[Federal Register Volume 75, Number 46 (Wednesday, March 10, 2010)]
[Proposed Rules]
[Pages 11077-11079]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-4907]


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

DEPARTMENT OF JUSTICE

28 CFR Part 115

[Docket No. OAG-131; AG Order No. 3143-2010]
RIN 1105-AB34


National Standards To Prevent, Detect, and Respond to Prison Rape

AGENCY: Department of Justice.

ACTION: Advance notice of proposed rulemaking.

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

SUMMARY: The Department of Justice (Department) is reviewing national 
standards for enhancing the prevention, detection, and response to 
sexual abuse in confinement settings that were prepared by the National 
Prison Rape Elimination Commission (Commission) pursuant to the Prison 
Rape Elimination Act of 2003 (PREA) and recommended by the Commission 
to the Attorney General. The Department is issuing this Advance Notice 
of Proposed Rulemaking to solicit public input on the Commission's 
proposed national standards and to receive information useful to the 
Department in publishing a final rule adopting national standards for 
the detection, prevention, reduction, and punishment of prison rape, as 
mandated by PREA.

DATES: Written comments must be postmarked on or before May 10, 2010, 
and electronic comments must be sent on or before midnight Eastern Time 
May 10, 2010.

ADDRESSES: To ensure proper handling of comments, please reference 
``Docket No. OAG-131'' on all written and electronic correspondence. 
Written comments being sent via regular or express mail should be sent 
to Robert Hinchman, Senior Counsel, Office of Legal Policy, Department 
of Justice, 950 Pennsylvania Avenue, NW., Room 4252, Washington, DC 
20530. Comments may also be sent electronically through http://www.regulations.gov using the electronic comment form provided on that 
site. An electronic copy of this document is also available at the 
http://www.regulations.gov Web site. The Department will accept 
attachments to electronic comments in Microsoft Word, WordPerfect, 
Adobe PDF, or Excel file formats only. The Department will not accept 
any file formats other than those specifically listed here.
    Please note that the Department is requesting that electronic 
comments be submitted before midnight Eastern Time on the day the 
comment period closes because http://www.regulations.gov terminates the 
public's ability to submit comments at midnight Eastern Time on the day 
the comment period closes. Commenters in time zones other than Eastern 
Time may want to consider this so that their electronic comments are 
received. All comments sent via regular or express mail will be 
considered timely if postmarked on the day the comment period closes.

FOR FURTHER INFORMATION CONTACT: Robert Hinchman, Senior Counsel, 
Office of Legal Policy, Department of Justice, 950 Pennsylvania Avenue, 
NW., Room 4252, Washington, DC 20530; telephone: (202) 514-8059. This 
is not a toll-free number.

SUPPLEMENTARY INFORMATION: Posting of Public Comments: Please note that 
all comments received are considered part of the public record and made 
available

[[Page 11078]]

for public inspection online at www.regulations.gov and in the 
Department's public docket. Such information includes personal 
identifying information (such as your name, address, etc.) voluntarily 
submitted by the commenter.
    If you want to submit personal identifying information as part of 
your comment, but do not want it to be posted online or made available 
in the public docket, you must include the phrase ``PERSONAL 
IDENTIFYING INFORMATION'' in the first paragraph of your comment. You 
must also place all the personal identifying information you do not 
want posted online or made available in the public docket in the first 
paragraph of your comment and identify what information you want 
redacted.
    If you want to submit confidential business information as part of 
your comment, but do not want it to be posted online or made available 
in the public docket, you must include the phrase ``CONFIDENTIAL 
BUSINESS INFORMATION'' in the first paragraph of your comment. You must 
also prominently identify confidential business information to be 
redacted within the comment. If a comment has so much confidential 
business information that it cannot be effectively redacted, all or 
part of that comment may not be posted online or made available in the 
public docket.
    Personal identifying information and confidential business 
information identified and located as set forth above will be redacted 
and the comment, in redacted form, will be posted online and placed in 
the Department's public docket file. Please note that the Freedom of 
Information Act applies to all comments received. If you wish to 
inspect the agency's public docket file in person by appointment, 
please see the instructions at the FOR FURTHER INFORMATION CONTACT 
caption.

Background

    The Prison Rape Elimination Act of 2003, 42 U.S.C. 15601 et seq., 
requires the Attorney General to promulgate regulations that adopt 
national standards for the detection, prevention, reduction, and 
punishment of prison rape. PREA established the Commission to carry out 
a comprehensive legal and factual study of the penological, physical, 
mental, medical, social, and economic impacts of prison rape in the 
United States, and to provide to the Attorney General and the Secretary 
of Health and Human Services national standards for enhancing the 
detection, prevention, reduction, and punishment of prison rape. The 
Commission published its recommended national standards in a report 
dated June 23, 2009. The Commission's report and recommended national 
standards are available at http://www.ncjrs.gov/pdffiles1/226680.pdf. 
The Commission set forth four sets of recommended national standards 
for eliminating prison rape and other forms of sexual abuse applicable 
to (1) Adult prisons and jails, including facilities with immigration 
detainees; (2) juvenile facilities; (3) community corrections; and (4) 
lockups (i.e., temporary holding facilities). The Commission's proposed 
standards apply to federal, state, and local correctional and detention 
facilities. The standards developed by the Commission for each category 
of confinement facility address prevention and response planning; 
prevention; detection and response; and monitoring. Each standard 
developed by the Commission contains requirements that the Commission 
believes should be mandatory. Accompanying each standard is an 
assessment checklist, which is not considered mandatory by the 
Commission but is designed as a tool to provide agencies and facilities 
with examples of how to meet the requirements of the standards. The 
Commission's assessment checklists, along with a glossary of terms and 
discussion sections providing explanations for the rationale of the 
standards and, in some cases, guidance for achieving compliance, are 
available at http://www.ncjrs.gov/pdffiles1/226682.pdf (adult prisons 
and jails), http://www.ncjrs.gov/pdffiles1/226684.pdf (juvenile 
facilities), http://www.ncjrs.gov/pdffiles1/226683.pdf (community 
corrections), and http://www.ncjrs.gov/pdffiles1/226685.pdf (lockups).
    Pursuant to PREA, the final rule adopting national standards 
``shall be based upon the independent judgment of the Attorney General, 
after giving due consideration to the recommended national standards 
provided by the Commission * * * and being informed by such data, 
opinions, and proposals that the Attorney General determines to be 
appropriate to consider.'' 42 U.S.C. 15607(a)(2). PREA expressly 
mandates that the Department shall not establish a national standard 
``that would impose substantial additional costs compared to the costs 
presently expended by Federal, State, and local prison authorities.'' 
42 U.S.C. 15607(a)(3). The Department ``may, however, provide a list of 
improvements for consideration by correctional facilities.'' 42 U.S.C. 
15607(a)(3).

PREA Working Group

    The Attorney General has established a PREA Working Group to review 
each of the Commission's proposed standards and to prepare a draft 
final rule. The Working Group includes representatives from a wide 
range of Department components, including the Bureau of Justice 
Assistance, the Bureau of Justice Statistics, the Federal Bureau of 
Prisons, the Civil Rights Division, the National Institute of 
Corrections, the National Institute of Justice, the Office of Legal 
Policy, the Office of Legislative Affairs, the Office of Juvenile 
Justice and Delinquency Prevention, the Office of Justice Programs, the 
Office for Victims of Crime, and the Office on Violence Against Women. 
The Working Group is completing an in-depth initial review of the 
standards proposed by the Commission, and is currently examining 
whether the Department may be able to implement certain standards on an 
interim basis before a final rule is published.
    The Working Group has conducted a number of listening sessions, at 
which a wide variety of individuals and groups have provided 
preliminary input prior to the start of the regulatory process. 
Participants have included representatives of state and local prisons 
and jails, juvenile facilities, community corrections programs, 
lockups, state and local sexual abuse associations and service 
providers, national advocacy groups, survivors of prison rape, and 
members of the Commission.
    Because PREA prohibits the Department from establishing a national 
standard that would impose substantial additional costs compared to the 
costs presently expended by federal, state, and local prison 
authorities, 42 U.S.C. 15607(a)(3), the Department must carefully 
examine the potential cost implications of the standards proposed by 
the Commission. Accordingly, the Department has commissioned an 
independent contractor to perform a cost analysis of the Commission's 
proposed standards. The contractor is expected to complete the cost 
analysis in the coming months.
    The Department is also working to address the other recommendations 
put forth by the Commission. For example, the Attorney General has 
designated a Senior Counsel in the Office of the Deputy Attorney 
General to monitor and coordinate the Department's PREA implementation 
efforts. The Department is also in the process of developing a 
corollary to the 2004 ``National Protocol for Sexual Assault Medical 
Forensic Examinations'' that will be customized to the conditions of 
confinement. In

[[Page 11079]]

addition, via a separate rulemaking process, the Department intends to 
remove the current ban on Victims of Crime Act funding for treatment 
and rehabilitation services for incarcerated victims of sexual abuse.

The Department's Request for Comments

    The Department is soliciting public input on the Commission's 
proposed national standards. The Department welcomes all comments, 
including any comments addressing specific standards proposed by the 
Commission. In addition, the Department specifically requests comments 
regarding three general questions listed below.
    1. The Commission's proposed standards are intended to prevent, 
detect, and respond to ``sexual abuse,'' which is defined in the 
glossary that precedes each checklist. PREA directed the Department to 
publish a final rule adopting national standards for the detection, 
prevention, reduction, and punishment of prison ``rape,'' which is 
defined in section 10 of Public Law 108-79 (42 U.S.C. 15609(9)). What 
would be the implications of referring to one term as opposed to the 
other in the Department's consideration of the Commission's proposed 
national standards?
    2. PREA mandates that the Attorney General shall not establish a 
national standard ``that would impose substantial additional costs 
compared to the costs presently expended by Federal, State and local 
prison authorities.'' Would any of the Commission's proposed standards 
impose ``substantial additional costs''? How should any such standards 
be revised so as not to impose such costs? The Department welcomes all 
cost data or cost estimations that would help it determine whether 
particular proposed standards would--or would not--impose substantial 
additional costs. In assessing costs, please consider whether and to 
what extent implementation of particular standards would mitigate costs 
currently expended.
    3. Should the Department consider differentiating within any of the 
four categories of facilities for which the Commission proposed 
standards (i.e., adult prisons and jails; juvenile facilities; 
community corrections facilities; and lockups) with compliance 
requirements dependent on size, personnel or resource limitations, or 
any other factors?

Regulatory Certifications

    This action is an Advance Notice of Proposed Rulemaking (ANPRM). 
Accordingly, the requirement of Executive Order 12866 to assess the 
costs and benefits of this action does not apply. Similarly, the 
requirements of section 603 of the Regulatory Flexibility Act do not 
apply to this action because, at this stage, it is an ANPRM and not a 
``rule'' as defined in section 601 of the Regulatory Flexibility Act. 
Following review of the comments received to this ANPRM, as the 
Department promulgates a Notice of Proposed Rulemaking regarding this 
issue, the Department will conduct all analyses required by the 
Regulatory Flexibility Act, Executive Order 12866, and any other 
statutes or Executive Orders relevant to those rules and in effect at 
the time of promulgation.

    Dated: March 3, 2010.
Eric H. Holder, Jr.,
Attorney General.
[FR Doc. 2010-4907 Filed 3-9-10; 8:45 am]
BILLING CODE 44120-05-P; 4410-18-P