DEPARTMENT OF JUSTICE (DOJ)

Statement of Regulatory Priorities

The mission of the Department of Justice is to enforce the law and defend the interests of the United States according to the law, to ensure public safety against threats foreign and domestic, to provide Federal leadership in preventing and controlling crime, to seek just punishment for those guilty of unlawful behavior, and to ensure fair and impartial administration of justice for all Americans. In carrying out its mission, the Department is guided by four core values: (1) equal justice under the law; (2) honesty and integrity; (3) commitment to excellence; and (4) respect for the worth and dignity of each human being. The Department of Justice is primarily a law-enforcement agency, not a regulatory agency; it carries out its principal investigative, prosecutorial, and other enforcement activities through means other than the regulatory process.

The Department of Justice's key regulatory priority is the Prison Rape Elimination Act (PREA) rulemaking which will establish national standards for the prevention, detection, reduction, and punishment of prison rape. The regulatory priorities of the Department also include initiatives in the areas of civil rights, criminal justice, and immigration. These initiatives are summarized below. In addition, several other components of the Department carry out important responsibilities through the regulatory process. Although their regulatory efforts are not separately discussed in this overview of the regulatory priorities, those components have key roles in implementing the Department's anti-terrorism and law enforcement priorities.

Prison Rape Elimination

Pursuant to the Prison Rape Elimination Act of 2003 (PREA or the "Act"), 42 U.S.C. section 15601 et seq., the Department is drafting regulations to adopt national standards for the prevention, detection, reduction, and punishment of prison rape. On February 3, 2011, the Department published for public comment a Notice of Proposed Rulemaking setting forth comprehensive national standards for the detection, prevention, reduction, and punishment of prison rape in prisons, jails, lockups, community confinement facilities, and juvenile facilities operated by Department of Justice, State, local, and private agencies. See 76 FR 6248 (Feb. 3, 2011). In developing these proposed standards, the Department benefited from the findings and recommendations of the National Prison Rape Elimination Commission (NPREC), which had undertaken a comprehensive legal and factual study of the penological, physical, mental, medical, social, and economic impacts of prison sexual assaults on government functions and on the communities and social institutions in which they operate. The Department received over 1,300 public comments in response to the proposed rule, reviewed and analyzed those comments, and drafted the final rule for submission to OMB. PREA mandates that the national standards shall be based upon the independent judgment of the Attorney General, after giving due consideration to the recommended national standards provided by the Commission ... and being informed by such data, opinions, and proposals that the Attorney General determines to be appropriate to consider." The Act further provides that the Department "shall not establish a national standard ... that would impose substantial additional costs compared to the costs presently expended by Federal, State, and local prison authorities."

The Department worked with an outside contractor to assess the costs imposed by its proposed rule and to support a Regulatory Impact Assessment that will accompany the final rule. Once the rulemaking process has been completed, the Department's PREA standards will constitute the most comprehensive and assertive approach ever undertaken in this country to combating sexual abuse against persons who are incarcerated

Civil Rights

In September 2010, the Department published its final rules amending its regulations implementing title II and title III of the Americans with Disabilities Act (ADA). Title II prohibits disability based discrimination by public entities. Title III prohibits disability based discrimination by public accommodations and certain testing entities, and requires commercial facilities to be constructed or altered in compliance with the ADA accessibility standards. These key regulations adopt revised ADA Standards for Accessible Design and address certain important policy issues. During the course of this rulemaking, the Department became aware of the need to promulgate regulations in four additional subject matter areas- the accessibility of emergency call center services (Next Generation 9-1-1), captioning and video description in movie theaters, , use of accessible web sites, and accessible equipment and furniture. On July 26, 2010, the Department published an advance notice of proposed rulemaking (ANPRM) for each of these subject areas. The comment period for these ANPRMs closed on January 24, 2011. In addition to soliciting written public comments, the Department held public hearings on the ANPRMs in November and December 2010 and January 2011. The subject matter of these ANPRMs will be the focus of the Civil Rights Division's regulatory activities for FY 2012, as well as FY 2013. The Department also plans to propose amendments to its ADA regulations and its section 504 regulations to implement the ADA Amendments Act of 2008, which took effect on January 1, 2009.

The subjects addressed in the ANPRMs published on July 26, 2010, included:

Next Generation 9-1-1. This ANPRM sought information on possible revisions to the Department's regulation to ensure direct access to Next Generation 9-1-1 (NG 9-1-1) services for individuals with disabilities. In 1991, the Department of Justice published a regulation to implement title II of the Americans with Disabilities Act of 1990 (ADA). That regulation requires public safety answering points (PSAPs) to provide direct access to persons with disabilities who use analog telecommunication devices for the deaf (TTYs), 28 CFR 35.162. Since that rule was published, there have been major changes in the types of communications technology used by the general public and by people who have disabilities that affect their hearing or speech. Many individuals with disabilities now use the Internet and wireless text devices as their primary modes of telecommunications. At the same time, PSAPs are planning to shift from analog telecommunications technology to new Internet-Protocol (IP)-enabled NG 9-1-1 services that will provide voice and data (such as text, pictures, and video) capabilities. As PSAPs transition from the analog systems to the new technologies, it is essential people with communication disabilities will be able to use the new systems. Therefore, the Department published this ANPRM to begin to develop appropriate regulatory guidance for PSAPs that are making this transition. The Department is in the process of completing its review of the approximately 146 public comments it received in response to its NG 9-1-1 ANPRM and expects to publish an NPRM addressing accessibility of NG 9-1-1 in FY 2012.

Captioning and Video Description in Movie Theaters. Title III of the ADA requires public accommodations to take "such steps as may be necessary to ensure that no individual with a disability is treated differently because of the absence of auxiliary aids and services, unless the covered entity can demonstrate that taking such steps would cause a fundamental alteration or would result in an undue burden." 42 U.S.C. section 12182(b)(2)(A)(iii). Both open and closed captioning and audio recordings are examples of auxiliary aids and services that should be provided by places of public accommodations, 28 CFR section 36.303(b)(1)-(2). The Department stated in the preamble to its 1991 rule that "[m]ovie theaters are not required...to present open-captioned films," 28 CFR part 36, app. C (2011), but it did not address closed captioning and video description in movie theaters.

Since 1991, there have been many technological advances in the area of closed captioning and video description for first-run movies. In June 2008, the Department issued a Notice of Proposed Rulemaking (NPRM) to revise the ADA title III regulation, 73 FR 34466, in which the Department stated that it was considering options for requiring that movie theater owners or operators exhibit movies that are captioned or that provide video (narrative) description. The Department received numerous comments urging the Department to issue captioning and video description regulations. The Department is persuaded that such regulations are appropriate. The Department issued an ANPRM on July 26, 2010, to obtain more information regarding issues raised by commenters; to seek comment on technical questions that arose from the Department's research; and to learn more about the status of digital conversion. In addition, the Department sought information regarding whether other technologies or areas of interest (e.g., 3D) have developed or are in the process of development that either would replace or augment digital cinema or make any regulatory requirements for captioning and video description more difficult or expensive to implement. The Department received approximately 1171 public comments in response to its movie captioning and video description ANPRM. The Department is in the process of completing its review of these comments and expects to publish an NPRM addressing captioning and video description in movie theaters in FY 2012.

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

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

The ADA's promise to provide an equal opportunity for individuals with disabilities to participate in and benefit from all aspects of American civic and economic life will be achieved in today's technologically advanced society only if it is clear to State and local governments, businesses, educators, and other public accommodations that their web sites must be accessible. Consequently, the Department is considering amending its regulations implementing title II and title III of the ADA to require public entities and public accommodations that provide products or services to the public through Internet web sites to make their sites accessible to and usable by individuals with disabilities.

In particular, the Department's ANPRM on web site accessibility sought public comment regarding what standards, if any, it should adopt for web site accessibility, whether the Department should adopt coverage limitations for certain entities, like small businesses, and what resources and services are available to make existing web sites accessible to individuals with disabilities. The Department also solicited comments on the costs of making web sites accessible and on the existence of any other effective and reasonably feasible alternatives to making web sites accessible. The Department received approximately 440 public comments and is in the process of reviewing these comments. The Department anticipates publishing separate NPRMs addressing web site accessibility pursuant to titles II and III of the ADA in FY 2013.

Equipment and Furniture. Both title II and title III of the ADA require covered entities to make reasonable modifications in their programs or services to facilitate participation by persons with disabilities. In addition, covered entities are required to ensure that people are not excluded from participation because facilities are inaccessible or because the entity has failed to provide auxiliary aids. The use of accessible equipment and furniture is often critical to an entity's ability to provide a person with a disability equal access to its services. Changes in technology have resulted in the development and improved availability of accessible equipment and furniture that benefit individuals with disabilities. Consequently, it is easier now to specify appropriate accessibility standards for such equipment and furniture, as the 2010 ADA Standards do for several types of fixed equipment and furniture, including ATMs, washing machines, dryers, tables, benches, and vending machines. To the extent that ADA standards apply requirements for fixed equipment and furniture, the Department will look to those standards for guidance on accessibility standards for equipment and furniture that are not fixed. The ANPRM sought information about other categories of equipment, including beds in accessible guest rooms, and medical equipment and furniture. The Department received approximately 420 comments in response to its ANPRM and is in the process of reviewing these comments. The Department has decided to publish in FY 2012 a separate NPRM pursuant to title III of the ADA on beds in accessible guest rooms and a more detailed ANPRM pursuant to titles II and III of the ADA that focuses solely on accessible medical equipment and furniture. The remaining items of equipment and furniture addressed in the 2010 ANPRM will be the subject of an NPRM that the Department anticipates publishing in FY 2013.

Federal Habeas Corpus Review Procedures in Capital Cases

Pursuant to the USA PATRIOT Improvement and Reauthorization Act of 2005, on December 11, 2008, the Department promulgated a final rule to implement certification procedures for States seeking to qualify for the expedited Federal habeas corpus review procedures in capital cases under chapter 154 of title 28 of the United States Code. On February 5, 2009, the Department published in the Federal Register a notice soliciting further public comment on all aspects of the December 2008 final rule. (74 FR 6131) As the Department reviewed the comments submitted in response to the February 2009 notice, it considered further the statutory requirements governing the regulatory implementation of the chapter 154 certification procedures. The Attorney General determined that chapter 154 reasonably could be construed to allow the Attorney General greater discretion in making certification determinations than the December 2008 regulations allowed. Accordingly, the Department published a notice in the Federal Register on May 25, 2010, proposing to remove the December 2008 regulations pending the completion of a new rulemaking process. The Department finalized the removal of the December 2008 regulations on November 23, 2010. The Department published an NPRM in the Federal Register on March 3, 2011, proposing a new rule and seeking public input on the certification procedure for chapter 154 and the standards the Attorney General will apply in making certification decisions. The comment period for the proposed new rule closed on June 1, 2011.

Criminal Law Enforcement

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

Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) Initiatives. ATF issues regulations to enforce the Federal laws relating to the manufacture and commerce of firearms and explosives. ATF's mission and regulations are designed to, among other objectives, curb illegal traffic in, and criminal use of, firearms, and to assist State, local, and other Federal law enforcement agencies in reducing crime and violence. ATF will continue, as a priority during fiscal year 2012, to seek modifications to its regulations governing commerce in firearms and explosives. ATF plans to issue final regulations implementing the provisions of the Safe Explosives Act, title XI, subtitle C, of Public Law 107-296, the Homeland Security Act of 2002 (enacted Nov. 25, 2002).

Pursuant to Executive Order 13563 "Improving Regulation and Regulatory Review," ATF is initiating a rulemaking proceeding to amend existing regulations and extend the term of import permits for firearms, ammunition, and defense articles from 1 year to 2 years. The additional time will allow importers sufficient time to complete the importation of an authorized commodity before the permit expires and eliminate the need for importers to submit new and duplicative import applications. ATF believes that extending the term of import permits will result in substantial cost and time savings for both ATF and industry. ATF also has begun a rulemaking process that will lead to promulgation of a revised set of regulations (27 CFR part 771) governing the procedure and practice for disapproval of applications for explosives licenses or permits.

Drug Enforcement Administration (DEA) Initiatives. DEA is the primary agency responsible for coordinating the drug law enforcement activities of the United States. DEA also assists in the implementation of the President's National Drug Control Strategy. DEA's mission is to enforce U.S. controlled substance laws and regulations and bring to the criminal and civil justice system those organizations and individuals involved in the growing, manufacturing, or distribution of controlled substances and listed chemicals appearing in or destined for illicit traffic in the United States, including organizations that use drug trafficking proceeds to finance terrorism. A strategic component of the DEA's law enforcement mission is the diversion control program (DCP). The DCP carries out the mandates of the Controlled Substances and Chemical Diversion and Trafficking Acts. DEA drafts and publishes the implementing regulations for these statutes in title 21 of the Code of Federal Regulations (CFR), parts 1300 to 1321. The CSA, together with these regulations, are designed to prevent, detect, and eliminate the diversion of controlled substances and listed chemicals into the illicit market while ensuring a sufficient supply of controlled substances and listed chemicals for legitimate medical, scientific, research, and industrial purposes.

In 2011, the President declared a national epidemic of prescription drug abuse, which has emphasized the importance of the Department's regulatory role with respect to controlled substances. DEA has initiated National Take-Back events to purge America's home medicine cabinets of unwanted and unused drugs, as well as assisting in other strategies and increased enforcement to address doctor shopping and pill mills. DEA schedules new and emerging substances for control under the CSA to protect public health and safety. During fiscal year 2012, among other regulatory reviews and initiatives, DEA plans to propose regulations implementing the Secure and Responsible Drug Disposal Act of 2010 (Pub. L. 111-273). DEA also plans to issue final regulations on electronic prescriptions for controlled substances subsequent to an Interim Final Rule currently in effect, which provides practitioners with the option of writing prescriptions for controlled substances electronically and permits pharmacies to receive, dispense, and archive electronic prescriptions for controlled substances.

Bureau of Prisons Initiatives. The Federal Bureau of Prisons issues regulations to enforce the Federal laws relating to its mission: to protect society by confining offenders in the controlled environments of prisons and community-based facilities that are safe, humane, cost-efficient, and appropriately secure, and that provide work and other self-improvement opportunities to assist offenders in becoming law-abiding citizens. During the next 12 months, in addition to other regulatory objectives aimed at accomplishing its mission, the Bureau will continue its ongoing efforts to: streamline regulations, eliminating unnecessary language and improving readability; improve disciplinary procedures through a revision of the subpart relating to the disciplinary process; reduce the introduction of contraband through various means, such as clarifying drug and alcohol surveillance testing programs; protect the public from continuing criminal activity committed within prison; and enhance the Bureau's ability to more closely monitor the communications of high-risk inmates.

Immigration

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

In several pending rulemaking actions, the Department is working to revise and update the regulations relating to removal proceedings in order to improve the efficiency and effectiveness of the hearings. In furtherance of these goals, the Department is drafting a regulation to improve the recognition and accreditation process for organizations and representatives that appear in immigration proceedings. With the assistance of DHS, the Department is also drafting a regulation pursuant to the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 to implement procedures that take into account the specialized needs of unaccompanied alien children in removal proceedings. In addition, the Department is considering regulatory action to address mental incompetency issues in removal proceedings. Finally, in response to Executive Order 13653, the Department is retrospectively reviewing EOIR's regulations to eliminate regulations that unnecessarily duplicate DHS's regulations and update outdated references to the pre-2002 immigration system.

Retrospective Review of Existing Regulations

Pursuant to section 6 of Executive Order 13563 "Improving Regulation and Regulatory Review" (Jan. 18, 2011), the following Regulatory Identifier Numbers (RINs) have been identified as associated with retrospective review and analysis in the Department's final retrospective review of regulations plan. Some of these entries on this list may be completed actions, which do not appear in The Regulatory Plan. However, more information can be found about these completed rulemakings in past publications of the Unified Agenda on Reginfo.gov in the Completed Actions section for that agency. These rulemakings can also be found on Regulations.gov. The final Justice Department plan can be found at: http://www.justice.gov/open/doj-rr-final-plan.pdf.

RIN

Title

Description

1140-AA42

Importation of Arms, Ammunition and Implements of War and Machine Guns, Destructive Devices, and Certain Other Firearms; Extending the Term of Import Permits"

The regulations in 27 C.F.R. 447 and 479 generally provide that firearms, ammunition, and defense articles may not be imported into the United States except pursuant to a permit. Section 447.43 provides that import permits are valid for one year from their issuance date. I ATF will consider whether these regulations could be revised to achieve the same regulatory objective in a manner that is less burdensome for both industry and ATF.

1117-AB34

Establishment of Quotas Required by the Controlled Substances Act"

The regulations in 21 C.F.R. parts 1303 and 1315 apply quotas to registered manufacturers of Schedule I and II controlled substances and certain List I chemicals. The quotas are intended to control the available quantities of the basic ingredients needed for the manufacture of certain substances, to reduce the risk of diversion while ensuring sufficient availability to satisfy the legitimate needs of the United States. DEA will explore strategies to modernize the quota system to achieve greater efficiency and effectiveness and reduce the burden on applicants. Although the Department expects that manufacturers and the DEA will benefit from enhanced efficiency and a reduction in paperwork, it cannot quantify the burden and cost reductions until the working group identifies the specific changes it will implement.