81 FR 91948 - Agency Information Collection Activities; Proposed Collection Comments Requested; New Collection: Death in Custody Reporting Act Collection

DEPARTMENT OF JUSTICE

Federal Register Volume 81, Issue 243 (December 19, 2016)

The Department of Justice (DOJ), Bureau of Justice Assistance will be submitting the following information collection request to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995.

[Federal Register Volume 81, Number 243 (Monday, December 19, 2016)]
[Notices]
[Pages 91948-91952]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2016-30396]


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DEPARTMENT OF JUSTICE

[OMB Number 1121--NEW]


Agency Information Collection Activities; Proposed Collection 
Comments Requested; New Collection: Death in Custody Reporting Act 
Collection

AGENCY: Bureau of Justice Assistance, Department of Justice.

ACTION: 60-day notice.

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SUMMARY: The Department of Justice (DOJ), Bureau of Justice Assistance 
will be submitting the following information collection request to the 
Office of Management and Budget (OMB) for review and approval in 
accordance with the Paperwork Reduction Act of 1995.

DATES: Comments are encouraged and will be accepted for 60 days until 
February 17, 2017.

FOR FURTHER INFORMATION CONTACT: If you have additional comments 
especially on the estimated public burden or associated response time, 
suggestions, or need a copy of the proposed information collection 
instrument with instructions or additional information, please contact 
Chris Casto, Bureau of Justice Assistance, 810 Seventh Street NW., 
Washington, DC 20531 (email: [email protected]; telephone: 202-
616-6500).

SUPPLEMENTARY INFORMATION:  Written comments and suggestions from the 
public and affected agencies concerning the proposed collection of 
information

[[Page 91949]]

are encouraged. Your comments should address one or more of the 
following points:

--Evaluate the accuracy of the agency's estimate of the burden of the 
proposed collection of information, including the validity of the 
methodology and assumptions used;
--Evaluate whether the proposed collection will result in the 
collection of timely, accurate, complete, and reliable information;
--Evaluate whether and, if so, how the quality, utility, and clarity of 
the information to be collected can be enhanced;
--Evaluate the extent to which the information to be collected should 
be made publicly available; and
--Evaluate whether the burden of the collection of information on those 
who are to respond can be minimized and, if so, how, including through 
the use of appropriate automated, electronic, mechanical, or other 
technological collection techniques or other forms of information 
technology.

Overview of This Information Collection

    (1) Type of Information Collection: New collection.
    (2) The Title of the Form/Collection: Death in Custody Reporting 
Act Collection
    (3) The agency form number, if any, and the applicable component of 
the Department sponsoring the collection: This collection includes the 
following newly-developed forms to respond to the Death in Custody 
Reporting Act (the DCRA), which respondents will be asked to complete 
through an online, web-based portal:
     Form DCR-1: Quarterly Summary. This summary form requires 
States to either (1) identify all reportable deaths that occurred in 
their jurisdiction during the corresponding quarter and provide basic 
information about the circumstances of the death, or (2) affirm that no 
reportable death occurred in the State during the reporting period.
     Form DCR-1A: Incident Report, Law Enforcement. This 
incident report form requires States to provide additional information 
for each reportable death identified in the Quarterly Summary that 
occurred during interactions with law enforcement personnel or while in 
their custody. The required information includes the circumstances 
surrounding the death and additional characteristics of the decedent.
     Form DCR-1B: Incident Report, Corrections. This incident 
report form requires States to provide additional information for each 
reportable death identified in the Quarterly Summary that occurred 
while the decedent was in the custody of a jail, prison, or similar 
detention facility. The required information includes the circumstances 
surrounding the death and additional characteristics of the decedent.
     Form DCR-2: Open Source Summary. This summary form 
requires States to confirm whether the deaths identified through DOJ's 
open source review are qualifying reportable deaths and were already 
reported in the Quarterly Summary (Form DCR-1). For reportable deaths 
that were not included in the Quarterly Summary, the respondent is 
required to submit the corresponding Incident Report (Form DCR-1A or 
DCR-1B).
     State Data Collection Plan. By the beginning of each 
fiscal year, each State is required to submit its plan--or an update to 
an existing plan--on how it will collect the information that the DCRA 
requires the State to report on a quarterly basis that achieves maximum 
timeliness, accuracy, and completeness.
    The applicable component of the Department of Justice sponsoring 
this collection is the Office of Justice Programs, Bureau of Justice 
Assistance.
    (4) Affected public who will be asked or required to respond, as 
well as a brief abstract: In order to comply with the mandate of the 
DCRA, the Department of Justice, Bureau of Justice Assistance, is 
proposing a new data collection for State Administering Agencies to 
collect and submit information regarding the death of any person who is 
detained, under arrest, or is in the process of being arrested, is en 
route to be incarcerated, or is incarcerated at a municipal or county 
jail, State prison, State-run boot camp prison, boot camp prison that 
is contracted out by the State, any State or local contract facility, 
or other local or State correctional facility (including any juvenile 
facility).
    For purposes of this collection, the term ``State'' includes any 
State of the United States, the District of Columbia, the Commonwealth 
of Puerto Rico, the Virgin Islands, American Samoa, Guam, and the 
Northern Mariana Islands. Thus, the affected public that will be asked 
to respond on a quarterly basis each federal fiscal year include 56 
State actors. Indirectly, these States will be requesting information 
from approximately 19,450 State and local law enforcement agencies 
(LEAs), 50 State departments of corrections, and 2,800 local adult jail 
jurisdictions.
    DOJ previously published a notice in the Federal Register on August 
4, 2016, describing a plan to collect DCRA information in Fiscal Years 
(FYs) 2016 and 2017. Based on comments received from the public, DOJ 
has amended its plan which is described more fully below.

Background

    The Death in Custody Reporting Act (DCRA) requires states and 
federal law enforcement agencies to report certain information to the 
Attorney General regarding the death of any person occurring during 
interactions with law enforcement officers or while in custody. See 42 
U.S.C. 13727(a) & (b), 13727a(a) & (b). It further requires the 
Attorney General and the Department of Justice (Department) to collect 
the information, establish guidelines on how it should be reported, 
annually determine whether each state has complied with the reporting 
requirements, and address any state's noncompliance.
    The DCRA, which Congress enacted in December 2014, builds on an 
earlier law, also called the Death in Custody Reporting Act, enacted in 
2000 (P.L. 106-247). The 2000 law required States to report 
``information regarding the death of any person who is in the process 
of arrest, is en route to be incarcerated, or is incarcerated at a 
municipal or county jail, State prison, or other local or State 
correctional facility (including any juvenile facility) . . .'' In 
response, the Department of Justice through the Bureau of Justice 
Statistics (BJS) of the Office of Justice Programs developed a Deaths 
in Custody Reporting Program (DCRP), which had two parts. First, BJS 
collected data on deaths that occurred while the decedent was in the 
custody of local jails or State prisons. Second, BJS collected 
information on deaths that occurred during the process of arrest 
(arrest-related deaths, or ARDs). The DCRP collected information on 
deaths regardless of the manner of death, including those that resulted 
from accidents, suicides, natural causes, law enforcement homicides, 
and other homicides.
    Although the 2000 law expired in 2006, BJS continued to collect 
data on deaths in jails and prisons. The most recent reports based on 
the prison and jails data collection can be found at http://www.bjs.gov/index.cfm?ty=tp&tid=19. BJS continued the ARD program as 
well, but it was suspended in 2014 due to an assessment which revealed 
that variations in data collection methodology and coverage among 
States resulted in an insufficient census of arrest-related deaths. BJS 
then tested a new methodology. Instead of relying solely on States to 
affirmatively

[[Page 91950]]

submit information on reportable ARDs, BJS piloted a mixed method 
approach using open sources to identify eligible cases, followed by 
data requests to law enforcement, medical examiners, and/or coroner 
offices for incident-specific information about the decedent and 
circumstances surrounding the event. During the follow-up, BJS also 
would request information on other ARDs that had not been identified 
through open sources. The results of the redesigned ``open source 
review'' approach, which are available at http://www.bjs.gov, showed 
substantial improvements in data coverage and quality.
    In enacting the current DCRA, Congress maintained the reporting 
structure that places the primary responsibility of reporting DCRA 
information on States and added new provisions that were not in the 
2000 law--namely that the Attorney General was granted authority to 
establish guidelines and to determine whether States are in compliance 
with those standards. A noncompliant State is subject, at the 
discretion of the Attorney General, to a 10% reduction of its Byrne 
Justice Assistance Grant (Byrne JAG), and the amount of any reduction 
is to be reallocated to States that are found to be in compliance. 
Because the new provisions envision the data collected to be used to 
determine compliance and potentially assess penalties on Byrne JAG 
grantees, the Department's plan described below shifts the 
responsibility of DCRA data collection from BJS, which may collect data 
only for statistical and research purposes, to the Bureau of Justice 
Assistance. Thus, BJS in 2018 will suspend the current DCRP data 
collection efforts in jails and prisons and will not pursue a revised 
ARD program.

Collection Process

    DOJ proposes the following plan to collect DCRA information in 
fiscal year 2017 and beyond (and also describes below a plan to collect 
DCRA information for fiscal year 2016). The plan, which constitutes 
``guidelines established by the Attorney General'' pursuant to section 
2(a) of the DCRA, combines elements of past approaches shown to 
increase data quality and coverage of reportable deaths with elements 
with provisions specifically required by the statute.
    For purposes of this notice, the term ``reportable death'' means 
any death that the DCRA or the Department's guidelines require States 
to report. Generally, these are deaths that occurred during 
interactions with law enforcement personnel or while the decedent was 
in their custody or in the custody, under the supervision, or under the 
jurisdiction of a State or local law enforcement or correctional 
agency, such as a jail or prison. Specifically, the DCRA requires 
States to report information regarding ``the death of any person who is 
detained, under arrest, or is in the process of being arrested, is en 
route to be incarcerated, or is incarcerated at a municipal or county 
jail, State prison, State-run boot camp prison, boot camp prison that 
is contracted out by the State, any State or local contract facility, 
or other local or State correctional facility (including any juvenile 
facility).'' 42 U.S.C. 13727(a). The Department interprets the Act's 
list of circumstances to include any deaths that occurred:
     Due to any use of force by law enforcement personnel 
(e.g., officer-involved shootings and deaths caused by law enforcement 
weapons or tactics).
     While the decedent's freedom to leave was restricted by 
law enforcement prior to, during, or following an arrest--including 
during detention for questioning or investigation (e.g., a Terry stop); 
during the process of apprehension (e.g., the pursuit of a criminal 
suspect, or a standoff with law enforcement); while in the custody of, 
or shortly after restraint by, law enforcement personnel (even if the 
decedent was not formally under arrest); or while in transit by law 
enforcement personnel.
     During an interaction with law enforcement personnel 
responding to medical or mental health assistance (e.g., in response to 
suicidal persons).
     While the decedent was confined in a correctional or 
detention facility, including a prison, jail, boot camp, lockup, or 
booking center.
     While the decedent was under the jurisdiction or 
supervision of a law enforcement agency or correctional or detention 
facility but located elsewhere, such as special jail facilities (e.g., 
medical/treatment/release centers, halfway houses, or work farms), or 
in transit.
    Please note that the DCRA information that States submit to the 
Department must originate from official government records, documents, 
or personnel.
    The DCRA requires quarterly reporting. Because these data 
collection guidelines will not be finalized before the 2nd quarter of 
FY 2017, quarterly reporting will begin with the 3rd and 4th quarters 
of FY 2017 and continue quarterly thereafter. Reporting for the 3rd and 
4th quarters of FY 2017 will include only reportable deaths occurring 
during interactions with law enforcement personnel or while in their 
custody (i.e., deaths reportable on Form DCR-1A), and not deaths 
occurring in the jail, prison, or detention settings. Deaths in prisons 
and jails occurring during 2016 and 2017 will be captured by BJS 
through its existing data collection program on deaths in prisons and 
jails. Beginning with FY 2018, quarterly DCRA reporting will include 
all reportable deaths--deaths occurring during interactions with law 
enforcement personnel or while in their custody and deaths in jail, 
prison, or detention settings.
    Please note that the Department will not make any compliance 
determination based on a State's FY 2017 data reporting. States are 
expected to begin reporting pursuant to the DCRA during the 3rd and 4th 
Quarters of FY 2017, but the Department will not find a State to be in 
noncompliance or reduce a State's grant funding for noncompliance 
because of reporting failures during FY 2017. This grace period for FY 
2017 is necessary to allow States time to develop and implement their 
data collection and reporting plans. It will be important for States to 
report during FY 2017, however, so that they have an opportunity to 
test their abilities to report the data effectively, to identify and 
correct any flaws in their data collection and reporting systems before 
reporting for FY 2018 begins, and to develop the data collection plans 
that they will use for FY 2018. The Department will assess states' 
compliance with their reporting obligations over FY 2018, and States 
that fail to comply during FY 2018 will be subject to a reduction of 
their grant funding, pursuant to the DCRA.
    States will be required to complete the following four steps in 
order to be in compliance with DCRA requirements:
    (1) Quarterly Summary. For each quarter in a fiscal year, a State 
must complete the Quarterly Summary (Form DCR-1) and submit it by the 
reporting deadline. The Quarterly Summary is a list of all reportable 
deaths that occurred in the State during the corresponding quarter with 
basic information about the circumstances of each death. If a State did 
not have a reportable death during the quarter, the State must so 
indicate on the Quarterly Summary. The reporting deadline to submit the 
Quarterly Summary is the last day of the month following the close of 
the quarter. For each quarter, DOJ will send two reminders prior to the 
reporting deadline.

    Example. The second quarter of a fiscal year is January 1-March 
31. The deadline to submit the second quarter Quarterly Summary is 
April 30. DOJ will send a reminder to States on March 31 and April 
15.

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    (2) Incident Reports. For each reportable death identified in the 
Quarterly Summary, a State must complete and submit by the same 
reporting deadline an Incident Report (Form DCR-1A or DCR-1B depending 
on the agency involved or that had custody of the defendant at the time 
of death), which contains specific information on the circumstances of 
the death and additional characteristics of the decedent. These 
include:
     The decedent's name, date of birth, gender, and other 
demographic information.
     The date, time, and location of the death.
     The law enforcement or correctional agency involved.
     Precipitating events and reason for law enforcement 
personnel's initial contact with the decedent (e.g., whether the 
decedent committed or allegedly committed any crimes).
     The decedent's behavior during the incident (e.g., whether 
the decedent threatened or assaulted anyone; exhibited mental health or 
substance abuse issues; or possessed or appeared to possess a weapon).
     Law enforcement actions during the incident (e.g., engaged 
in pursuit or restraint tactics; used force; discharged a firearm, and 
if so, how many shots were fired; the number of officers responding to 
the incident).
     Manner of death.
    States must answer all questions on the Incident Report before it 
can submit the form. If information about a death is unavailable due to 
an ongoing criminal or internal affairs investigation, the State may 
select the ``unavailable, pending investigation'' answer, if available. 
The State then must identify the type of investigation, which agency is 
conducting the investigation, and when the investigation is expected to 
be completed. If the State does not have sufficient information to 
complete one of the questions, then the State may select the 
``unknown'' answer, if available, and then identify when the 
information is anticipated to be obtained. An ``unknown'' response is 
valid only if the State has contacted the law enforcement or 
correctional agency involved in the death and the information is not 
known to that agency. For ``under investigation'' or ``unknown'' 
responses, States are expected to provide that information when it 
becomes available, and DOJ will follow up with States in subsequent 
reporting periods to update previous entries.
    (3) Open Source Summary. Within 15 days after each reporting 
deadline, DOJ will send to each State an Open Source Summary (Form DCR-
2) with a prepopulated list of deaths identified through the open 
source review for the relevant quarter. States will have until the 
following quarter's reporting deadline to submit an Incident Report 
(Form DCR-1A or DCR-1B) for any reportable death identified on the Open 
Source Summary that was NOT reported by the State on the Quarterly 
Summary (Form DCR-1). If a death identified in the Open Source Summary 
is determined by the State to not be reportable under the DCRA, the 
State must so indicate, also by the following quarter's reporting 
deadline.

    Example. A State submits its second quarter Quarterly Summary 
(Form DCR-1) and corresponding Incident Reports by the reporting 
deadline--April 30. By May 15, DOJ will send to the State the Open 
Source Summary (Form DCR-2) that lists second quarter reportable 
deaths identified through the open source review. The State will 
have until the third quarter reporting deadline--July 31--to submit 
an Incident Report for any deaths on the Open Source Summary for 
which an Incident Report was not previously submitted.

    (4) State Data Collection Plan. By the first day of each fiscal 
year, each State must submit to DOJ its plan for collecting the 
required information on reportable deaths on a quarterly basis that 
achieves maximum timeliness, accuracy, and completeness. The State Data 
Collection Plan should include, at a minimum, a description of how the 
State will communicate with relevant law enforcement and correctional 
agencies within its jurisdiction, receive accurate and complete 
information on reportable deaths, and conduct appropriate follow up to 
ensure reliability of the information transmitted. Each State must also 
identify a point of contact responsible for submitting the information 
to DOJ. On an annual basis, the State must review its plan and update 
it as necessary. States will not be required to submit its Data 
Collection Plans for FY 2017, but will be required to submit one for FY 
2018 and update it thereafter. Information on State Data Collection 
Plans will aid DOJ in assisting States that are seeking to improve 
their collection plans and help DOJ evaluate the reliability of all 
data collected. DOJ will make each State Data Collection Plan available 
to the public but will not assess the merits of the plan for compliance 
purposes.

Compliance Determination

    Beginning with FY 2018, DOJ will determine on an annual basis 
whether States have complied with the DCRA by completing the four 
requirements listed above. A State found to be not in compliance with 
all of the DCRA reporting requirements will be subject to a penalty of 
10% of its Byrne JAG award, consistent with the statutory language of 
the DCRA. This penalty, if applied, would reduce the State's Byrne JAG 
award for the following fiscal year. The penalty will be applied to the 
portion of the Byrne JAG award that is allocated to and controlled by 
the State, and not to amounts allocated to localities. The noncompliant 
State's penalty amount will be reallocated in accordance with Byrne JAG 
formula calculations to States that have been found to be in compliance 
for the corresponding fiscal year.
    A noncompliant State, however, will have the opportunity, in lieu 
of the imposition of a 10% penalty, to elect to redirect a portion of 
its Byrne JAG award to use within the State to assess and improve its 
DCRA collection. The amount a State can voluntarily redirect internally 
under this ``pre-penalty'' option is as follows: for the first two 
noncompliance determinations, 5% of the State portion of its Byrne JAG 
award; for any subsequent noncompliance determinations, 10%. There is 
no limit to the number of times a State may choose the ``pre-penalty'' 
option.

    Example. State X fails to submit two Quarterly Summaries in 
fiscal year 2019 and is thus found to be not in compliance. Instead 
of being penalized for noncompliance, State X may choose the pre-
penalty option and use 5% of its fiscal year 2020 Byrne JAG award 
allocated to the State to improve its DICRA collection efforts. If 
State X does not choose the pre-penalty option, the State portion of 
its fiscal year 2020 Byrne JAG award is reduced by 10% and 
reallocated to States that were found to be in compliance for fiscal 
year 2019.

    Should a State encounter an extraordinary circumstance preventing 
it from completing any of the DCRA requirements (e.g., a natural 
disaster that compromises a State's data collection and reporting 
infrastructure), the State may submit a letter to DOJ signed by its 
Governor certifying the reason for noncompliance and requesting 
specific relief. In considering such requests, DOJ will be guided by 
analyzing, among other things, the severity of the described 
extenuating circumstances, past history, if any, of the State's 
compliance with DCRA requirements, and the State's description of how 
it plans to modify its processes to address the extenuating 
circumstance.

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Collection of Data From FY 2016 and the First Two Quarters of FY 2017

    To collect data from FY 2016 and the 1st and 2nd Quarters of FY 
2017, DOJ will send an Open Source Summary to States, which will 
contain all reportable deaths identified though the open source review 
as occurring during that timeframe and that did not occur in or under 
the jurisdiction of jails, prisons, or other correctional facilities. 
DOJ will send the Open Source Summary by May 31, 2017. DOJ will request 
States to submit Incident Reports for each of the identified deaths by 
November 30, 2017. Reportable deaths that occurred in jails, prisons, 
or other correctional facilities during 2016 and 2017 will be captured 
through BJS' existing jails and prisons collections. DOJ will not be 
making any compliance determinations or assessing penalties on States 
based on States' reporting of FY 2016 or FY 2017 data.

Publicly Available Information

    To advance DCRA's aims of transparency and evidence-based policy 
development, DOJ will release certain information to the public each 
fiscal year, including the State plans, the number of deaths reported 
for each agency and facility, and data on the circumstances surrounding 
those deaths. The information released would otherwise be subject to 
public disclosure under the Freedom of Information Act. The release 
will be consistent with Department policies and any applicable federal 
laws, including federal privacy laws, and will not contain personally 
identifiable information.
    (5) An estimate of the total number of respondents and the amount 
of time estimated for an average respondent to respond: For purposes of 
this burden calculation, it is estimated that for each fiscal year 
there will be a total of 1900 reportable deaths by 1,060 LEAs, 1,053 
reportable deaths by 600 jails, and 3,483 reportable deaths by prisons.
    For FY 2016, the total projected respondent burden is 2,124.00 
hours. For States to review and complete the Open Source Summary (DCR-
2) at 4.00 hours per Summary and to complete the corresponding Incident 
Reports (DCR-1A) at 0.25 hours per Report, the total estimated burden 
is 475.00 hours. For LEAs, the estimated burden to assist States in 
completing Incident Reports is 0.75 hours per Report for a total of 
1,425.00 hours.
    For FY 2017, the total projected respondent burden is 14,172 hours. 
States will need an estimated 4.00 hours to complete each Quarterly 
Summary for a total of 2,240.00 hours, 0.25 hours to complete each 
corresponding Incident Reports (DCR-1A) for a total of 475.00 hours, 
and 4.00 hours for the Open Source Summaries (DCR-2) for a total of 
224.00 hours. Additionally, States must develop the State Data 
Collection Plan in FY2017 to meet the October 1, 2017, deadline. The 
estimated burden is 160.00 hours for a total of 8,960.00 hours. For 
LEAs in FY 2017, the estimated burden to assist States in completing 
the Quarterly Summaries is 0.40 hours per Report for a total of 848.00 
hours, and a total of 1,425.00 hours, at 0.75 hours for each 
corresponding Incident Report.
    For FY2018, the total projected respondent burden is 14,428.49 
hours. The increase over FY 2017 is due to requiring reportable deaths 
from jails and prisons in addition to arrest-related deaths but is 
offset by the need for each State to devote approximately significantly 
less time--approximately 8.00 hours, for a total of 448.00 hours--to 
update instead of develop its State Data Collection Plan. Additionally, 
based on the same per report estimates described for FY 2017, the 
projected aggregate burden for States is 4,480.00 hours to complete the 
Quarterly Summaries (DCR-1), 1,713.49 hours to complete the 
corresponding Incident Reports (DCR-1A and DCR-1B), and 224.00 hours to 
complete the Open Source Summaries (DCR-2).
    For LEAs in FY 2018, the estimated burden to assist States in 
completing the Quarterly Summaries is a total of 1,696.00 hours, while 
the total to assist States in completing Incident Reports remains 
1,425.00 hours. The estimated burden for jails is a total of 960.00 
hours to assist States in completing the Quarterly Summaries and 789.75 
hours in completing Incident Reports. Finally, the estimated burden for 
prisons to assist States in completing the Quarterly Summaries is a 
total of 80.00 hours, and a total of 2,612.25 hours to assist States in 
completing Incident Reports.
    If additional information is required contact: Jerri Murray, 
Department Clearance Officer, United States Department of Justice, 
Justice Management Division, Policy and Planning Staff, Two 
Constitution Square, 145 N Street NE., 3E.405B, Washington, DC 20530.

    Dated: December 13, 2016.
Jerri Murray,
Department Clearance Officer for PRA, U.S. Department of Justice.
[FR Doc. 2016-30396 Filed 12-16-16; 8:45 am]
 BILLING CODE 4410-18-P