[Federal Register Volume 67, Number 248 (Thursday, December 26, 2002)]
[Rules and Regulations]
[Pages 78699-78712]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-32608]



[[Page 78699]]

=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF JUSTICE

Office of the Attorney General

28 CFR Part 97

[OAG 100F; AG Order No. 2640-2002]
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: Final rule.

-----------------------------------------------------------------------

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 establishes minimum standards in only those 
areas that Congress identified in the Act by finalizing a proposed rule 
the Department published on this subject on December 17, 2001, at 66 FR 
64934.

DATES: This final rule is effective January 27, 2003.

FOR FURTHER INFORMATION CONTACT: Lizette Benedi, Office of Legal 
Policy, U.S. Department of Justice, 950 Pennsylvania Avenue, NW, 
Washington, DC 20530, telephone (202) 353-9164.

SUPPLEMENTARY INFORMATION:

A. Background

What Does This Rule Establish?

    This rule establishes 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 final 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 establishes 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) (December 21, 2000) 
(``the Act''), 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 or Transportation Security 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 final rule (1) requires that private prisoner transport 
companies comply with minimum standards for fingerprint-based criminal 
background checks and preemployment drug testing for potential 
employees; (2) provides minimum standards for the length and type of 
employee training; and (3) establishes restrictions on the number of 
hours that transportation employees may be on duty during a given time 
period. This rule also establishes the minimum standards that private 
prisoner transport companies must comply with for the use of restraints 
while transporting violent prisoners, and it establishes categories of 
violent offenders required to wear identifying clothing. Further, the 
rule establishes a minimum guard-to-prisoner ratio that must be 
observed while transporting violent prisoners, and requires that 
private prisoner transport companies comply with standards regarding 
employee uniforms and employee identification. In addition, the rule 
requires private prisoner transport 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 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 or privately run incarceration facility 
that contracted with the private prisoner transport company for the 
transport of the escaped violent prisoner. Finally, the rule requires 
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 standards are not 
stricter than the standards applicable to the

[[Page 78700]]

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 Final Rule?

    This final 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 
subsection 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 (1) 
has as an element the use, attempted use, or threatened use of physical 
force against the person or property of another; or (2) 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.
    Certain regulations of the Department of Transportation (DOT) only 
apply to persons or entities operating vehicles capable of transporting 
a particular minimum number of passengers. In order to assist private 
prisoner transport companies to comply with these regulations and so as 
not to have one Federal agency imposing requirements that differ from 
the requirements of another agency, the Department refers to 
appropriate DOT regulations or incorporates them by reference as the 
Department's standards for implementing various provisions of the Act. 
This rule implementing Jeanna's Act covers private prisoner transport 
companies regardless of the number of passengers that their transport 
vehicle or vehicles are designed to accommodate.

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 final 
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, nonetheless, still not fully comply with 
congressional intent in certain areas.

[[Page 78701]]

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 establishes 
standards somewhat more stringent than the standard the Department uses 
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 
establishing a one-guard-to-six-violent-prisoner ratio. In the proposed 
rule, the Department specifically invited 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 sought 
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. The responses that the Department received 
on the proposed rule are discussed in the ``Comments Received'' section 
of this final rule.

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. Sec.  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.Sec.  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 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.

B. Detailed Discussion of the Requirements Covering Private Prisoner 
Transport

1. Background Checks and Drug Testing Standards for Potential Employees

    Under the final 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 will 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. In 
the event that the private prisoner transport company is contracting 
with a privately run incarceration facility, and not directly with a 
governmental entity, the private prisoner transport company will have 
to make arrangements through the private incarceration facility to have 
the checks completed by the governmental entity ultimately requesting 
the transport. 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 requires 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

[[Page 78702]]

hours of training on conducting searches, 48 hours of training on the 
use of firearms, and 88 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 final 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.

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

    This final 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 
sought 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 established by 
this regulation. The responses that the Department received on the 
proposed rule are discussed in the ``Comments Received'' section of 
this preamble.
Department Practices and Procedures
    When Department of Justice components transport high-risk, maximum 
custody, or violent offenders, the guard-to-prisoner ratios are often 
significantly stricter 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, 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

[[Page 78703]]

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 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 stricter 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 final 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) that 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 requires 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. In the proposed rule, the Department sought 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. The responses 
that the Department received on the proposed rule are discussed in the 
``Comments Received'' section of this final rule.

5. Employee Uniforms and Identification

    The rule requires that private prisoner transport companies comply 
with certain minimum requirements for employee uniforms and 
identification. These standards 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 directs that private prisoner transport 
companies require their employees to have identification credentials on 
their uniform that are visible at all times while they are 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 final 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 requires 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 ability of private prisoner transport 
companies to require the wearing of uniforms by some or all other 
prisoners. In the proposed rule, the Department specifically requested 
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).

[[Page 78704]]

In keeping with the intent of the Act, any exceptions to the prisoner 
clothing requirement will be narrow. The Department sought 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 final rule will supersede any 
applicable Federal Aviation Administration or Transportation Security 
Administration rules or regulations concerning the transportation of 
prisoners on commercial aircraft. The responses that the Department 
received on the proposed rule are discussed in the ``Comments 
Received'' section of this final rule.

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 final rule 
applies 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. In the proposed rule, the Department sought comment 
on additional restraint requirements. The responses received are 
discussed in the ``Comments Received'' section of this final rule.

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 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 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 advance 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 does not require 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 requires 
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 or the privately run 
incarceration facility 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 
then notifies 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 then 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.

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 requires 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); inspection and 
maintenance of vehicles; requirements for communications systems on 
vehicles; prohibitions on any form of tobacco use in vehicles; 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

[[Page 78705]]

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).

B. Discussion of Various Comments Received in Response to the Proposed 
Requirements Covering Private Prisoner Transport

1. Background Checks and Drug Testing for Potential Employees

    Several transport companies suggested that since they already 
conduct National Crime Information Center (NCIC) background checks on 
employees, it is unreasonable to require each company to conduct 
additional background checks to comply with the Act. They also 
requested that the rule allow for a discretionary period pending the 
background check so that employers may begin hiring and training 
potential employees.
    The Department recognizes the need for transport companies to hire 
and train employees in a timely manner. However, the Act requires 
potential employees to pass a preliminary fingerprint-based criminal 
background check prior to employment, and these regulations conform to 
the Act. Therefore, it would be premature and unnecessary for companies 
to proceed with hiring and training employees prior to knowing the 
results of the background check. Further, the fact that at least one 
commenting private company already conducts NCIC background checks does 
not relieve that company or other transport companies from the 
responsibility to conduct the background checks required by the Act.
    One commenter suggested that language be included in the final rule 
to address situations where a private prisoner transport company 
contracts directly with a privately run incarceration facility rather 
than a governmental entity. The Department has adopted this comment and 
clarified the final rule on this point.

2. Length and Type of Employee Training

    There was large support in favor of a rule requiring 100 hours of 
pre-service training. Additionally, there were some requests to require 
that companies (1) obtain commercial drivers licenses for uniformed 
employees, and (2) complete an advanced first aid course for uniformed 
employees.
    The Department has no objection to private companies requiring that 
their drivers have commercial drivers licenses. However, the Act does 
not require commercial licenses and the Department does not believe it 
is necessary to achieving the purposes of the Act to impose a driving 
qualification requirement beyond that which was specified in the Act 
(i.e., that defensive driving be included in the 100 hours of pre-
service training).
    A commenter asked for an exception from the pre-service 
requirements for employees who have graduated from a recognized law 
enforcement academy.
    The Department understands that law enforcement academies provide 
much of the basic training for most law enforcement officers, and this 
training is similar in nature to the training required under the 100 
hours of pre-service training requirement. However, the Act does not 
make any exception from its training requirement for individuals who 
may have been trained at law enforcement academies as law enforcement 
officers. The focus of the pre-service training prescribed by the Act 
is on the transportation of prisoners; a focus which might be different 
from that of law enforcement academies. Therefore, it is necessary to 
require that uniformed officers undergo 100 hours of pre-service 
training before they begin transporting prisoners.

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

    One commenter requested that the Department adjust the 10-hour 
driving limitation to 12 hours. Further, some companies disagreed with 
the hours-on-duty requirement asserting that most delays occur while 
waiting to pick up prisoners at the detention facilities.
    Pursuant to regulations of the Department of Transportation (DOT), 
Federal Motor Carrier Safety Administration at 49 CFR 395.3, no driver 
may continue to drive more than 10 hours following 8 consecutive hours 
off duty. The Act requires that the implementing rules shall not be 
more stringent than the current applicable rules and regulations 
concerning hours-on-duty. In promulgating this rule, the Department 
defers to the expertise of DOT regarding the maximum amount of time 
that drivers should continue to drive. Accordingly, the 10 hours 
following 8 consecutive hours off duty requirement set forth in DOT's 
regulations is being used in this rule. In addition, DOT's regulations 
already take into account waiting periods, such as those referenced by 
some commenters, by distinguishing between driving time and waiting 
time. Should a delay occur in picking up a prisoner, the time the 
private transport company employee waits will count toward the 15 hour 
on-duty limitation, not the 10 hour driving limitation. The Department 
does not believe there is sufficient justification for deviating from 
DOT's regulations.

4. The Number of Personnel That Must Supervise Violent Prisoners

    One commenter claimed that the guard-to-prisoner ratio is 
inadequate at one to six and took issue with the Department's hesitancy 
to impose multi-tiered ratios because ``compliance * * * would be 
complex for private entities lacking the Department's resources.'' (66 
FR 64938). Specifically, the commenter believed that the Act did not 
prohibit establishing a ratio of one to six, with an additional 
provision that there should never be less than two guards on duty at 
one time. The Department declines to adopt the commenter's suggestion 
that these regulations require a minimum of two guards because section 
4(b)(4) of the Act requires that the ratio ``shall not exceed a 
requirement of 1 agent for every 6 violent prisoners'' and requiring a 
minimum of two guards would, under some circumstances, exceed the 
statutory maximum ratio. Another commenter requested that the ratio 
requirement be changed when transporting prisoners by bus to a 1 to 8 
ratio. Another commenter also pointed out that federal law enforcement 
agencies' ratios are less strict for violent prisoner transport and 
that private industry standards should be the same as federal law 
enforcement agencies. As discussed more fully in the supplementary 
information portion of the proposed rule, the Department considered a 
range of options regarding the guard-to-prisoner ratio. Compliance with 
such guidelines would likely be burdensome and require stricter 
standards than the Department adheres to without exception. Although, 
sometimes, the Department's ratio is 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

[[Page 78706]]

procedures set forth in the Department's guidelines.
    Further, the Department continues to be of the opinion that 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) that 
they are not at present likely to receive from the committing 
authority.

5. Employee Uniforms and Identification

    One commenter pointed out that since there have been many 
impersonations of officers in illegitimate uniforms, uniforms should 
clearly state the name of the transport company, and not imply they are 
``sworn peace officers.''
    The rule requires that the uniforms of private prisoner transport 
company employees be readily distinguishable in color and style from 
uniforms worn by Department of Justice personnel who transport violent 
prisoners. Many State and local jurisdictions have parallel 
requirements that prohibit private security services and others from 
wearing uniforms too similar to those worn by State and local law 
enforcement officers. The Department does not believe that changes to 
the final rule that would impose additional requirements on private 
prisoner transport companies regarding the uniforms their employees 
wear are warranted.
    Another commenter disagreed with the requirement to display 
personal information (name badges) on uniforms since prisoners then 
have access to the personal information of the employees. Employees 
already carry identification cards and can show their credentials to 
the appropriate personnel during transportation.
    The rule only requires that the identification cards display a one 
inch square employee photograph, the employee's name, signature, 
description, and date of issuance. No personal information such as the 
employee's address, phone number, or social security number appear on 
the identification. Inclusion of the name on the front of the 
identification provides a simple means for prisoners and the general 
public who come in contact with the employees to identify them without 
providing excessive personal information.

6. Uniforms for Violent Prisoners

    Several commenters pointed out that climate was a large factor 
during transportation and that uniforms should adapt to the climate 
encountered during transportation (e.g., temperature, snow, rain, wind 
chill, etc.).
    There is no reason why transporting companies cannot provide 
prisoners with appropriate clothing for varying climates as long as the 
clothing provided is consistent with the Act (brightly colored and 
clearly identifying them as prisoners).
    One commenter requested that the uniform requirement be waived 
during neighboring county transportation, since changing in and out of 
identifiable uniforms may take longer than the actual transportation.
    Since the intent of the Act requires exceptions to the clothing 
requirement to remain relatively narrow, the Department believes it 
would be contrary to the intent of the Act to waive the requirement 
that uniforms be worn during short distance or county-to-county 
transfers.
    Another commenter requested that law enforcement agencies determine 
who violent prisoners are for private transportation companies since 
they may be unable to adequately determine this on their own.
    The Act and regulations define violent prisoners and the Department 
knows of no basis for the proposition that the companies cannot apply 
the definition to their charges.
    Another commenter disagreed with the requirement that prisoners be 
required to wear identifying clothing since most law enforcement 
agencies do not require this until after prisoners are processed and 
charged formally in a jurisdiction following transportation or 
extradition.
    Again, the intent of the Act requires exceptions to the clothing 
requirement to remain relatively narrow, and accordingly the Department 
declines to modify the final rule on this point. The purpose of the Act 
is clearly furthered by requiring all violent prisoners to wear such 
clothing.
    Another commenter noted that most companies already own uniforms 
for prisoners, and disagrees with the regulation requiring identical 
identifiable uniforms.
    The Department has adopted this suggestion and is not including a 
requirement for a standardized uniform. This change allows private 
transport companies more flexibility to develop their own prisoner 
uniforms. The private companies must still follow, however, the 
standard of ``brightly colored clothing clearly identifying them as 
prisoners.''
    Finally, one commenter noted that prisoners on commercial airlines 
should be transported in civilian clothing so as not to attract undue 
attention from passengers.
    The Department notes that the rule already recognizes that prisoner 
transportation via commercial aircraft is one of the narrow exceptions 
to the uniform requirements.

7. Restraints To Be Used While Transporting Prisoners

    Several commenters noted that prisoner restraints during 
transportation are uncomfortable and cause health problems. One 
commenter suggested removing the waist-chain during transport.
    The Department believes this determination should be placed in the 
hands of the prisoner transport employee, in the context of a 
particular prisoner and the transportation circumstances, to determine 
whether the waist-chain is posing a health risk and could be safely 
removed while still providing an appropriate level of security.
    One commenter requested that prisoner restraints be removed during 
sleeping arrangements and for eight hours every 48 hours.
    The Act contains no language or requirements concerning prisoner 
restraint removal, and the Department believes that to require such a 
policy, absent specific congressional direction, might place an undue 
burden on private transport companies. The Department notes, however, 
that private transport companies must ensure the safety of the 
prisoners they transport.

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

    One commenter noted that most local law enforcement agencies do not 
provide companies a means of housing prisoners overnight during 
transportation and that this problem should be addressed in the new 
rule.
    The Act does not impose any requirements on local law enforcement 
to provide overnight accommodations for prisoners being transported. 
Accordingly, this rule imposes no such requirement.
    One commenter noted that schedules change during the course of 
transportation and the 24-hour notice requirement is too rigid.
    The Department has no discretion to adopt a different notification 
policy than is explicitly required by the Act, and therefore the final 
rule makes no change from the proposed rule on this point. The 
Department emphasizes that the 24-hour notification requirement was 
designed to protect public safety

[[Page 78707]]

and should not be an excessive burden on private transportation 
companies.
    One commenter noted that ``predetermined'' stops are too general 
and can be manipulated. The commenter suggests that notification should 
be required if a ``non-predetermined'' stop exceeds five hours.
    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 to be given to law enforcement officials 
prior to these stops to ensure that the risk of a prisoner escaping is 
as small as possible. The Department believes this definition is 
sufficiently clear while allowing necessary flexibility for transport 
companies. However, without imposing a rigid requirement, the 
Department recognizes the concerns of the commenter and encourages 
transport companies to provide notice to law enforcement officials for 
non-scheduled stops that exceed a reasonable time under the 
circumstances.

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

    Commenters indicated a general level of support regarding immediate 
notification in the event of an escape.

10. Safety of Violent Prisoners

    One commenter suggested that it should be mandated that all new 
prisoner transport vehicles be equipped with satellite tracking 
systems.
    The Department considered this requirement during the preparation 
of the proposed rule. However, such a requirement was not established 
by the Act and the Department declined to include such a requirement 
because the cost associated with such a requirement outweighed the 
potential benefit.
    Another commenter requested that: (1) Vehicles should comply with 
General Services Administration (GSA) fleet maintenance requirements; 
(2) any incident involving the use of force by an employee should be 
documented in a standard format and submitted to the Department; (3) in 
the event that any prisoner develops a serious medical condition during 
transportation that threatens life or limb he or she must be 
immediately transported to the nearest hospital or health facility; and 
(4) stops during transport should be made every five hours to allow 
prisoners to eat and use restroom facilities.
    There is no language in the Act mandating that private 
transportation company vehicles comply with GSA standards for 
maintenance. Currently, State, local, and Federal protections against 
the use of force, as well as State and local safety and maintenance 
requirements, apply to private prisoner transport companies and their 
employees and should be adequate in order to provide for the safety of 
the prisoners being transported. A mandatory stop requirement every 
five hours is not enumerated in the Act and the Department declines to 
adopt such a policy. However, while not imposing a rigid requirement 
for periodic stops, the Department is amending this final rule to make 
clear the responsibility for private transport companies to take 
reasonable measures to insure the well being of prisoners in their 
custody.

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 final 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. Sec.  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 implementing the requirements of 
the Act, which impose 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 final 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 government. 
Therefore, to effectuate Congress' intent, this 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 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 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 has reviewed this rule in light of Executive Order 
12866, section 1(b), Principles of Regulation. The Department has 
determined that this rule is a ``significant regulatory action'' under 
Executive Order 12866,

[[Page 78708]]

section 3(f), Regulatory Planning and Review, and, accordingly, this 
rule has been reviewed by the Office of Management and Budget.
    In particular, the Department has assessed both the costs and 
benefits of this rule as required by Executive Order 12866, section 
1(b)(6), and has made a reasoned determination that the benefits of 
this regulation justify its costs. Briefly, that assessment is as 
follows:
    The costs that the Department considered included the costs of the 
various tangible items required by the Act relative to the transport of 
violent prisoners (e.g., handcuffs, waist chains, prisoner and guard 
uniforms, etc.) and the various non-tangible items (e.g., the pre-
employment physical required by section 97.11.) Further, provisions of 
the Act and of these regulations impose what might be collectively 
described as business practices requirements. Examples are the 
provisions at section 97.11 (requiring a pre-employment interview), at 
section 97.13 (establishing maximum driving time), and at section 97.14 
(establishing a guard-to-prisoner ratio).
    The overriding purpose of the Act and of these regulations is to 
protect the public safety and welfare by preventing the escape of 
violent prisoners being transported by private companies or, in the 
event of an escape, to make a prompt re-capture more likely. Escaped 
violent prisoners can pose a serious danger to the lives and physical 
well being of individuals and of law enforcement officers and can be a 
risk to property (such as automobiles) stolen by them to facilitate 
their escape. Balanced against the costs to the public of death, 
personal injury, or property damage likely to result from escaped 
violent prisoners and the resources expended by State and local law 
enforcement in the re-capture of such prisoners, the burdens imposed by 
these regulations appear to the Department to be justified by the 
benefits.

Executive Order 13132

    The 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 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.

Final Regulatory Flexibility Act Analysis

    The Department drafted this rule in a way to minimize its impact on 
small businesses while meeting its intended objectives. At several 
places in the proposed rule, the Department specifically requested 
information from affected entities. This information was requested, in 
part, to assist the Department in determining the nature and extent of 
the impact the final rule will have on affected entities. Although the 
Department received some comments, the information it received was not 
sufficiently detailed to allow it 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.Sec.  605. Accordingly, the Department 
has prepared the following final Regulatory Flexibility Act analysis in 
accordance with 5 U.S.C. Sec.  603.

A. Need For and Objectives of This Final Rule

    This final 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. Details concerning these consultations are set forth in 
the proposed rule. 66 FR 64934, 64941.

B. Description and Estimates of the Number of Small Entities Affected 
by This Final 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. Sec.  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 provide for the transportation of their violent prisoners.
---------------------------------------------------------------------------

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

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. 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 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 minimum 
standards contained in this rule are

[[Page 78709]]

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 rule. Where the rule 
requires 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 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.

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 rule does 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 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 rule will have on their operations. In 
addition, the Department requested comments from these entities in the 
proposed rule and received a comment from the National Sheriffs' 
Association, which indicated its full support for the regulations as 
proposed.

C. Specific Requirements Imposed That Would Impact Private Companies

1. Standards Requiring the Use of Specialized Equipment

    Some of the minimum standards established 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 
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 use of all equipment specified in this 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 requires. 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 Global Positioning Systems in their transport vehicles, a feature 
that goes well beyond the standards required by this rule. The larger 
companies in the industry do not currently require prisoner uniforms 
for all violent prisoners. This rule implements 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. Since the Department received no responses 
to its request in the proposed rule for comments on the advantages of a 
standardized uniform, the Department does not establish a standardized 
uniform in this final rule.

2. Training

    This rule requires 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 requires 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, most of the larger companies from which 
the Department received comments and other information indicated that 
they already impose minimum guard-to-prisoner ratios, all of which are 
more stringent than the one established in this rule.

4. Other Standards Imposed on Companies

    Many of the minimum standards in this 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 
significantly increased expenditures. While the notification 
requirements in this rule do place an affirmative duty on

[[Page 78710]]

the companies, they do not impose any significant economic burden on 
the companies. For example, Sec.  97.20(b) requires that vehicles be 
equipped with a communications system capable of immediately notifying 
officials of an escape. This requirement could be met by something as 
simple as a cellular telephone. However, the Department acknowledges 
that not all areas have cell phone service, and therefore companies may 
be forced to use a more expensive alternative in those areas.

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 
promulgating these regulations, the Department is merely implementing 
the 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 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 
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 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 indirectly 
affected in contracting with private companies.

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 that an 
association, such as the ACA, should develop an accredited training 
program and that any final rule should require private companies to 
receive accreditation from such a specified program. However, under 
constitutional delegation principles, the Department would need to 
approve the standards recommended by the private entity and such 
standards would be subject to notice and comment. Therefore, while the 
Department believes that this suggestion is worth further 
consideration, 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 has construed more narrowly the definition of 
``scheduled stop'' so that the regulations 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. The Department believes such a 
definition is consistent with Congress' intent in using that phrase and 
its meaning under the Act. A third alternative was suggested that would 
have delayed the implementation and enforcement of these provisions to 
allow smaller entities a longer period in 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 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 rule. The 
Department intends to maintain an on-going dialogue with the affected 
industry and law enforcement entities.

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 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.

[[Page 78711]]

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: Pub. L. 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, Public Law 106-560, 
114 Stat. 2784 (42 U.S.C. 13726b) (enacted December 21, 2000) (``the 
Act''), 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 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. (1) Pre-employment testing 
for controlled substances must be in accordance with applicable State 
law.
    (2) In the event that there is no applicable State law, pre-
employment testing for controlled substances must be in accordance with 
the provisions of Department of Transportation regulations at 49 CFR 
382.301 which will apply regardless of whether a private prisoner 
transport company is covered by Department of Transportation 
regulations.
    (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 arrange 
the procedures for accomplishing the criminal background checks with 
their contracting governmental agencies. In the event that the private 
prisoner transport company is contracting with a privately run 
incarceration facility, and not directly with a governmental entity, 
the private prisoner transport company will have to make arrangements 
through the private incarceration facility to have the checks completed 
by the governmental entity ultimately requesting the transport.


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, as set forth in Department of Transportation regulations at 
49 CFR 395.3 which will apply regardless of whether a private prisoner 
transport company is covered by Department of Transportation 
regulations.


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.

[[Page 78712]]

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 or the privately run incarceration facility 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, practices, and procedures 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, practices, and procedures are in effect to prohibit 
the mistreatment of prisoners, including prohibitions against covering 
a prisoner's mouth with tape, the use of excessive force, and sexual 
misconduct;
    (e) Policies, practices, and procedures are in effect to ensure 
that juvenile prisoners are separated from adult prisoners during 
transportation, where practicable;
    (f) Policies, practices, and procedures are in effect to ensure 
that female prisoners are separated from male prisoners during 
transportation, where practicable;
    (g) Policies, practices, and procedures are in effect to ensure 
that female guards are on duty to supervise the transportation of 
female violent prisoners, where practicable;
    (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; and
    (i) Private transport companies are responsible for taking 
reasonable measures to insure the well being of the prisoners in their 
custody including, but not limited to, necessary stops for restroom use 
and meals, proper heating and ventilation of the transport vehicle, 
climate-appropriate uniforms, and prohibitions on the use of tobacco, 
in any form, in the transport vehicle.


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 will continue to apply to 
private prisoner transport companies including, but not limited to: 
federal laws regulating the possession of weapons, Federal Aviation 
Administration or Transportation Security Administration rules and 
regulations governing travel on commercial aircraft, and all applicable 
federal, State, or local motor carrier regulations. 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 19, 2002.
John Ashcroft,
Attorney General.
[FR Doc. 02-32608 Filed 12-24-02; 8:45 am]
BILLING CODE 4410-BB-P