as well as style (jump-suits, two-piece uniforms that 
accommodate restraints, etc.) of prisoner uniform that should be 
adopted. Any recommendations for a particular color or style of 
standardized prisoner uniform should consider that the prisoner uniform 
must be distinctive without being confusingly similar to uniforms in 
use by other public or private entities. Such recommendations should 
also be distinctive from brightly colored clothing worn by law-abiding 
citizens, such as the ``blaze orange'' worn by hunters and road crews 
or the bright yellow clothing worn by certain firefighters.
    The Department requests comments on whether private prisoner 
transport companies that currently require violent prisoners to wear 
distinctive uniforms should be required to purchase new uniforms to 
comply with a new standard (if a new standard is established). As an 
alternative to the Department requiring the immediate replacement of 
currently-used brightly colored prisoner uniforms with some standard 
uniform, the Department requests comments on whether it should permit 
those companies that currently use prisoner uniforms to continue to use 
their current inventory until the uniforms are replaced in the ordinary 
course of business before being required to comply with any new 
standard. Under this alternative, the regulations would only require 
that any new uniforms that are purchased (or new contracts for the 
purchase of uniforms entered into) after the effective date must 
conform to the standard uniform described in the regulations.
    This part of the proposed rule would require that private prisoner 
transport companies take precautions that are similar to those taken by 
Department agencies must ensure that violent prisoners wear brightly 
colored clothing that identifies them as prisoners when they are being 
transported. Absent extenuating circumstances, the BOP requires that 
all inmates who travel on BOP buses be transported in government-issued 
clothing, including shoes. The INS requires violent prisoners to wear 
orange or red uniforms and less dangerous offenders to wear blue or 
yellow uniforms.

7. Restraints To Be Used While Transporting Prisoners

    The Department agencies that transport violent prisoners have 
similar policies governing the type of restraints that must be used on 
violent prisoners, during transportation. Violent prisoners, and those 
defined by the BOP to be ``Maximum Custody'' prisoners, are to be 
transported in handcuffs, leg irons, and waist chains. This rule 
proposes to apply this standard to private prisoner transport 
companies. Violent prisoners are to be transported in handcuffs, leg 
irons, and waist chains unless the use of all three restraints would 
create a serious health risk to the prisoner, or unless extenuating 
circumstances make the use of all three restraints impracticable. 
Examples of such exceptions would include the pregnancy or physical 
disability of a violent prisoner.
    The Department is considering the implementation of additional 
minimum requirements for private prisoner transport companies 
concerning the use of restraints. These additional minimum requirements 
would be similar to certain guidelines used by Department agencies 
during transportation of violent prisoners. For example, Department 
agencies have regulations that dictate when and how a violent prisoner 
is to be restrained during movement to the bus and during rest stops. 
Department agencies are also required to maintain an adequate supply of 
all types of restraint equipment on the bus. Each BOP bus is required 
to carry a minimum of two sets of modified leg irons to be used as 
handcuffs for large inmates. In addition, each BOP bus is required to 
have a 35-foot long chain and padlock in the event that a mass 
emergency evacuation of the bus is required.
    Department agencies also adhere to standards concerning the 
maintenance of restraints. All restraining equipment is to be inspected 
daily while the bus is operational. This inspection is necessary to 
avoid the use of restraining equipment that may have been altered 
during a previous trip. Comment is requested on the potential inclusion 
of one or more of these additional requirements as part of the minimum 
transportation requirements.

8. Notification of Local Law Enforcement Prior to Stops Within Their 
Jurisdiction

    When a prisoner transport vehicle is stopped, the risk of escape is 
greatest because prisoners may be boarding or exiting the vehicle and 
guards may be distracted while getting food, fueling the vehicle, or 
attending to medical or other emergencies. In the Act, Congress found 
that the private prisoner transport process can last for weeks as 
violent prisoners are dropped off and picked up at a network of hubs 
nationwide. Because each stop involves a potentially high security 
risk, Congress has imposed a requirement that when transporting violent 
prisoners, private prisoner transport companies are to notify local law 
enforcement officials 24 hours prior to a scheduled stop in their 
jurisdiction.
    For the purposes of this proposed rule, a ``scheduled stop'' is 
defined as a predetermined stop at a State, local, or private 
correctional facility for the purpose of loading or unloading prisoners 
or using such facilities for overnight, meal, or restroom breaks. 
Scheduled stops do not include routine fuel stops or emergency stops. 
Notice is

[[Page 64940]]

to be given to law enforcement officials prior to these scheduled stops 
to ensure that the risk of a prisoner escaping is as small as possible.
    There is no comparable requirement for Department agencies to 
provide advanced notice of scheduled stops because the transporting 
agency is a law enforcement entity. Any emergency or other disturbance 
may be instantaneously reported to other law enforcement entities 
through the Emergency Alert System that links all BOP buses with the 
central office. There is no need for BOP buses to relate their location 
to local law enforcement because the BOP central office is able to 
locate the bus via the Global Positioning System that is installed on 
each BOP bus.
    The rule will not propose that the use of specific technological 
equipment be required of private prisoner transport companies, such as 
the installation of a satellite tracking system that is linked to law 
enforcement. However, the rule will propose to require that notice of 
scheduled stops be given to local law enforcement 24 hours prior to the 
stop.

9. Immediate Notification of Law Enforcement in the Event of an Escape

    In the event of the escape of a violent prisoner, the private 
prisoner transport company must immediately notify appropriate law 
enforcement officials in the jurisdiction where the escape occurred, 
and also contact the governmental entity that contracted with the 
transport company. Private prisoner transport companies should be 
sufficiently equipped to provide immediate notification to law 
enforcement in the event of a prisoner escape. Law enforcement 
officials must receive notification no later than 15 minutes after an 
escape is detected unless the company can demonstrate that extenuating 
circumstances necessitated a longer delay.
    Congress imposed this requirement because there was at least one 
occasion when a violent prisoner's escape from a private transport 
company was not reported to law enforcement until hours after the 
escape was detected. Such a delay placed the public at risk and 
irreparably harmed the ability of law enforcement to secure the area, 
establish roadblocks, conduct intensive searches in the vicinity, 
notify the public about the possibility of danger, and identify 
relevant witnesses who could have aided in the capture of the prisoner.
    All Department agencies that transport violent offenders have 
guidelines that require providing notice to other law enforcement 
agencies in the event of a prisoner escape during transit. The USMS 
regulations require that prisoner escapes and attempted escapes 
immediately be reported to the United States Marshals Communications 
Center and the U.S. Marshal, Chief Deputy U.S. Marshal, or Supervisory 
Deputy U.S. Marshal. The United States Marshals Communications Center 
will then notify the Investigative Services Division and the Prisoner 
Services Division of the USMS. Similarly, in the event of a prisoner 
escape from a BOP vehicle, the BOP is required to contact the USMS and 
the nearest BOP institution, which will begin notifications up the 
chain of command as necessary. State and local law enforcement will 
also typically be contacted.
    Department agencies have adopted a uniform rule in the event of a 
prisoner escape that the first priority is to secure the remaining 
prisoners and transport them to their final destination. Under no 
circumstances will the supervision of the other inmates be relaxed in 
order to pursue an escaping inmate. The Department is considering 
proposing that private prisoner transport companies adopt similar 
procedures.

10. Safety of Violent Prisoners

    Congress has determined that private prisoner transport companies 
must provide standards of safety for violent prisoners in accordance 
with applicable Federal and State law. Department agencies have 
implemented extensive requirements to ensure the safety of violent 
prisoners who are transported. In addition to the protections provided 
by existing State and Federal laws, the Department may propose that 
private prisoner transport companies adopt some of the safety measures 
that Department agencies have adopted including: requiring safety 
equipment on buses (including first-aid kits, extra blankets, sirens, 
and extra restraining devices); abiding by rigid maintenance schedules 
for vehicles; mandatory inspections of vehicles; requirements for 
communications systems on vehicles; prohibitions on tobacco use in 
vehicles; seating arrangements to accommodate troublesome prisoners or 
those with medical needs; and requirements that prisoners be searched 
and restrained in a professional, systematic, methodical, and 
consistent manner.
    Similarly, Department agencies engaged in prisoner transport have 
procedures to conduct searches of vehicles and prisoners as needed to 
ensure that no contraband or weapons are brought onto the vehicle. To 
protect the safety of prisoners, Department personnel are rigorously 
trained in the proper use of firearms and the appropriate use of force. 
Also, to protect prisoners, appropriate forms and records must be filed 
prior to the use of specialized restraints on a prisoner and after a 
strip search that occurs for reasons other than receipt of a new 
prisoner (this report documents the identity of the prisoner searched, 
date, place, time, and duration of the search, reason for the search, 
names of those present, and a description of any weapons, evidence, or 
contraband found). The final rule may adopt all or some of the safety 
measures discussed above that have been implemented by Department 
agencies.

Small Business Regulatory Enforcement Fairness Act of 1996

    This rule is designed to have the lowest possible impact on 
businesses that transport violent prisoners while still protecting the 
safety of the public. This proposed rule is not a major rule as defined 
by section 251 of the Small Business Regulatory Enforcement Fairness 
Act of 1996, 5 U.S.C. 804, and it will not result in an annual effect 
on the economy of $100,000,000 or more; a major increase in costs or 
prices; or significant adverse effects on competition, employment, 
investment, productivity, innovation, or on the ability of United 
States-based companies to compete with foreign-based companies in 
domestic and export markets.

Unfunded Mandates Reform Act of 1995

    By this rule, the Department is proposing to implement the 
requirements of the Act, which imposes minimum security and safety 
standards upon private companies transporting violent offenders. The 
Act's requirements as implemented by these regulations may increase the 
operating costs of some of these private companies. While State and 
local governments are the primary entities that contract with private 
prisoner transport companies, this proposed rule does not impose any 
direct requirements upon State or local governments or upon their law 
enforcement offices.
    The Act requires potential private company employees to undergo a 
background check. Federal law does not permit dissemination of criminal 
history records to private employers for screening unless statutorily 
authorized. Because current statutory law does not grant private 
entities the authority to request Federal criminal history records, the 
private prisoner transport companies must arrange to do so with the 
contracting State or local

[[Page 64941]]

government. Therefore, to effectuate Congress' intent, this proposed 
rule suggests private prisoner transport companies arrange with the 
State or local law enforcement agency with which they are contracting 
to obtain a fingerprint-based background check of their employees or 
potential employees.
    Local law enforcement agencies routinely provide fingerprinting 
services for various public purposes (e.g. teacher applicants and bar 
examinations). If a governmental agency wishes to contract its prisoner 
transport obligations out to a private company, it will need to make 
arrangements for submitting the applicant's fingerprints to the FBI to 
conduct a criminal history background check on the applicant. The 
governmental agency submitting the fingerprints would incur the initial 
financial responsibility associated with these applications. The cost 
of the background check is determined by individual State procedure, 
not Federal procedure, and thus will vary from State to State. The 
Department has been informed that such application fees range from $14 
to $95. However, even assuming the highest fee, the Department does not 
anticipate that this requirement will have a significant financial 
affect on State or local entities. Because of Federal limitations upon 
dissemination of background information, the Department does not 
believe that there are other viable options that would allow private 
companies to meet the background investigation requirement.
    The Department has no evidence to indicate how much of any possible 
cost increases upon private businesses--from mandatory background 
checks or any other requirements imposed by this proposed rule--will be 
passed along as price increases to the State and local jurisdictions 
contracting with them. However, because of the relatively small number 
of private prisoner transport companies and the number of people 
employed by these companies, the Department believes that this proposed 
rule will not result in the expenditure by State, local, and tribal 
governments, in the aggregate, or by the private sector of $100,000,000 
or more in any one year, and it will not significantly or uniquely 
affect small governments.

Executive Order 12866

    The Department of Justice has reviewed this proposed rule in light 
of Executive Order 12866, Section 1(b), Principles of Regulation. The 
Department of Justice has determined that this rule is a ``significant 
regulatory action'' under Executive Order 12866, section 3(f), 
Regulatory Planning and Review, and, accordingly, this rule has been 
reviewed by the Office of Management and Budget.

Executive Order 13132

    The proposed rule only covers the business practices of private 
companies. This rule will not have substantial direct effects on the 
States, on the relationship between the national government and the 
States, or on the distribution of power and responsibilities among the 
various levels of government. Therefore, in accordance with section 6 
of Executive Order 13132, it is determined that this rule does not have 
sufficient federalism implications to warrant the preparation of a 
federalism summary impact statement.

Executive Order 12988

    This proposed rule meets the applicable standards set forth in 
Sections 3(a) and 3(b) of Executive Order 12988, Civil Justice Reform.

Paperwork Reduction Act

    This rule imposes no new information collection requirements.

Initial Regulatory Flexibility Act Analysis

    The Department of Justice drafted this rule in a way to minimize 
its impact on small businesses while meeting its intended objectives. 
Based upon the preliminary information available to the Department at 
this time, we are unable to state with certainty that this rule, if 
promulgated, will not have the effect on small businesses of the type 
described in 5 U.S.C. 605. Accordingly, the Department has prepared the 
following initial Regulatory Flexibility Act analysis in accordance 
with 5 U.S.C. 603.

A. Need for and Objectives of This Proposed Rule

    This proposed rule will implement the Act, which requires the 
Attorney General to establish regulations imposing minimum safety and 
security standards on private companies engaged in transporting violent 
prisoners for State and local jurisdictions.
    The Act reflects Congress' concerns about the growing number of 
State and local jurisdictions that are utilizing the services of 
private companies as an alternative to sworn law enforcement officers 
when transporting violent prisoners. Congress found that violent 
prisoners have escaped from private transport companies and that these 
escapes have led to further crimes committed by the escaped prisoners 
as well as significant expenditures by law enforcement units attempting 
to capture the escapees. As a result of these findings, Congress 
determined that it was necessary to regulate the private prisoner 
transport industry in order to enhance public safety.
    Congress required that the Department consult with the ACA and the 
private prisoner transport industry in promulgating these regulations. 
On March 30, 2001, Department of Justice officials met in Washington, 
DC, with representatives of the ACA and the private prisoner transport 
industry. Several representatives who were not able to attend the 
meeting in person participated through a conference call. The ACA, and 
each participating industry representative, agreed that higher 
standards in this area are much needed. In addition, the consultations 
provided the Department with information that indicates that the 
minimum standards imposed by the proposed rules will have little 
economic impact on these particular companies. Most of the standards 
proposed in this rule are already followed by the industry leaders and, 
in many cases, the standards followed by the companies in the private 
prisoner transport industry are much stricter than those found in this 
proposed rule.
    As is discussed more fully below, the Department has been informed 
that the private prisoner transport industry includes a large number of 
small entities. Many of these entities are smaller than those having 
Washington-based or other staff representatives whom the Department 
could identify and with whom it could consult in the limited time 
available under this Act to promulgate regulations.

B. Description and Estimates of the Number of Small Entities Affected 
by This Proposed Rule

    A ``small business'' is defined by the Regulatory Flexibility Act 
(RFA) to be the same as a ``small business concern'' under the Small 
Business Act (``SBA''), 15 U.S.C. 32. Under the SBA, a ``small business 
concern'' is one that: (1) Is independently owned and operated; (2) is 
not dominant in its field of operation; and (3) meets any additional 
criteria established by the SBA.\1\ As the demand for transporting 
prisoners increases, local and State governments find themselves unable 
to handle all their transportation needs. Therefore, these governmental 
entities enter into contracts with private companies to

[[Page 64942]]

provide for the transportation of their violent prisoners.
---------------------------------------------------------------------------

    \1\ See 5 U.S.C. 601(3) (incorporating by reference the 
definition of ``small business concern'' in 15 U.S.C. 632.
---------------------------------------------------------------------------

    Based upon the information available to the Department at present, 
there appear to be two distinct groups of businesses in the private 
prisoner transport industry: Larger companies that contract with 
various jurisdictions nationwide, and smaller entities often made up of 
a few individuals who provide transportation for law enforcement 
departments on an as-needed basis. Both groups of private transport 
companies would be regulated by this proposed rule and both fall under 
the definition of a ``small business'' pursuant to the RFA. The 
discussion in this section will first focus on the larger companies 
involved in transporting violent prisoners and then examine issues 
specific to the smaller companies.
    Although the Department consulted with some of the affected 
entities it was able to identify during the drafting of this proposed 
rule, the Department realizes that not all interested persons and 
entities may have been fully represented prior to the publication of 
this proposal. Therefore, the Department is requesting that further 
comments be submitted to help ensure that the concerns of all 
interested parties are considered. Commenters may wish to identify the 
type of industry, including: The number of companies/individuals 
involved and the annual income of business they conduct; how the 
proposed regulatory requirements would impact that industry; and, 
within the statutory requirements, any suggestions or comments on how 
the final regulations might be better tailored to the industry without 
compromising the basic intent of the law which is to enhance public 
safety by imposing minimum standards on private companies engaged in 
the transport of violent prisoners.
    Commenters should note that the submission of any comments or 
information on these or other matters addressed by this proposed rule 
is entirely voluntary. The Department is not prescribing the use of any 
form for this information.
    Pursuant to the RFA and public policy concerns, the Department 
encourages all affected commercial entities and law enforcement 
agencies to provide specific estimates, wherever possible, of the 
economic costs that this rule will impose on them and the benefits that 
it will bring to them and to the public. The Department asks affected 
small businesses to estimate what these regulations will cost as a 
percentage of their total revenues in order to enable the Department to 
ensure that small businesses are not unduly burdened.
1. Larger Private Prisoner Transport Companies
    In passing the Act, Congress specifically called upon the Attorney 
General to consult with the ACA and the private prisoner transport 
industry while drafting this proposed rule. During these consultations, 
the Department learned that there are approximately 10 to 12 larger 
private prisoner transport companies currently operating in the United 
States. However, there is no public or private entity that monitors 
when a private prisoner transport business enters or exits the 
industry. Therefore, it is difficult to accurately estimate the number 
of industry participants.
    The Department has drafted this proposed rule to have the minimum 
possible impact on these businesses while still complying with the 
intent of the Act. During the Department's consultations, it was 
informed that many of the proposed minimum standards contained in this 
proposed rule are already followed by the larger companies. In some 
instances, the larger industry participants have actually adopted more 
stringent internal standards than those that would be imposed by the 
proposed rule. Where the proposed rule would require companies to 
implement a practice not currently followed, industry opinion was taken 
into consideration so as to impose no greater burden than necessary.
2. Smaller Entities Engaged in the Transport of Violent Prisoners
    In addition to the larger private companies that transport 
prisoners, the Department believes that there is a large number of 
smaller entities that contract with State and local authorities to 
transport prisoners. Although the Department does not have an exact 
number of smaller companies, the ACA and industry leaders estimated 
that 500 such entities may exist. The Department was informed that 
these entities are often composed of merely one or two people who enter 
into contracts with sheriffs' offices on an as-needed basis. It is 
therefore difficult to address the impact that the proposed regulation 
would have on the smaller participants in the industry without knowing 
approximately how many of these smaller entities transport violent 
prisoners (and therefore would be regulated) or what their current 
safety and security practices are.
    However, the Department is concerned that these smaller companies 
will experience the greatest impact as a result of these regulations. 
For example, a minimum standard that imposes a ratio of at least one 
guard for every six violent prisoners might be a greater burden to a 
smaller entity that lacks the personnel resources of a larger company. 
Similarly, the need to possess a sufficient amount of specialized 
equipment, as required by these regulations, could create a greater 
economic burden on smaller entities. Because the Department has not 
been able to identify such entities, we are specifically requesting 
comment on the impact that this proposed rule would have on them.
3. Impact of These Regulations on Small Governmental Entities
    In section 3(2) of the Act, Congress specifically exempted from the 
minimum standards any Federal, State, or local governmental entity 
engaged in the transport of violent prisoners. The proposed rule would 
not regulate these entities. However, the Department is cognizant of 
the possibility that these regulations may place a burden on small 
governmental entities that contract with private prisoner transport 
companies. The Department therefore has consulted with the National 
Sheriffs' Association and the American Jail Association, as well as 
representatives from local police departments, to gain a better 
understanding of the impact this proposed rule will have on their 
operations.

C. Specific Requirements Imposed That Would Impact Private Companies

1. Standards Requiring the Use of Specialized Equipment
    Some of the minimum standards proposed by this rule might require 
private companies to purchase various pieces of equipment, thereby 
causing an increase in expenditures. The standards regarding mandatory 
restraints, uniforms for agents, identification credentials for agents, 
and uniforms for violent prisoners fall into this category. By imposing 
these standards, companies that are not already in possession of these 
items, or not in possession of a sufficient quantity, would have to 
purchase them in order to satisfy the requirements of the regulations.
    However, after consulting with representatives from the industry, 
the Department believes that the proposed rule will not have a 
significant economic impact on the larger entities in the private 
prisoner transport industry. With the exception of prisoner uniforms, 
all companies consulted indicated that they currently require the

[[Page 64943]]

use of all equipment specified in this proposed rule. The companies 
currently use hand-cuffs, leg chains, and waist chains, and all agents 
are issued uniforms and possess credentials. Therefore, this rule will 
not propose any new standards that require extra expenditures. Indeed, 
the private companies consulted by the Department indicated that, in 
many instances, they require more equipment than the rule proposes. For 
example, many of the companies require ``black boxes'' on their 
restraints in order to prevent a prisoner from picking the lock. In 
addition, many of the companies require their agents to have cell 
phones or Global Positioning Systems in their transport vehicles, 
features that go well beyond the standards contained in this proposed 
rule.
    The larger companies in the industry do not currently require 
prisoner uniforms for all violent prisoners. This rule proposes to 
implement a mandatory provision of the Act that requires violent 
prisoners to be transported in brightly colored clothing that clearly 
identifies the wearer as a violent prisoner. Because there is no 
current policy on prisoner attire, this standard would require 
companies to invest in a sufficient number of prisoner uniforms.
    As is discussed elsewhere in this proposed rule, the Department 
believes that a standardized uniform for violent prisoners might 
benefit all interested parties, but most importantly, the public. If 
one were established, a standardized uniform would be able to be 
produced in larger quantities by clothing manufacturers at a lower cost 
to the private transport industry. Further, once the color/pattern of 
uniform for violent prisoners in private transit became widely known, 
it would become easier both for law enforcement and the general public 
to identify such prisoners in the event of an escape. Finally, by 
proposing a single standardized color/pattern for violent prisoners, 
the Department would hope to avoid any confusion with brightly colored 
articles of clothing worn by law abiding members of the community 
engaged in particular activities (e.g., the blaze orange clothing worn 
by many hunters).
2. Training
    This rule proposes to require private companies to train their 
employees in six enumerated areas for a minimum of 100 total hours of 
training before the employee may transport violent prisoners. This 
standard might require private companies to incur the cost of training 
where their current practices fail to meet the standard. Companies 
would need to engage qualified instructors with the ability to properly 
train personnel. However, all of the companies consulted by the 
Department currently have training procedures in place, many of which 
are more extensive than those required by the proposed rule. Most of 
the companies indicated that they require firearms training equivalent 
to the training received by law enforcement officers. In addition, all 
of the companies consulted require their personnel to undergo follow-up 
training during the course of employment. It is therefore unlikely that 
the new training standards will have a significant impact on the larger 
industry participants.
3. Personnel
    The rule proposes to require a minimum ratio of one guard for every 
six violent prisoners during transport. It is possible that this 
standard would require companies to increase their personnel in order 
to meet the mandated ratio. However, all the companies consulted 
indicated that they already impose minimum guard-to-prisoner ratios, 
all of which are more stringent than the one proposed in this rule.
4. Other Standards Imposed on Companies
    Many of the minimum standards in this proposed rule will place 
affirmative duties on private prisoner transport companies. The 
standards dealing with pre-employment background checks and drug 
testing, notification of local law enforcement 24 hours before 
scheduled stops, and immediate notification of law enforcement should 
an escape occur all fall into this category. Of these, only the first 
standard regarding conducting background checks and drug testing 
carries with it the possibility of increased expenditures. While the 
notification requirements in this proposed rule do place an affirmative 
duty on the companies, they do not impose any economic burden on the 
companies.
5. Impact on Smaller Entities
    The Department does not have any specific information about how 
much of an economic impact this rule might have on the smaller industry 
participants in the foregoing areas: specialized equipment, training, 
personnel, background checking, and drug testing. However, it is 
reasonable to assume some aspects of this rule may have a 
proportionately larger economic impact upon small entities. For 
example, this may be the case with respect to equipment purchases 
where, typically, the larger the quantity purchased, the lower the per 
unit cost becomes. Given the inexpensive nature of handcuffs, leg 
irons, and waist chains, however, the additional cost burden should not 
be significant, especially because private prisoner transport companies 
are likely already to possess this equipment.
    With respect to the training requirements, there may be a greater 
impact on a small prisoner transport entity that might have only one or 
two employees. Such an entity might temporarily have to suspend 
operations while its agents undergo training. On the other hand, a 
larger entity with more employees might be able to continue operations 
while its employees rotate through training. Similarly, it might be 
easier for larger entities to meet the minimum guard-to-prisoner ratio 
than it would be for smaller entities.
    It should be stressed, however, that in proposing these 
regulations, the Department is merely implementing the mandatory 
requirements of the Act and that it has attempted to do so with the 
least economic impact upon any entity, large or small.

D. Reporting and Recordkeeping Requirements

    This proposed rule does not impose any additional reporting or 
recordkeeping requirements on private prisoner transport companies or 
on the State and local entities that contract with them.

E. Issues Raised and Alternatives Suggested

1. Issues Raised
    While consulting with representatives of the larger companies, the 
Department was apprised of an issue concerning the impact that this 
proposed rule would have on sheriffs' departments that employ private 
companies to transport violent prisoners. According to information 
provided to the Department, many of the local law enforcement offices 
across the nation employ smaller entities to transport prisoners, not 
the major companies, when the need arises. The Department, however, 
cannot exempt these smaller entities from the standards because they 
clearly fall into the definition of ``private prisoner transport 
company'' provided by Congress in the Act.
    It is important to note that this proposed rule does not impose any 
minimum standards on governmental entities nor on their employees 
engaged in official conduct. However, the Department acknowledges the 
possibility that these entities may be

[[Page 64944]]

indirectly affected in contracting with private companies. The 
Department, therefore, seeks comment from both the smaller companies 
engaged in transporting violent prisoners as well as State and local 
entities that contract with private companies to meet their 
transportation needs.
2. Alternatives Suggested
    An alternative suggestion was made during a consultation meeting 
between the Department and industry representatives concerning whether 
the Department should provide more guidance as to the quality of 
training required by this proposed rule. It was suggested an 
association, such as the ACA, develop an accredited training program 
and that any final rule should require private companies to receive 
accreditation from such a program. While the Department believes that 
this suggestion is worth further consideration, there is currently no 
such program in place and it is the Department's understanding that the 
earliest date by which the ACA could develop such a program would be 
January of 2002. Absent a standardized quality assurance program, the 
Department declines at this time to impose any requirements regarding 
the quality of training.
    A second alternative that was suggested pertained to the 
requirement that private companies notify local law enforcement when 
traveling through a jurisdiction. Initially, the Department intended to 
require 24 hour advance notification to local law enforcement of any 
scheduled stop within a jurisdiction, with ``scheduled stop'' broadly 
defined. However, it was suggested during the Department's 
consultations with law enforcement and industry leaders that the 
definition of ``scheduled stop'' should be more narrowly defined. Law 
enforcement groups and industry leaders agreed that if a transport 
company had to provide notification for any stop, including for such 
things as refueling, eating, and bathroom trips, the notification 
requirement could pose a security threat. Therefore, the Department 
proposes to construe more narrowly the definition of ``scheduled stop'' 
so that the regulations would apply only to predetermined stops at 
State, local, or private correctional facilities for the purpose of 
loading or unloading prisoners, or using such facilities for overnight, 
meal, or restroom breaks.
    A third alternative was suggested that would have delayed the 
implementation and enforcement of these provisions to allow smaller 
entities a longer period with which to comply with the new regulations. 
The Act provides no authority for delayed implementation or delayed 
enforcement of the new regulations. It is the Department's view that 
public safety would be most effectively protected if these minimum 
safety and security standards are applied to all private prisoner 
transportation companies equally, without regard to the size of the 
company.

F. Conclusion

    The Department believes that, given the mandatory nature of the 
Act, this proposed rule meets its stated objectives while reducing as 
much as possible the burden imposed on private companies engaged in the 
private transport of violent prisoners. As statutorily required, the 
Department consulted with industry leaders and the ACA in developing 
this rule. The Department took into account their concerns, as well as 
the concerns of law enforcement representatives, in drafting the 
proposed rule. The Department intends to maintain an on-going dialogue 
with the affected industry and law enforcement entities. In addition, 
the Department is attempting to identify additional entities that might 
be affected by this proposed rule and looks forward to receiving 
additional comments to this proposed rule.

List of Subjects in 28 CFR Part 97

    Business and industry, Penalties, Prisoners, Transportation.

    Accordingly, for the reasons set forth in the preamble, part 97 of 
chapter I of Title 28 of the Code of Federal Regulations is proposed to 
be added to read as follows:

PART 97--STANDARDS FOR PRIVATE ENTITIES PROVIDING PRISONER OR 
DETAINEE SERVICES

Sec.
97.1   Purpose.
97.2   Definitions.
97.11   Pre-employment screening.
97.12   Employee training.
97.13   Maximum driving time.
97.14   Guard-to-prisoner ratio.
97.15   Employee uniforms and identification.
97.16   Clothing requirements for transported violent prisoners.
97.17   Mandatory restraints to be used while transporting violent 
prisoners.
97.18   Notification of local law enforcement prior to scheduled 
stops.
97.19   Immediate notification of local law enforcement in the event 
of an escape.
97.20   Standards to ensure the safety of violent prisoners during 
transport.
97.22   No Pre-emption of federal, State, or local laws or 
regulations.
97.24   No civil defense created.
97.30   Enforcement.

    Authority: Public Law 106-560, 114 Stat. 2784 (42 U.S.C. 
13726b).


Sec. 97.1  Purpose.

    This part implements the provisions of The Interstate 
Transportation of Dangerous Criminals Act of 2000 (the Act), Public Law 
106-560, 114 Stat. 2784 (42 U.S.C. 13726b) (enacted December 21, 2000), 
to provide minimum security and safety standards for private companies 
that transport violent prisoners on behalf of State and local 
jurisdictions.


Sec. 97.2  Definitions.

    (a) Crime of violence. The term crime of violence has the same 
meaning as in section 924(c)(3) of title 18, United States Code. 
Section 924(c)(3) states that the term crime of violence means an 
offense that is a felony and--has as an element the use, attempted use, 
or threatened use of physical force against the person or property of 
another, or that by its nature, involves a substantial risk that 
physical force against the person or property of another may be used in 
the course of committing the offense.
    (b) Private prisoner transport company. The term private prisoner 
transport company (company) means any entity, other than the United 
States, a State, or an inferior political subdivision of a State, that 
engages in the business of transporting for compensation, individuals 
committed to the custody of any State or of an inferior political 
subdivision of a State, or any attempt thereof.
    (c) Violent prisoner. The term violent prisoner means any 
individual in the custody of a State or an inferior political 
subdivision of a State who has previously been convicted of or is 
currently charged with a crime of violence or any similar statute of a 
State or the inferior political subdivisions of a State, or any attempt 
thereof.


Sec. 97.11  Pre-employment screening.

    Private prisoner transport companies must adopt pre-employment 
screening measures for all potential employees. The pre-employment 
screening measures must include a background check and a test for use 
of controlled substances. The failure of a potential employee to pass 
either screening measure will act as a bar to employment.
    (a) Background checks must include:
    (1) A fingerprint-based criminal background check that disqualifies 
persons with either a prior felony conviction or a State or Federal 
conviction for a misdemeanor crime of

[[Page 64945]]

domestic violence as defined in 18 U.S.C. 921;
    (2) A Credit Report check;
    (3) A physical examination; and
    (4) A personal interview.
    (b) Testing for controlled substances must be in accordance with 
applicable State law. In the event that there is no applicable State 
law, private prisoner transport companies must test potential employees 
for controlled substances in accordance with 49 CFR 382.301.
    (c) The criminal background check references in paragraph (a)(1) of 
this section may not be submitted directly to the FBI or any other 
Federal agency. The private prisoner transport companies must work out 
the procedures for accomplishing the criminal background checks with 
their contracting governmental agencies.


Sec. 97.12  Employee training.

    Private prisoner transport companies must require the completion of 
a minimum of 100 hours of employee training before an employee may 
transport violent prisoners. Training must include instruction in each 
of these six areas:
    (a) Use of restraints;
    (b) Searches of prisoners;
    (c) Use of force, including use of appropriate weapons and 
firearms;
    (d) Cardiopulmonary resuscitation (CPR);
    (e) Map reading; and
    (f) Defensive driving.


Sec. 97.13  Maximum driving time.

    Companies covered under this part must adhere to the maximum 
driving time provisions applicable to commercial motor vehicle 
operators, under 49 CFR 395.3.


Sec. 97.14  Guard-to-prisoner ratio.

    Companies covered under this part must adhere to certain minimum 
standards with respect to the number of employees required to monitor 
violent prisoners during transportation. Private prisoner transport 
companies must ensure that at least one guard be on duty for every six 
violent prisoners transported. This requirement does not preclude a 
contracting entity from establishing more stringent guard-to-prisoner 
ratios.


Sec. 97.15  Employee uniforms and identification.

    (a) Employee uniforms. Uniforms used by private prisoner transport 
companies must meet the following requirements:
    (1) Uniforms must be readily distinguishable in style and color 
from official uniforms worn by United States Department of Justice 
employees who transport violent offenders;
    (2) Uniforms must prominently feature a badge or insignia that 
identifies the employee as a prisoner transportation employee; and
    (3) Uniforms must be worn at all times while the employee is 
engaged in the transportation of violent prisoners.
    (b) Employee identification. Identification utilized by private 
prisoner transport companies must meet the following requirements:
    (1) The identification credentials must clearly identify the 
employee as a transportation employee. The credentials must have a 
photograph of the employee that is at least one inch square, a printed 
personal description of the employee including the employee's name, the 
signature of the employee, and date of issuance; and
    (2) The employee must display proper identification credentials on 
his or her uniform and ensure that the identification is visible at all 
times during the transportation of violent prisoners.


Sec. 97.16  Clothing requirements for transported violent prisoners.

    Companies covered under this part must ensure that all violent 
prisoners they transport are clothed in brightly colored clothing that 
clearly identifies them as violent prisoners, unless security or other 
specific considerations make such a requirement inappropriate.


Sec. 97.17  Mandatory restraints to be used while transporting violent 
prisoners.

    Companies covered under this part must, at a minimum, require that 
violent prisoners be transported wearing handcuffs, leg irons, and 
waist chains unless the use of all three restraints would create a 
serious health risk to the prisoner, or extenuating circumstances (such 
as pregnancy or physical disability) make the use of all three 
restraints impracticable.


Sec. 97.18  Notification of local law enforcement prior to scheduled 
stops.

    When transporting violent prisoners, private prisoner transport 
companies are required to notify local law enforcement officials 24 
hours in advance of any scheduled stops in their jurisdiction. For the 
purposes of this part, a scheduled stop is defined as a predetermined 
stop at a State, local, or private correctional facility for the 
purpose of loading or unloading prisoners or using such facilities for 
overnight, meal, or restroom breaks. Scheduled stops do not include 
routine fuel stops or emergency stops.


Sec. 97.19  Immediate notification of local law enforcement in the 
event of an escape.

    Private prisoner transport companies must be sufficiently equipped 
to provide immediate notification to law enforcement in the event of a 
prisoner escape. Law enforcement officials must receive notification no 
later than 15 minutes after an escape is detected unless the company 
can demonstrate that extenuating circumstances necessitated a longer 
delay. In the event of the escape of a violent prisoner, a private 
prisoner transport company must:
    (a) Ensure the safety and security of the remaining prisoners;
    (b) Provide notification within 15 minutes to the appropriate State 
and local law enforcement officials;
    (c) Provide notification as soon as practicable to the governmental 
entity that contracted with the transport company; and
    (d) Provide complete descriptions of the escapee and the 
circumstances surrounding the escape to State and local law enforcement 
officials if needed.


Sec. 97.20  Standards to ensure the safety of violent prisoners during 
transport.

    Companies covered under this section must comply with applicable 
State and federal laws that govern the safety of violent prisoners 
during transport. In addition, companies covered under this section are 
to ensure that:
    (a) Protective measures are in place to ensure that all vehicles 
are safe and well-maintained;
    (b) Vehicles are equipped with efficient communications systems 
that are capable of immediately notifying State and local law 
enforcement officials in the event of a prisoner escape;
    (c) Policies are in effect to ensure the health and physical safety 
of the prisoners during transport, including a first-aid kit and 
employees who are qualified to dispense medications and administer CPR 
and emergency first-aid;
    (d) Policies are in effect to prohibit the mistreatment of 
prisoners, including prohibitions against covering a prisoner's mouth 
with tape, and against the use of excessive force and sexual 
misconduct;
    (e) Policies are in effect to ensure that juvenile prisoners are 
separated from adult prisoners during transportation, where 
practicable;
    (f) Policies are in effect to ensure that female prisoners be 
separated from male prisoners during transportation, where practicable;
    (g) Policies are in effect to ensure that female guards are on duty 
to supervise the transportation of female violent prisoners, where 
practicable; and

[[Page 64946]]

    (h) Staff are well trained in the handling and restraint of 
prisoners, including the proper use of firearms and other restraint 
devices, and have received specialized training in the area of sexual 
harassment.


Sec. 97.22  No pre-emption of federal, State, or local laws or 
regulations.

    The regulations in this part implement the Act and do not pre-empt 
any applicable federal, State, or local law that may impose additional 
obligations on private prisoner transport companies or otherwise 
regulate the transportation of violent prisoners. All federal laws and 
regulations governing interstate commerce (e.g., federal laws 
regulating the possession of weapons and Federal Aviation 
Administration rules and regulations governing travel on commercial 
aircraft) will continue to apply to private prisoner transport 
companies. The regulations in this part in no way pre-empt, displace, 
or affect the authority of States, local governments, or other federal 
agencies to address these issues.


Sec. 97.24  No civil defense created.

    The regulations in this part on private prisoner transport 
companies are not intended to create a defense to any civil action, 
whether initiated by a unit of government or any other party. 
Compliance with the regulations in this part is not intended to and 
does not establish a defense against an allegation of negligence or 
breach of contract. Regardless of whether a contractual agreement 
establishes minimum precautions, the companies affected by the 
regulations in this part will remain subject to the standards of care 
that are imposed by constitutional, statutory and common law upon their 
activities (or other activities of a similarly hazardous nature).


Sec. 97.30  Enforcement.

    Any person who is found in violation of the regulations in this 
part will:
    (a) Be liable to the United States for a civil penalty in an amount 
not to exceed $10,000 for each violation;
    (b) Be liable to the United States for the costs of prosecution; 
and
    (c) Make restitution to any entity of the United States, of a 
State, or of an inferior political subdivision of a State, that expends 
funds for the purpose of apprehending any violent prisoner who escapes 
from a prisoner transport company as the result, in whole or in part, 
of a violation of the regulations in this part promulgated pursuant to 
the Act.

    Dated: December 11, 2001.
John Ashcroft,
Attorney General.
[FR Doc. 01-30937 Filed 12-14-01; 8:45 am]
BILLING CODE 4401-19-P