DEPARTMENT OF JUSTICE (DOJ)

Statement of Regulatory Priorities

The Department of Justice’s highest priority is to protect America against acts of terrorism, both foreign
and dom estic, within the letter and spirit of the Constitution. While vigorously pursuing the fight against terrorism, the Department is also reinvigorating its trad itional missions by embracing its historic role in fighting crime, protecting civil rights, preserving the environment, and ensuring fairness in the market place. The Department is working to achieve the fair and impartial administration of justice for all Americans, to assist its State and local partners, and to defend the Nation’s interests according to the law. In addition to using investigative, prosecutorial, and other law enforcement activities, the Department is also using the regulatory process to better carry out the Department’s wide-ranging law enforcement
missions.

The Department of Justice's key regulatory priori ties include reg ulatory initiatives in the area of civil rights, criminal justice, and immigration. These are summarized below. However, in addition to these initiatives, several other components of the Departm ent carry out important responsibilities through the regulatory process. Although their regulatory efforts ar e not separately discussed in this overview of the regulatory priorities, those components have key role s in implementing the Department's anti-terrorism and law enforcement priorities.

Civil Rights

In September 2010, the Department published it s final rules am endin g its regulations implementing title II of the Americans with Disabilities Act (ADA), which prohibits discrimination by public entities, and title III of the ADA, which prohibits discrimination by public accommodations and certain testing entities and requires commercial facilities to be constructed or altered in compliance with the ADA accessibility standards. These key regulations adopt revised ADA Standards for Accessible Design and address certain key policy issues. During the course of this rulemaking project, the Department became aware of the need to provide guidance on four additional subject matter areas—use of acce ssible web sites, movie captions and video descriptions, the accessibility of emergency call centers (Next Generation 9-1-1), and accessible equipment and furniture. On July 26, 2010, the Department published an advance notice of proposed rulemaking (ANPRM) for each of these subject areas. Th ese rules will be the focus of the Civil Rights Division’s regulatory activities for FY 2011. The Department also plans to propose amendments to its ADA regulations to implement the ADA Amendments Act of 2008, which took effect on January 1,
2009.

The four ANPRMs published on July 26, 2010, include:

NG 9-1 -1 . This ANP R M seeks information on possible revisions to the Department’s regulation to
ensure direct access to NG 9-1-1 services for individu als with disabilities. In 1991, the Department of Justice published a regulation to implement title II of the Americans with Disabilities Act of 1990 (ADA). That regulation requires public safe ty answering points (PSAPs) to provi de direct access to persons with disabilities who use analog telecommunication devices for the deaf (TTYs) 28 CFR 35.162. Since that rule was published, there have been major changes in the types of communications technology used by the general public and by people who have disabilitie s that affect their hearing or speech. Many
individuals with disabilities now use the Internet an d wireless text devices as their primary modes of telecommunications. At the same time, PSAPs ar e planning to shift from analog telecommunications technology to new Internet-Protocol (IP)-enabled Next Generation 9-1-1 services (NG 9-1-1) that will provide voice and data (such as tex t, pictures, and video) capabilities. As PSAPs transition from the analog systems to the new technologies, it is es sential that their plans ensure that people with communication disabilities will be able to use the new sy stems. Therefore, the Department published this ANPRM to begin to develop appr opriate guidance for PSAPs that are making this transition.

Movie cap t ioning an d vi deo description . Title III of the ADA requires public accommodations to take “such steps as may be necessary to ensure that no individual with a disability is treated differentlybecause of the absence of auxiliary aids and services, unless the cove red entity can demonstrate that taking such steps would cause a fundamental alterati on or would result in an undue burden.” 42 U.S.C. section 12182(b)(2)(A)(iii). Both open and closed captioning and audio recordings are examples of auxiliary aids and services that should be provided by places of public accommodations, 28 CFR section 36.303(b)(1)-(2). The Department stat ed in the preamble to its 1991 ru le that “[m]ovie theaters are not required * * * to present open-captioned films,” 28 CFR par t 36, app. B, but it was silent regarding closed captioning and video description in movie theaters.

Since 1991, there have been many technologica l advances in th e area of closed captioning and video description for first-run movies. In June 2008, t he Department issued a Notice of Proposed Rulemaking (NPRM) to revise the ADA title III regulation, 73 FR 34466, in which the Depart ment stated that it was considering options for requiring that movie theater ow ners or operators exhibit movies that are captioned or that provide video (narrative) description. The Department received numerous comments urging the Department to issue captioning and video descripti on regulations. The Department is persuaded that such regulations are appropriate. However, the Depa rtment decided to issue an ANPRM to obtain more information regarding issues raised by commenters; to seek comment on technical questions that arose from the Department’s research; and to learn more about the status of digital conversion. In addition, the Department sought information regarding whether other technologies or areas of interest (e.g., 3D) have developed or are in the process of development that either would repl ace or augment digital cinema or make any regulatory requirements for captioning and video description more difficult or expensive to implement. Responses to these questions will inform the Department’s decisions about the scope of a proposed rule.

Web Site Accessibility

. The Internet as it is kn own today did not exist when Congress enacted the ADA, yet today the World Wide Web plays a critical role in the daily personal, professional, civic, and business life of Americans. The ADA’s expan sive nondiscrimination mandate reaches goods and services provided by public accommodations and public entities using Internet websites. Being unable to access websites puts individuals at a great disadvantage in today’s society, whic h is driven by a dynamic electronic marketplace and unprecedented access to information. On the economic front, electronic commerce, or “e-commerce,” often offers consumer s a wider selection and lower prices than traditional, “brick-and-mortar” storefronts, with the added conv enience of not having to leave one’s home to obtain goods and services. For individuals with disabilities who experience barriers to their ability to travel or to leave their homes, the Internet may be their only way to access certain goods and services. Beyond goods and services, information available on the Internet has become a gateway to education, socializing, and entertainment.

The Internet is also dramatically changing t he way that governmental entitie s se rve the public. Public entities are increasingly providing their constituents access to governm ent services and programs through their websites. Through government websites, the pub lic can obtain information or correspond with local officials without having to wait in line or be placed on hold. They can also pay fines, apply for benefits, renew State-issued identification, register to vote, file taxes, request copies of vital records, and complete numerous other everyday tasks. The availability of these services and information online not only makes life easier for the public, but also enables governmenta l entities to operate more efficiently and at a lower

cost.

The ADA’s promise to provide an equal opportunity for individuals with disabilities to participate in and
benefit from a ll aspects of American civi c and econom ic life will be achieved in today’s technologically advanced society only if it is clear to State and lo cal governments, businesses, educators, and other public accommodations that their websites must be accessible. Consequently, the Department is considering amending its regulations implementing title II and title III of the ADA to require public entities and public accommodations that provide products or se rvices to the public through Internet websites make their sites accessible to and usable by individuals with disabilities.

Equipment and Furniture

. Both title II and title III of the ADA require covered entities to make
reasonable modifications in their programs or services to facilitate participation by persons with disabilities. In addition, covered entities are re quired to ensure that people are not excluded fromparticipation because facilities are in accessible or because the entity has failed to provide auxiliary aids. The use of accessible equipment and furniture is often cr itical to an entity’s ability to provide a person with a disability equal access to its services. Changes in technology have resulted in the development and improved availability of accessible equipment and furn iture that benefit individuals with disabilities. Consequently, it is easier now to specify appropriate accessibility standards for such equipment and furniture, as the 2010 ADA Standards will do for severa l types of fixed equipment and furniture, including ATMs, washing machines, dryers, tables, benches, a nd vending machines. To the extent that ADA standards apply requirements for fixed equipment and furniture, the Department will look to those standards for guidance on accessibility standards for equi pment and furniture that are not fixed. The ANPRM seeks information about other categories of equipment—particularly medical equipment and exercise equipment. The public is invited to sugges t other types of equipment that should be addressed.

Prison Rape Elimination

Pursuant to the Prison Rape Elimination Act of 2003 (PREA or the “Act”), the Department i s drafting regulations to adopt national standards for the detec tion, reduction, and punishment of prison rape. PREA established the National Prison Rape Eliminati on Commission for the purpose of studying prison rape. The Commission issued a report that provid ed recommended national standards for reducing prison rape, which in turn, are to be reviewed by the Justice Department. Specifically, PREA mandates that national standards issued pursuant to PREA “s hall 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, opini ons, and proposals that the Attorney General determines to be appropriate to consider.” The Act further provides that the Department “shall not establish a national standard... that would impose substantial additional costs compared to the costs presently expended by Federal, St ate, and local prison authorities.”

The Department is reviewing the Commission’s recommendations and is drafting proposed regul ations . In addition, th e Department is review ing a study by an independent contractor commissioned by the Department’s Office of Justice Programs to analyze the costs of the Commission’s proposed recommendations. The Department is also reviewing extensive public comments on the Commission’s proposed recommendations pursuant to an ANPRM th at the Department issued while awaiting the completion of the cost analysis.

Federal Habeas Corpus Review Procedures in Capital Cases

Pursuant to the USA PATRIOT Improvement and Reau thori zation Act of 2005, on December 11, 2008, the Department promulgated a final rule to implement certification procedures for States seeking to qualify for the expedited Federal habeas corpus review procedures in capital cases under chapter 154 of
title 28 of the United States Code. On Februa ry 5, 2009, the Department published in the Federal Register a notice soliciting further public comment on all aspects of the December 2008 final rule. As the Department reviewed the comments submitted in response to the February 2009 notice, it considered further the statutory requirements governing the regulatory implementation of the chapter 154 certification procedures. The Attorney General has determined that chapter 154 reasonably could be construed to allow the Attorney General greater discretion in ma king certification determinations than the December 2008 regulations allowed. Accordingly, a new rulema king, and the removal of the entire December 2008 final rule, is warranted in order to articulate t he standards the Attorney General will apply in making chapter 154 certification decisions and to obtain public input concerning the formulation of such standards. As the first step of this proces s, the Department published a notice in the Federal Register on May 25, 2010, proposing to remove the December 2008 regulations pending the completion of a new rulemaking process. The May 2010 rule will be finalized by a final rule to be published in the fall of 2010. The next step in the process will be the publication of a new proposed rule proposing new chapter 154 certification standards and seeking public input co ncerning the formulation of such standards.

Criminal Law EnforcementFor the most part, the Department’s crimin al law enforcement components do not rely on the rulemaking process to carry out their assigned missions . The Federal Bureau of Investigation (FBI), for example, is responsible for protecting and defendi ng the United States against terrorist and foreign intelligence threats, upholding and enforcing the cr iminal laws of the United States, and providing leadership and criminal justice services to Federal, State, municipal, and international agencies and partners. Only in very limited contexts does the FBI rely on rulemaking. For example, the FBI is currently updating its National Instant Criminal Background Chec k System regulations to allow criminal justice agencies to conduct background checks prior to t he return of firearms.

The Bureau of Alcohol, Tobacco, Firearms and Explosive s (ATF ) issue s regulations to enforce the Federal laws relating to the manufacture and comme rce of firearms and explosives. ATF's mission and regulations are designed to:

• Curb illegal traffic in, and criminal use of, firearms, and to assi st State, local, an d other Federal law enforcement agencies in reducing crime and violence;

• Facilitate investigations of violations of Federal explos ives laws an d arson-for-profit schemes;

• Regulate the firearms and explosives industrie s, in clu ding systems for licenses and permits;

• Assure the collection of all National Firearms Act (NFA ) firearms ta xes and obtain a high level of voluntary compliance with all laws governing the firearms industry; and

• Assist the States in their effort s to eliminate interstate trafficki ng in, and the sale and distribution of, cigarettes and alcohol in avoidance of Federal and State taxes.

ATF will continue, as a priority during fiscal year 2011, to seek modifications to its regulations governing commerce in firearms and explosives. ATF plans to issue final regulations implementing the provisions of the Safe Explosives Act, title XI, subtitle C, of Public Law 107-296, the Homeland Security Act of 2002 (enacted Nov. 25, 2002).

Electroni c Prescri ption s for Cont rolled Substances. Combating the proliferation of methamphetamine and preventing the diversion of prescription drugs fo r illicit purposes are among the Attorney General’s top drug enforcement priorities. The Drug Enforcemen t Administration (DEA) is responsible for enforcing the Controlled Substances Act and its implementing r egulations to prevent the diversion of controlled substances, while ensuring adequate supplies for legitima te medical, scientific, and industrial purposes. DEA accomplishes its objectives through coordination with State, local, and other Federal officials in drug enforcement activities, development and maintenance of drug intelligence systems, regulation of legitimate controlled substances, and enforcement c oordination and intelligence-gathering activities with foreign government agencies. DEA continues to develop and enhance regulatory controls relating to the diversion control requirements for controlled substances.

One of DEA’s key regulatory initiatives is its Interim Final Rule with Requ est for Comm ent “Electro nic Prescriptions for Controlled Substances” [RIN 1117-AA61 ]. This regulation provides practitioners with the option of writing prescriptions for controlled substanc es electronically and permits pharmacies to receive, dispense, and archive electronic prescriptions for controlled substances. This regulation provides pharmacies, hospitals, and practitioners with the ability to use modern technology for controlled substance prescriptions while maintaining the clos ed system of controls on controlled substances.

Bureau of Prisons Initiati ve s . The Federal Bureau of Prisons issues regulations to enforce the Federal laws relating to its mission: To protect society by confining offenders in t he controlled environments of prisons and community-based facilities that are safe , humane, cost-efficient, and appropriately secure,and that provide work and other self-improvement opportunities to assist offenders in becoming lawabiding citizens. During the next 12 months, in addition to other regulatory objectives aimed at accomplishing its mission, the Bureau will contin ue its ongoing efforts to: Streamline regulations, eliminating unnecessary language and improving readab ility; improve disciplinary procedures through a revision of the subpart relating to the disciplinary proc ess; reduce the introduction of contraband through various means, such as clarifying drug and alcohol su rveillance testing programs; protect the public from continuing criminal activity committed within prison; and enhance the Bureau’s ability to more closely monitor the communications of high-risk inmates.Immigration Matters

On March 1, 2003, pursuant to the Homeland Security Act of 2002 (HSA ), the respon sibility for immigratio n enforcement and for providing immigr ation-related services and benefits such as
naturalization and work authorizati on was transferred from the Just ice Department's Immigration and Naturalization Service (INS) to the Department of Homeland Security ( DHS). However, the immigration judges and the Board of Immigration Appeals in the Executive Office for Immigration Review (EOIR)) remain part of the Department of Justice. The immigration judges adjudicate approximately 300,000 cases each year to determine whether the aliens should be ordered removed or should be granted some form of relief from removal, and the Board has jurisd iction over appeals from those decisions, as well as other matters. Accordingly, the Attorney General has a continuing role in the conduct of removal hearings, the granting of relief from removal, and the detention or release of aliens pending completion of removal proceedings. The Attorney General also is responsible for civil litigation and criminal prosecutions relating to the immigration laws.

In several pending rulemaking actions, the Department is working to revise and update the regulations relating to removal proc e edings in order to improve the efficiency and effectiveness of the hearings in resolving issues relating to removal of aliens and the granting of relief from removal.

On June 3, 2009, the Attorney General announced his intention to initiate a new rulemaking

procee ding fo r regulations to govern claims of i neffective assistance of counsel in immigration proceedings. The Department is currently drafting re gulations to further this goal. The Department is also drafting regulations pursuant to the William Wilberforce Trafficking Victims Protection
Reauthorization Act of 2008 to take into account the specialized needs of unaccompanied alien children in removal proceedings.The 1 Actions Described in the Regulatory Plan

Title Regulation
Identifier
Number Rulemaking Stage

National Standards to Prevent, Detect, and Respond to Prison Rape 1105-AB34 Proposed Rule Stage

Department of Justice (DOJ) Legal Activities ( LA ) RIN: 1105-AB34

View Related Documents

Title: National Standards to Prevent, Detect, and Respond to Prison Rape

Abstract: The Department of Justice has under review national standards for enhancing the prevention, detection, and response to sexual abuse in confinement settings that were prepared by the National Commission on Prison Rape Elimination pursuant to the Prison Rape Elimination Act of 2003 (PREA) and recommended by the Commission to the Attorney General. Through an Advance Notice of Proposed Rulemaking (ANPRM), the Department received public input on the Commission's proposed national standards and 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.

Priority: Other Significant Agenda Stage of Rulemaking: Proposed Rule
Major: Undetermined Unfunded Mandates: No

CFR Citation: 28 CFR 115 (To search for a specific CFR, visit the Code of Federal Regulations )
Legal Authority: 5 USC 301; 28 USC 509; 28 USC 510; 42 USC 15601
Legal Deadline:

Action Source Description Date

Other Statutory 06/23/2010

Regulatory Plan:

Statement of Need: Rape is violent, destructive, and a crime—no less so when the victim is incarcerated. Tolerance of sexual abuse of prisoners in the government's custody is incompatible with American values. Congress affirmed the duty to protect incarcerated individuals from sexual abuse by enacting the Prison Rape Elimination Act of 2003 (PREA), 42 U.S.C. section 15601 et seq.

Legal Basis: PREA requires the Attorney General to promulgate regulations that adopt national standards for the detection, prevention, and punishment of prison rape. PREA established the Commission to carry out a comprehensive legal and factual study of a penological, physical, mental, medical, social, and economic impacts of prison rape in the United States, and to recommend to the Attorney General national standard for the detection, prevention, reduction and punishment of prison rape. The Commission released its recommended national standards in a report dated June 23, 2009. 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. section 24607(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 the Federal, State, and local prison authorities." 42 U.S.C. section 24607(a)(3).

Alternatives: Given the specific direction of Congress, the Department is obligated to issue a rule that promulgates regulations establishing national standards to combat prison rape. As discussed in the rule and in the Regulatory Impact Analysis (RIA) the Department has received input from numerous stakeholders concerning the development of these regulations and, as part of the development process, considered a wide range of proposals in developing the content of such standards.

Costs and Benefits: In directing the Attorney General to promulgate national standards for enhancing the prevention, detection, reduction, and punishment of prison rape. Congress understood that such standards were likely to require federal, state, and local agencies (as well as private entities) that operate inmate confinement facilities to incur costs in implementing and complying with those standards. Given the statue's aspiration to "eliminate" prison rape in the United states, Congress recognized that costs would need to be expended. Indeed, the statute's findings (42 U.S.C. section 15601) suggest an assessment by Congress that the benefits to society of eliminating prison rape are likely to outweigh any anticipated costs of achieving that goal. The Department's full discussion of the anticipated costs and benefits of this rule is included in the rule'sInitial Regulatory Impact Assessment.

Risks: These regulations are intended to carry out the intent of Congress to eliminate prison rape. The risks from the failure to promulgate these regulations are primarily that inmates in Federal, State, and local facilities would be at higher risk of sexual assault than they would be if these regulations are promulgated.

Timetable:

Action Date FR Cite

ANPRM 03/10/2010 75 FR 11077

ANPRM Comment Period End 05/10/2010

NPRM 12/00/2010

Regulatory Flexibility Analysis Required: Undetermined Government Levels Affected: Undetermined

Federalism: No
Energy Affected: No
Agency Contact: Robert Hinchman Senior Counsel, Office of Legal Policy Department of Justice Legal Activities Room 4252 950 Pennsylvania Avenue NW Washington , DC 20530

Phone: 202 514-8059

FAX: 202 353-2371 E-Mail: robert.hinchman@usdoj.gov