64934 Federal Register / Vol. 66, No. 242 / Monday, December 17, 2001 / Proposed Rules

in accordance with the applicable

Maintenance Manual, a special flight permit

for one flight below 100 knots indicated

airspeed may be issued in accordance with

14 CFR 21.197 and 21.199 to operate the

helicopter to a location where the

requirements of this AD can be

accomplished.

Issued in Fort Worth, Texas, on December

11, 2001.

David A. Downey,

Manager, Rotorcraft Directorate, Aircraft

Certification Service.

[FR Doc. 01–31042 Filed 12–14–01; 8:45 am]

BILLING CODE 4910–13–P

DEPARTMENT OF JUSTICE

Office of the Attorney General

28 CFR Part 97

[OAG 100P; AG Order No. 2539–2001]

RIN 1105–AA77

Establishment of Minimum Safety and

Security Standards for Private

Companies That Transport Violent

Prisoners

AGENCY: Office of the Attorney General,

Department of Justice.

ACTION: Notice of proposed rulemaking.

SUMMARY: In the Interstate

Transportation of Dangerous Criminals

Act of 2000 (‘‘the Act’’), Congress

instructed the Department of Justice

(‘‘the Department’’) to promulgate

regulations providing minimum safety

and security standards for private

companies that transport violent

prisoners on behalf of State and local

jurisdictions. The Act provides that the

regulations shall not impose stricter

standards with respect to private

prisoner transport companies than are

applicable to certain Department

agencies that transport violent prisoners

under comparable circumstances. This

rule proposes minimum standards in

only those areas that Congress identified

in the Act.

DATES: Comment date: Comments must

be submitted on or before February 15,

2002.

ADDRESSES: Please submit written

comments to Lizette Benedi, Office of

Legal Policy, U.S. Department of Justice,

950 Pennsylvania Avenue, NW,

Washington, DC 20530. Comments may

also be submitted by fax at (202) 353–

9164 and by electronic mail at

Jeannas.Act.Comments@usdoj.gov. To

ensure proper handling, please

reference ‘‘Jeanna’s Act’’ on your

correspondence.

FOR FURTHER INFORMATION CONTACT: For

matters relating to this proposed rule,

please contact Lizette Benedi, (202)

514–3824.

SUPPLEMENTARY INFORMATION:

A. Background

What Does This Rule Propose?

This rule proposes a limited number

of minimum safety and security

standards for private companies that

engage in the business of transporting

violent prisoners on behalf of State and

local jurisdictions. The proposed rule

requires private prisoner transport

companies to establish measures

designed to improve public safety by

preventing escapes of violent prisoners

and establishing appropriate safeguards

and procedures in the event of the

escape of a violent prisoner.

In addition, the rule proposes

minimum standards to ensure the safety

of violent prisoners during

transportation.

Why Is This Rule Needed?

In enacting the Interstate

Transportation of Dangerous Criminals

Act of 2000, Public Law 106–560 (114

Stat. 2784)(enacted December 21, 2000),

Congress found that State and local

jurisdictions are increasingly turning to

private companies to transport their

violent prisoners, and that escapes have

occurred. Congress determined that

minimum regulations for the private

prisoner transport industry were

necessary to provide protection against

risks to the public that are inherent in

the transportation of violent prisoners

and to assure the safety of those being

transported.

Does Compliance With These

Regulations Mean That Private Prisoner

Transport Companies Have Met All of

Their Legal Obligations?

No. These regulations implement the

Act and do not pre-empt any applicable

Federal, State, or local law that may

impose additional obligations on private

prisoner transport companies or

otherwise regulate the transportation of

violent prisoners. For example, all

Federal laws and regulations governing

interstate commerce (e.g., Federal laws

regulating the possession of weapons

and Federal Aviation Administration

rules and regulations governing travel

on commercial aircraft) will continue to

apply to private prisoner transport

companies.

Because these regulations implement

the Act, they affect only limited aspects

of a private prisoner transport

company’s operations. Therefore, these

regulations are not intended to be model

guidelines or a complete set of

standards for the private prisoner

transport industry. Private prisoner

transport companies should be aware

that compliance with these regulations

will mean only that they will not be

subject to the sanctions established in

the Act. The regulations are not meant

to prevent or discourage private

prisoner transport companies from

adopting additional or more stringent

standards relating to the transportation

of prisoners. Similarly, these regulations

do not limit the authority of Federal,

State, or local governments to impose

additional safety requirements or

impose a higher standard of care upon

private companies that transport violent

prisoners.

The purpose of these regulations is to

enhance public security and the safety

of both prisoners and guards during

transportation. The regulations are not

intended to create a defense to any civil

action, whether initiated by a unit of

government or any other party. Thus, for

example, compliance with these

regulations is not intended to and does

not establish a defense against an

allegation of negligence or breach of

contract. Regardless of whether a

contractual agreement establishes

minimum precautions, the companies

affected by these regulations will remain

subject to the standard of care that is

imposed by statute and common law

upon their activities (or other activities

of a similarly hazardous nature).

Overview of the Standards That This

Rule Proposes

This proposed rule would (1) require

that private prisoner transport

companies comply with minimum

standards for fingerprint-based criminal

background checks and preemployment

drug testing for potential employees; (2)

provide minimum standards for the

length and type of employee training;

and (3) establish restrictions on the

number of hours that transportation

employees can be on duty during a

given time period.

This rule also proposes that private

prisoner transport companies comply

with minimum standards for the use of

restraints while transporting violent

prisoners, and it establishes categories

of violent offenders required to wear

identifying clothing. Further, the rule

proposes a minimum guard-to-prisoner

ratio that must be observed while

transporting violent prisoners, and

proposes that private prisoner transport

companies comply with standards

regarding employee uniforms and

employee identification.

In addition, the rule proposes to

require private prisoner transport

Federal Register / Vol. 66, No. 242 / Monday, December 17, 2001 / Proposed Rules 64935

companies to notify local law

enforcement officials 24 hours in

advance of any scheduled stops in their

jurisdiction when transporting violent

prisoners. In the event of the escape of

a violent offender, the proposed rule

requires that the private prisoner

transport company personnel

immediately notify appropriate law

enforcement officials in the jurisdiction

where the escape occurs, as well as the

governmental entity that contracted

with the private prisoner transport

company for the transport of the

escaped violent prisoner.

Finally, the rule proposes that private

prisoner transport companies adopt

certain minimum standards to protect

the safety of violent prisoners in

accordance with applicable Federal and

State law.

Pursuant to section 4(c) of the Act,

except for the standards regarding the

categories of violent prisoners required

to wear brightly colored clothing, these

proposed standards are not stricter than

the standards applicable to the United

States Marshals Service (USMS),

Immigration and Naturalization Service

(INS), and the Federal Bureau of Prisons

(BOP) when transporting violent

prisoners under comparable

circumstances.

Who Is Covered by This Proposed Rule?

The proposed rule only covers

‘‘private prisoner transport companies,’’

which are defined in Section 3 of the

Act as ‘‘any entity, other than the

United States, a State, or an inferior

political subdivision of a State, which

engages in the business of the

transporting for compensation,

individuals committed to the custody of

any State or of an inferior political

subdivision of a State, or any attempt

thereof.’’

Section 3 of the Act defines a ‘‘violent

prisoner’’ as ‘‘any individual in the

custody of a State or an inferior political

subdivision of a State who has

previously been convicted of or is

currently charged with a crime of

violence or any similar statute of a State

or the inferior political subdivisions of

a State, or any attempt thereof.’’

The term ‘‘crime of violence’’ has the

same meaning as in section 924(c)(3) of

title 18, United States Code. Pursuant to

this subsection, a crime of violence is an

offense that is a felony and (a) has as an

element the use, attempted use, or

threatened use of physical force against

the person or property of another, or (b)

that by its nature, involves a substantial

risk that physical force against the

person or property of another may be

used in the course of committing the

offense.

Does This Rule Affect Companies That

Only Transport Violent Prisoners Within

the Boundaries of One State, Only

Those Companies That Transport

Prisoners Across State Lines, or All

Private Prisoner Transport Companies?

If a company meets the definition of

‘‘private prisoner transport company’’ as

defined in section 3(2) of the Act, the

company must comply with this rule

even if it does not transport prisoners

across state lines. Congress passed the

Act in order to impose regulations upon

a previously federally unregulated

industry that operates across the United

States and engages in a potentially

dangerous activity. In section 2 of the

Act, Congress found that, ‘‘when a

government entity opts to use a private

prisoner transport company to move

violent prisoners, then the company

should be subject to regulation in order

to enhance public safety.’’ This finding

by Congress indicates that the threat

that it intended to remedy was that

posed by an unregulated industry

engaging in business that could

potentially affect the safety of citizens in

all states.

Although the Act is officially titled

the ‘‘Interstate Transportation of

Dangerous Criminals Act of 2000,’’ it is

the Department’s view that limiting the

Act’s provisions to only those

companies that cross state borders

would create the unacceptable result of

leaving unregulated certain members of

the industry that Congress clearly

intended to regulate. In addition, the

definition that Congress provided for

‘‘private prisoner transport company’’

does not require that the company

engage in the interstate transportation of

violent prisoners in order to be covered

by the Act’s provisions.

The statutory direction of Congress to

the Department was clear on this point.

Section 4(a) of the Act states that the

Department ‘‘shall promulgate

regulations relating to the transportation

of violent prisoners in or affecting

interstate commerce.’’ A company that

only operates intrastate can affect

interstate commerce in several ways

(e.g., by using interstate highways, by

utilizing communications systems that

rely on interstate modes of

communications or satellites, by

transporting prisoners who generally

seek to cross state lines during escapes,

by relying on the law enforcement

agencies of nearby states in the event of

an escape, etc.). Therefore, it is the

Department’s view that Congress clearly

contemplated that, viewed either singly

or in the aggregate, private companies

that engage in the commercial activity of

transporting violent prisoners within a

state sufficiently affect interstate

commerce to be covered by the

requirements of this proposed rule.

What Are the Penalties For

Noncompliance With the Regulations?

Section 5 of the Act states that

violators shall be fined up to $10,000

per violation and the costs of

prosecution. Violators also will be

responsible for making restitution to any

public entity that expends funds for the

purpose of apprehending any violent

prisoner who escaped, in whole or in

part, because of a violation of the Act.

As discussed above, conduct

constituting a violation of these

regulations may also result in unrelated

penalties as a result of criminal,

administrative, or civil process pursuant

to local, State, or other Federal laws.

Additional Considerations

There is considerable variation in the

classification of prisoners that the

Department transports and the

circumstances under which those

prisoners are transported. For example,

unlike private prisoner transport

companies, INS at times transports

entire family groups (of both sexes and

of different ages) who have been

apprehended after illegally entering the

United States. Under other

circumstances, INS (along with BOP and

USMS) transports offenders who have

committed very violent crimes and are

considered to be a high security risk.

Accordingly, the Department’s

components that transport prisoners

have developed differing standards for

prisoner transport that are appropriately

tailored to their roles and missions.

By requiring the Department to

promulgate regulations in this area,

Congress appears to have at least two

goals in mind. First, uniform standards

for transporting prisoners serve to

improve public security and the safety

of the prisoners and guards during

transportation. Second, by providing

that the Department’s regulations for the

private sector not be stricter than those

governing the Department’s own

components, Congress appears to have

been concerned that the regulations not

be unduly burdensome.

The Department shares Congress’

concerns that any regulations that the

Department issues should not unduly

burden private industry, especially

small entities, while still addressing the

problems that motivated the passage of

this Act. However, regulations that fully

reflect the considerable variation of the

Department’s own prisoner transport

activities might be so complex as to be

burdensome on the affected entities and,

64936 Federal Register / Vol. 66, No. 242 / Monday, December 17, 2001 / Proposed Rules

nonetheless, still not fully comply with

congressional intent in certain areas.

Therefore, consistent with section 4(c)

of the Act, for some of the specific

requirements of the Act (e.g., that

prisoners ordinarily be required to wear

brightly colored clothing) the rule

proposes standards somewhat more

stringent than the Department uses itself

for the transport of prisoners, under

certain circumstances. Moreover, for

certain requirements that Congress

imposed on private entities, the

Department may have greater flexibility

in its comparable internal procedures

because the functions of Departmental

agencies differ significantly from those

of private prisoner transport companies,

and therefore the circumstances are not

comparable.

For other requirements of the Act

(e.g., the guard-to-prisoner ratio), the

Department is proposing for comment a

one-guard-to-six-violent-prisoner ratio

for promulgation in the final rule. The

Department specifically invites

comments from private prisoner

transport companies, from State and

local law enforcement entities, and from

the general public concerning what ratio

the Department should adopt in the

final rule.

The Department also seeks comment

on the potential impacts that these

regulations may have on the ability of

sheriffs’ departments and other

operators of local jails to arrange safe

and efficient violent prisoner transport

in response to writs or other

requirements.

How Does the Rule Affect the

Transportation of Juveniles?

It is the Department’s view that the

provisions of the Act do not apply to the

transportation of juveniles unless the

juvenile has been charged or convicted

as an adult for a crime of violence as

defined in 18 U.S.C. § 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.

§ 924(c)(3). Section 924(c)(3) includes in

its definition of ‘‘crime of violence’’ the

requirement that it be ‘‘an offense that

is a felony.’’ This should be understood

as referring to adults convicted of or

facing felony criminal charges and to

juveniles who previously have been

convicted of or who are being

prosecuted as adults for violent felony

offenses. Unless juvenile offenders have

been or are being tried as adults under

federal law, they generally are not

considered to have been ‘‘convicted’’ or

‘‘charged’’ with a ‘‘crime of violence’’ as

defined in 18 U.S.C. 924(c)(3). Instead,

they are considered to have been

adjudicated delinquent or found guilty

(or found ‘‘involved’’) in a juvenile

delinquency proceeding, rather than

convicted of a crime. E.g., United States

v. Frasquillo-Zomosa, 626 F.2d 99, 101

(9th Cir. 1980)(‘‘A successful

prosecution under the [Federal Juvenile

Delinquency] Act results not in a

conviction of a crime but rather in

adjudication of a status’’). Although

some provisions under federal law

create an exception to this general

understanding by explicitly providing

that a ‘‘conviction’’ includes certain

juvenile adjudications, e.g., 18 U.S.C.

§ 924(e)(2)(B)(‘‘violent felony’’ includes

‘‘any act of juvenile delinquency

involving the use or carrying of a

firearm, knife, or destructive device that

would be punishable by imprisonment

for [a term exceeding one year] if

committed by an adult’’), neither 18

U.S.C. 924(c)(3) nor the Act itself

contain any language that would

support interpreting the Act as

including within its scope the

transportation of juvenile offenders who

have been adjudicated or who are to be

tried as juveniles.

Who Was Consulted During the

Development of This Proposed Rule?

In accordance with the Act,

Department of Justice officials met with

several representatives of the private

prisoner transport industry, the

American Correctional Association

(ACA), and law enforcement groups,

including the National Sheriffs’

Association, American Jail Association,

National Association of Police

Organizations, and the National

Association of Government Employees

International Brotherhood of Police

Officers. During this rulemaking

process, the Department looks forward

to hearing additional comments from

law enforcement groups, the public, and

the private prisoner transport industry.

B. Detailed Discussion of the Proposed

Requirements Covering Private

Prisoner Transport

1. Background Checks and Drug Testing

Standards for Potential Employees

Under the proposed rule, potential

employees of private prisoner transport

companies will have to pass a

preliminary fingerprint-based criminal

background check prior to being hired.

This background check will disqualify

from employment those applicants

convicted of a misdemeanor crime of

domestic violence or any felony

conviction. The fingerprint-based

criminal background check would be

performed by providing the applicant’s

fingerprints to the governmental agency

that is contracting with the private

prisoner transport company, for

submission through the state history

record repository to the FBI. The

background check also must include a

credit report check, a physical

examination, and a personal interview.

Also, potential employees of private

prisoner transport companies must

undergo testing to detect the prior or

current use of controlled substances as

a condition of employment. The preemployment 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 preemployment drug testing requirements

that apply to commercial drivers (See,

49 CFR 382.301).

2. Length and Type of Employee

Training

The Act states that the Department

may require that employees of private

prisoner transport companies

participate in up to 100 hours of

preservice training relating to the

transportation of prisoners. This

training must be in the following areas:

use of restraints, searches, use of force

(including use of appropriate weapons

and firearms), CPR, map reading, and

defensive driving. This rule proposes to

require private prisoner transport

companies to provide their employees

with 100 hours of preservice training in

those areas.

The training of Department personnel

who transport violent prisoners is

notably more rigorous in length and in

type than the 100-hour maximum that

Congress established in the Act for

private prisoner transport companies.

For instance, the BOP requires any

employee who assists with prisoner bus

transport to have successfully

completed, at a minimum, one

‘‘probationary’’ year of service and

attended 80 hours of Institutional

Familiarization, 120 hours of

Introduction to Correctional

Techniques, 24 hours of Basic Prisoner

Transport, and 80 hours of Bus

Operations Training. In addition, a BOP

employee must undergo 40 hours of

refresher training annually and must

possess a commercial drivers license.

Similarly, INS employees who

transport prisoners must undergo a

minimum of 196 hours of training,

including 20 hours of driving-related

training, 16 hours of first-aid training

and CPR, 6 hours of training on

conducting searches, 48 hours of

training on the use of firearms, and 88

Federal Register / Vol. 66, No. 242 / Monday, December 17, 2001 / Proposed Rules 64937

hours of training on the proper use of

force.

The USMS also requires that its

employees who transport prisoners

undergo rigorous training, including

follow-up courses. As part of its

required training regimen, the USMS

requires over 100 hours of training in

the areas of prisoner handling, prisoner

searches, proper application and

removal of restraints, tactical training in

dealing with combative subjects, the

proper escalation and de-escalation of

force, vehicle operation, and firearms

safety.

The proposed rule does not address

the minimum quality standards required

for training programs, the need for inservice training, or instructor

qualifications, although these are

critical factors that enable Department

agencies to transport prisoners safely. In

its consultations with ACA and private

prisoner transport companies, the

Department has learned that there is

currently no accredited training

program to serve the function of training

the employees of private prisoner

transport companies. The ACA has

reported that it has begun to develop

standards for such training. The

Department seeks comment from the

private prisoner transport industry, the

public, and law enforcement officials on

the manner in which this training

should be conducted and its quality

assured.

3. Number of Hours an Employee May

Be on Duty During a Given Time Period

This proposed rule sets requirements

to ensure that drivers of private prisoner

transport companies comply with

Federal standards that limit the amount

of time a commercial driver may be on

duty during a given time period.

Pursuant to 49 CFR 395.3, no driver of

a commercial vehicle may drive more

than 10 hours following 8 consecutive

hours off duty. A commercial driver will

be barred from driving if the driver has

been on duty (regardless of whether the

employee drove) for 15 hours following

8 consecutive hours off duty.

If the motor vehicle carrier operates

commercial vehicles every day of the

week, a driver will be barred from

driving if the driver has been on duty

for 70 hours in any period of 8

consecutive days. If the motor vehicle

carrier does not operate commercial

vehicles every day of the week, a driver

will be barred from driving if the driver

has been on duty for 60 hours in any

period of 7 consecutive days.

4. The Number of Personnel That Must

Supervise Violent Prisoners

The Act directs the Department to

develop minimum standards for the

number of private prisoner transport

personnel that must supervise violent

prisoners. The Act states that these

minimum standards shall not exceed a

requirement of one agent for every six

violent prisoners. In addition, the Act

states that the Department must not

impose stricter standards on private

prisoner transport companies than are

applicable, without exception, to the

USMS, BOP, and INS. As a minimum

standard, the Department believes that a

one-agent-to-six-violent-prisoner ratio is

the most appropriate standard to protect

the public from the threat of violent

prisoner escapes.

Although the Act states that the

Department should establish a

minimum guard-to-prisoner ratio, the

Act also permits the Department to give

private prisoner transport companies

‘‘appropriate discretion’’ in this area.

The Department seeks comment from

law enforcement entities, private

prisoner transport industry members,

and the public as to the proper level of

discretion that private prisoner

transport companies should have in

relation to the one-guard-to-six-violentprisoner ratio proposed by this

regulation.

Department Practices and Procedures

When Justice Department components

transport high-risk, maximum custody,

or violent offenders, the guard-toprisoner ratios are often significantly

more strict than one guard for every six

prisoners. For instance, when BOP

personnel transport their maximum

custody inmates on escorted trips (for

medical treatment or other purposes),

the BOP policy guidelines require that

for each such inmate, there must be

three BOP staff escorts, one of whom

must be a Lieutenant. The guidelines

also require that additional BOP staff

ride along for the duration of the trip in

a follow vehicle. Because BOP policy

guidelines recommend that two BOP

staff ride in the follow vehicle, the

guard-to-prisoner ratio in this case is

five guards to one prisoner. BOP policy

guidelines require that this guard-toprisoner 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 oneguard-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-toprisoner 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-toprisoner ratio, there are numerous

Department operating procedures that

are not required of private prisoner

transport companies that ensure the

security of the Department vehicles,

64938 Federal Register / Vol. 66, No. 242 / Monday, December 17, 2001 / Proposed Rules

officers, and prisoners. For instance,

there are Department operating

procedures that require buses and other

vehicles to have the rear cage door

locked while inmates are aboard, to be

equipped with security screens that

separate the driver from the prisoners,

to have steel mesh over the windows

and doors, to have inside door handles

removed, and to be searched for

contraband before and after each

prisoner movement. There are extensive

Department guidelines that govern the

movement of prisoners to and from

buses, and also govern prisoner seating

arrangements once on the bus. There are

additional policies and procedures for

monitoring and controlling prisoner

conduct while on the bus and during

stops. In addition, Department

personnel have extensive training and

knowledge of proven safety techniques

(e.g., rules that handcuff keys are to be

carried on separate key rings from

vehicle ignition keys). This proposed

rule will not require that any of these

measures be adopted by private prisoner

transport companies.

Simplified Guard-To-Prisoner Ratio for

Industry

As discussed in the preceding

paragraphs, the Department’s guard-toprisoner ratio varies depending upon

the nature and security classification of

the offender, the escape risk, and other

factors. This ratio is often significantly

more strict than the maximum ratio the

Act permits the Department to require

for private companies. The

Department’s ratio is also sometimes

less strict than the one-to-six ratio

referred to in the Act. The Department’s

own excellent record in transporting

prisoners safely and securely with ratios

lower than one guard to six prisoners is

due in large measure to the extensive

training that custodial and transport

personnel receive (training that greatly

exceeds the maximum training that the

Department is permitted to require by

regulation), to the carefully designed

physical configuration of the transport

vehicles, and to the elaborate

procedures set forth in the Department’s

guidelines.

It should be noted that this proposed

rule does not require that private

transport companies adhere to all of the

Department’s own guidelines regarding

prisoner transport. Compliance with

such guidelines would likely be very

expensive for private companies.

Further, a multi-tiered approach that the

Department follows for conducting its

own transport of prisoners would be

administratively burdensome for private

companies and require them to obtain

information about each prisoner (such

as their escape risk or security

classification) which they are not at

present likely to receive from the

committing authority. But in the

absence of mandated compliance with

all of these safeguards, private prisoner

transport does not involve ‘‘comparable

circumstances’’ that would permit use

of ratios more lenient than one to six.

In an effort to comply both with the

statutory requirement that the guard-toprisoner ratio not exceed one to six and

the statutory requirement that the

Department not impose on private

companies stricter requirements than it

adheres to without exception, the

Department proposes to require that

private companies transporting

offenders not exceed a ratio of one agent

to six violent prisoners.

The Department believes that this

ratio provides a security level consistent

with congressional intent but without

imposing an elaborate set of multi-tiered

ratios, compliance with which would be

complex for private entities lacking the

Department’s resources. The

Department further believes that the

circumstances under which it transports

prisoners with a ratio less stringent than

one to six are fully justified by the

additional security precautions that the

Department takes that will not be

imposed upon private companies.

The Department recognizes that the

private prisoner transport industry may

experience significant variations in the

carrying capacity of vehicles used, the

number of prisoners transported per

trip, and the security levels of the

prisoners being transported. The

variation among these factors may

complicate the construction of a

workable guard-to-violent-offender

ratio; therefore, the Department seeks

input from industry, law enforcement,

and the public as to the factors that

should guide the development of a

minimum guard-to-violent-prisoner

ratio.

5. Employee Uniforms and

Identification

The rule proposes to require that

private prisoner transport companies

comply with certain minimum

requirements for employee uniforms

and identification. These standards will

require the wearing of a uniform with a

badge or insignia that identifies to the

prisoners and others that the employee

is a transportation officer.

While engaged in the transportation of

violent prisoners, private prisoner

transport company employees must

wear a uniform that clearly identifies

them as such. The uniforms should be

readily distinguishable in color and

style from uniforms worn by

Department of Justice personnel who

transport violent prisoners.

The rule also proposes that private

prisoner transport companies require

their employees to have identification

credentials on their uniform that are

visible at all times while engaged in the

transportation of violent prisoners. The

identification credentials must have a

photograph of the employee that is at

least one inch square, and a printed

personal description of the employee,

including the employee’s name, the

signature of the employee, and date of

issuance. This standard is in accordance

with Department regulations that

require Department employees to carry

proper identification (and a badge under

certain circumstances).

While Department regulations require

its employees to possess proper

identification at all times, under the

proposed rule private prisoner transport

company employees will only be

required to possess and display proper

identification while transporting violent

prisoners.

6. Uniforms for Violent Prisoners

The Act directs the Department to

create standards establishing categories

of violent prisoners required to wear

brightly colored clothing clearly

identifying them as prisoners. Congress

has observed that a number of violent

prisoners have escaped from private

prisoner transport companies while

wearing civilian clothing. An escaped

violent prisoner wearing civilian

clothing presents a much more serious

risk to the public than an escaped

prisoner who is clearly identified as a

prisoner. The absence of any

requirement for transported prisoners to

wear distinctive and brightly colored

clothing has unnecessarily hindered law

enforcement officers in their search for

escaped prisoners.

After consulting with representatives

of the law enforcement community, the

private prisoner transport industry, and

the ACA, the Department has

determined that the category of

prisoners required to wear distinctive

prisoner uniforms should consist of all

violent prisoners covered by the Act.

Therefore, this rule proposes to require

all violent prisoners transported by

private prisoner transport companies to

wear distinctive clothing that clearly

identifies them as prisoners. As

currently defined, this category is

sufficiently broad to encompass those

prisoners who may constitute a threat to

public safety without requiring private

companies to conduct intensive

individualized risk assessments for each

prisoner transported. This rule will not

prohibit or in any way impede the

Federal Register / Vol. 66, No. 242 / Monday, December 17, 2001 / Proposed Rules 64939

ability of private prisoner transport

companies to require the wearing of

uniforms by some or all other prisoners.

The Department welcomes comments

from interested parties as to whether it

would be beneficial to broaden or

narrow the category of prisoners

required to wear such clothing.

The Department recognizes that there

are circumstances when it may be

inappropriate or impractical to transport

violent prisoners in distinctive brightly

colored clothing (e.g., traveling on

commercial aircraft, to a court

appearance, or in the case of a particular

physical disability). In keeping with the

intent of the Act, any exceptions to the

prisoner clothing requirement will be

narrow. The Department seeks comment

from the public, law enforcement, and

industry as to what types of security or

other specific considerations may

warrant exceptions to the prisoner

clothing requirement. Nothing in this

proposed rule or in the final rule will

supersede any applicable Federal

Aviation Administration rules or

regulations concerning the

transportation of prisoners on

commercial aircraft.

The Department also learned from its

consultations with the industry that it

might be advisable for the Department

to establish a standardized, brightly

colored, and distinctive prisoner

uniform that all private prisoner

transport companies would be required

to use. Industry representatives

indicated that a standardized style,

color, or pattern of prisoner uniform

could have practical advantages, such as

being easier and less expensive for the

companies to purchase in bulk and

making a more definite impression in

the mind of the public to help them

easily identify a prisoner in transit. The

Department seeks comment from all

interested parties as to whether a

standardized prisoner uniform would be

a useful or valuable element of prisoner

transportation by private companies.

From those entities who believe that

the concept of a standardized prisoner

uniform should be pursued, the

Department welcomes

recommendations as to the color (bright

yellow, black and white striped, etc.) as

well as style (jump-suits, two-piece

uniforms that accommodate restraints,

etc.) of prisoner uniform that should be

adopted. Any recommendations for a

particular color or style of standardized

prisoner uniform should consider that

the prisoner uniform must be distinctive

without being confusingly similar to

uniforms in use by other public or

private entities. Such recommendations

should also be distinctive from brightly

colored clothing worn by law-abiding

citizens, such as the ‘‘blaze orange’’

worn by hunters and road crews or the

bright yellow clothing worn by certain

firefighters.

The Department requests comments

on whether private prisoner transport

companies that currently require violent

prisoners to wear distinctive uniforms

should be required to purchase new

uniforms to comply with a new

standard (if a new standard is

established). As an alternative to the

Department requiring the immediate

replacement of currently-used brightly

colored prisoner uniforms with some

standard uniform, the Department

requests comments on whether it should

permit those companies that currently

use prisoner uniforms to continue to use

their current inventory until the

uniforms are replaced in the ordinary

course of business before being required

to comply with any new standard.

Under this alternative, the regulations

would only require that any new

uniforms that are purchased (or new

contracts for the purchase of uniforms

entered into) after the effective date

must conform to the standard uniform

described in the regulations.

This part of the proposed rule would

require that private prisoner transport

companies take precautions that are

similar to those taken by Department

agencies must ensure that violent

prisoners wear brightly colored clothing

that identifies them as prisoners when

they are being transported. Absent

extenuating circumstances, the BOP

requires that all inmates who travel on

BOP buses be transported in

government-issued clothing, including

shoes. The INS requires violent

prisoners to wear orange or red

uniforms and less dangerous offenders

to wear blue or yellow uniforms.

7. Restraints To Be Used While

Transporting Prisoners

The Department agencies that

transport violent prisoners have similar

policies governing the type of restraints

that must be used on violent prisoners,

during transportation. Violent prisoners,

and those defined by the BOP to be

‘‘Maximum Custody’’ prisoners, are to

be transported in handcuffs, leg irons,

and waist chains. This rule proposes to

apply this standard to private prisoner

transport companies. Violent prisoners

are to be transported in handcuffs, leg

irons, and waist chains unless the use

of all three restraints would create a

serious health risk to the prisoner, or

unless extenuating circumstances make

the use of all three restraints

impracticable. Examples of such

exceptions would include the

pregnancy or physical disability of a

violent prisoner.

The Department is considering the

implementation of additional minimum

requirements for private prisoner

transport companies concerning the use

of restraints. These additional minimum

requirements would be similar to

certain guidelines used by Department

agencies during transportation of violent

prisoners. For example, Department

agencies have regulations that dictate

when and how a violent prisoner is to

be restrained during movement to the

bus and during rest stops. Department

agencies are also required to maintain

an adequate supply of all types of

restraint equipment on the bus. Each

BOP bus is required to carry a minimum

of two sets of modified leg irons to be

used as handcuffs for large inmates. In

addition, each BOP bus is required to

have a 35-foot long chain and padlock

in the event that a mass emergency

evacuation of the bus is required.

Department agencies also adhere to

standards concerning the maintenance

of restraints. All restraining equipment

is to be inspected daily while the bus is

operational. This inspection is

necessary to avoid the use of restraining

equipment that may have been altered

during a previous trip. Comment is

requested on the potential inclusion of

one or more of these additional

requirements as part of the minimum

transportation requirements.

8. Notification of Local Law

Enforcement Prior to Stops Within Their

Jurisdiction

When a prisoner transport vehicle is

stopped, the risk of escape is greatest

because prisoners may be boarding or

exiting the vehicle and guards may be

distracted while getting food, fueling the

vehicle, or attending to medical or other

emergencies. In the Act, Congress found

that the private prisoner transport

process can last for weeks as violent

prisoners are dropped off and picked up

at a network of hubs nationwide.

Because each stop involves a potentially

high security risk, Congress has

imposed a requirement that when

transporting violent prisoners, private

prisoner transport companies are to

notify local law enforcement officials 24

hours prior to a scheduled stop in their

jurisdiction.

For the purposes of this proposed

rule, a ‘‘scheduled stop’’ is defined as a

predetermined stop at a State, local, or

private correctional facility for the

purpose of loading or unloading

prisoners or using such facilities for

overnight, meal, or restroom breaks.

Scheduled stops do not include routine

fuel stops or emergency stops. Notice is

64940 Federal Register / Vol. 66, No. 242 / Monday, December 17, 2001 / Proposed Rules

to be given to law enforcement officials

prior to these scheduled stops to ensure

that the risk of a prisoner escaping is as

small as possible.

There is no comparable requirement

for Department agencies to provide

advanced notice of scheduled stops

because the transporting agency is a law

enforcement entity. Any emergency or

other disturbance may be

instantaneously reported to other law

enforcement entities through the

Emergency Alert System that links all

BOP buses with the central office. There

is no need for BOP buses to relate their

location to local law enforcement

because the BOP central office is able to

locate the bus via the Global Positioning

System that is installed on each BOP

bus.

The rule will not propose that the use

of specific technological equipment be

required of private prisoner transport

companies, such as the installation of a

satellite tracking system that is linked to

law enforcement. However, the rule will

propose to require that notice of

scheduled stops be given to local law

enforcement 24 hours prior to the stop.

9. Immediate Notification of Law

Enforcement in the Event of an Escape

In the event of the escape of a violent

prisoner, the private prisoner transport

company must immediately notify

appropriate law enforcement officials in

the jurisdiction where the escape

occurred, and also contact the

governmental entity that contracted

with the transport company. Private

prisoner transport companies should be

sufficiently equipped to provide

immediate notification to law

enforcement in the event of a prisoner

escape. Law enforcement officials must

receive notification no later than 15

minutes after an escape is detected

unless the company can demonstrate

that extenuating circumstances

necessitated a longer delay.

Congress imposed this requirement

because there was at least one occasion

when a violent prisoner’s escape from a

private transport company was not

reported to law enforcement until hours

after the escape was detected. Such a

delay placed the public at risk and

irreparably harmed the ability of law

enforcement to secure the area, establish

roadblocks, conduct intensive searches

in the vicinity, notify the public about

the possibility of danger, and identify

relevant witnesses who could have

aided in the capture of the prisoner.

All Department agencies that

transport violent offenders have

guidelines that require providing notice

to other law enforcement agencies in the

event of a prisoner escape during

transit. The USMS regulations require

that prisoner escapes and attempted

escapes immediately be reported to the

United States Marshals

Communications Center and the U.S.

Marshal, Chief Deputy U.S. Marshal, or

Supervisory Deputy U.S. Marshal. The

United States Marshals

Communications Center will then notify

the Investigative Services Division and

the Prisoner Services Division of the

USMS. Similarly, in the event of a

prisoner escape from a BOP vehicle, the

BOP is required to contact the USMS

and the nearest BOP institution, which

will begin notifications up the chain of

command as necessary. State and local

law enforcement will also typically be

contacted.

Department agencies have adopted a

uniform rule in the event of a prisoner

escape that the first priority is to secure

the remaining prisoners and transport

them to their final destination. Under no

circumstances will the supervision of

the other inmates be relaxed in order to

pursue an escaping inmate. The

Department is considering proposing

that private prisoner transport

companies adopt similar procedures.

10. Safety of Violent Prisoners

Congress has determined that private

prisoner transport companies must

provide standards of safety for violent

prisoners in accordance with applicable

Federal and State law. Department

agencies have implemented extensive

requirements to ensure the safety of

violent prisoners who are transported.

In addition to the protections provided

by existing State and Federal laws, the

Department may propose that private

prisoner transport companies adopt

some of the safety measures that

Department agencies have adopted

including: requiring safety equipment

on buses (including first-aid kits, extra

blankets, sirens, and extra restraining

devices); abiding by rigid maintenance

schedules for vehicles; mandatory

inspections of vehicles; requirements for

communications systems on vehicles;

prohibitions on tobacco use in vehicles;

seating arrangements to accommodate

troublesome prisoners or those with

medical needs; and requirements that

prisoners be searched and restrained in

a professional, systematic, methodical,

and consistent manner.

Similarly, Department agencies

engaged in prisoner transport have

procedures to conduct searches of

vehicles and prisoners as needed to

ensure that no contraband or weapons

are brought onto the vehicle. To protect

the safety of prisoners, Department

personnel are rigorously trained in the

proper use of firearms and the

appropriate use of force. Also, to protect

prisoners, appropriate forms and

records must be filed prior to the use of

specialized restraints on a prisoner and

after a strip search that occurs for

reasons other than receipt of a new

prisoner (this report documents the

identity of the prisoner searched, date,

place, time, and duration of the search,

reason for the search, names of those

present, and a description of any

weapons, evidence, or contraband

found). The final rule may adopt all or

some of the safety measures discussed

above that have been implemented by

Department agencies.

Small Business Regulatory Enforcement

Fairness Act of 1996

This rule is designed to have the

lowest possible impact on businesses

that transport violent prisoners while

still protecting the safety of the public.

This proposed rule is not a major rule

as defined by section 251 of the Small

Business Regulatory Enforcement

Fairness Act of 1996, 5 U.S.C. 804, and

it will not result in an annual effect on

the economy of $100,000,000 or more; a

major increase in costs or prices; or

significant adverse effects on

competition, employment, investment,

productivity, innovation, or on the

ability of United States-based

companies to compete with foreignbased companies in domestic and

export markets.

Unfunded Mandates Reform Act of

1995

By this rule, the Department is

proposing to implement the

requirements of the Act, which imposes

minimum security and safety standards

upon private companies transporting

violent offenders. The Act’s

requirements as implemented by these

regulations may increase the operating

costs of some of these private

companies. While State and local

governments are the primary entities

that contract with private prisoner

transport companies, this proposed rule

does not impose any direct

requirements upon State or local

governments or upon their law

enforcement offices.

The Act requires potential private

company employees to undergo a

background check. Federal law does not

permit dissemination of criminal history

records to private employers for

screening unless statutorily authorized.

Because current statutory law does not

grant private entities the authority to

request Federal criminal history records,

the private prisoner transport

companies must arrange to do so with

the contracting State or local

Federal Register / Vol. 66, No. 242 / Monday, December 17, 2001 / Proposed Rules 64941

1See 5 U.S.C. 601(3) (incorporating by reference

the definition of ‘‘small business concern’’ in 15

U.S.C. 632.

government. Therefore, to effectuate

Congress’ intent, this proposed rule

suggests private prisoner transport

companies arrange with the State or

local law enforcement agency with

which they are contracting to obtain a

fingerprint-based background check of

their employees or potential employees.

Local law enforcement agencies

routinely provide fingerprinting services

for various public purposes (e.g. teacher

applicants and bar examinations). If a

governmental agency wishes to contract

its prisoner transport obligations out to

a private company, it will need to make

arrangements for submitting the

applicant’s fingerprints to the FBI to

conduct a criminal history background

check on the applicant. The

governmental agency submitting the

fingerprints would incur the initial

financial responsibility associated with

these applications. The cost of the

background check is determined by

individual State procedure, not Federal

procedure, and thus will vary from State

to State. The Department has been

informed that such application fees

range from $14 to $95. However, even

assuming the highest fee, the

Department does not anticipate that this

requirement will have a significant

financial affect on State or local entities.

Because of Federal limitations upon

dissemination of background

information, the Department does not

believe that there are other viable

options that would allow private

companies to meet the background

investigation requirement.

The Department has no evidence to

indicate how much of any possible cost

increases upon private businesses—

from mandatory background checks or

any other requirements imposed by this

proposed rule—will be passed along as

price increases to the State and local

jurisdictions contracting with them.

However, because of the relatively small

number of private prisoner transport

companies and the number of people

employed by these companies, the

Department believes that this proposed

rule will not result in the expenditure

by State, local, and tribal governments,

in the aggregate, or by the private sector

of $100,000,000 or more in any one

year, and it will not significantly or

uniquely affect small governments.

Executive Order 12866

The Department of Justice has

reviewed this proposed rule in light of

Executive Order 12866, Section 1(b),

Principles of Regulation. The

Department of Justice has determined

that this rule is a ‘‘significant regulatory

action’’ under Executive Order 12866,

section 3(f), Regulatory Planning and

Review, and, accordingly, this rule has

been reviewed by the Office of

Management and Budget.

Executive Order 13132

The proposed rule only covers the

business practices of private companies.

This rule will not have substantial

direct effects on the States, on the

relationship between the national

government and the States, or on the

distribution of power and

responsibilities among the various

levels of government. Therefore, in

accordance with section 6 of Executive

Order 13132, it is determined that this

rule does not have sufficient federalism

implications to warrant the preparation

of a federalism summary impact

statement.

Executive Order 12988

This proposed rule meets the

applicable standards set forth in

Sections 3(a) and 3(b) of Executive

Order 12988, Civil Justice Reform.

Paperwork Reduction Act

This rule imposes no new information

collection requirements.

Initial Regulatory Flexibility Act

Analysis

The Department of Justice drafted this

rule in a way to minimize its impact on

small businesses while meeting its

intended objectives. Based upon the

preliminary information available to the

Department at this time, we are unable

to state with certainty that this rule, if

promulgated, will not have the effect on

small businesses of the type described

in 5 U.S.C. 605. Accordingly, the

Department has prepared the following

initial Regulatory Flexibility Act

analysis in accordance with 5 U.S.C.

603.

A. Need for and Objectives of This

Proposed Rule

This proposed rule will implement

the Act, which requires the Attorney

General to establish regulations

imposing minimum safety and security

standards on private companies engaged

in transporting violent prisoners for

State and local jurisdictions.

The Act reflects Congress’ concerns

about the growing number of State and

local jurisdictions that are utilizing the

services of private companies as an

alternative to sworn law enforcement

officers when transporting violent

prisoners. Congress found that violent

prisoners have escaped from private

transport companies and that these

escapes have led to further crimes

committed by the escaped prisoners as

well as significant expenditures by law

enforcement units attempting to capture

the escapees. As a result of these

findings, Congress determined that it

was necessary to regulate the private

prisoner transport industry in order to

enhance public safety.

Congress required that the

Department consult with the ACA and

the private prisoner transport industry

in promulgating these regulations. On

March 30, 2001, Department of Justice

officials met in Washington, DC, with

representatives of the ACA and the

private prisoner transport industry.

Several representatives who were not

able to attend the meeting in person

participated through a conference call.

The ACA, and each participating

industry representative, agreed that

higher standards in this area are much

needed. In addition, the consultations

provided the Department with

information that indicates that the

minimum standards imposed by the

proposed rules will have little economic

impact on these particular companies.

Most of the standards proposed in this

rule are already followed by the

industry leaders and, in many cases, the

standards followed by the companies in

the private prisoner transport industry

are much stricter than those found in

this proposed rule.

As is discussed more fully below, the

Department has been informed that the

private prisoner transport industry

includes a large number of small

entities. Many of these entities are

smaller than those having Washingtonbased or other staff representatives

whom the Department could identify

and with whom it could consult in the

limited time available under this Act to

promulgate regulations.

B. Description and Estimates of the

Number of Small Entities Affected by

This Proposed Rule

A ‘‘small business’’ is defined by the

Regulatory Flexibility Act (RFA) to be

the same as a ‘‘small business concern’’

under the Small Business Act (‘‘SBA’’),

15 U.S.C. 32. Under the SBA, a ‘‘small

business concern’’ is one that: (1) Is

independently owned and operated; (2)

is not dominant in its field of operation;

and (3) meets any additional criteria

established by the SBA.1 As the demand

for transporting prisoners increases,

local and State governments find

themselves unable to handle all their

transportation needs. Therefore, these

governmental entities enter into

contracts with private companies to

64942 Federal Register / Vol. 66, No. 242 / Monday, December 17, 2001 / Proposed Rules

provide for the transportation of their

violent prisoners.

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 asneeded basis. Both groups of private

transport companies would be regulated

by this proposed rule and both fall

under the definition of a ‘‘small

business’’ pursuant to the RFA. The

discussion in this section will first focus

on the larger companies involved in

transporting violent prisoners and then

examine issues specific to the smaller

companies.

Although the Department consulted

with some of the affected entities it was

able to identify during the drafting of

this proposed rule, the Department

realizes that not all interested persons

and entities may have been fully

represented prior to the publication of

this proposal. Therefore, the Department

is requesting that further comments be

submitted to help ensure that the

concerns of all interested parties are

considered. Commenters may wish to

identify the type of industry, including:

The number of companies/individuals

involved and the annual income of

business they conduct; how the

proposed regulatory requirements

would impact that industry; and, within

the statutory requirements, any

suggestions or comments on how the

final regulations might be better tailored

to the industry without compromising

the basic intent of the law which is to

enhance public safety by imposing

minimum standards on private

companies engaged in the transport of

violent prisoners.

Commenters should note that the

submission of any comments or

information on these or other matters

addressed by this proposed rule is

entirely voluntary. The Department is

not prescribing the use of any form for

this information.

Pursuant to the RFA and public

policy concerns, the Department

encourages all affected commercial

entities and law enforcement agencies to

provide specific estimates, wherever

possible, of the economic costs that this

rule will impose on them and the

benefits that it will bring to them and to

the public. The Department asks

affected small businesses to estimate

what these regulations will cost as a

percentage of their total revenues in

order to enable the Department to

ensure that small businesses are not

unduly burdened.

1. Larger Private Prisoner Transport

Companies

In passing the Act, Congress

specifically called upon the Attorney

General to consult with the ACA and

the private prisoner transport industry

while drafting this proposed rule.

During these consultations, the

Department learned that there are

approximately 10 to 12 larger private

prisoner transport companies currently

operating in the United States. However,

there is no public or private entity that

monitors when a private prisoner

transport business enters or exits the

industry. Therefore, it is difficult to

accurately estimate the number of

industry participants.

The Department has drafted this

proposed rule to have the minimum

possible impact on these businesses

while still complying with the intent of

the Act. During the Department’s

consultations, it was informed that

many of the proposed minimum

standards contained in this proposed

rule are already followed by the larger

companies. In some instances, the larger

industry participants have actually

adopted more stringent internal

standards than those that would be

imposed by the proposed rule. Where

the proposed rule would require

companies to implement a practice not

currently followed, industry opinion

was taken into consideration so as to

impose no greater burden than

necessary.

2. Smaller Entities Engaged in the

Transport of Violent Prisoners

In addition to the larger private

companies that transport prisoners, the

Department believes that there is a large

number of smaller entities that contract

with State and local authorities to

transport prisoners. Although the

Department does not have an exact

number of smaller companies, the ACA

and industry leaders estimated that 500

such entities may exist. The Department

was informed that these entities are

often composed of merely one or two

people who enter into contracts with

sheriffs’ offices on an as-needed basis. It

is therefore difficult to address the

impact that the proposed regulation

would have on the smaller participants

in the industry without knowing

approximately how many of these

smaller entities transport violent

prisoners (and therefore would be

regulated) or what their current safety

and security practices are.

However, the Department is

concerned that these smaller companies

will experience the greatest impact as a

result of these regulations. For example,

a minimum standard that imposes a

ratio of at least one guard for every six

violent prisoners might be a greater

burden to a smaller entity that lacks the

personnel resources of a larger

company. Similarly, the need to possess

a sufficient amount of specialized

equipment, as required by these

regulations, could create a greater

economic burden on smaller entities.

Because the Department has not been

able to identify such entities, we are

specifically requesting comment on the

impact that this proposed rule would

have on them.

3. Impact of These Regulations on Small

Governmental Entities

In section 3(2) of the Act, Congress

specifically exempted from the

minimum standards any Federal, State,

or local governmental entity engaged in

the transport of violent prisoners. The

proposed rule would not regulate these

entities. However, the Department is

cognizant of the possibility that these

regulations may place a burden on small

governmental entities that contract with

private prisoner transport companies.

The Department therefore has consulted

with the National Sheriffs’ Association

and the American Jail Association, as

well as representatives from local police

departments, to gain a better

understanding of the impact this

proposed rule will have on their

operations.

C. Specific Requirements Imposed That

Would Impact Private Companies

1. Standards Requiring the Use of

Specialized Equipment

Some of the minimum standards

proposed by this rule might require

private companies to purchase various

pieces of equipment, thereby causing an

increase in expenditures. The standards

regarding mandatory restraints,

uniforms for agents, identification

credentials for agents, and uniforms for

violent prisoners fall into this category.

By imposing these standards, companies

that are not already in possession of

these items, or not in possession of a

sufficient quantity, would have to

purchase them in order to satisfy the

requirements of the regulations.

However, after consulting with

representatives from the industry, the

Department believes that the proposed

rule will not have a significant

economic impact on the larger entities

in the private prisoner transport

industry. With the exception of prisoner

uniforms, all companies consulted

indicated that they currently require the

Federal Register / Vol. 66, No. 242 / Monday, December 17, 2001 / Proposed Rules 64943

use of all equipment specified in this

proposed rule. The companies currently

use hand-cuffs, leg chains, and waist

chains, and all agents are issued

uniforms and possess credentials.

Therefore, this rule will not propose any

new standards that require extra

expenditures. Indeed, the private

companies consulted by the Department

indicated that, in many instances, they

require more equipment than the rule

proposes. For example, many of the

companies require ‘‘black boxes’’ on

their restraints in order to prevent a

prisoner from picking the lock. In

addition, many of the companies require

their agents to have cell phones or

Global Positioning Systems in their

transport vehicles, features that go well

beyond the standards contained in this

proposed rule.

The larger companies in the industry

do not currently require prisoner

uniforms for all violent prisoners. This

rule proposes to implement a mandatory

provision of the Act that requires

violent prisoners to be transported in

brightly colored clothing that clearly

identifies the wearer as a violent

prisoner. Because there is no current

policy on prisoner attire, this standard

would require companies to invest in a

sufficient number of prisoner uniforms.

As is discussed elsewhere in this

proposed rule, the Department believes

that a standardized uniform for violent

prisoners might benefit all interested

parties, but most importantly, the

public. If one were established, a

standardized uniform would be able to

be produced in larger quantities by

clothing manufacturers at a lower cost

to the private transport industry.

Further, once the color/pattern of

uniform for violent prisoners in private

transit became widely known, it would

become easier both for law enforcement

and the general public to identify such

prisoners in the event of an escape.

Finally, by proposing a single

standardized color/pattern for violent

prisoners, the Department would hope

to avoid any confusion with brightly

colored articles of clothing worn by law

abiding members of the community

engaged in particular activities (e.g., the

blaze orange clothing worn by many

hunters).

2. Training

This rule proposes to require private

companies to train their employees in

six enumerated areas for a minimum of

100 total hours of training before the

employee may transport violent

prisoners. This standard might require

private companies to incur the cost of

training where their current practices

fail to meet the standard. Companies

would need to engage qualified

instructors with the ability to properly

train personnel. However, all of the

companies consulted by the Department

currently have training procedures in

place, many of which are more

extensive than those required by the

proposed rule. Most of the companies

indicated that they require firearms

training equivalent to the training

received by law enforcement officers. In

addition, all of the companies consulted

require their personnel to undergo

follow-up training during the course of

employment. It is therefore unlikely that

the new training standards will have a

significant impact on the larger industry

participants.

3. Personnel

The rule proposes to require a

minimum ratio of one guard for every

six violent prisoners during transport. It

is possible that this standard would

require companies to increase their

personnel in order to meet the

mandated ratio. However, all the

companies consulted indicated that they

already impose minimum guard-toprisoner ratios, all of which are more

stringent than the one proposed in this

rule.

4. Other Standards Imposed on

Companies

Many of the minimum standards in

this proposed rule will place affirmative

duties on private prisoner transport

companies. The standards dealing with

pre-employment background checks and

drug testing, notification of local law

enforcement 24 hours before scheduled

stops, and immediate notification of law

enforcement should an escape occur all

fall into this category. Of these, only the

first standard regarding conducting

background checks and drug testing

carries with it the possibility of

increased expenditures. While the

notification requirements in this

proposed rule do place an affirmative

duty on the companies, they do not

impose any economic burden on the

companies.

5. Impact on Smaller Entities

The Department does not have any

specific information about how much of

an economic impact this rule might

have on the smaller industry

participants in the foregoing areas:

specialized equipment, training,

personnel, background checking, and

drug testing. However, it is reasonable

to assume some aspects of this rule may

have a proportionately larger economic

impact upon small entities. For

example, this may be the case with

respect to equipment purchases where,

typically, the larger the quantity

purchased, the lower the per unit cost

becomes. Given the inexpensive nature

of handcuffs, leg irons, and waist

chains, however, the additional cost

burden should not be significant,

especially because private prisoner

transport companies are likely already

to possess this equipment.

With respect to the training

requirements, there may be a greater

impact on a small prisoner transport

entity that might have only one or two

employees. Such an entity might

temporarily have to suspend operations

while its agents undergo training. On

the other hand, a larger entity with more

employees might be able to continue

operations while its employees rotate

through training. Similarly, it might be

easier for larger entities to meet the

minimum guard-to-prisoner ratio than it

would be for smaller entities.

It should be stressed, however, that in

proposing these regulations, the

Department is merely implementing the

mandatory requirements of the Act and

that it has attempted to do so with the

least economic impact upon any entity,

large or small.

D. Reporting and Recordkeeping

Requirements

This proposed rule does not impose

any additional reporting or

recordkeeping requirements on private

prisoner transport companies or on the

State and local entities that contract

with them.

E. Issues Raised and Alternatives

Suggested

1. Issues Raised

While consulting with representatives

of the larger companies, the Department

was apprised of an issue concerning the

impact that this proposed rule would

have on sheriffs’ departments that

employ private companies to transport

violent prisoners. According to

information provided to the

Department, many of the local law

enforcement offices across the nation

employ smaller entities to transport

prisoners, not the major companies,

when the need arises. The Department,

however, cannot exempt these smaller

entities from the standards because they

clearly fall into the definition of

‘‘private prisoner transport company’’

provided by Congress in the Act.

It is important to note that this

proposed rule does not impose any

minimum standards on governmental

entities nor on their employees engaged

in official conduct. However, the

Department acknowledges the

possibility that these entities may be

64944 Federal Register / Vol. 66, No. 242 / Monday, December 17, 2001 / Proposed Rules

indirectly affected in contracting with

private companies. The Department,

therefore, seeks comment from both the

smaller companies engaged in

transporting violent prisoners as well as

State and local entities that contract

with private companies to meet their

transportation needs.

2. Alternatives Suggested

An alternative suggestion was made

during a consultation meeting between

the Department and industry

representatives concerning whether the

Department should provide more

guidance as to the quality of training

required by this proposed rule. It was

suggested an association, such as the

ACA, develop an accredited training

program and that any final rule should

require private companies to receive

accreditation from such a program.

While the Department believes that this

suggestion is worth further

consideration, there is currently no such

program in place and it is the

Department’s understanding that the

earliest date by which the ACA could

develop such a program would be

January of 2002. Absent a standardized

quality assurance program, the

Department declines at this time to

impose any requirements regarding the

quality of training.

A second alternative that was

suggested pertained to the requirement

that private companies notify local law

enforcement when traveling through a

jurisdiction. Initially, the Department

intended to require 24 hour advance

notification to local law enforcement of

any scheduled stop within a

jurisdiction, with ‘‘scheduled stop’’

broadly defined. However, it was

suggested during the Department’s

consultations with law enforcement and

industry leaders that the definition of

‘‘scheduled stop’’ should be more

narrowly defined. Law enforcement

groups and industry leaders agreed that

if a transport company had to provide

notification for any stop, including for

such things as refueling, eating, and

bathroom trips, the notification

requirement could pose a security

threat. Therefore, the Department

proposes to construe more narrowly the

definition of ‘‘scheduled stop’’ so that

the regulations would apply only to

predetermined stops at State, local, or

private correctional facilities for the

purpose of loading or unloading

prisoners, or using such facilities for

overnight, meal, or restroom breaks.

A third alternative was suggested that

would have delayed the implementation

and enforcement of these provisions to

allow smaller entities a longer period

with which to comply with the new

regulations. The Act provides no

authority for delayed implementation or

delayed enforcement of the new

regulations. It is the Department’s view

that public safety would be most

effectively protected if these minimum

safety and security standards are

applied to all private prisoner

transportation companies equally,

without regard to the size of the

company.

F. Conclusion

The Department believes that, given

the mandatory nature of the Act, this

proposed rule meets its stated objectives

while reducing as much as possible the

burden imposed on private companies

engaged in the private transport of

violent prisoners. As statutorily

required, the Department consulted

with industry leaders and the ACA in

developing this rule. The Department

took into account their concerns, as well

as the concerns of law enforcement

representatives, in drafting the proposed

rule. The Department intends to

maintain an on-going dialogue with the

affected industry and law enforcement

entities. In addition, the Department is

attempting to identify additional entities

that might be affected by this proposed

rule and looks forward to receiving

additional comments to this proposed

rule.

List of Subjects in 28 CFR Part 97

Business and industry, Penalties,

Prisoners, Transportation.

Accordingly, for the reasons set forth

in the preamble, part 97 of chapter I of

Title 28 of the Code of Federal

Regulations is proposed to be added to

read as follows:

PART 97—STANDARDS FOR PRIVATE

ENTITIES PROVIDING PRISONER OR

DETAINEE SERVICES

Sec.

97.1 Purpose.

97.2 Definitions.

97.11 Pre-employment screening.

97.12 Employee training.

97.13 Maximum driving time.

97.14 Guard-to-prisoner ratio.

97.15 Employee uniforms and

identification.

97.16 Clothing requirements for transported

violent prisoners.

97.17 Mandatory restraints to be used while

transporting violent prisoners.

97.18 Notification of local law enforcement

prior to scheduled stops.

97.19 Immediate notification of local law

enforcement in the event of an escape.

97.20 Standards to ensure the safety of

violent prisoners during transport.

97.22 No Pre-emption of federal, State, or

local laws or regulations.

97.24 No civil defense created.

97.30 Enforcement.

Authority: Public Law 106–560, 114 Stat.

2784 (42 U.S.C. 13726b).

§ 97.1 Purpose.

This part implements the provisions

of The Interstate Transportation of

Dangerous Criminals Act of 2000 (the

Act), Public Law 106–560, 114 Stat.

2784 (42 U.S.C. 13726b) (enacted

December 21, 2000), to provide

minimum security and safety standards

for private companies that transport

violent prisoners on behalf of State and

local jurisdictions.

§ 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.

§ 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

Federal Register / Vol. 66, No. 242 / Monday, December 17, 2001 / Proposed Rules 64945

domestic violence as defined in 18

U.S.C. 921;

(2) A Credit Report check;

(3) A physical examination; and

(4) A personal interview.

(b) Testing for controlled substances

must be in accordance with applicable

State law. In the event that there is no

applicable State law, private prisoner

transport companies must test potential

employees for controlled substances in

accordance with 49 CFR 382.301.

(c) The criminal background check

references in paragraph (a)(1) of this

section may not be submitted directly to

the FBI or any other Federal agency. The

private prisoner transport companies

must work out the procedures for

accomplishing the criminal background

checks with their contracting

governmental agencies.

§ 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.

§ 97.13 Maximum driving time.

Companies covered under this part

must adhere to the maximum driving

time provisions applicable to

commercial motor vehicle operators,

under 49 CFR 395.3.

§ 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-toprisoner ratios.

§ 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.

§ 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.

§ 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.

§ 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.

§ 97.19 Immediate notification of local law

enforcement in the event of an escape.

Private prisoner transport companies

must be sufficiently equipped to

provide immediate notification to law

enforcement in the event of a prisoner

escape. Law enforcement officials must

receive notification no later than 15

minutes after an escape is detected

unless the company can demonstrate

that extenuating circumstances

necessitated a longer delay. In the event

of the escape of a violent prisoner, a

private prisoner transport company

must:

(a) Ensure the safety and security of

the remaining prisoners;

(b) Provide notification within 15

minutes to the appropriate State and

local law enforcement officials;

(c) Provide notification as soon as

practicable to the governmental entity

that contracted with the transport

company; and

(d) Provide complete descriptions of

the escapee and the circumstances

surrounding the escape to State and

local law enforcement officials if

needed.

§ 97.20 Standards to ensure the safety of

violent prisoners during transport.

Companies covered under this section

must comply with applicable State and

federal laws that govern the safety of

violent prisoners during transport. In

addition, companies covered under this

section are to ensure that:

(a) Protective measures are in place to

ensure that all vehicles are safe and

well-maintained;

(b) Vehicles are equipped with

efficient communications systems that

are capable of immediately notifying

State and local law enforcement officials

in the event of a prisoner escape;

(c) Policies are in effect to ensure the

health and physical safety of the

prisoners during transport, including a

first-aid kit and employees who are

qualified to dispense medications and

administer CPR and emergency first-aid;

(d) Policies are in effect to prohibit

the mistreatment of prisoners, including

prohibitions against covering a

prisoner’s mouth with tape, and against

the use of excessive force and sexual

misconduct;

(e) Policies are in effect to ensure that

juvenile prisoners are separated from

adult prisoners during transportation,

where practicable;

(f) Policies are in effect to ensure that

female prisoners be separated from male

prisoners during transportation, where

practicable;

(g) Policies are in effect to ensure that

female guards are on duty to supervise

the transportation of female violent

prisoners, where practicable; and

64946 Federal Register / Vol. 66, No. 242 / Monday, December 17, 2001 / Proposed Rules

(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.

§ 97.22 No pre-emption of federal, State, or

local laws or regulations.

The regulations in this part

implement the Act and do not pre-empt

any applicable federal, State, or local

law that may impose additional

obligations on private prisoner transport

companies or otherwise regulate the

transportation of violent prisoners. All

federal laws and regulations governing

interstate commerce (e.g., federal laws

regulating the possession of weapons

and Federal Aviation Administration

rules and regulations governing travel

on commercial aircraft) will continue to

apply to private prisoner transport

companies. The regulations in this part

in no way pre-empt, displace, or affect

the authority of States, local

governments, or other federal agencies

to address these issues.

§ 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).

§ 97.30 Enforcement.

Any person who is found in violation

of the regulations in this part will:

(a) Be liable to the United States for

a civil penalty in an amount not to

exceed $10,000 for each violation;

(b) Be liable to the United States for

the costs of prosecution; and

(c) Make restitution to any entity of

the United States, of a State, or of an

inferior political subdivision of a State,

that expends funds for the purpose of

apprehending any violent prisoner who

escapes from a prisoner transport

company as the result, in whole or in

part, of a violation of the regulations in

this part promulgated pursuant to the

Act.

Dated: December 11, 2001.

John Ashcroft,

Attorney General.

[FR Doc. 01–30937 Filed 12–14–01; 8:45 am]

BILLING CODE 4401–19–P

DEPARTMENT OF LABOR

Occupational Safety and Health

Administration

29 CFR Parts 1910, 1915, 1926 and

1928

[Docket Number H–122A]

RIN 1218–AB37

Indoor Air Quality

AGENCY: Occupational Safety and Health

Administration (OSHA), Labor.

ACTION: Withdrawal of proposal.

SUMMARY: OSHA is withdrawing its

Indoor Air Quality proposal and

terminating the rulemaking proceeding.

In the years since the proposal was

issued, a great many state and local

governments and private employers

have taken action to curtail smoking in

public areas and in workplaces. In

addition, the portion of the proposal not

related to environmental tobacco smoke

(ETS) received little attention during the

rulemaking proceedings, and much of

that consisted of commenters calling

into question significant portions of the

proposal. As a result, record evidence

supporting the non-ETS portion of the

proposal is sparse.

Withdrawal of this proposal will also

allow the Agency to devote its resources

to other projects. The Agency’s current

regulatory priorities, as set forth in the

Regulatory Agenda, include a number of

important occupational safety and

health standards. This document does

not preclude any agency action that

OSHA may find to be appropriate in the

future.

DATES: The withdrawal is made on

December 17, 2001.

FOR FURTHER INFORMATION CONTACT:

Bonnie Friedman, Director, OSHA

Public Affairs Office, Occupational

Safety and Health Administration,

Room N–3647, U.S. Department of

Labor, 200 Constitution Avenue, NW.,

Washington, DC 20210; Telephone (202)

693–1999; Fax (202) 693–1634.

Authority and Signature

This document was prepared under

the direction of John L. Henshaw,

Assistant Secretary of Labor for

Occupational Safety and Health, U.S.

Department of Labor. It is issued

pursuant to section 6(b) of the

Occupational Safety and Health Act of

1970 (84 Stat. 1594, 29 U.S.C. 655) and

29 C.F.R. 1911.18.

Signed at Washington, DC this 12th of

December, 2001.

John L. Henshaw,

Assistant Secretary of Labor.

[FR Doc. 01–31165 Filed 12–14–01; 8:45 am]

BILLING CODE 4510–26–M

FEDERAL COMMUNICATIONS

COMMISSION

47 CFR Part 51

[CC Docket No. 01–318, CC Docket No. 98–

56, CC Docket No. 98–157, CC Docket No.

96–98, CC Docket No. 98–141; DA 01–2859]

Performance Measurements and

Standards for Unbundled Network

Elements and Interconnection

AGENCY: Federal Communications

Commission.

ACTION: Proposed rule; extension of

comment period.

SUMMARY: This document grants a

motion requesting an extension of the

comment period established in the

above-captioned docket. The order

grants a 21-day extension to both the

comment and reply comment deadlines.

DATES: Comments are due January 22,

2002 and Reply Comments are due

February 12, 2002.

FOR FURTHER INFORMATION CONTACT:

Cathy Carpino, Attorney Advisor, Policy

and Program Planning Division,

Common Carrier Bureau, (202) 418–

1580.

SUPPLEMENTARY INFORMATION:

1. On November 19, 2001, the

Commission released a Notice of

Proposed Rulemaking (66 FR 59759

(November 30, 2001)) establishing the

pleading cycle for comments and reply

comments in the above-captioned

docket. The deadline for comments was

established as December 31, 2001, and

January 22, 2002 for reply comments.

2. On December 3, 2001, the United

States Telecom Association (USTA)

filed a Motion for Extension of Time to

extend the date for comments and reply

comments by 30 days. According to

USTA, it seeks this extension to permit

its membership the opportunity ‘‘to

undertake the dialogue necessary to

pursue an industry wide solution’’ to

unbundled network element (UNE)

performance standards in response to

the UNE Measurements and Standards

Notice. USTA argues that the current

comment schedule, which, it notes, falls

within the upcoming holiday season,

would not provide USTA’s members an