Standards To Prevent, Detect, and Respond to Sexual Abuse and Assault in Confinement Facilities, 75299-75347 [2012-29916]
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Vol. 77
Wednesday,
No. 244
December 19, 2012
Part III
Department of Homeland Security
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6 CFR Part 115
Standards To Prevent, Detect, and Respond to Sexual Abuse and Assault
in Confinement Facilities; Proposed Rule
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Federal Register / Vol. 77, No. 244 / Wednesday, December 19, 2012 / Proposed Rules
I. Public Participation and Request for
Comments
DEPARTMENT OF HOMELAND
SECURITY
6 CFR Part 115
[ICEB–2012–0003]
RIN 1653–AA65
Standards To Prevent, Detect, and
Respond to Sexual Abuse and Assault
in Confinement Facilities
Department of Homeland
Security.
ACTION: Notice of proposed rulemaking.
AGENCY:
SUMMARY: The Department of Homeland
Security (DHS) proposes to issue
regulations setting standards to prevent,
detect, and respond to sexual abuse and
assault in DHS confinement facilities.
DATES: Comments and related material
must either be submitted to our online
docket via https://www.regulations.gov
on or before 11:59 p.m. on February 19,
2013 or reach the Mail or Hand
Delivery/Courier address listed below in
ADDRESSES by that date.
ADDRESSES: You may submit comments,
identified by DHS Docket No. ICEB–
2012–0003, by one of the following
methods:
• Federal eRulemaking Portal: https://
www.regulations.gov. Follow the
instructions for submitting comments.
• Mail: Office of Policy; U.S.
Immigration and Customs Enforcement,
Department of Homeland Security;
Potomac Center North, 500 12th Street
SW., Washington, DC 20536; Contact
Telephone Number (202) 732–4292. To
ensure proper handling, please
reference DHS Docket No. ICEB–2012–
0003 on your correspondence.
• Hand Delivery/Courier: Office of
Policy; U.S. Immigration and Customs
Enforcement, Department of Homeland
Security; Potomac Center North, 500
12th Street SW., Washington, DC 20536;
Telephone: (202) 732–4292 between 9
a.m. and 5 p.m., Monday through
Friday, except Federal holidays.
To avoid duplication, please use only
one of these three methods. See the
‘‘Public Participation’’ portion of the
SUPPLEMENTARY INFORMATION section
below for instructions on submitting
comments.
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FOR FURTHER INFORMATION CONTACT:
Alexander Y. Hartman, Office of Policy;
U.S. Immigration and Customs
Enforcement, Department of Homeland
Security; Potomac Center North, 500
12th Street SW., Washington, DC 20536;
Telephone: (202) 732–4292 (not a tollfree number).
SUPPLEMENTARY INFORMATION:
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We encourage you to participate in
this rulemaking by submitting
comments and related materials. Please
note that all comments received are
considered part of the public record and
made available for public inspection
online at https://www.regulations.gov
and in the DHS public docket. Such
information includes personal
identifying information (such as your
name, address, etc.) voluntarily
submitted by the commenter.
You are not required to submit
personal identifying information in
order to comment on this rule.
Nevertheless, if you still want to submit
personal identifying information (such
as your name, address, etc.) as part of
your comment, but do not want it to be
posted online or made available in the
public docket, you must include the
phrase ‘‘PERSONAL IDENTIFYING
INFORMATION’’ in the first paragraph
of your comment. You must also place
all the personal identifying information
you do not want posted online or made
available in the public docket in the first
paragraph of your comment and identify
what information you want redacted.
If you want to submit confidential
business information as part of your
comment, but do not want it to be
posted online or made available in the
public docket, you must include the
phrase ‘‘CONFIDENTIAL BUSINESS
INFORMATION’’ in the first paragraph
of your comment. You must also
prominently identify confidential
business information to be redacted
within the comment. If a comment has
so much confidential business
information that it cannot be effectively
redacted, all or part of that comment
may not be posted online or made
available in the public docket.
Personal identifying information and
confidential business information
identified and located as set forth above
will be redacted and the comment, in
redacted form, will be posted online and
placed in the DHS public docket file.
Please note that the Freedom of
Information Act applies to all comments
received. If you wish to inspect the
agency’s public docket file in person by
appointment, please see the FOR
FURTHER INFORMATION CONTACT section
above.
A. Submitting Comments
If you submit a comment, please
include the docket number for this
rulemaking (ICEB–2012–0003), indicate
the specific section of this document to
which each comment applies, and
provide a reason for each suggestion or
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recommendation. You may submit your
comments and material online or by
mail or hand delivery. Please use only
one of these means.
To submit your comment online, go to
https://www.regulations.gov, click on the
‘‘submit a comment’’ box, which will
then become highlighted in blue. In the
‘‘Document Type’’ drop down menu
select ‘‘Proposed Rule’’ and insert
‘‘ICEB–2012–0003’’ in the ‘‘Keyword’’
box. Click ‘‘Search’’ then click on the
balloon shape in the ‘‘Actions’’ column.
If you submit comments by mail or hand
delivery, submit them in an unbound
format, no larger than 81⁄2 by 11 inches,
suitable for copying and electronic
filing. If you submit comments by mail
and would like to know that they
reached the mailing address, please
enclose a stamped, self-addressed
postcard or envelope.
We will consider all comments and
material received during the comment
period and may change this proposed
rule based on your comments.
B. Viewing Comments and Documents
To view comments, as well as
documents mentioned in this preamble
as being available in the docket, go to
https://www.regulations.gov, and click
on the ‘‘read comments’’ box, which
will then become highlighted in blue. In
the ‘‘Keyword’’ box insert ‘‘ICEB–2012–
0003’’, click ‘‘Search’’ and then click
‘‘Open Docket Folder’’ in the ‘‘Actions’’
column. Individuals without internet
access can make alternate arrangements
for viewing comments and documents
related to this rulemaking by contacting
DHS at the contact number listed in the
FOR FURTHER INFORMATION CONTACT
section above.
C. Public Meeting
We do not now plan to hold a public
meeting, but you may submit a request
for one to the docket using one of the
methods specified under ADDRESSES. In
your request, explain why you believe a
public meeting would be beneficial. If
we determine that a public meeting
would aid this rulemaking, we will hold
one at a time and place announced by
a later notice in the Federal Register.
II. Abbreviations
ADA Americans with Disability Act of
1990, as amended
ANPRM Advance Notice of Proposed
Rulemaking
BJS Bureau of Justice Statistics
CBP U.S. Customs and Border Protection
CDF Contract Detention Facility
CFR Code of Federal Regulations
CMD Custody Management Division
CRCL DHS Office for Civil Rights and Civil
Liberties
DHS Department of Homeland Security
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DOJ Department of Justice
ERO Enforcement and Removal Operations
FR Federal Register
HHS Department of Health and Human
Services
ICE U.S. Immigration and Customs
Enforcement
IGSA Intergovernmental Service Agreement
INA Immigration and Nationality Act
IRIA Initial Regulatory Impact Analysis
LEP Limited English Proficiency
NAICS North American Industry
Classification System
NPREC National Prison Rape Elimination
Commission
NPRM Notice of Proposed Rulemaking
OMB Office of Management and Budget
PBNDS Performance Based National
Detention Standards
PLRA Prison Litigation Reform Act
PREA Prison Rape Elimination Act of 2003
PSA Prevention of Sexual Abuse
RFA Regulatory Flexibility Act
SAAPID Sexual Abuse and Assault
Prevention and Intervention Directive
SPC Service Processing Center
SSV Survey of Sexual Violence
UMRA Unfunded Mandate Reform Act of
1995
U.S.C. United States Code
USMS U.S. Marshals Service
III. Executive Summary
A. Purpose of the Regulatory Action
The purpose of this regulatory action
is to propose regulations setting
standards to prevent, detect, and
respond to sexual abuse in Department
of Homeland Security (DHS)
confinement facilities.1 Sexual violence,
against any victim, is an assault on
human dignity and an affront to
American values. Many victims report
persistent, even lifelong mental and
physical suffering. As the National
Prison Rape Elimination Commission
explained in its 2009 report:
Until recently * * * the public viewed
sexual abuse as an inevitable feature of
confinement. Even as courts and human
rights standards increasingly confirmed that
prisoners have the same fundamental rights
to safety, dignity, and justice as individuals
living at liberty in the community, vulnerable
men, women, and children continued to be
sexually victimized by other prisoners and
corrections staff. Tolerance of sexual abuse of
prisoners in the government’s custody is
totally incompatible with American values.2
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The commitment to eliminate sexual
abuse behind bars applies equally to
DHS confinement facilities, which
detain individuals for civil immigration
purposes. Sexual abuse is not an
1 As discussed in greater detail below, in these
proposed standards, ‘‘sexual abuse’’ includes sexual
abuse and assault of a detainee by another detainee,
as well as sexual abuse and assault of a detainee
by a staff member, contractor, or volunteer.
2 National Prison Rape Elimination Commission
Report 1 (2009), https://www.ncjrs.gov/pdffiles1/
226680.pdf.
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inevitable feature of detention, and with
DHS’s strong commitment, DHS
immigration detention and holding
facilities can have a culture that
promotes safety and refuses to tolerate
abuse. DHS is fully committed to a zerotolerance policy against sexual abuse in
its confinement facilities, and the
proposed standards will effectively
apply that policy across DHS
confinement facilities. DHS is also fully
committed to the full implementation of
the proposed standards in DHS
confinement facilities, and to robust
oversight of these facilities to ensure
this implementation.
The proposed standards build on
current U.S. Immigration and Customs
Enforcement (ICE) Performance Based
National Detention Standards (PBNDS)
and other DHS detention policies, and
respond to the President’s May 17, 2012
Memorandum, ‘‘Implementing the
Prison Rape Elimination Act,’’ which
directs all agencies with Federal
confinement facilities to work with the
Attorney General to propose rules or
procedures setting standards to prevent,
detect, and respond to sexual abuse in
confinement facilities. DHS seeks and
welcomes public comments to this
proposal.
B. Summary of the Provisions of the
Regulatory Action
The proposed DHS provisions span
eleven categories that were originally
used by the National Prison Rape
Elimination Commission (NPREC) to
discuss and evaluate prison rape
elimination standards: prevention
planning, responsive planning, training
and education, assessment for risk of
sexual victimization and abusiveness,
reporting, official response following a
detainee report, investigations,
discipline, medical and mental care,
data collection and review, and audits
and compliance. Each provision
proposed under these categories reflects
the DHS experience in confinement of
individuals and draws upon the unique
experiences and requirements DHS
faces in fulfilling its missions.
For example, DHS has broken down
the standards to cover two distinct types
of DHS facilities: (1) Immigration
detention facilities, which are overseen
by U.S. Immigration and Customs
Enforcement (ICE) and used for longerterm detention of individuals involved
in immigration removal operations or
processes; and (2) holding facilities,
which are used by ICE, U.S Customs
and Border Protection (CBP), and other
DHS component agencies for temporary
administrative detention of individuals
pending transfer to a court, jail, prison,
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other agency or other unit of the facility
or agency.
In addition, the standards reflect the
characteristics of the population
encountered by DHS in carrying out its
border security and immigration
enforcement missions by providing, for
example, for language assistance
services for limited-English proficient
detainees, safe detention of family units,
and other provisions specific to DHS’s
needs. A more detailed discussion of all
of the proposed provisions in the
rulemaking is included below in section
V of this notice of proposed rulemaking,
‘‘Discussion of Proposed Rule,’’
including a section-by-section analysis
of the DHS proposal.
C. Costs and Benefits
The anticipated costs of full
nationwide compliance with the
proposed rule, if ultimately made final,
as well as the benefits of reducing the
prevalence of sexual abuse in DHS
immigration detention facilities and
holding facilities, are discussed at
length in section VI, entitled ‘‘Statutory
and Regulatory Requirements—
Executive Orders 12866 and 13563’’ and
in the accompanying Initial Regulatory
Impact Analysis (IRIA), which is found
in the Federal rulemaking docket for
this rulemaking.
As shown in the Summary Table
below, DHS estimates that the costs of
these standards would be approximately
$57.7 million over the period 2013–
2022, discounted at 7 percent, or $8.2
million per year when annualized at a
7 percent discount rate.
With respect to benefits, DHS
conducts what is known as a ‘‘break
even analysis,’’ by first estimating the
monetary value of preventing various
types of sexual abuse (from incidents
involving violence to inappropriate
touching) and then, using those values,
calculating the reduction in the annual
number of victims that would need to
occur for the benefits of the rule to equal
the cost of compliance. This analysis
begins by estimating the current levels
of sexual abuse in covered facilities. In
2011, ICE had two substantiated sexual
abuse allegations in immigration
detention facilities. During the same
year, DHS experienced one
substantiated allegation of sexual abuse
of an individual detained in a DHS
holding facility. (This does not include
allegations involved in still-open
investigations or allegations outside the
scope of these proposed regulations.)
The regulatory impact analysis
extrapolates the number of substantiated
and founded allegations at immigration
detention facilities based on the premise
that there may be additional detainees
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who may have experienced sexual
abuse, but did not report it.
Next, DHS estimates how much
monetary benefit (to the victim and to
society) accrues from reducing the
annual number of victims of sexual
abuse. This is, of course, an imperfect
endeavor, given the inherent difficulty
in assigning a dollar figure to the cost
of such an event. Executive Order 13563
states that agencies ‘‘may consider (and
discuss qualitatively) values that are
difficult or impossible to quantify,
including equity, human dignity,
fairness, and distributive impacts.’’ Each
of these values is relevant here,
including human dignity, which is
offended by acts of sexual abuse.
DHS uses the DOJ estimates of unit
avoidance values for sexual abuse. DOJ
estimates extrapolate from the existing
economic and criminological literature
regarding rape in the community.3 The
RIA concludes that when all facilities
and costs are phased into the
rulemaking, the breakeven point would
be reached if the standards reduced the
annual number of incidents of sexual
abuse by 55 from the estimated
benchmark levels, which is 79 percent
of the total number of assumed
incidents in ICE confinement facilities,
including an estimated number of those
who may not have reported an incident.
Chapter 3 of the IRIA presents detailed
descriptions of the monetized benefits
and break-even results. The Summary
Table, below, presents a summary of the
benefits and costs of the Notice of
Proposed Rulemaking (NPRM). The
costs are discounted at seven percent.
SUMMARY TABLE—ESTIMATED COSTS AND BENEFITS OF NPRM
[$millions]
Immigration
detention
facilities
10-Year Cost Annualized at 7% Discount Rate ..........................................................................
% Reduction of Sexual Abuse Victims to Break Even with Monetized Costs ............................
Non-monetized Benefits ..............................................................................................................
$4.9
N/A
Holding
facilities
$3.3
N/A
Total DHS
PREA
rulemaking
$8.2
* 79%
An increase in the general wellbeing and morale
of detainees and staff, the value of equity,
human dignity, and fairness for detainees in DHS
custody.
Net Benefits .................................................................................................................................
N/A
N/A
N/A
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* For ICE confinement facilities.
IV. Background
Rape is violent, destructive, and a
crime, no matter where it takes place. In
response to concerns related to
incidents of rape of prisoners in Federal,
State, and local prisons and jails, as well
as the lack of data available about such
incidents, Congress passed PREA in July
2003. The bill became law with the
President’s signature in September
2003. See Public Law 108–79 (Sept. 4,
2003). Some of the key purposes of the
statute were to ‘‘develop and implement
national standards for the detection,
prevention, reduction, and punishment
of prison rape,’’ and to ‘‘increase the
available data and information on the
incidence of prison rape.’’ 42 U.S.C.
15602(3), (4). As the memorandum
issued by the President on May 17, 2012
makes clear, the Administration
concluded that PREA applies to all
federal confinement facilities, including
those operated by DHS.
To accomplish these ends, PREA
established the NPREC to conduct a
‘‘comprehensive legal and factual study
of the penological, physical, mental,
medical, social, and economic impacts
of prison rape in the United States,’’ and
to recommend national standards for the
reduction of prison rape. 42 U.S.C.
15606. PREA charged the Attorney
General, within one year of NPREC
issuing its report, to ‘‘publish a final
rule adopting national standards for the
detection, prevention, reduction, and
punishment of prison rape * * * based
upon the independent judgment of the
Attorney General, after giving due
consideration to the recommended
national standards provided by [NPREC]
* * * and being informed by such data,
opinions, and proposals that the
Attorney General determines to be
appropriate to consider.’’ 42 U.S.C.
15607(a)(1)–(2).
The NPREC released its findings and
recommended national standards in a
report (the NPREC report) dated June 23,
2009. The report is available at https://
www.ncjrs.gov/pdffiles1/226680.pdf. In
that report, NPREC set forth four sets of
recommended national standards for
eliminating prison rape and other forms
of sexual abuse. Each set was applicable
to one of four unique confinement
settings: (1) Adult prisons and jails; (2)
lockups; (3) juvenile facilities; and (4)
community corrections facilities.
NPREC report at pgs. 215–235. The
NPREC report recommends
supplemental standards for facilities
with immigration detainees. Id. at 219–
220. Specifically, and of particular
interest to DHS, the NPREC made eleven
recommendations for supplemental
standards for facilities with immigration
detainees and four recommendations for
supplemental standards for family
facilities. NPREC felt that standards for
facilities with immigrant detainees must
be enforced in any facility that is run by
ICE or through an ICE contract.
Although immigrants are detained in
various settings, efforts to prevent and
respond to sexual abuse should require
attention to the vulnerabilities of this
detained population.
As stated above, PREA provides that
the Attorney General’s final rule ‘‘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, opinion,
and proposals that the Attorney General
determines to be appropriate to
consider.’’ 42 U.S.C. 15607(a)(2).
3 Department of Justice, National Standards to
Prevent, Detect, and Respond to Prison Rape, Final
Rule, Final Regulatory Impact Analysis, Docket No.
DOJ–OAG–2011–0002, available at
www.regulations.gov.
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A. Department of Justice Rulemaking
In response to the NPREC report, the
Attorney General established a PREA
Working Group to review the NPREC’s
proposed standards and to assist him in
the rulemaking process. The Working
Group included representatives from
DOJ offices including the Access to
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Justice Initiative, the Bureau of Prisons
(including the National Institute of
Corrections), the Civil Rights Division,
the Executive Office for United States
Attorneys, the Office of Legal Policy, the
Office of Legislative Affairs, the Office
of Justice Programs (including the
Bureau of Justice Assistance, the Bureau
of Justice Statistics (BJS), the National
Institute of Justice, the Office of Juvenile
Justice and Delinquency Prevention,
and the Office for Victims of Crime), the
Office on Violence Against Women, and
the United States Marshals Service. On
March 10, 2010, DOJ published an
advance notice of proposed rulemaking
(ANPRM) to solicit public comment on
the NPREC’s proposed standards and to
receive information useful in publishing
a proposed rule proffering national
standards as required under PREA. 75
FR 11077 (Mar. 10, 2010). Throughout
the rulemaking process, DOJ solicited
and received substantial public input in
the form of written comments and from
listening sessions with key stakeholders.
In general, the commenters to the DOJ
ANPRM supported the broad goals of
PREA and the overall intent of the
NPREC’s recommendations. The
commenters were sharply divided,
however, as to the merits of a number
of the NPREC’s recommended national
standards. Some commenters,
particularly those whose responsibilities
involve the care and custody of
detainees, expressed concern that the
NPREC’s recommended national
standards implementing PREA would
impose unduly burdensome costs on
already tight State and local government
budgets. Other commenters, particularly
advocacy groups concerned with
protecting the health and safety of
detainees, expressed concern that the
NPREC’s standards were not protective
enough, and, therefore, would not fully
achieve PREA’s goals.
On February 3, 2011, after reviewing
the public input to the ANPRM, DOJ
issued a notice of proposed rulemaking
(NPRM) setting forth proposed national
PREA standards. 76 FR 6248 (Feb. 3,
2011). The DOJ NPRM solicited
comments on DOJ’s proposed standards,
and posed 64 specific questions on the
proposed standards and the
accompanying economic analysis.
In response to the NPRM, DOJ
received over 1,300 comments,
representing the same broad range of
stakeholders as commented to the DOJ
ANPRM. Commenters provided general
assessments of DOJ’s efforts as well as
specific and detailed recommendations
regarding each standard. Pertinent to
DHS, there was specific concern
expressed by the commenters with
respect to NPREC’s recommended
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supplemental standards for immigration
detention number six, which proposed
to mandate that immigration detainees
be housed separately from criminal
detainees. The NPRM noted that several
comments to the DOJ ANPRM raised a
concern that this requirement would
impose a significant burden on jails and
prisons, which often do not have the
capacity to house immigration detainees
and criminal detainees separately. Id.
The NPRM also noted DOJ’s concern
about other proposed supplemental
standards, such as imposing separate
training requirements, and requiring
agencies to attempt to enter into
separate memoranda of understanding
with immigration-specific community
service providers. Id. Furthermore,
comments to the NPRM addressed
whether the proposed standards should
cover immigration detention facilities,
prompting DOJ to examine the
application of PREA to other federal
confinement facilities, which is
discussed further below.
Following the public comment period
for the NPRM, DOJ issued a final rule
setting national standards to prevent,
detect, and respond to prison rape. 77
FR 37106 (June 20, 2012). The final rule
incorporates changes based upon the
public comments and sets a national
framework of standards to prevent,
detect, and respond to prison rape at
DOJ confinement facilities, as well as
State prisons and local jails.
B. Application of PREA Standards to
Other Federal Confinement Facilities
DOJ’s NPRM interpreted PREA to
bind only facilities operated by the
Bureau of Prisons, and extended the
standards to U.S. Marshals Service
(USMS) facilities under other
authorities of the Attorney General. 76
FR 6248, 6265. Numerous commenters
criticized this interpretation of the
statute. In light of those comments, DOJ
re-examined whether PREA extends to
Federal facilities beyond those operated
by DOJ and concluded that PREA does,
in fact, encompass any Federal
confinement facility ‘‘whether
administered by [the] government or by
a private organization on behalf of such
government.’’ 42 U.S.C. 15609(7).
In its final rule, DOJ further
concluded that, in general, each Federal
department is accountable for, and has
statutory authority to regulate, the
operations of its own facilities and,
therefore, is best positioned to
determine how to implement the federal
laws and rules that govern its own
operations, the conduct of its own
employees, and the safety of persons in
its custody. 77 FR 37106, 37113. In
particular, DOJ noted that DHS
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possesses great knowledge and
experience regarding the specific
characteristics of its immigration
facilities, which differ in certain
respects from DOJ, State, and local
facilities with regard to the manner in
which they are operated and the
composition of their populations. Thus,
and given each department’s various
statutory authorities to regulate
conditions of detention, DOJ stated that
Federal departments with confinement
facilities, like DHS, will work with the
Attorney General to issue rules or
procedures consistent with PREA.
C. The Presidential Memorandum on
Implementing the Prison Rape
Elimination Act
On May 17, 2012, the same day DOJ
released its final rule, President Obama
issued a Presidential Memorandum
reiterating the goals of PREA and
directing Federal agencies with
confinement facilities that are not
already subject to the DOJ final rule to
propose rules or procedures necessary
to satisfy the requirements of PREA
within 120 days of the Memorandum. In
the Memorandum, the President firmly
establishes that sexual violence, against
any victim, is an assault on human
dignity and an affront to American
values, and that PREA established a
‘‘zero-tolerance standard’’ for rape in
prisons in the United States. The
Memorandum further expresses the
Administration’s conclusion that PREA
encompasses all Federal confinement
facilities, including those operated by
executive departments and agencies
other than DOJ, whether administered
by the Federal Government or by an
organization on behalf of the Federal
Government, and that each agency is
responsible for, and must be
accountable for, the operations of its
own confinement facilities. The
President charged each agency, within
the agency’s own expertise, to
determine how to implement the
Federal laws and rules that govern its
own operations, but to ensure that all
agencies that operate confinement
facilities adopt high standards to
prevent, detect, and respond to sexual
abuse. The President directed all
agencies with Federal confinement
facilities that are not already subject to
the DOJ final rule, such as DHS, to work
with the Attorney General to propose
rules or procedures that will satisfy the
requirements of PREA.
As Congress and the President have
concluded, sexual abuse in custodial
environments is a serious concern with
dire consequences for victims. DHS is
firmly committed to protecting
detainees from all forms of sexual abuse.
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By this regulation, DHS responds to and
fulfills the President’s directive by
proposing comprehensive, national
regulations for the detection, prevention
and reduction of sexual abuse at DHS
immigration detention facilities and at
DHS holding facilities.
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D. Types of DHS Confinement Facilities
Unlike DOJ, which followed the
pattern of the NPREC report by issuing
regulations related to four types of
confinement facilities, DHS has just two
types of confinement facilities: (1)
Immigration detention facilities and (2)
holding facilities.4
As proposed in this rule, DHS defines
an immigration detention facility as a
‘‘confinement facility operated by or
affiliated with U.S. Immigration and
Customs Enforcement (ICE) that
routinely holds persons for over 24
hours pending resolution or completion
of immigration removal operations or
processes, including facilities that are
operated by ICE, facilities that provide
detention services under a contract
awarded by ICE, or facilities used by ICE
pursuant to an Intergovernmental
Service Agreement.’’ These facilities are
designed for long-term detention (more
than 24 hours) and house the largest
number of DHS detainees. ICE is the
only DHS component agency with
immigration detention facilities, and it
has several types of such facilities:
service processing center (SPC) facilities
are ICE-owned facilities staffed by a
combination of Federal employees and
contract staff; contract detention
facilities (CDFs) are owned by private
companies and contracted directly with
ICE; detention services at
Intergovernmental Service Agreement
(IGSA) facilities are provided to ICE by
States or local governments through
agreements and may be owned by the
State or local government, or a private
entity; and Intergovernmental
Agreement (IGA) facilities are provided
to ICE by States or local governments
through intergovernmental agreements
and may be owned by the State or local
government, but not private entities. In
addition, there are two types of IGSA
facilities: dedicated IGSA facilities,
which house only detained aliens, and
non-dedicated IGSA facilities, which
house a variety of detainees. The
standards set forth in Subpart A of these
proposed regulations are meant
ultimately to apply to all of these
various types of immigration detention
facilities—but not, notably, to USMS
4 For simplicity, all persons confined in DHS
immigration detention facilities and holding
facilities are referred to as ‘‘detainees’’ in this
rulemaking.
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facilities used by ICE under
intergovernmental agreements; those
facilities and their immigrant detainees
would be covered by the DOJ PREA
standards and not the provisions within
Subpart A of these proposed rules.
The proposed regulations would not
apply to CDF and IGSA facilities
directly; rather, standards for these
facilities would be phased in through
new contracts and contract renewals.
Specifically, the proposed regulations
would require that when contracting for
the confinement of detainees in
immigration detention facilities
operated by non-DHS private or public
agencies or other entities, the agency
include in any new contracts or contract
renewals the obligation to adopt and
comply with these standards. In other
words, DHS intends to enforce the
proposed standards though terms in its
contracts with facilities.
DHS defines a holding facility
similarly to DOJ’s definition of
‘‘lockup.’’ A ‘‘holding facility’’ is a
facility that contains holding cells, cell
blocks, or other secure enclosures that
are: (1) Under the control of the agency;
and (2) primarily used for the short-term
confinement of individuals who have
recently been detained, or are being
transferred to or from a court, jail,
prison, or other agency. These facilities,
which are operated by ICE, CBP, or
other DHS components, are designed for
confinement that is short-term in nature,
but are permanent structures intended
primarily for the purpose of such
confinement. Temporary-use hold
rooms and other types of short-term
confinement areas not primarily used
for confinement are not amenable to
compliance with these standards, but
are covered by other DHS policies and
procedures. We discuss the distinctions
between these facilities in more detail
later in this proposal.
1. ICE Detention Facilities
As stated above, the NPREC report
contained eleven recommended
standards for facilities with immigration
detainees and four recommended
standards specifically addressing family
facilities. ICE oversees immigration
detention facilities nationwide. The vast
majority of facilities are operated
through government contracts, State and
local entities, private entities, or other
federal agencies. The ICE Office of
Enforcement and Removal Operations
(ERO) is the subdivision within ICE that
manages ICE operations related to the
immigration detention system.
ERO is responsible for providing
adequate and appropriate custody
management to support the immigration
removal process. This includes
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providing traditional and alternative
custody arrangements for those in
removal proceedings, providing aliens
access to legal resources and
representatives of advocacy groups, and
facilitating the appearance of detained
aliens at immigration court hearings.
Through various immigration detention
reform initiatives, ERO is committed to
providing and maintaining appropriate
conditions of confinement, providing
required medical and mental healthcare,
housing detainees in the least restrictive
setting commensurate with their
criminal background, ensuring
appropriate conditions for all detainees,
employing fiscal accountability,
increasing transparency, and
strengthening critical oversight,
including efforts to ensure compliance
with applicable detention standards
through inspection programs.
The ERO Custody Management
Division (CMD) provides policy and
oversight for the administrative custody
of immigration detainees; one of the
most highly transient and diverse
populations of any correctional or
detention system in the world. CMD’s
mission is to manage ICE detention
operations efficiently and effectively to
provide for the safety, security and care
of aliens in ERO custody.
ERO is currently responsible for
providing custody management to
approximately 158 authorized
immigration detention facilities,
consisting of 6 SPCs, 7 CDFs, 9
dedicated IGSA facilities, and 136 nondedicated IGSA facilities (of which 64
are covered by the DOJ PREA rule, not
this proposed rule, because they are
USMS IGA facilities). ERO has 91 other
authorized immigration detention
facilities that typically hold detainees
for more than 24 hours and less than 72
hours, including 55 USMS IGA facilities
and 36 non-dedicated IGSA facilities. In
addition, ICE has 149 holding facilities
that hold detainees for less than 24
hours. These holding facilities are
nationwide and are located within ICE
ERO Field and Sub-Field Offices.
2. ICE Sexual Abuse and Assault
Policies
The proposed regulation for
immigration detention facilities and
holding facilities discussed in this
rulemaking supports existing sexual
abuse policies promulgated by ICE,
including ICE’s PBNDS 2011 and its
2012 Sexual Abuse and Assault
Prevention and Intervention Directive
(SAAPID),5 which provide strong
5 ICE, Performance-Based National Detention
Standards (2011), https://www.ice.gov/doclib/
detention-standards/2011/pbnds2011.pdf; ICE,
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safeguards against all sexual abuse of
individuals within its custody,
consistent with the goals of the PREA.
ICE’s PBNDS 2011 standard on
‘‘Sexual Abuse and Assault Prevention
and Intervention’’ was developed in
order to enhance protections for
immigration detainees as well as ensure
a swift and effective response to
allegations of sexual abuse. This
standard derived in significant part from
earlier policies contained in the
agency’s PBNDS 2008, promulgated in
response to the passage of PREA, and
took into consideration the
subsequently released recommendations
of the NPREC (including those for
facilities housing immigration
detainees) in June 2009 and ensuing
draft standards later issued by DOJ in its
Advance Notice of Proposed
Rulemaking in March 2010. In drafting
the PBNDS 2011, ICE also incorporated
the input of the DHS Office for Civil
Rights and Civil Liberties (CRCL), local
and national advocacy organizations,
and representatives of DOJ (including
correctional experts from the Bureau of
Prisons) on methods for accomplishing
the objectives of PREA in ICE’s
operational context, and closely
consulted information and best
practices reflected in policies of
international corrections systems,
statistical data on sexual violence
collected by the DOJ BJS, and reports
published by the United Nations High
Commissioner for Refugees and the
Inter-American Commission on Human
Rights of the Organization of American
States regarding sexual abuse and other
issues affecting vulnerable populations
in U.S. correctional systems. The
PBNDS 2011 establish responsibilities
of all immigration detention facility staff
with respect to preventative measures
such as screening, staff training, and
detainee education, as well as effective
response to all incidents of sexual
abuse, including timely reporting and
notification, protection of victims,
provision of medical and mental health
care, investigation, and monitoring of
incident data.
The 2012 ICE SAAPID complements
the requirements established by the
2011 PBNDS by delineating ICE-wide
policy and procedures and
corresponding duties of agency
employees for reporting, responding to,
investigating, and monitoring incidents
of sexual abuse. In conjunction with the
PBNDS, the Directive ensures an
integrated and comprehensive system of
Directive No. 11062.1: Sexual Abuse and Assault
Prevention and Intervention (2012), https://
www.ice.gov/detention-standards. These documents
are available, redacted as appropriate, in the docket
for this rule where indicated under ADDRESSES.
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preventing and responding to all
incidents or allegations of sexual abuse
of individuals in ICE custody.
ICE’s combined policies prescribe a
comprehensive range of protections
against sexual abuse addressing
prevention planning, reporting,
response and intervention,
investigation, and oversight, including:
articulation of facility zero-tolerance
policies; designation of facility and
agency sexual abuse coordinators;
screening and classification of
detainees; staff training; detainee
education; detainee reporting methods;
staff reporting and notification; first
responder duties following incidents or
allegations of sexual abuse (including to
protect victims and preserve evidence);
emergency and ongoing medical and
mental health services; investigation
procedures and coordination; discipline
of assailants; and sexual abuse incident
data collection and review.
These policies are tailored to the
unique operational and logistical
circumstances encountered in the DHS
confinement system in order to
maximize their effective achievement of
the goals of the PREA within the
immigration detention context. To
further improve transparency and
enforcement, DHS has decided to issue
this regulation and adopt the overall
structure of the DOJ standards, as well
as the wholesale text of various
individual DOJ standards where it has
deemed them appropriate and
efficacious for DHS facilities, to meet
the President’s goal of setting high
standards, government-wide, consistent
with the goals of PREA. Where
appropriate, DHS has also used the
results of DOJ research and considered
public comments submitted in response
to the DOJ ANPRM and NPRM in
formulating the DHS proposals.
3. U.S. Customs and Border Protection
Detention Facilities
U.S. Customs and Border Protection
(CBP) has a priority mission of keeping
terrorists and their weapons out of the
United States. CBP is also responsible
for securing and facilitating trade and
travel while enforcing hundreds of U.S.
statutes and regulations, including
immigration and drug laws. All persons,
baggage, and other merchandise arriving
in or leaving the United States are
subject to inspection and search by CBP
officials under legal authorities for any
number of reasons relating to its
immigration, customs, and other law
enforcement activities.
CBP detains individuals in a wide
range of facilities. CBP detains some
individuals in secured detention areas,
while others are detained in open
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seating areas where agents or officers
interact with the detainee. CBP uses
‘‘hold rooms’’ in its facilities for case
processing, and to search, detain, or
interview persons who are being
processed. CBP does not currently
contract for staff within its holding
facilities, but exercises oversight of
detainees with its own employees.
CBP generally detains individuals for
only the short time necessary for
inspection and processing, including
pending release or transfer of custody to
appropriate agencies. Some examples of
situations in which CBP detains
individuals prior to transferring them to
other agencies are: (1) Persons processed
for administrative immigration
violations may, for example, be
repatriated to contiguous territory or
transferred to ICE pending removal from
the United States or removal
proceedings with the Executive Office of
Immigration Review; (2)
unaccompanied alien children placed in
removal proceedings under section 240
of the Immigration and Nationality Act
(INA), 8 U.S.C. 1229a, are transferred, in
coordination with ICE, to the
Department of Health and Human
Services (HHS), Office of Refugee
Resettlement; (3) persons detained for
criminal prosecution are temporarily
held pending case processing and
transfer to other Federal, State, local or
tribal law enforcement agencies. CBP
policies and directives currently cover
these and other detention scenarios.
4. CBP Detention Directives and
Guidance
The various CBP policies and
directives containing guidance on the
topics addressed in these proposed
regulations include, but are not limited
to:
Personal Search Handbook, Office of
Field Operations, CIS HB 3300–04B,
July 2004—describes the procedures for
personal searches as well as detention of
juveniles, short-term detention, and
those persons being detained who
require medical examinations. The
handbook further details the procedures
for transportation of, detention of and,
reporting procedures for persons
detained for prolonged medical
examinations as well as detentions
lasting more than two hours.
CBP Directive No. 3340–030B, Secure
Detention, Transport and Escort
Procedures at Ports of Entry—includes
general guidelines on detention. The
policy also defines procedures for the
handling of juveniles, medical
situations, meals, water, restrooms,
phone notifications, sanitation of the
hold room, restraining procedures,
classification of detainees,
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transportation, emergency procedures,
escort procedures, transfer procedures,
and property disposition.
U.S. Border Patrol Policy No. 08–
11267, Hold Rooms and Short-Term
Custody—establishes national policy
describing the responsibilities and
procedures for the short-term custody of
persons in Border Patrol hold rooms
pending case disposition. The policy
also contains requirements regarding the
handling of juveniles in Border Patrol
custody.
DHS referenced all of these policies in
its consideration of DHS-wide standards
to prevent, detect, and respond to sexual
abuse in DHS confinement facilities.
The policies are available, redacted as
appropriate, in the docket for this rule
where indicated under ADDRESSES.
V. Discussion of Proposed Rule
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A. The DHS Proposal
Sexual violence, against any victim, is
an assault on human dignity. Such acts
are particularly damaging in the
detention environment, where the
power dynamic is heavily skewed
against victims and recourse is often
limited. Until recently, however, this
has been widely viewed as an inevitable
aspect of imprisonment within the
United States. This view is not only
incorrect but incompatible with
American values.
DHS keeps records of any known or
alleged sexual abuse incidents in its
facilities. ICE keeps records of any
claims in its Joint Integrity Case
Management System (JICMS). ICE
records indicate 138 sexual abuse
allegations from 2010 to June 2012. Of
those, 57 percent were inmate- or
detainee-on-detainee allegations, 38
percent were contract staff-on-detainee,
and the remaining 5 percent were ICE
and/or State or local staff-on-detainee.
These figures are unacceptable to DHS
and the Administration, which has
articulated a ‘‘zero-tolerance’’ standard
for sexual abuse in confinement
facilities. Accordingly, DHS has a
mandate to work towards eliminating all
such incidents.
With respect to its proposal, DHS did
not begin its work from a blank slate.
Many correctional administrators have
developed and implemented policies
and practices to more effectively
prevent and respond to sexual abuse in
DHS confinement facilities. DHS
applauds these efforts, and views them
as an excellent first step. However, DHS
needs a national effort to meet PREA’s
goals and comply with the President’s
directive that can be applied effectively
to all covered facilities in light of their
particular physical characteristics, the
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nature of their diverse populations, and
resource constraints.
DHS appreciates the considerable
work DOJ has done in this area, and also
recognizes that each DHS component
has extensive expertise regarding its
own facilities, particularly those
housing unique populations, and that
each DHS component is best positioned
to determine how to implement the
Federal laws and rules that govern its
own operations, the conduct of its own
employees, and the safety of persons in
its custody. Thus DHS, because of its
own unique circumstances, has adopted
the overall structure of DOJ’s regulations
and has used its content to inform the
provisions of this proposed rule, but has
tailored individual provisions to
maximize their efficacy in DHS
confinement facilities.
DHS also emphasizes that these
proposed standards are not intended to
establish a safe harbor for otherwise
constitutionally-deficient conditions
regarding detainee sexual abuse.
Likewise, while the DHS standards aim
to include a variety of best practices, the
need to adopt standards applicable to a
wide range of facilities while accounting
for costs of implementation means that
the proposed standards do not
incorporate every promising avenue of
combating sexual abuse. The proposed
standards represent policies and
practices that are attainable by DHS
components and their contractors, while
recognizing that other DHS policies and
procedures can, and in some cases
currently do, exceed these standards in
a variety of ways. DHS applauds such
efforts, and encourages its components
and contractors to further support the
identification and adoption of
additional innovative methods to
protect detainees from sexual abuse.
B. Section by Section Analysis
The DHS proposal follows the DOJ
rule in devising separate sets of
standards tailored to different types of
confinement facilities utilized by the
DHS: ‘‘immigration detention facilities’’
and ‘‘holding facilities.’’ Each set of
standards consists of the same eleven
categories used by the DOJ rule:
prevention planning, responsive
planning, training and education,
assessment for risk of sexual
victimization and abusiveness,
reporting, official response following a
detainee report, investigations,
discipline, medical and mental care,
data collection and review, and audits
and compliance. As in the DOJ rule, a
General Definitions section applicable
to both sets of standards is provided.
Definitions. Sections 115.5 and 115.6
provide definitions for key terms used
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in the proposed standards, including
definitions related to sexual abuse. The
definitions in this section largely mirror
those used in the DOJ rule, with
adjustments as necessary for DHS
operational contexts. DHS has also
largely relied on the NPREC’s
definitions in the Glossary sections that
accompanied the NPREC’s four sets of
standards, but has made a variety of
adjustments and has eliminated
definitions for various terms that either
do not appear in the DHS proposed
standards or whose meaning is
sufficiently clear so as not to need
defining. Below is an explanation for
key definitions modified or added by
DHS:
Agency. The rule proposes to define
agency as the unit or component of DHS
responsible for operating or supervising
any facility, or part of a facility, that
confines detainees. This definition
reflects the common understanding of
the term agency as a unit of the Federal
government and permits DHS to more
appropriately and clearly place
responsibility for compliance with the
individual standards set forth in the
proposed rule on the DHS component
responsible for overseeing or
supervising the facility, including the
DHS component’s responsibility for
implementing DHS policy.
Exigent circumstances. The rule
proposes a definition for this term,
which is used in several standards. The
term is defined to mean ‘‘any set of
temporary and unforeseen
circumstances that require immediate
action in order to combat a threat to the
security or institutional order of a
facility or a threat to the safety or
security of any person.’’ Such
circumstances include, for example, the
unforeseen absence of a staff member
whose presence is indispensable to
carrying out a specific standard, or an
outbreak of violence within the facility
that requires immediate action.
Facility. A facility for purposes of the
proposed rule means a place, building
(or part thereof), set of buildings,
structure, or area (whether or not
enclosing a building or set of buildings)
that was built or retrofitted for the
purpose of detaining individuals and is
routinely used by the agency to detain
individuals in its custody. The proposed
rule also clarifies that ‘‘[r]eferences to
requirements placed on facilities extend
to the entity responsible for the direct
operation of the facility’’ to ensure that
there is no ambiguity about each
operator’s responsibility to comply with
given standards within the proposed
rule. In the case of long-term detention
facilities and holding facilities used by
ICE, this generally refers to the
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corporate contractor or State or local
government entity responsible for the
day-to-day operation of the facility. In
the case of CBP holding facilities, this
generally refers to the agency itself. This
definition does not include temporary
locations—such as U.S. Coast Guard
vessels, hotel rooms, and conference
rooms—temporarily or sporadically
used to detain individuals for short
periods of time during agency
operations.
Family unit. DHS, unlike DOJ,
oversees a Family Residential Program
which houses non-criminal residents in
a family-friendly, shelter-like setting. In
order to facilitate placing families into
this arrangement, ICE is required to
identify family units. As such, DHS
proposes to adopt the definition of
‘‘family unit’’ from the ICE Family
Detention and Intake Guidance.6 In the
Guidance, and in this proposed rule,
family unit means a group of detainees
that includes one or more non-United
States citizen juvenile(s) accompanied
by his/her/their parent(s) or legal
guardian(s), none of whom has a known
history of criminal or delinquent
activity, or of sexual abuse, violence, or
substance abuse.
Holding Facility. The DHS proposed
rule uses the DOJ’s definition of
‘‘lockup,’’ as the basis for its definition
of ‘‘holding facility’’ which is more
consistent with terminology used
throughout DHS policy documents.
Important to this definition is that the
holding facility must be ‘‘primarily
used’’ for the short-term confinement of
individuals who have recently been
detained. As with the definition of
‘‘facility’’ above, the definition does not
include temporary locations—such as
U.S. Coast Guard vessels, hotel rooms,
and conference rooms—temporarily or
sporadically used to detain individuals
for short periods of time during agency
operations. These are governed
separately by other agency operational
policies.
Immigration detention facility. DHS
detains the largest number of its
detainees at ICE immigration detention
facilities around the country. DHS and
ICE define an immigration detention
facility as a confinement facility
operated by or affiliated with ICE that
routinely holds persons for over 24
hours pending resolution or completion
of immigration removal operations or
processes, including facilities that are
operated by ICE, facilities that provide
6 See Memorandum from David J. Venturella,
Acting Dir., Office of Detention and Removal
Operations, to Field Office Directors (Aug. 14,
2009). This document is available, redacted as
appropriate, in the docket for this rule where
indicated under ADDRESSES.
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detention services under a contract
awarded by ICE, or facilities used by ICE
pursuant to an IGSA. ICE ERO is
responsible for providing custody
management to approximately 158
authorized immigration detention
facilities that house detainees for over
72 hours, including 6 SPCs, 7 CDFs, 9
dedicated IGSA facilities, and 136 nondedicated IGSA facilities (62 of the nondedicated IGSA facilities and 2 of the
dedicated IGSA facilities are covered by
the DOJ PREA rule, not this proposed
rule, because they are USMS IGA
facilities). ICE ERO also provides
custody management to an additional 91
authorized immigration detention
facilities that are contracted to hold
detainees for less than 72 hours,
including 36 non-dedicated IGSA
facilities and 55 USMS IGA facilities.
The provisions within Subpart A below
apply to all of the facilities just
mentioned that are not USMS facilities,
which are already covered by the DOJ
PREA rule: 94 over 72-hour facilities
and 36 under 72-hour facilities. Please
see Table 1 in Section VI.A.2 Summary
of Affected Populations.
Juvenile. DHS’s existing detention
policies define a juvenile as any person
under the age of 18. The DOJ rule
further qualified this with the phrase
‘‘unless under adult court supervision
and confined or detained in a prison or
jail.’’ DHS does not operate or oversee
prison or jail facilities and, as such, this
phrase was not included as it is not
applicable to DHS facilities. DHS does
not incorporate this qualification
because the juveniles DHS detains are
detained for civil administrative
purposes.
Sexual abuse. The DHS definition of
sexual abuse in the proposed rule differs
slightly from DOJ’s definition of sexual
abuse in the DOJ final rule. Both the
DHS and DOJ standards define staff-ondetainee sexual abuse to cover all types
of sexual contact between detainees and
staff members, volunteers, or contractors
that is unrelated to proper searches or
medical duties, as well as any attempts
by staff to engage in such contact or to
coerce a detainee into doing so.
Detainee-on-detainee sexual abuse is
similarly defined by both standards to
encompass all types of sexual contact
between detainees accomplished
through force, coercion, or intimidation.
In order to account for the fact that DHS
detainees are often held with prisoners,
inmates, and facility residents, the
proposed rule includes sexual abuse of
a detainee by a prisoner, inmate, or
resident in the definition of ‘‘sexual
abuse of a detainee by another
detainee.’’ However, whereas the DOJ
standards include attempted acts of
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sexual abuse (in addition to completed
acts of sexual abuse) only in their
definition of staff-on-detainee abuse,
DHS believes it is important to provide
equal protection against attempted
sexual abuse in all instances, and
therefore includes attempted acts of
sexual abuse in its definitions of both
staff-on-detainee and detainee-ondetainee sexual abuse. In addition, DOJ
separately defines sexual harassment by
an inmate to include ‘‘[r]epeated and
unwelcome sexual advances, requests
for sexual favors, or verbal comments,
gestures, or actions of a derogatory or
offensive sexual nature by one inmate,
detainee, or resident directed toward
another.’’ DHS, instead, incorporates
much of the same behavior into the
proposed definition of sexual abuse,
which forbids ‘‘threats, intimidation, or
other actions or communications by one
or more detainees aimed at coercing or
pressuring another detainee to engage in
a sexual act.’’
In addition, DHS has included sexual
harassment within its definition of staffon-detainee sexual abuse, as DHS
believes that combating precursors to
sexual abuse represents an important
aspect of preventing sexual abuse. DHS
also has included unnecessary or
inappropriate visual surveillance of a
detainee as part of the definition of
sexual abuse of a detainee by a staff
member, contractor, or volunteer. The
DHS prohibition on unnecessary or
inappropriate visual surveillance is
consistent with and addresses the same
types of conduct as DOJ’s prohibition on
voyeurism, as that term is defined in
DOJ’s PREA final rule. Under the DHS
rule, unnecessary or inappropriate
surveillance generally derives from a
prurient interest and is carried out
through one or a series of embarrassing,
intimidating, or degrading incidents
involving leering, unnecessary
supervision, or improper photography
or videotaping of the detainee in a state
of undress or performing bodily
functions. For example, as DOJ
explained in its PREA final rule, a staff
member who happens to witness a
detainee in a state of undress while
conducting rounds has not engaged in
unnecessary and inappropriate visual
surveillance. On the other hand, a staff
member who, outside of their official
duties, takes images of all or part of a
detainee’s naked body, or of an inmate
performing bodily functions, for the
staff member’s own use or for further
distribution, has likely engaged in
unnecessary and inappropriate visual
surveillance.
Coverage: Section 115.10 clarifies that
Subpart A of the proposed rule is only
applicable to ICE immigration detention
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facilities. DHS holding facilities are
governed by Subpart B of the proposed
rule. DHS recognizes the importance of
preventing, detecting, and responding to
all sexual abuse, but also that the
resources and environment of
immigration detention facilities and
holding facilities are different by nature
and need to have a respectively different
set of standards tailored to each of them
for an effective outcome.
Prevention Planning: Sections 115.11,
115.111, 115.12, 115.112, 115.13,
115.113, 115.14, 115.114, 115.15,
115.115, 115.16, 115.116, 115.17,
115.117, 115.18 and 115.118. DHS
believes it is important to establish what
actions facilities are expected to take to
prevent sexual abuse. Sections 115.11
and 115.111 require each DHS agency
responsible for operation of
confinement facilities and each
immigration detention facility covered
by Subpart A to establish a written zerotolerance policy toward sexual abuse
outlining the agency’s or facility’s
approach to preventing, detecting, and
responding to such conduct.
Sections 115.11 and 115.111 also
mandate that each covered agency
appoint an upper-level, agency-wide
Prevention of Sexual Abuse Coordinator
(PSA Coordinator) to oversee agency
efforts to comply with DHS sexual abuse
prevention, detection, and response
standards and that each immigration
detention facility covered by Subpart A
appoint a Prevention of Sexual Abuse
Compliance Manager (PSA Compliance
Manager) to oversee facility efforts in
this regard. A similar facility-level
requirement is not included for Subpart
B holding facilities, as those are very
numerous, often small, and operated
directly by the agency, and thus
overseen by the PSA Coordinator
through the normal agency chain of
command.
With respect to the reporting level of
the DHS component PSA Coordinator,
DHS’s proposed standard requires that
the position be ‘‘upper-level’’ but does
not require that the coordinator report
directly to the DHS component head.
The PSA Coordinator should have
access to agency and facility leadership
on a regular basis, and have the
authority to work with other staff,
managers, and supervisors to effectuate
change if necessary. By contrast, the
facility-specific PSA Compliance
Manager need not be ‘‘upper-level,’’ but
should have access to facility staff,
managers, and supervisors in order to
guide implementation of facility sexual
abuse prevention and intervention
policies and procedures.
Sections 115.12 and 115.112 require
that agencies that contract with private
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entities for the confinement of detainees
include the entity’s obligation to comply
with the DHS sexual abuse standards in
new contracts or contract renewals.
Although the proposed regulation
would not directly apply to non-DHS
private or public agencies or other
entities, the proposed regulation
requires that new contracts or renewals
include the entity’s obligation to adopt
and comply with these standards and
‘‘provide for agency contract monitoring
to ensure that the contractor is
complying with these standards.’’
Sections 115.13 and 115.113 govern
the supervision and monitoring of
detainees. The DHS proposal recognizes
that direct staff supervision and video
monitoring are two methods of
achieving one goal: reducing the
opportunity for sexual abuse to occur
unseen. DHS recognizes that different
agencies and facilities rely on staffing
and technology to varying degrees
depending upon their specific
characteristics. Accordingly, the DHS
proposal considers these issues together.
DHS is also mindful that staffing and
video-monitoring systems are both
expensive. Staff salaries and benefits are
typically the largest item in a
correctional agency’s budget, see, e.g.,
National Institute of Corrections,
Staffing Analysis: Workbook for Jails (2d
ed.) at 2, and economies of scale are
difficult to obtain: increasing staffing by
25% is likely to increase staff costs by
25%. Likewise, video-monitoring
systems may be beyond the financial
reach of some agencies and facilities,
although the costs of such systems may
diminish in future years as technology
advances.
DHS, however, recognizes the
importance of detainee supervision in
combating sexual abuse and believes
that the correctional community shares
this view. See, e.g., American
Correctional Association, Public
Correctional Policy on Offender Sexual
Abuse (Jan. 12, 2005) (recommending
that agencies ‘‘[m]aintain adequate and
appropriate levels of staff to protect
detainees against sexual assault’’).
Although proper detainee supervision
and monitoring cannot eliminate the
risk of sexual abuse, it can play a key
role in reducing opportunities for it to
occur.
At the same time, DHS recognizes that
determining adequate detainee
supervision and monitoring is a facilityspecific enterprise. For example, the
appropriate means of supervision and
monitoring, including appropriate
staffing levels, depends upon a variety
of factors, including (but not necessarily
limited to) the physical layout of a
facility, the security level and gender of
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the detainees, whether the facility
houses adults or juveniles, the length of
time detainees reside in the facility, the
amount of programming that the facility
offers, and the facility’s population
density (i.e., comparing the number of
detainees to the number of beds or
square feet). Also, the facility’s reliance
on video monitoring and other
technology may reduce staffing
requirements, as long as the facility
employs sufficient staff to monitor the
video feeds or other technologies such
as call buttons or sensors. The viability
of technology may in turn depend upon,
among other factors, the characteristics
of the confined population.
Due to the complex interaction of
these factors, DHS does not believe that
it is possible to craft an agency-wide or
facility-wide formula that would set
appropriate staffing levels for all
populations—although DHS is aware
that some States do set such levels for
juvenile facilities. Nor is it likely that an
auditor would be able to determine the
appropriate staffing level in the limited
amount of time available to conduct an
audit. Relying on reported incidents of
sexual abuse to determine appropriate
staffing levels is also an imperfect
method given the uncertainty as to
whether an incident will be reported.
Indeed, facilities where detainees feel
comfortable reporting abuse, and where
investigations are conducted effectively,
may be more likely than other facilities
to experience substantiated allegations
of sexual abuse, even if the facility is
safer than its counterparts. For this
reason, DHS, like DOJ, has opted not to
adopt general across-the-board
standards on this issue, as proposed by
some commenters to the DOJ
rulemaking.
Accordingly, DHS is of the view that
any standard that governs detainee
supervision and monitoring must
protect detainees by providing sufficient
clarity as to its requirements,
recognizing that the adequacy of
detainee supervision and monitoring
depends on several factors that interact
differently for each facility, and
accounting for the costs involved in
employing additional staff and in
purchasing and deploying additional
technology. The agency or the facility
itself must, therefore, make its own
comprehensive assessment of adequate
supervision levels, taking into account
its use, if any, of video monitoring or
other technology. The fact that multiple
factors bear on the adequacy of detainee
supervision and monitoring is no barrier
to requiring an agency to conduct such
an assessment for each of its facilities.
The agency or facility must reassess at
least annually such adequate
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supervision and monitoring, including
through appropriate staffing levels, and
should also reassess its use of video
monitoring systems and other
technologies. This annual assessment
will include an examination of the
adequacy of resources the agency or
facility has available to ensure adequate
levels of detainee supervision and
monitoring. The purpose of mandating
such inquiries within these standards is
to institutionalize the practice of
assessing detainee supervision and
monitoring in the context of considering
how supervision and monitoring
contribute to efforts to combat sexual
abuse. DHS is interested in receiving
comments on whether and to what
extent this standard should include
additional or alternative requirements.
DHS notes, however, that this
standard, like all the standards, is not
intended to serve as a legal safe harbor.
A facility that makes its best efforts to
design and comply with its detainee
supervision plan is not necessarily in
compliance with legal requirements,
even if a staffing shortfall is due to
budgetary factors beyond its control.
DHS also believes that heightened
protection should be accorded detainees
who are assessed to be at a high risk of
victimization for sexual abuse. The
proposed rule thus provides in the
holding facility context under proposed
115.141 that the agency provide such
detainees heightened protection, to
include continuous direct sight and
sound supervision, single-cell housing,
or placement in a cell actively
monitored on video by a staff member
sufficiently proximate to intervene,
unless no such option is determined to
be feasible. In the immigration detention
context, heightened protection is
addressed at another section of the
proposed rule, 115.43, which imposes
requirements more consistent with the
long-term detention context and the
more extensive resources found within
those facilities, including consideration
of administrative segregation. The
proposed rule also includes proposed
115.13(d), which calls for unannounced
security inspections to augment the
safety of detainees held in the
immigration detention facilities. This
provision is not included in the holding
facility provisions as the agency visual
supervision of detainees in that context
is frequently direct and more
continuous than in the long-term
detention context.
In general, DHS provides that
juveniles will be detained in the least
restrictive setting appropriate to the
juvenile’s age and special needs,
provided that such setting is consistent
with the need to protect the juvenile’s
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well-being and that of others, as well as
any other laws, regulations, or legal
requirements. Nearly all juveniles in ICE
detention are located in family facilities,
specifically in two family detention
facilities that house juvenile detainees
along with adult family members.
Although the concern raised by
potential mixing of adult and juvenile
populations is thus unlikely to be an
issue in ICE facilities as a whole, DHS
has proposed a standard in section
115.14 that restricts, but does not forbid,
the placement of juveniles in adult
facilities. This provision is in
recognition that it is possible under
certain circumstances that adult and
juvenile populations potentially could
mix and it is important to clarify in
regulation that DHS seeks to restrict
such an outcome whenever possible.
The BJS previously reported that,
based on its surveys of facility
administrators, 20.6% of victims of
substantiated incidents of inmate-oninmate sexual violence in adult jails in
2005 were under the age of 18, and 13%
of such victims in 2006 were under 18,7
despite the fact that under-18 inmates
accounted for less than one percent of
the total jail population in both years.8
These findings derived from facility
responses to the BJS’s Survey of Sexual
Violence (SSV), which was
administered to a representative
sampling of jail facilities in addition to
all Federal and State prison facilities.
However, upon further review, BJS has
determined that these figures are not
statistically significant due to the small
number of reported incidents and the
small number of jails contained in the
sample. Indeed, in reporting data from
the 2007 and 2008 SSVs, BJS
determined that the standard errors
around the under-18 estimates for adult
jails were excessively large, and
consequently did not report the
estimates separately, but rather reported
combined figures for inmates under the
age of 25. BJS has now determined that
it should have done the same for 2005
and 2006.
However, this conclusion does not
impact the findings of the same BJS
surveys performed in State prisons,
which surveyed all State prisons (in
contrast to the jails surveys, which
included only a sampling of jails).
According to SSV reports, from 2005
through 2008, 1.5% of victims of
substantiated incidents of inmate-oninmate sexual violence in State prisons
7 See Beck, Sexual Violence Reported by
Correctional Authorities, 2005, Table 4, BJS (2006);
and Beck, Sexual Violence Reported by Correctional
Authorities, 2006, Appendix Table 5, BJS (2007).
8 See Minton, Jail Inmates at Midyear 2010—
Statistical Tables, Table 7, BJS (2011).
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75309
were under 18, even though under-18
inmates constituted less than 0.2% of
the State prison population. While the
number of such substantiated incidents
is small from 2005 through 2008—a
total of 10—the combined data indicates
that State prison inmates under the age
of 18 are more than eight times as likely
as the average State prison inmate to
have experienced a substantiated
incident of sexual abuse. Furthermore,
the true prevalence of sexual abuse is
undoubtedly higher than the number of
substantiated incidents, due to the fact
that many incidents are not reported,
and some incidents that are reported are
not able to be verified and thus are not
classified as ‘‘substantiated.’’ Indeed, it
is quite possible that prison inmates
under 18 are more reluctant than the
average inmate to report an incident
because of their age and relative
newness to the prison system.
DOJ’s review of State procedures in its
final rule indicates that at least 28 States
have laws, regulations, or policies that
restrict the confinement of juveniles in
adult facilities in varying degrees. Some
jurisdictions house these juveniles in
juvenile facilities until they reach a
threshold age and then transfer them to
an adult facility. Other jurisdictions
require physical separation or sight and
sound separation between these
juveniles and adult offenders. Yet other
jurisdictions maintain dedicated
programs, facilities, or housing units for
juveniles in the adult system. Overall,
there appears to be a national trend
toward limiting interaction between
juveniles and adult inmates. In recent
years, a number of States have imposed
greater restrictions on the placement of
juveniles in adult facilities or have
passed legislation to allow juveniles
tried as adults to be housed in juvenile
facilities.9
9 See 77 FR 37106, 37128 n.14 (June 20, 2012)
(citing 42 Pa. C.S.A. § 6327 (under-18 Pennsylvania
inmates awaiting trial as adults may be detained in
juvenile facilities until reaching 18); Va. S.B. 259,
2010 Gen. Assem., Reg. Sess. (eff. July 1, 2010)
(presumption that under-18 Virginia inmates
awaiting trial as adults be held in juvenile
facilities); Colo. Rev. Stat. § 19–2–517 (2012)
(preventing 14 and 15-year-olds from being tried as
adults except in murder and sexual assault cases;
requires prosecutors to state reasons and hear from
defense counsel before exercising discretion to try
16 and 17-year-olds as adults); Ariz. S.B. 1009, 49th
Leg., 2d Reg. Sess. (2010) (eliminating eligibility of
some juveniles to be tried as adults by requiring a
criminal charge brought against the juvenile to be
based on their age at the time the offense was
committed and not when the charge was filed);
Utah H.B. 14, Gen. Sess. (Utah 2010) (granting
justice court judge discretion to transfer a matter at
any time to juvenile court if it is in the best interest
of the minor and the juvenile court concurs); Miss.
S.B. 2969, 2010 Leg., Reg. Sess. (2010) (limiting the
types of felonies that 17 year olds can be tried for
as an adult);Wash. Rev. Code
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Furthermore, several accrediting and
correctional associations have
formulated position statements, issued
standards, or provided comments urging
either that all persons under 18 be held
in juvenile facilities only, or that they be
housed separately from adult inmates.
For example, the National Commission
on Correctional Healthcare, the
American Jail Association, the National
Juvenile Detention Association, and the
National Association of Juvenile
Correctional Agencies all support
separate housing or placement for
juveniles.10 So too does the American
Bar Association.11
Although many jurisdictions have
moved away from incarcerating adults
with juveniles, a significant number of
juveniles continue to be integrated into
the adult inmate population. DOJ
estimates that in 2009, approximately
2,778 juveniles were incarcerated in
State prisons and 7,218 were held in
local jails.12
Taking these statistics and DHS
operational requirements into
§ 13.04.030(1)(e)(v)(E)(III) (2012) (allowing juveniles
to be transferred back to juvenile court upon
agreement of the defense and prosecution); Wash.
Rev. Code § 13.40.020 (14) (providing that juveniles
previously transferred to adult court are not
automatically treated as adults for future charges if
found not guilty of original charge); 2009 Nev. Stat.
239 (raising the age a juvenile may be
presumptively certified as an adult from 14 to 16);
Me. Rev. Stat. Ann. tit. 17–A § 1259 (2011)
(providing that juveniles under 16 who receive
adult prison sentence must serve sentence in
juvenile correctional facility until their 18th
birthday); 2008 Ind. Acts 1142–1144 (limiting
juvenile courts’ ability to waive jurisdiction to
felonies and requiring access for Indiana criminal
justice institute inspection and monitoring of
facilities that are or have been used to house or hold
juveniles); Conn. Gen. Stat. § 54–76b–c (2012)
(creating presumption that 16–17 year olds are
eligible to be tried as youthful offenders unless they
are charged with a serious felony or had previously
been convicted of a felony or adjudicated a serious
juvenile offender); 75 Del. Laws 269 (2005) (limiting
Superior Court’s original jurisdiction over robbery
cases involving juveniles to crimes committed by
juveniles who had previously been adjudicated
delinquent for a felony charge and thereafter
committed a robbery in which a deadly weapon was
displayed or serious injury inflicted); 705 Ill. Comp.
Stat. 405/5–130 (2011) (eliminating the requirement
that 15–17 year olds charged with aggravated
battery with a firearm and violations of the Illinois
Controlled Substances Act, while on or near school
or public housing agency grounds, be tried as
adults)).
10 See Letter from Campaign from Youth Justice,
et al., to Attorney General Holder, at 4, April 4,
2011; NCCHC Position Statement, Health Services
to Adolescents in Adult Correctional Facilities,
adopted May 17, 1998, https://www.ncchc.org/
resources/statements/adolescents.html.
11 See ABA Criminal Justice Standards on the
Treatment of Prisoners, at 23–3.2(b), https://
www.americanbar.org/content/dam/aba/
publications/criminal_justice_standards/
Treatment_of_Prisoners.authcheckdam.pdf.
12 See West, Prison Inmates at Midyear 2009—
Statistical Tables, Table 21, BJS (Rev. 2011);
Minton, Jail Inmates at Midyear 2010—Statistical
Tables, Table 6, BJS (Rev. 2011).
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consideration, DHS has decided to
propose standards aimed at preventing
unsupervised contact with adults
without inadvertently causing harm to
juveniles. The standard requires
juveniles to be detained in the least
restrictive setting appropriate to the
juvenile’s age and special needs,
provided that such setting is consistent
with the need to protect the juvenile’s
well-being and that of others, as well as
any other laws, regulations or legal
requirements.
In section 115.14, Juvenile and family
detainees, the proposed standard for ICE
immigration detention facilities is
consistent with ICE’s Family Detention
and Intake Guidance and recognizes that
in some circumstances ICE detains
families together. Under this standard,
ICE immigration detention facilities
would not be required to hold juveniles
apart from adults if the adult is a
member of the family unit and no other
adult non-relative detainees are in the
same detention cell, and provided there
are no safety or security concerns with
the arrangement. ICE policy and the
standards would further require that
facilities provide priority attention to
unaccompanied alien children, as
defined by 6 U.S.C. 279, whom DHS is
legally required to transfer to a HHS
Office of Refugee Resettlement facility
within 72 hours, except in exceptional
circumstances. If the unaccompanied
alien child has been convicted of a
sexual abuse-related crime as an adult,
ICE will provide the entity taking
custody of the juvenile—generally the
facility or the HHS Office of Refugee
Resettlement—with the releasable
information regarding the conviction(s)
to ensure the appropriate placement of
the alien in an HHS Office of Refugee
Resettlement facility.
Section 115.114, the standard for
detaining juveniles in holding facilities,
leaves open the possibility that families
detained while travelling or living
together may be detained together,
while providing that unaccompanied
juveniles be held separately from adult
detainees. This distinction is intended
to protect unaccompanied juveniles
who may be at an increased
vulnerability to sexual abuse by virtue
of their unaccompanied status but
permit families travelling together to
remain together while confined for
temporary processing or other agency
operations.
With these sections, DHS is mindful
of agency concerns regarding cost,
feasibility, and preservation of State law
prerogatives. The proposed standard
still affords facilities and agencies some
flexibility in devising an approach to
protecting juveniles. Compliance may
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be achieved by, for example: (1)
Confining juveniles to a separate unit,
(2) transferring juveniles to a facility
within the agency that enables them to
be confined to a separate unit, (3)
entering into a cooperative agreement
with an outside jurisdiction to enable
compliance, or (4) ceasing to confine
juveniles in adult facilities as a matter
of policy, or State or local law. Agencies
may, of course, combine these
approaches as they see fit.
Sections 115.15 and 115.115 address
limits on cross-gender viewing and
searches. The proposed rule would
require policies and procedures that
enable detainees to shower (where
showers are available), perform bodily
functions, and change clothing without
being viewed by staff of the opposite
gender, except in exigent circumstances
or when such viewing is incidental to
routine cell checks or is otherwise
appropriate in connection with a
medical examination or bowel
movement under medical supervision.
The proposed rule would also require
that staff of the opposite gender
announce their presence when entering
an area where detainees are likely to be
showering, performing bodily functions,
or changing clothing. The rule would
further prohibit cross-gender strip
searches except in exigent
circumstances, or when performed by
medical practitioners, and prohibits
facility staff from conducting body
cavity searches of juveniles, requiring
instead that all body cavity searches of
juveniles be referred to a medical
practitioner. These DHS provisions are
the same for immigration detention
facilities and holding facilities, and
reflect the existing policies related to
ICE immigration detention operations.
In Subpart A, the DHS proposal
imposes limits on immigration
detention facilities’ cross-gender
searches that are broader in scope than
the DOJ PREA final rule, generally
prohibiting cross-gender pat-down
searches of all detainees, male or
female. The DOJ regulations governing
adult prisons and jails prohibit crossgender pat-down searches of female
inmates only, with a relatively narrow
exception for exigent circumstances.
DHS adopts the DOJ standard on crossgender pat-down searches of female
inmates (for DHS’s purposes, female
detainees). DHS has also incorporated
the PBNDS 2011 standard prohibiting
cross-gender pat-down searches of male
detainees, with an exception for
situations where, after reasonable
diligence, staff of the same gender is not
available at the time the pat-down
search is required or in exigent
circumstances. DHS intends this
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standard to require facilities to make
considerable efforts to facilitate samegender staff availability. Whereas DOJ’s
rule is being phased in over three to five
years, depending on the size of the
affected facility, DHS proposes
implementation of this standard at the
same time as all other requirements
placed on facilities through this
rulemaking. DHS is soliciting public
comment on this proposed approach to
restrictions on cross-gender pat-down
searches.
DOJ explained in its final rule that it
had received numerous comments on its
proposed limits on cross-gender patdown searches during the course of its
rulemaking. Multiple State and local
agencies expressed concern about a
complete prohibition on cross-gender
pat-down searches, as applied to male
inmates. The commenters wrote that
such a requirement might affect an
agency’s ability either to hire significant
numbers of additional male staff or to
lay off significant numbers of female
staff, due to their overwhelmingly male
inmate population and substantial
percentage of female staff. In addition,
many agencies expressed concern that
the necessary adjustments to their
workforce could violate Federal or State
equal employment opportunity laws.
DHS has taken note of these comments
in formulating its proposals but believes
its circumstances can accommodate the
proposed prohibition of cross-gender
pat-down searches unless staff of the
same gender is not available, after
reasonable diligence, or in exigent
circumstances.
Accordingly, and consistent with
existing DHS policies, in Section
115.15, DHS proposes to prohibit crossgender pat-down searches in its
immigration detention facilities unless,
after reasonable diligence, staff of the
same gender is not available at the time
the pat-down search is required (for
male detainees), or in exigent
circumstances (for female and male
detainees alike). DHS proposes to
require that all cross-gender pat-down
searches conducted pursuant to these
exceptions be documented. Crossgender pat-downs are not prohibited in
the holding facility context, in Section
115.115, because of the exigencies
encountered in those environments and
the staffing and timing constraints in
those small and short-term facilities.
Sections 115.15 and 115.115,
consistent with existing DHS policy,
also bar examinations of detainees for
the sole purpose of determining gender
status. Rather, if the detainee’s gender is
unknown, it may be determined during
conversations with the detainee, by
reviewing medical records (if available),
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or, if necessary, learning that
information as part of a broader medical
examination conducted in private by a
medical practitioner. The proposed
standard also mandates that agencies
train security staff, in the immigration
detention facility context, and law
enforcement staff, in the holding facility
context, in proper procedures for
conducting all pat-down searches,
including cross-gender pat-down
searches and searches of transgender
and intersex detainees. The DHS
standard mandates that all pat-down
searches be conducted in a professional
and respectful manner, and in the least
intrusive manner possible consistent
with security needs, including officer
safety concerns, and existing agency
policy.
Sections 115.16 and 115.116 govern
the accommodation of detainees with
disabilities and detainees with limited
English proficiency (LEP). As the
NPREC noted, ‘‘[t]he ability of all
detainees to communicate effectively
and directly with staff, without having
to rely on detainee interpreters, is
crucial for ensuring that they are able to
report sexual abuse as discreetly as
possible.’’ Prison/Jail Standards at 13.
Moreover, the Americans with
Disabilities Act (ADA) requires State
and local governments and their
instrumentalities to make their services,
programs, and activities accessible to
individuals with all types of disabilities.
See 42 U.S.C. 12132. The ADA also
requires State and local governments to
ensure that their communications with
individuals with disabilities affecting
communication (blindness, low vision,
deafness, or other speech or hearing
disability) are as effective as their
communications with individuals
without disabilities. In addition, the
ADA requires each State and local
government to make reasonable
modifications to its policies, practices,
and procedures when necessary to avoid
discrimination against individuals with
disabilities, unless it can demonstrate
that making the modifications would
fundamentally alter the nature of the
relevant service, program, or activity.
These nondiscrimination obligations
apply to all confinement facilities
operated by or on behalf of State or local
governments. See Pa. Dep’t of Corr. v.
Yeskey, 524 U.S. 206, 209–10 (1998).
DHS’s proposed standard requires all
facilities to take appropriate steps to
ensure that detainees with disabilities
(including, for example, detainees who
are deaf or hard of hearing, those who
are blind or have low vision, or those
who have intellectual, psychiatric, or
speech disabilities) have an equal
opportunity to participate in or benefit
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75311
from all aspects of the agency’s efforts
to prevent, detect, and respond to sexual
abuse. Such steps would include, when
necessary, ensuring effective
communication with detainees who are
deaf or hard of hearing, and providing
access to in-person, telephonic, or video
interpretive services. In addition, DHS
will provide all facilities with written
materials related to sexual abuse in
formats or through methods that ensure
effective communication with detainees
with disabilities, including detainees
who have intellectual disabilities,
limited reading skills, or who are blind
or have low vision. Consistent with DOJ
regulations under title II of the ADA, 28
CFR 35.164, the agency would not be
required to take actions that it can
demonstrate would result in a
fundamental alteration in the nature of
a service, program, or activity, or in
undue financial and administrative
burdens.
Similarly, DHS agencies would be
required to take reasonable steps to
ensure meaningful access for LEP
detainees to all aspects of the agency’s
efforts to prevent, detect, and respond to
sexual abuse, including steps to provide
in-person or telephonic interpretive
services to enable effective, accurate,
and impartial interpretation, both
receptively and expressively, using any
necessary specialized vocabulary. These
requirements are consistent with the
existing DHS-wide Language Access
Plan.13
With respect to relying on detainee
interpreters, 115.16(c) limits reliance on
detainee interpreters in circumstances
related to allegations of sexual abuse.
Specifically, the DHS standard proposes
to require that the agency provide access
to in-person or telephonic interpretation
services by someone other than another
detainee when dealing with issues
related to sexual abuse, but would not
prohibit reliance on a detainee
interpreter where the detainee expresses
a preference for a detainee interpreter
and the agency determines that such
interpretation is appropriate. A detainee
would not be an appropriate interpreter
if he or she is the alleged abuser or a
witness to the alleged abuse, or has
some significant relationship with the
alleged abuser. The provision of
interpreter services by minors, alleged
abusers, detainees who witnessed the
alleged abuse, and detainees who have
a significant relationship with the
alleged abuser to provide interpretation
is not appropriate in matters relating to
allegations of sexual abuse. This
provision is intended to ensure access to
13 The DHS Language Access Plan can be found
at www.dhs.gov/crcl-lep.
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the effective, accurate, and impartial
interpretation that is essential when
addressing sensitive issues such as
those involving allegations of sexual
abuse, but to accommodate detainees
who prefer to have another detainee
interpret for them.
DHS re-emphasizes that the
requirements in this proposed standard
are not intended to relieve agencies of
any preexisting obligations imposed by
the ADA, the Rehabilitation Act of 1973,
or the meaningful access requirements
of Title VI of the Civil Rights Act of
1964, 42 U.S.C. 2000d et seq., and
Executive Order 13166. DHS encourages
all agencies to refer to the relevant
statutes, regulations, and guidance
when determining the extent of their
obligations.
Sections 115.17 and 115.117 govern
hiring and promotion decisions. Like
the DOJ standards, the proposed DHS
standard would restrict agencies’ ability
to hire or enlist the services of anyone
who may have contact with detainees
and who previously engaged in sexual
abuse in a prison, jail, holding facility,
community confinement facility,
juvenile facility, or other institution (as
defined in 42 U.S.C. 1997); who has
been convicted of engaging or
attempting to engage in sexual activity
facilitated by force, overt or implied
threats of force, or coercion, or if the
victim did not consent or was unable to
consent or refuse; or who has been
civilly or administratively adjudicated
to have engaged in such activity. The
agency or facilities will also be required
to consider any substantiated allegations
of sexual abuse made against staff in
making promotion decisions.
Finally, like the DOJ final rule, the
DHS proposal would require a
background investigation before the
agency or facility hires employees, staff,
or contractors who may have contact
with detainees. These background
investigations will include accessing the
standard criminal records databases
maintained and widely used by law
enforcement agencies. To ensure that
facilities perform a background
investigation consistent with agency
standards, DHS proposes to require the
facility to provide written
documentation to the agency upon
request showing the elements
completed in the background check and
the facility’s final determination for the
agency’s approval. DHS will repeat
these background checks for agency
employees every five years. In addition,
these proposed standards would require
an updated background investigation
every five years for those facility staff
who may have contact with detainees
and who work in immigration-only
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detention facilities. Unlike the DOJ final
rule, however, DHS does not propose to
require all facilities to repeat the
background checks every five years; the
burden of this requirement seems to
outweigh its beneficial effect,
particularly given that many facility
staff do not frequently have contact with
immigrant detainees.
Sections 115.18 and 115.118 require
agencies and facilities to consider the
effect of any facility designs,
modifications, or technological
upgrades on efforts to combat sexual
abuse when designing or expanding
facilities and when installing or
updating a video monitoring system or
other technology. DHS believes that it is
appropriate to require agencies to
consider the impact of their physical
and technological upgrades. Indeed, the
American Correctional Association has
recommended that, as a means of
deterring sexual abuse, agencies should
promote facility design that enables
effective supervision within facilities,
including, for instance, direct lines of
sight, video monitoring systems, and
other physical and technology features.
American Correctional Association,
Public Correctional Policy on Offender
on Offender Sexual Abuse (Jan. 12,
2005; Jan. 27, 2010). DHS agrees that it
needs to be forward-looking in its
strategy to prevent sexual abuse in its
immigration detention and holding
facilities, and believes that this
provision will institute appropriate
strategic thinking within DHS and its
partners for future construction.
Responsive Planning: Sections 115.21,
115.121, 115.22 and 115.122. DHS
believes it is important to establish
standards that address how facilities are
expected to respond to an incident of
sexual abuse. Sections 115.21 and
115.121 set forth requirements to ensure
each agency and facility establishes a
protocol for the investigation of
allegations of sexual abuse, or the
referral of allegations of sexual abuse to
the appropriate investigative authorities.
Agencies and facilities are also required
to establish protocols that maximize the
potential for preserving usable physical
evidence for administrative or criminal
proceedings, and are required to publish
the agency and facility protocols on
their respective Web sites, or otherwise
make those protocols available to the
public. In addition, all detainee victims
must be provided access to a forensic
medical examination as appropriate, at
no cost to the detainee.
These proposed standards make clear
that DHS components and facilities
must have protocols in place that
maximize the potential for obtaining
usable physical evidence. Similarly, the
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proposed standard specifies that the
protocol must be developmentally
appropriate for juveniles, where
applicable. Recognizing the value of
victim advocacy services in these
circumstances, the proposed standards
provide that immigration detention
facilities must establish procedures to
make available, to the extent possible,
outside victim services following
incidents of sexual abuse. DHS holding
facilities would also be required to
consider how best to utilize available
community resources and victim
services and if, in connection with an
allegation of sexual abuse at a holding
facility, the detainee is transported for
an examination to an outside hospital
that offers victim advocacy services, the
detainee would be permitted to use such
services to the extent available,
consistent with DHS security needs.
This proposed standard takes into
account the fact that some DHS
component agencies and facilities are
not responsible for investigating alleged
sexual abuse within their facilities and
that those agencies and facilities may
not be able to dictate the conduct of
investigations conducted by outside
entities, such as law enforcement
agencies. In such situations, the
proposed standard requires the agency
or facility to request that the
investigating entity follow the relevant
investigatory requirements set out in the
standard.
Sections 115.22 and 115.122 propose
standards to ensure that, to the extent
the agency is responsible for
investigating allegations of sexual abuse,
an administrative and/or criminal
investigation is completed for all
allegations of sexual abuse. Where the
agency or facility is not responsible for
conducting such investigation, they
would ensure that the allegations are
promptly referred to an appropriate
entity with the legal authority to
conduct the investigation. The DHS
proposal thus mandates that each DHS
component have in place policies to
ensure that allegations of sexual abuse
either are investigated by the agency or
are promptly referred to an appropriate
entity for investigation. In order for the
PSA Coordinator to have appropriate
oversight of these allegations across the
agency, and to support the PSA
Coordinator’s recordkeeping and
reporting functions, all incidents of
detainee sexual abuse would be
promptly reported to the PSA
Coordinator, and to the appropriate
offices within the agency and within
DHS.
Sections 115.22 and 115.122 also
would require that when an allegation
of detainee abuse that is criminal in
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nature is being investigated, each
agency shall ensure that any alleged
detainee victim of criminal sexual abuse
is provided access to relevant
information regarding the U
nonimmigrant visa process. DHS
intends to implement this requirement
by providing either the phone number
to an appropriate national hotline or
relevant informational materials printed
by U.S. Citizenship and Immigration
Services. In addition, facilities are
required to post lists of pro bono legal
service providers with contact
information and Legal Orientation
Program presentations and materials to
assist detainees seeking information
regarding the U nonimmigrant visa
process. Should the available
informational resources change, DHS
will change its practices accordingly to
satisfy this requirement.
Training and Education: Sections
115.31, 115.131, 115.32, 115.132,
115.33, 115.34, 115.134, and 115.35.
DHS believes that training for
individuals who may have contact with
detainees is a key component in
combating sexual abuse. Training will
create awareness on the topic of sexual
abuse in facilities, clarify staff
responsibilities, provide staff with
information regarding reporting
mechanisms, and provide specialized
information for staff with key roles in
responding to sexual abuse. In addition,
each standard in this category requires
documentation that the required
training was provided. In order to
facilitate compliance, such
documentation may be electronic.
Sections 115.31 and 115.131 require
that all employees who have contact
with detainees, and all facility staff
receive training concerning sexual
abuse, with refresher training to be
provided thereafter as appropriate. This
training must include at a minimum: the
agency’s zero-tolerance policies for all
forms of sexual abuse; the right of
detainees and staff to be free from
sexual abuse, and from retaliation for
reporting sexual abuse; definitions and
examples of prohibited and illegal
sexual behavior; recognition of
situations where sexual abuse may
occur; recognition of physical,
behavioral, and emotional signs of
sexual abuse, and methods of
preventing such occurrences; and
procedures for reporting knowledge or
suspicion of sexual abuse; the
requirement to limit reporting of sexual
abuse to personnel with a need-to-know
in order to make decisions concerning
the victim’s welfare and for law
enforcement or investigative purposes.
The agency or facility would need to
document completion of the training
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and complete the training for current
staff within one year of the effective
date of the standard for immigration
detention facilities and within two years
of the effective date of the standard for
holding facilities. The proposal permits
holding facilities a longer period of time
to implement the training. In light of the
very large number of CBP personnel
who will receive this training, two years
is a more appropriate timeframe to
ensure completion of the training. In the
meantime, the agency will publish and
disseminate to all agency personnel the
agency policy mandating zero tolerance
toward all forms of sexual abuse.
Section 115.32 ensures that
volunteers and contractors at
immigration detention facilities have
been trained on their responsibilities
under the agency’s and the facility’s
sexual abuse prevention, detection,
intervention and response policies and
procedures; in holding facilities,
volunteers and contractors are covered
by 115.131.
DHS believes that educating detainees
concerning sexual abuse protections is
of the utmost importance. Section
115.132 requires the agency to make
public its zero-tolerance policy
regarding sexual abuse and ensure that
key information regarding the agency’s
zero-tolerance policy is visible or
continuously and readily available to
detainees, for example, through posters,
detainee handbooks, or other written
formats.
Separately, section 115.33 requires
each immigration detention facility to
inform detainees about the agency’s and
the facility’s zero-tolerance policies
regarding sexual abuse. DHS believes
that regular communication and
publication of these policies are
important means of creating the
appropriate tone to ensure compliance.
As such, section 115.33 requires that
information about combating sexual
abuse is provided to individuals in
custody upon intake. Several agency
commenters to the DOJ PREA proposed
rule expressed concern that DOJ’s
standard would impose a vague
mandate by requiring the provision of
comprehensive education to detainees
within a ‘‘reasonably brief period of
time’’ following intake. The proposed
DHS standard for immigration detention
facilities requires the provision of
comprehensive education upon intake,
and not following intake. Given the
relatively short amount of time that
individuals are detained in DHS holding
facilities, this requirement is limited to
Subpart A.
Sections 115.34 and 115.134 require
that the agency or facility provide
specialized training to agency or facility
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investigators who conduct
investigations into allegations of sexual
abuse at confinement facilities, and
require that all investigations into
alleged sexual abuse be conducted by
qualified investigators. To the extent not
already included in agency training, ICE
and CBP will train investigators on
sexual abuse investigations, covering
interviewing sexual abuse and assault
victims; sexual abuse evidence
collection in confinement settings; and
the criteria and evidence required for
administrative action or prosecutorial
referral. DHS is also interested in
receiving feedback on how it can
provide additional assistance to
facilities in developing and
administering such training.
Section 115.35 requires that the
agency provide specialized training to
DHS employees who serve as full- and
part-time medical practitioners and
mental health practitioners in
immigration detention facilities where
medical and mental health care is
provided. DHS believes that
investigative and medical staff members
serve vital roles in the response to
sexual abuse and, due to the nature of
their responsibilities, require additional
training in order to be effective. With
regard to facility medical staff, the
standard requires that the agency review
and approve the facility’s policy and
procedures to ensure that facility
medical staff is trained in procedures for
examining and treating victims of sexual
abuse. A parallel standard is not
included for DHS holding facilities,
which usually do not employ or
contract for medical or mental health
practitioners.
Assessment for Risk of Sexual
Victimization and Abusiveness:
Sections 115.41, 115.141 and 115.42
and 115.43. DHS believes that the
proper assessment of detainees is
crucial to preventing sexual abuse.
Protection of detainees in immigration
detention and holding facilities requires
that agencies and facilities obtain
information from detainees and use
such information to assign detainees to
facilities or specific cells in which they
are likely to be safe. These proposed
standards are substantially similar to
those implemented by DOJ, except that
reassessment is required to take place
60–90 days after the initial assessment,
rather than 30 days after. The average
length of stay in ICE detention is 26
days, with many detainees staying just
a few days or weeks more than that
average. In addition, ICE has a robust
onsite monitoring and review process
that includes routine interaction with
ICE detainees. This monitoring would
allow ICE to be made aware of any
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additional, relevant information after
the intake assessment, to determine
whether a reassessment is appropriate.
Sections 115.41 and 115.141 require
that before placing any detainees
together in a holding facility or housing
unit, staff consider whether, based on
the information before them, a detainee
may be at a high risk of being sexually
abused or abusing others. When
appropriate, staff shall take necessary
steps to mitigate any such danger to the
detainee. In the list of factors to
consider, DHS proposes, to the extent
that the information is available, that
the agency consider whether the
detainee has a mental, physical, or
developmental disability; the age of the
detainee; the physical build and
appearance of the detainee; whether the
detainee has previously been
incarcerated; the nature of the detainee’s
criminal history; whether the detainee
has any convictions for sex offenses
against an adult or child; whether the
detainee has self-identified as being gay,
lesbian, bisexual, transgender, intersex,
or gender nonconforming; whether the
detainee has self-identified as having
previously experienced sexual
victimization; and the detainee’s own
concerns about his or her physical
safety. For holding facilities, under
section 115.141, the proposed standard
adds an abbreviated risk assessment
process for facilities that do not hold
detainees overnight, and a more
extensive risk assessment process for
holding facilities where detainees may
be held overnight with other detainees.
Section 115.42 requires
administrators of immigration detention
facilities to use the information obtained
in an assessment interview in order to
separate individuals who are at risk of
abuse from those at high risk of being
sexually abusive. The proposed DHS
regulation is substantially similar to the
NPREC’s standard with one exception.
The proposed standard does not include
the NPREC’s recommended ban on
assigning detainees to particular units
solely on the basis of sexual orientation
or gender identity, but requires that the
facility consider detainees’ gender selfidentification and make an
individualized assessment of the effects
of placement on detainee mental health
and well-being. DHS believes that
retaining some flexibility will allow
facilities to employ a variety of options
tailored to the needs of detainees with
a goal of offering the least restrictive and
safest environment for individuals.
Section 115.43 governs the use of
protective custody. Due to the
importance of protective custody, DHS
believes it warrants its own standard,
applicable only to immigration
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detention facilities, as other types of
DHS confinement facilities usually do
not have protective custody assignments
of this nature. The proposed standard
provides that administrative segregation
shall be used to protect vulnerable
populations only in those instances
where reasonable efforts have been
made to provide appropriate housing,
and shall be used for the least amount
of time practicable, and when no other
viable housing options exist, as a last
resort. DHS recognizes that protective
custody may be necessary in a
confinement setting to ensure the safety
of detainees and staff. However, DHS
also notes that the prospect of
placement in segregated housing may
deter detainees from reporting sexual
abuse. The new standard attempts to
balance these concerns and ensure that
alternatives to involuntary protective
custody are considered. In addition, the
proposed standard reflects the NPREC’s
recommendation that, to the extent
possible, facilities that place detainees
in administrative segregation for
protective custody should provide those
detainees access to programs, services,
visitation, counsel and other services
available to the general population to
the maximum extent practicable.
Reporting: Sections 115.51, 115.151,
115.52, 115.53, 115.54, and 115.154.
DHS believes that reporting instances of
sexual abuse is critical to deterring
future acts.
Sections 115.51 and 115.151 require
agencies to enable detainees to privately
report sexual abuse, retaliation for
reporting sexual abuse, and related
misconduct. The NPREC
recommendations proposed that
agencies be required to allow detainees
to report abuse to an outside public
entity, which would then forward
reports to the facility head ‘‘except
when [a detainee] requests
confidentiality.’’ Several commenters to
the DOJ PREA rulemaking expressed
concern that a public entity would be
required to ignore reports of criminal
activity if a detainee requested
confidentiality. DHS proposes that
detainees be provided instruction on
how to contact the DHS Office of the
Inspector General or, as appropriate,
another designated office, to
confidentially report sexual abuse.
However, DHS will also provide and
facilities shall inform the detainees of at
least one way for detainees to report
sexual abuse to a public or private entity
or office not part of the agency, and that
is able to receive and immediately
forward detainee’s reports of sexual
abuse to agency officials allowing the
detainee to remain anonymous, upon
request. In light of the short time in
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which individuals are detained in
holding facilities, the requirement in
section 115.151 would be met if
information regarding consular
notification is posted in holding
facilities. DHS further proposes that
policies and procedures include
provisions for staff to accept reports of
sexual abuse, and to promptly
document any verbal reports.
Consistent with existing policy, DHS
employees may report misconduct
outside their chain of command to, for
instance, the Joint Intake Center;
likewise, the proposed rule requires an
option for staff of non-chain-ofcommand reporting.
Section 115.52 governs grievance
procedures and the methods by which
detainees can, if they choose, file
grievances related to sexual abuse. First,
the proposal requires that facilities not
impose any deadline on the submission
of a grievance regarding sexual abuse
incidents. Detainees are to be permitted
to file a formal grievance at any time
before, during, after, or in lieu of
lodging an informal complaint related to
sexual abuse. The facility then must
issue a decision on the formal grievance
within five days of receipt. To prepare
a grievance, a detainee may obtain
assistance from fellow detainees, the
housing officer, other facility staff,
family members, attorneys, or outside
advocates. DHS does not use a formal
grievance process to govern holding
facilities because of the short-term,
transitory nature of detention in such
facilities; detainees can use any of the
methods in Section 115.151 to report
misconduct.
Several State correctional agencies
asserted in comments to the DOJ PREA
rulemaking that imposing a standard
governing the exhaustion of
administrative remedies would
undermine or violate the Prison
Litigation Reform Act (PLRA). DOJ
determined that its corresponding
standards were not, however,
inconsistent with the PLRA. And in any
event, the PLRA does not apply to
immigration detainees, even if they are
housed in correctional settings. See 18
U.S.C. 1997e.
Several agency commenters to the
DOJ PREA rulemaking stated that a
requirement to treat any notification of
an alleged sexual assault as a grievance,
regardless of the method by which
notification was made (other than by
notification by a fellow inmate), would
pose administrative difficulties,
particularly when such notification
came from a third party. Commenters
suggested that it would be burdensome
and impracticable to require staff to
complete a grievance form on behalf of
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allegation of sexual abuse. DHS agrees
with these commenters and has not
included a similar provision in its
proposed rule.
Section 115.53 requires that agencies
provide detainees access to outside
confidential support services, similar to
the NPREC’s recommended standard.
The DHS proposed standard modifies
the NPREC’s recommended language,
which would require communications
to be ‘‘private, confidential, and
privileged, to the extent allowable by
Federal, State, and local law.’’ Instead,
the proposed DHS rule requires that
each facility consider utilizing available
community resources and services to
provide valuable expertise and support
in the areas of crisis intervention,
counseling, investigation and the
prosecution of sexual abuse perpetrators
to most appropriately address victims’
needs. DHS recognizes that allowing
detainee access to outside victim
advocacy organizations can greatly
benefit detainees who have experienced
sexual abuse yet who may be reluctant
to report it to facility administrators,
and notes that some agencies, such as
the California Department of Corrections
and Rehabilitation, have established
successful pilot programs working with
outside organizations.14 At the same
time, DHS recognizes that
communications with outsiders raise
legitimate security concerns. The
proposed DHS standard strikes a
balance by allowing confidentiality
while recognizing the importance of
safeguarding security. The DHS
proposal further requires each facility’s
written policies to establish procedures
to include outside agencies in the
facility’s sexual abuse prevention and
intervention protocols, if resources are
available, and to make available to
detainees the names of local
organizations that can assist detainee
victims of sexual abuse. PSA
Compliance Managers are in the best
position to assist with identifying these
community victim service resources
given their familiarity with the local
environment and should make such
contact information available to victims.
Under current ICE policy, the PSA
Compliance Managers are required to
develop written protocols, including
any available outside agencies/resources
in the facility’s sexual abuse and assault
prevention and intervention program.
14 See Testimony of Wendy Still, Assoc. Dir. of
Female Offender Program and Services, Cal. Dep’t
of Corr. and Rehab., Testimony at a Public Hearing
of the National Prison Rape Elimination
Commission, Confidentiality and Reporting:
Medical Ethics, Victim Safety, and Facility Security
230 (Dec. 5, 2007).
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Again, DHS does not propose a
requirement for access to outside
confidential support services in DHS
holding facilities due to the very shortterm, transitory nature of detention in
such facilities.
Sections 115.54 and 115.154 require
that immigration detention facilities and
holding facilities establish a method to
receive third-party reports of sexual
abuse and publicly distribute
information on how to report such
abuse on behalf of a detainee. DHS
believes this provision is essential to
promptly receiving reports of sexual
abuse, as some reports of sexual abuse
may undoubtedly come to the attention
of third parties before they are brought
to the agency.
Official Response Following a
Detainee Report: Sections 115.61,
115.161, 115.62, 115.162, 115.63,
115.163, 115.64, 115.164, 115.65,
115.165, 115.66, 115.67 and 115.167.
DHS proposes standards addressing the
appropriate official response following a
report of sexual abuse. These standards
are intended to ensure coordinated,
thorough, and complete reactions to
reports of sexual abuse.
Sections 115.61 and 115.161 set forth
staff and agency reporting duties
regarding incidents of sexual abuse. The
standards require all staff to report
immediately and according to agency or
facility policy: (1) Any knowledge,
suspicion, or information regarding an
incident of sexual abuse that occurred
in any facility; (2) retaliation against
detainees or staff who reported such an
incident; and (3) any staff neglect or
violation of responsibilities that may
have contributed to an incident or
retaliation. The standards would
prohibit the agency from revealing any
information related to a sexual abuse
report to anyone other than to the extent
necessary to make medical treatment,
investigation, law enforcement, and
other security and management
decisions.
Sections 115.62 and 115.162 require
generally that when an agency employee
has a reasonable belief that a detainee is
subject to a substantial risk of imminent
sexual abuse, the agency must take
immediate action to protect the
detainee. Section 115.62 further places
this protection duty on facility staff,
given that in the immigration detention
facility context often the facility staff is
best positioned to take such protective
action, for example, when conducting
initial intake or receiving a detainee
from another facility.
Sections 115.63 sets forth
responsibilities for reporting allegations
of sexual abuse to other confinement
facilities. Upon receiving an allegation
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that a detainee was sexually abused, the
facility is required to: (1) If the alleged
sexual abuse occurred at a different
facility than where it was reported,
ensure that the appropriate office of the
facility where the sexual abuse is
alleged to have occurred is notified as
soon as possible, but no later than 72
hours after receiving the allegation; (2)
document the efforts taken under this
section; and (3) ensure the allegation is
referred for investigation, to the extent
that the facility that receives the
notification is covered by these
regulations. Section 115.163 proposes
that these same requirements also apply
to DHS holding facilities, but instead
places the reporting and documentation
requirements on the agency, given that
DHS components are responsible for the
management and operation of DHS
holding facilities.
Sections 115.64 and 115.164 address
responder duties. Upon learning of an
allegation that a detainee was sexually
abused, the first security staff member at
an immigration detention facility or law
enforcement staff member at a holding
facility to respond to the report, or his
or her supervisor, would be required to
separate the alleged victim and abuser,
and to preserve and protect, to the
greatest extent possible, any crime scene
until appropriate steps can be taken to
collect any evidence. If the abuse
occurred within a time period that still
allows for the collection of physical
evidence, the agency would be required
to request that the alleged victim not
take any actions that could destroy
physical evidence, including, as
appropriate, washing, brushing teeth,
changing clothes, urinating, defecating,
smoking, drinking, or eating. Similarly,
if the abuse occurred within a time
period that still allows for the collection
of physical evidence, the agency would
be required to ensure that the alleged
abuser does not take any actions that
could destroy physical evidence,
including, as appropriate, washing,
brushing teeth, changing clothes,
urinating, defecating, smoking,
drinking, or eating.
Sections 115.65 and 115.165 require a
coordinated approach to responding to
sexual abuse. This includes utilizing a
multidisciplinary team approach, with
appropriate information sharing, as
permitted by law, in the case of a
transfer of a victim of sexual abuse
between DHS facilities or from a DHS
facility to a non-DHS facility.
Section 115.66 requires the agency to
remove staff suspected of perpetrating
sexual abuse from all duties requiring
detainee contact pending the outcome of
an investigation. In Section 115.166, the
DHS proposal includes a similar
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requirement for holding facilities,
adjusted to reflect the smaller staff at
holding facilities that would make an
absolute rule administratively onerous.
The proposal requires supervisors to
affirmatively consider removing staff
pending the completion of an
investigation, and to remove them if the
seriousness and/or plausibility of the
allegation make such removal
appropriate.
Section 115.67 would require that
agency and/or facility staff, and
immigration detention facility
detainees, not retaliate against any
person, including a detainee, who
reports, complains about, or participates
in an investigation into an allegation of
sexual abuse, or for participating in
sexual activity as a result of force,
coercion, threats, or fear of force.
Section 115.167 prescribes the same
requirement for agency employees at
DHS holding facilities. Retaliation for
reporting instances of sexual abuse and
for cooperating with sexual abuse
investigations is a real and serious
threat in detention facilities. Fear of
retaliation, such as being subjected to
harsh or hostile conditions, being
attacked by other detainees, or suffering
harassment from staff, may prevent
many detainees and staff from reporting
sexual abuse, which in turn would make
it difficult to keep facilities safe and
secure.
Section 115.68 requires facilities to
take care to place detainee victims of
sexual abuse in a supportive
environment that represents the least
restrictive housing option possible. A
detainee in protective custody who has
been subjected to sexual abuse shall not
be returned to the general population
until proper re-assessment, taking into
consideration any increased
vulnerability of the detainee as a result
of the abuse, is completed. In addition,
section 115.68 proposes that detainee
victims shall not be held for longer than
five days in any type of administrative
segregation, except in unusual
circumstances or at the request of the
detainee. DHS does not propose such
post-allegation protective custody
requirements for the holding facility
context. Detainees in a holding facility
typically are in such confinement for a
short period of time only and,
accordingly, provision of post-allegation
protective custody is not appropriate.
Investigations: Sections 115.71,
115.171, 115.72, 115.172, 115.73. It is
important to set standards to govern
investigations of allegations of sexual
abuse. The DHS standard requires that
investigations by the agency or facility
with responsibility for investigating the
allegations of sexual abuse be prompt,
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thorough, objective, fair, and concluded
by specially trained, qualified
investigators. The standard does not
distinguish between third-party
allegations of abuse and allegations from
a victim, staff, etc. In instances where
the agency or facility does not
investigate allegations of sexual abuse, it
must refer the allegation to the
appropriate investigating authority.
Because sexual abuse often has no
witnesses and often leaves no visible
injuries, investigators must be diligent
in tracking down all possible evidence,
including collecting DNA and electronic
monitoring data, conducting interviews,
assessing the credibility of alleged
victims, witnesses, or suspects,
document each investigation by written
report, to include descriptions of the
physical and testimonial evidence,
reviewing prior complaints and reports
of sexual abuse involving the alleged
perpetrator, and retaining the report for
as a long as the alleged abuser is
detained or employed by the agency or
facility plus an additional five years.
The departure of the alleged abuser or
victim from the employment or control
of the facility or agency shall not
provide a basis for terminating an
investigation. Because of the delicate
nature of these investigations,
investigators should be trained in
conducting sexual abuse investigations.
The proposed DHS standard also
includes a requirement to establish a
process for an administrative
investigation of substantiated
allegations of sexual abuse, only after
consultation with the assigned criminal
investigative entity or after a criminal
investigation has concluded. Where a
criminal investigation determines that
an allegation was unsubstantiated, the
standard nonetheless requires a review
of any completed criminal investigation
reports to determine whether an
administrative investigation is necessary
or appropriate. DHS intends the
standard to ensure proper sequencing of
the investigations and preservation of
investigative resources should the
leading investigation, usually the
criminal investigation, find the
allegations unsubstantiated.
Sections 115.72 and 115.172 set forth
parameters on the evidentiary standard
for administrative investigations
regarding allegations of sexual abuse.
Under these proposed standards, when
an administrative investigation is
undertaken the agency shall impose no
standard higher than a preponderance of
the evidence in determining whether
allegations of sexual abuse are
substantiated. This is the same standard
found in the DOJ PREA final rule.
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Section 115.73 addresses the agency’s
duty to report to detainees, a topic that
the NPREC included as part of its
Investigations (IN)-1 standard.
Specifically, following an investigation
into a detainee’s allegation of sexual
abuse, the agency shall notify the
detainee as to the result of the
investigation when the detainee is still
in immigration detention, as well as
where otherwise feasible. DHS does not
propose a comparable provision to
govern holding facilities, because
holding facility detainees would no
longer be in the custody of the holding
facility by the time the investigation is
completed.
The NPREC’s recommended standard
would require a facility to ‘‘notif[y]
victims and/or other complainants in
writing of investigation outcomes and
any disciplinary or criminal sanctions,
regardless of the source of the
allegation.’’ Several agency commenters
to the DOJ PREA rulemaking expressed
concern with the NPREC’s proposal on
security or privacy grounds. These
commenters questioned the wisdom of
providing written information to victims
and third-party complainants, where
such information could easily become
widely known throughout the facility
and possibly endanger other detainees
or staff. In addition, commenters noted
that privacy laws may restrict the
dissemination of certain information
about staff members. DHS believes that
its proposed standard strikes the proper
balance between staff members’ privacy
rights and the detainee’s right to know
the outcome of the investigation, while
protecting the security of both detainees
and staff.
Discipline: Sections 115.76, 115.176,
115.77 and 115.177. DHS proposes two
standards to ensure appropriate and
proper discipline in relation to cases of
sexual abuse with regard to staff,
contractors, and volunteers. These
standards are substantively similar to
those offered by the NPREC and DOJ in
its PREA final rule.
Sections 115.76 and 115.176 govern
disciplinary sanctions for staff members
who violate sexual abuse policies,
regardless of whether they have been
found criminally culpable. Imposing
appropriate disciplinary sanctions
against such staff members is critical not
only to providing a just resolution to
substantiated allegations of sexual abuse
and sexual harassment but also to
fostering a culture of zero tolerance for
such acts. Staff are subject to
disciplinary sanctions up to and
including removal for violating agency
sexual abuse rules, policies or
standards. Removal from their position
and from the Federal service is the
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presumptive disciplinary sanction for
staff who have engaged in or threatened
to engage in sexual abuse, as defined
under the definition of sexual abuse of
a detainee by a staff member, contractor,
or volunteer, paragraphs (1)–(4) and (7)–
(8). Sections 115.76 and 115.176 further
require the agency to review and
approve policies and procedures
regarding disciplinary sanctions for staff
at immigration detention facilities and
holding facilities. In order to limit the
potential for additional sexual abuse by
former staff, sections 115.76 and
115.176 would require that all removals
or resignations in lieu of removal for
violations of agency sexual abuse
policies be reported to law enforcement
agencies, unless the activity was clearly
not criminal, and reasonable efforts be
made to report such removals or
resignations in lieu of removal to any
licensing bodies, to the extent known.
Sections 115.77 and 115.177 govern
corrective action for contractors and
volunteers who have engaged in sexual
abuse. DHS proposes to require that any
contractor or volunteer who has engaged
in sexual abuse be prohibited from
contact with detainees. These sections
would also require that reasonable
efforts be made to report to any
licensing body, to the extent known,
incidents of substantiated sexual abuse
by a contractor or volunteer.
Section 115.78 addresses the
circumstance where a detainee is
alleged to have sexually abused another
detainee in an immigration detention
facility. Holding detainees accountable
for such abuse is an essential deterrent
and a critical component of a zerotolerance policy. As with sanctions
against staff, sanctions against detainees
must be fair and proportional, taking
into consideration the detainee’s
actions, disciplinary history, mental
disabilities or mental illness, and
sanctions imposed on other detainees in
similar situations, and must send a clear
message that sexual abuse is not
tolerated. The disciplinary process must
also take into account any mitigating
factors, such as mental illness or mental
disability, and must consider whether to
incorporate therapy, counseling, or
other interventions that might help
reduce recidivism. Holding facilities
generally do not hold detainees for
prolonged periods of time and do not
impose discipline, and so agencies are
not made responsible under these
proposed standards for imposing
disciplinary sanctions on holding
facility detainees.
Medical and Mental Health Care:
Sections 115.81, 115.82, 115.182 and
115.83. DHS has proposed three
standards to ensure that detainees
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receive the appropriate medical and
mental health care. Each proposed
standard is substantially similar to that
recommended by the NPREC and
adopted by DOJ in its PREA rulemaking.
Section 115.81 requires that, pursuant
to the assessment for risk of
victimization and abusiveness in section
115.41, facility staff shall ensure
immediate referral to a qualified
medical or mental practitioner, as
appropriate, for detainees found to have
experienced prior sexual victimization
or perpetrated sexual abuse. Although
the proposed standards do not require
detainees to answer the assessment
questions, detainees should be informed
that disclosing prior sexual
victimization and abuse is in their own
best interest as such information is used
both to determine whether follow-up
care is needed and where the detainee
can be safely placed within the facility.
The DHS proposal does not provide for
these requirements in DHS holding
facilities because detainees with
medical needs are referred for treatment
outside the holding facility instead of
provided the treatment in the holding
facilities themselves.
Some commenters to the DOJ PREA
proposed rule suggested that the
NPREC’s recommended standard would
be too costly because it would require
that medical or mental health
practitioners conduct these interviews.
Unlike the NPREC’s standard, the
proposed DHS standard does not specify
who should conduct this inquiry, but
instead requires the detainee to receive
a health evaluation no later than two
working days from the date of the
assessment, when a referral for a
medical follow-up is initiated. In
addition, when a referral for mental
health follow-up is initiated, the
detainee shall receive a mental health
evaluation no later than 72 hours after
the referral.
Neither the NPREC’s recommended
standard nor DHS’s proposed standard
applies to holding facilities. The
proposed standard is not appropriate for
holding facilities given the short time
that those facilities are responsible for
detainee care.
Sections 115.82 and 115.182, like the
DOJ PREA final rule, require that
victims of sexual abuse have timely,
unimpeded access to emergency
medical treatment if they have been a
victim of sexual abuse. Under section
115.82, similar to the DOJ PREA final
rule, the proposed DHS standard
applicable to immigration detention
facilities would expressly require
timely, unimpeded access to emergency
contraception and sexually transmitted
infections prophylaxis, in accordance
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with professionally accepted standards
of care, where appropriate under
professional medical standards. Like the
DOJ PREA final rule’s standard on
lockup detention, however, the
proposed standard applicable to DHS
holding facilities would not require
such facilities to provide emergency
contraception or sexually transmitted
infections prophylaxis, in light of the
very short-term nature of holding
facility detention. Consistent with its
obligation to provide timely, unimpeded
access to emergency medical treatment,
a DHS holding facility would transfer
such a detainee to an appropriate
emergency medical provider, which
would be expected to provide such care
as appropriate. Emergency medical
treatment services would be provided to
the victim at no financial cost to the
victim and regardless of whether the
victim names the abuser or cooperates
with any investigation arising out of the
incident.
Section 115.83 requires that victims of
sexual abuse receive access to ongoing
medical and mental health care. This
proposed standard recognizes that
victims of sexual abuse can experience
a range of physical injuries and
emotional reactions, even long after the
abuse has occurred, that can require
medical or mental health attention.
Thus, this standard requires facilities to
offer ongoing medical and mental health
care during the victim’s detention
consistent with the community level of
care for as long as such care is needed,
without financial cost and regardless of
whether the victim names the abuser or
cooperates with any investigation
arising out of the incident. This access
to care includes pregnancy tests for
detainee victims of sexual abuse
including vaginal penetration by a male
abuser. DHS believes that if specific
mental health concerns have
contributed to the abuse, treatment may
improve facility security. The DHS
proposal does not provide for these
requirements in DHS holding facilities
because agencies refer holding facility
detainees with emergency medical
needs for treatment instead of providing
medical care in the holding facilities
themselves.
Data Collection and Review: Sections
115.86, 115.186, 115.87, 115.187,
115.88, 115.188, 115.89 and 115.189.
DHS has proposed standards addressing
how agencies and facilities should
collect and review data to identify those
policies and practices that are
contributing to or failing to prevent
sexual abuse.
Sections 115.86 and 115.186 set forth
the requirements for sexual abuse
incident reviews, including when
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reviews should take place and who
should take part. The sexual abuse
review is separate from the sexual abuse
investigation, and is intended to
evaluate whether the facility’s or
agency’s policies and procedures would
benefit from change in light of the
incident or allegation. By contrast, the
investigation is intended to determine
whether the abuse actually occurred. A
review would be required after every
investigation, and consider whether
changes in policy or practice could
better prevent, detect, or respond to
sexual abuse incidents like the one
alleged. The DHS proposal further
would require an annual review of all
sexual abuse investigations, in order to
assess and improve sexual abuse
intervention, prevention and response
efforts. Some commenters to the DOJ
PREA rulemaking raised concerns about
the cost of conducting sexual abuse
incident reviews. There are, however,
facilities that already do these reviews,
and DHS believes that the required steps
need not be onerous. The purpose of
this requirement is not to require a
duplicative investigation but rather to
require the facility or agency to pause
and consider what lessons, if any, it can
learn from the investigation it has
conducted and what additional steps, if
any, it should take to further protect
detainees.
Sections 115.87 and 115.187 specify
the incident-based data each agency or
facility is required to collect in order to
detect possible patterns and help
prevent future incidents. The agency or
facility would be required, under this
standard, to aggregate the incidentbased sexual abuse data at least
annually and to maintain, review, and
collect data as needed from all available
agency records. The agency would work
with facilities to collect and aggregate
the data in a manner that will facilitate
the agency’s ability to detect possible
patterns and help prevent future
incidents. Section 115.87 would provide
for the PSA Coordinator to work on an
ongoing basis with the relevant PSA
Compliance Managers and DHS entities
to share data regarding effective agency
response methods to allegations of
sexual abuse. Upon request, the agency
would be required to provide all such
data from the previous calendar year to
the DHS Office for Civil Rights and Civil
Liberties no later than June 30 of the
next calendar year.
Sections 115.88 and 115.188 describe
how the collected data should be
analyzed and reported. The proposed
DHS standard mandates that agencies
use the data to identify problem areas,
take ongoing corrective action, and
prepare an annual report for each
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facility as well as the agency as a whole,
including a comparison with data from
previous years. The report must be
made public through the agency’s Web
site or other means to help promote
agency accountability.
Sections 115.89 and 115.189 provide
guidance on how to store, publish, and
retain the data collected pursuant to
sections 115.87 and 115.187. Data must
be stored in a way that protects its
integrity and must be retained for an
adequate length of time. In addition,
data must protect the confidentiality of
victims and alleged perpetrators. This
standard also requires that the agency
make its aggregated data publicly
available at least annually on its Web
site, consistent with existing agency
information disclosure policies and
processes, following the removal of all
personal identifiers.
Audits and Compliance: Sections
115.93, 115.193, 115.201, 115.202,
115.203, 115.204, and 115.205. Like the
NPREC and DOJ, DHS believes that
audits are critical to ensuring that
facilities are doing all they can to
eliminate sexual abuse in detention
facilities. The NPREC’s proposed
standard would require triennial audits
of all facilities. The NPREC explained
its inclusion of this standard as follows:
Publicly available audits allow agencies,
legislative bodies, and the public to learn
whether facilities are complying with the
PREA standards. Audits can also be a
resource for the Attorney General in
determining whether States are meeting their
statutory responsibilities. Public audits help
focus an agency’s efforts and can serve as the
basis upon which an agency can formulate a
plan to correct any identified deficiencies.
Prison/Jail Standards at 57.
Numerous agency commenters to the
DOJ PREA rulemaking criticized the
NPREC’s proposals on various grounds,
including cost, duplication of audits
performed by accrediting organizations,
duplication of existing State oversight,
and the possibility that disagreements in
interpretation could lead to
inconsistencies in auditing. Other
commenters endorsed the NPREC’s
proposal as necessary to ensure proper
oversight; some commenters suggested
that audits should be more frequent
than once every three years.
DHS believes that audits can play a
key role in implementation of sexual
abuse prevention standards. The
proposed standards for audits clarify the
requirements for an audit to be
considered adequate and transparent.
All audits would be required to be
conducted using an audit instrument
developed by the agency, in
coordination with CRCL. CRCL has
extensive experience in conducting civil
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rights site inspections of detention
facilities, including inspections and
investigations relating to sexual abuse
prevention and response. The agency
would coordinate external audits with
CRCL, to ensure that CRCL is informed
about the operation of the audit program
and any findings relating to noncompliance, in support of CRCL’s
statutory advice and oversight role with
respect to civil rights issues.
DHS believes that external audits are
necessary to ensure that the audits are
conducted independently and
objectively, and with the full confidence
of the public. In these proposed
standards, DHS has incorporated many
of DOJ’s standards related to external
auditing and has tailored them to suit
the unique characteristics of
immigration detention and holding
facilities. The proposed DHS standards
set forth in sections 115.201–205 would
prescribe methods governing the
conduct of such audits, including
provisions for reasonable inspections of
facilities, review of documents, and
interviews of staff and detainees.
The DHS proposed standards would
require that external audits be
conducted by an outside entity or
individual with relevant experience and
certified by the agency. The DHS
standards would preclude use of an
outside auditor with a financial
relationship with the agency within
three years of an audit, except for
contracts for other audits or for
detention-reform related consulting.
DHS has attempted to incorporate
objective criteria and written
documentation requirements into these
proposed standards wherever
practicable, although auditors would
retain appropriate discretion. The
proposed standards provide that a
facility would be required to allow the
auditor to enter and tour facilities,
review documents, and interview staff
and detainees to conduct a
comprehensive audit. The auditor
would be permitted to review all
relevant agency-wide policies,
procedures, reports, and internal and
external audits, as well as a sampling of
relevant documents and other records
and information for the most recent oneyear period. Under the DHS proposed
standards, the auditor would be
permitted to request and receive copies
of any relevant documents (including
electronically stored information), and
would be required to retain and
preserve all documentation (such as
videotapes and interview notes) relied
upon in making audit determinations. In
order to enhance the effectiveness of
external audits, the proposed standards
would permit the auditor to conduct
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private interviews with detainees, and
detainees would be permitted to send
confidential information or
correspondence to the auditor in the
same manner as if they were
communicating with legal counsel.
Auditors would be required to attempt
to communicate with community-based
or victim advocates who may have
insight into relevant conditions in the
facility.
This rule proposes that the external
auditor would determine whether the
audited facility reaches one of the
following: ‘‘Exceeds Standard’’
(substantially exceeds requirement of
standard); ‘‘Meets Standard’’
(substantial compliance; complies in all
material ways with the standard for the
relevant review period); or ‘‘Does Not
Meet Standard’’ (requires corrective
action). The auditor would be required
to prepare an audit summary indicating
the number of provisions the facility has
achieved at each grade level.
Any finding of ‘‘Does Not Meet
Standard’’ would trigger a 180-day
corrective action period. Under the
proposed standards, the auditor, the
agency, and the facility (if it is not
operated by the agency) would jointly
develop a corrective action plan to
achieve compliance. The auditor would
be required to take necessary and
appropriate steps to verify
implementation of the corrective action
plan, such as reviewing updated
policies and procedures or re-inspecting
portions of a facility. After the end of
the 180-day corrective action period, the
auditor would be required to issue a
final determination as to whether the
facility has achieved compliance with
those standards requiring corrective
action. In the event that the facility does
not achieve compliance with each
standard, it would have the opportunity
(at its discretion and cost) to request a
subsequent audit, once it believes that it
has achieved compliance. A facility
would be permitted to file an appeal
with the agency regarding any specific
finding that it believes to be incorrect.
If the agency determines that the facility
has demonstrated good cause for a reevaluation, the facility may, at its
complete discretion and cost,
commission a re-audit by a mutually
agreed upon external auditor. The
agency may also, in its complete
discretion, commission a re-audit of any
facility for any reason it deems
appropriate. In order to further promote
transparency, the proposed standards
also provide that the agency would
ensure that the auditor’s final report is
published on the agency’s Web site.
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Immigration Detention Facilities
The proposed standards provide that
external audits of immigration detention
facilities shall be conducted on a
triennial cycle. During the three-year
cycle, the agency would ensure that
each immigration detention facility is
audited at least once. DHS believes that
this standard would allow substantial
flexibility in scheduling audits within
each three-year cycle while ensuring
that external facility audits occur
regularly. In addition, DHS provides a
procedure for an expedited audit in the
event the agency has reason to believe
that a particular facility may be
experiencing problems related to sexual
abuse.
Immigration Holding Facilities
DHS operates immigration holding
facilities under the authority of both
CBP and ICE. The ICE holding facilities
do not generally house detainees
overnight and thus are not covered by
the auditing requirements for holding
facilities under proposed section
115.193.
CBP operates 768 holding facilities at
ports of entry and Border Patrol stations,
checkpoints, and processing facilities
across the country. These holding
facilities, which far outnumber those
facilities operated directly by any other
corrections/detention/law enforcement
authority, nationwide (including ICE,
the Bureau of Prisons, and other
agencies), are currently subject to
oversight by the CBP Office of Internal
Affairs. All these holding facilities taken
together hold, on average,
approximately 1,100 detainees a day;
however, hundreds of them may be
unused on any given day.
For the CBP holding facilities that
house detainees overnight, DHS
proposes a two-part audit process. The
proposed standards provide that all
holding facilities that house detainees
overnight shall be subject to an external
audit within three years of the effective
date of the rule. If an external audit
determines that a holding facility is lowrisk based on (1) whether it passed its
current audit and (2) its physical
characteristics, including lines of sight,
other design features, and video and
other monitoring technologies, the
facility will be classified as low-risk.
Low-risk facilities would be subject to
further external audits once every five
years, unless design changes are made
that could increase the risk of sexual
abuse. Facilities that are not classified
as low-risk would be subject to audits
once every three years. If additional
holding facilities are established, they
would be subject to an initial audit
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within three years to determine if they
are low-risk. Audits of new holding
facilities as well as holding facilities
that have previously failed to meet the
standards shall occur as soon as
practicable within the three-year cycle.
Where it is necessary to prioritize,
priority shall be given to facilities that
have previously failed to meet the
standards.
Solicitation of Comments Specific to
Audits
Given the potential costs associated
with the proposed auditing
requirements DHS is specifically
seeking public input on the following:
• Would external audits of
immigration detention facilities and/or
holding facilities conducted through
random sampling be sufficient to assess
the scope of compliance with the
standards of this proposed rule?
• Once a holding facility is
designated as low risk, would it be a
more cost effective yet still sufficient
approach to furthering compliance with
the standards to externally audit a
random selection of such facilities
instead of re-auditing each such facility
once every five years?
• Would the potential benefits
associated with requiring external
audits outweigh the potential costs?
• Is there a better approach to
external audits other than the
approaches discussed in this proposed
rule?
• In an external auditing process,
what types of entities or individuals
should qualify as external auditors?
• Would external audits of
immigration detention facilities
conducted through random sampling be
sufficient to assess the scope of
compliance with the standards of this
proposed rule?
Additional Provisions in Agency
Policies. Sections 115.95 and 115.195
provide that the regulations in both
Subparts A and B establish minimum
requirements for agencies. As such, they
do not preclude agency policies from
including additional requirements.
VI. Statutory and Regulatory
Requirements
A. Executive Orders 12866 and 13563
Executive Orders 12866 and 13563
direct agencies to assess the costs and
benefits of available regulatory
alternatives and, if regulation is
necessary, to select regulatory
approaches that maximize net benefits
(including potential economic,
environmental, public health and safety
effects, distributive impacts, and
equity). Executive Order 13563
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emphasizes the importance of
quantifying both costs and benefits, of
reducing costs, of harmonizing rules,
and of promoting flexibility. DHS
considers this to be a ‘‘significant
regulatory action,’’ although not an
economically significant regulatory
action, under section 3(f) of Executive
Order 12866. Accordingly, the Office of
Management and Budget (OMB) has
reviewed this regulation. The IRIA,
summarized below, is available in the
docket. It contains a discussion of the
costs and benefits of this rule.
1. Summary of Proposed Rule
The objective of the proposed rule is
to propose minimum requirements for
DHS immigration detention and holding
facilities for the prevention, detection,
and response to sexual abuse. The
proposed rule, if made final, would
require prevention planning; prompt
and coordinated response and
intervention; training and education of
staff, contractors, volunteers and
detainees; proper treatment for victims;
procedures for investigation, discipline
and prosecution of perpetrators; data
collection and review for corrective
action; and audits for compliance with
the standards. The cost estimates set
forth in this analysis represent the costs
of compliance with, and
implementation of, the proposed
standards in facilities within the scope
of the proposed rulemaking.
2. Summary of Affected Population
DHS has two types of confinement
facilities: (1) Immigration detention
facilities, and (2) holding facilities.
Immigration detention facilities, which
are operated or supervised by ICE,
routinely hold persons for over 24 hours
pending resolution or completion of
immigration removal or processing.
Holding facilities, used and maintained
by DHS components including ICE and
CBP, tend to be short-term. The analysis
below presents immigration detention
facilities and holding facilities
separately.
This proposed rule will directly
regulate the Federal Government,
notably any DHS agency with
immigration detention facilities or
holding facilities. The sections below
describe and quantify, where possible,
the number of affected DHS immigration
detention facilities or holding facilities.
a. Subpart A—Immigration Detention
Facilities
ICE is the only DHS component with
immigration detention facilities. ICE
holds detainees during proceedings to
determine whether they will be
removed from the United States, and
pending their removal, in ICE-owned
facilities or in facilities contracting with
ICE. Therefore, though this rule will
directly regulate the Federal
Government, it would require that its
standards ultimately apply to some
State and local governments as well as
private entities through contracts with
DHS. The types of authorized ICE
immigration detention facilities are as
follows:
• Contract Detention Facility (CDF)—
owned by a private company and
contracted directly with the
government;
• Service Processing Center (SPC)—
full service immigration facilities owned
by the government and staffed by a
combination of Federal and contract
staff;
• Intergovernmental Service
Agreement Facility (IGSA)—facilities at
which detention services are provided
to ICE by State or local government(s)
through agreements with ICE and which
may fall under public or private
ownership and may be fully dedicated
immigration facilities (housing detained
aliens only) or non-dedicated facilities
(housing various detainees).
ICE enters into Intergovernmental
Service Agreements (IGSAs) with States
and counties across the country to use
space in jails and prisons for civil
immigration detention purposes. Some
of these facilities are governed by IGSAs
that limit the length of an immigration
detainee’s stay to under 72 hours. Some
of these facilities have limited bed space
that precludes longer stays by detainees.
Others are used primarily under special
circumstances such as housing a
detainee temporarily to facilitate
detainee transfers or to hold a detainee
for court appearances in a different
jurisdiction. In some circumstances the
under 72-hour facilities house
immigration detainees only
occasionally.
At the time of writing, ICE owns or
has contracts with approximately 158
authorized immigration detention
facilities that hold detainees for more
than 72 hours. The 158 facilities consist
of 6 SPCs, 7 CDFs, 9 dedicated IGSA
facilities, and 136 non-dedicated IGSA
facilities. (64 of the IGSA facilities are
covered by the DOJ PREA, not this
proposed rule, because they are USMS
IGA facilities.) As the USMS IGA
facilities are not within the scope of this
rulemaking, this analysis covers the 94
authorized SPC, CDF, dedicated IGSA,
and non-dedicated IGSA immigration
detention facilities that hold detainees
for more than 72 hours.
ICE additionally has 91 authorized
immigration detention facilities that are
contracted to hold detainees for less
than 72 hours. All 91 facilities are nondedicated IGSA facilities, but 55 of them
are covered by the DOJ PREA rule, not
this proposed rule, because they are
USMS IGA facilities. Again, ICE
excludes the USMS IGA facilities from
the scope of this rulemaking and
analysis; the analysis covers the 36
authorized non-dedicated IGSA
immigration detention facilities that
hold detainees for under 72 hours.
Facilities that are labeled by ICE as
‘‘under 72-hour’’ still meet the
definition of immigration detention
facilities, because they process
detainees for detention intake. Detainees
housed in these facilities are processed
into the facility just as they would be in
a long-term detention facility.
Furthermore, ICE also has two
authorized family residential centers.
These are IGSA facilities that house
only ICE detainees. One of the facilities
accommodates families subject to
mandatory detention and the other is a
dedicated female facility. ICE family
residential centers are subject to the
immigration detention facility standards
proposed in Subpart A. The table below
summarizes the facilities included in
this analysis. For the purposes of the
cost analysis in Chapter 2, DHS includes
the family residential facilities in the
cost estimates for the over 72-hour
authorized immigration detention
facilities.
TABLE 1—SUMMARY OF ICE AUTHORIZED IMMIGRATION DETENTION FACILITIES
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Facility
Over 72 hours
Non-Dedicated IGSA .......................................................................................................
SPC ..................................................................................................................................
CDF ..................................................................................................................................
Dedicated IGSA ...............................................................................................................
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74
6
7
7
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0
0
0
19DEP2
Family
Residential
0
0
0
2
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TABLE 1—SUMMARY OF ICE AUTHORIZED IMMIGRATION DETENTION FACILITIES—Continued
Facility
Over 72 hours
Total Covered by Rule .............................................................................................
Under 72 hours
Family
Residential
94
36
2
.....................................................................................................................
64
55
0
Total Authorized Facilities ...............................................................................................
158
91
2
USMS
a Not
IGA a
within the scope of the proposed rule
b. Subpart B—Holding Facilities
A holding facility may contain
holding cells, cell blocks, or other
secure locations that are: (1) under the
control of the agency and (2) primarily
used for the confinement of individuals
who have recently been detained, or are
being transferred to another agency.
ii. U.S. Immigration and Customs
Enforcement
Most ICE holding rooms are in ICE
field offices and satellite offices. These
rooms are rooms or areas that are
specifically designed and built for
temporarily housing detainees in ICE
Enforcement and Removal Operations
(ERO) offices. It may also include
staging facilities. ICE holding facilities
as presented in this analysis are
exclusive of hold rooms or staging areas
at immigration detention facilities,
which are covered by the standards of
the immigration detention facility under
Subpart A of this proposed rule. ICE has
149 holding facilities that would be
covered under Subpart B of the
proposed rule.
i. U.S. Customs and Border Protection
detained in open seating areas where
agents or officers interact with the
detainee. Hold rooms in CBP facilities
where case processing occurs are used
to search, detain, or interview persons
who are being processed. CBP operates
768 holding facilities at ports of entry
and Border Patrol stations, checkpoints,
and processing facilities across the
country.
3. Estimated Costs of Proposed Rule
The proposed rule will cover DHS
immigration detention facilities and
holding facilities. Table 2 summarizes
the number of facilities covered by the
proposed rulemaking over ten years.
There is a wide range of facilities
where CBP detains individuals. Some
individuals are detained in secured
detention areas, while others are
TABLE 2—ESTIMATED POPULATION SUMMARY FOR PROPOSED RULE
Immigration
detention
facilities
Year
Holding facilities
Total
ICE
CBP
ICE
1 .......................................................................................................
2 .......................................................................................................
3 .......................................................................................................
4 .......................................................................................................
5 .......................................................................................................
6 .......................................................................................................
7 .......................................................................................................
8 .......................................................................................................
9 .......................................................................................................
10 .....................................................................................................
The cost estimates set forth in this
analysis represent the costs of
compliance with, and implementation
of, the proposed standards in facilities
within the scope of the proposed
rulemaking. This analysis concludes
132
134
136
138
140
142
144
146
148
150
149
149
149
149
149
149
149
149
149
149
that compliance with the proposed
standards, in the aggregate, would be
approximately 57.7 million, discounted
at 7 percent, over the period 2013–2022,
or 8.2 million per year when annualized
at a 7 percent discount rate. Table 3
768
768
768
768
768
768
768
768
768
768
1,049
1,051
1,053
1,055
1,057
1,059
1,061
1,063
1,065
1,067
below, presents a 10-year summary of
the estimated benefits and costs of the
Notice of Proposed Rulemaking
(NPRM).
TABLE 3—TOTAL COST OF NPRM
[$millions]
Immigration detention facilities
subpart A
Holding facilities
subpart B
Year
Total
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Over 72 hours
1
2
3
4
5
...........................................................................................
...........................................................................................
...........................................................................................
...........................................................................................
...........................................................................................
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Under 72
hours
$4.2
3.6
3.6
3.7
3.7
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ICE
$1.4
1.1
1.1
1.1
1.1
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CBP
$0.0
0.0
0.0
0.0
0.0
19DEP2
$5.6
5.5
3.6
2.4
2.4
$11.2
10.2
8.3
7.1
7.2
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TABLE 3—TOTAL COST OF NPRM—Continued
[$millions]
Immigration detention facilities
subpart A
Holding facilities
subpart B
Year
Total
Over 72 hours
Under 72
hours
ICE
CBP
6 ...........................................................................................
7 ...........................................................................................
8 ...........................................................................................
9 ...........................................................................................
10 .........................................................................................
3.7
3.7
3.8
3.8
3.8
1.1
1.1
1.1
1.1
1.2
0.0
0.0
0.0
0.0
0.0
2.3
2.3
2.3
2.3
2.3
7.2
7.2
7.2
7.2
7.3
Total ..............................................................................
37.6
11.4
0.0
31.0
79.9
Total (7%) ............................................................................
Total (3%) ............................................................................
Annualized (7%) ...................................................................
Annualized (3%) ...................................................................
26.4
32.1
3.8
3.8
8.0
9.7
1.1
1.1
0.0
0.0
0.0
0.0
23.2
27.2
3.3
3.2
57.7
69.0
8.2
8.1
The total cost, discounted at 7
percent, consists of 34.5 million for
immigration detention facilities under
Subpart A, and 23.2 million for holding
facilities under Subpart B. The largest
costs for immigration detention facilities
are for staff training, documentation of
cross-gender pat-downs, duties for the
Prevention of Sexual Abuse Compliance
Manager, and audit requirements. DHS
estimates zero compliance costs for ICE
holding facilities under the proposed
rule as the requirements of ICE’s Sexual
Abuse and Assault Prevention and
Intervention Directive and other ICE
policies are commensurate with the
requirements of the proposed rule. The
largest costs for CBP holding facilities
are staff training, audits, and facility
design modifications and monitoring
technology upgrades.
4. Estimated Benefits of the Rule
DHS has not estimated the anticipated
benefits of this proposed rule. Instead,
DHS conducts what is known as a
‘‘break even analysis,’’ by first
estimating the monetary value of
preventing victims of various types of
sexual abuse (from incidents involving
violence to inappropriate touching) and
then, using those values, calculating the
reduction in the annual number of
victims that would need to occur for the
benefits of the rule to equal the cost of
compliance. The IRIA concludes that
when all facilities and costs are phased
into the rulemaking, the break even
point would be reached if the standards
reduced the annual number of incidents
of sexual abuse by 55 from the estimated
benchmark level, which is 79 percent of
the total number of assumed incidents
in ICE confinement facilities, including
those who may not have reported an
incident.
5. Alternatives
As alternatives to the preferred
regulatory regime proposed in the
NPRM, DHS examined three other
options. The first is taking no regulatory
action. For over 72-hour immigration
detention facilities, the 2011 PBNDS
sexual abuse standards might reach all
facilities over time as the new version
of the standards are implemented at
facilities as planned. However, in the
absence of regulatory action, proposed
sexual abuse standards for ICE under
72-hour immigration detention facilities
and DHS holding facilities would
remain largely the same.
DHS also considered requiring the ICE
immigration detention facilities that are
only authorized to hold detainees for
under 72 hours to meet the proposed
standards for holding facilities under
Subpart B, rather than the standards for
immigration detention in Subpart A, as
proposed in the NPRM. The standards
proposed in Subpart B are somewhat
less stringent than those for immigration
detention facilities, as appropriate for
facilities holding detainees for a much
shorter time and with an augmented
level of direct supervision.
Finally, DHS considered changing the
audit requirements proposed under
sections 115.93 and 115.193.
Immigration detention facilities
currently undergo several layers of
inspections for compliance with ICE’s
detention standards. This alternative
would have allowed ICE to incorporate
the audit requirements for the proposed
standards into current inspection
procedures. However, it would require
outside auditors for all immigration
detention facilities. For holding
facilities that hold detainees overnight,
it would require 10 internal audits, 10
external audits, and 3 audits by CRCL be
conducted annually. The following table
presents the 10-year costs of the
alternatives compared to the costs of the
NPRM. These costs of these alternatives
are discussed in detail in Chapter 2 of
the IRIA.
TABLE 4—COST COMPARISON OF REGULATORY ALTERNATIVES TO THE PROPOSED NPRM
[$millions]
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10-Year total costs by alternative
Alternative
Alternative
Alternative
Alternative
1—No Action ...........................................................................................
2—Under 72-Hour ...................................................................................
3—Proposed Rule ...................................................................................
4—Audit Requirements ...........................................................................
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Total
(7%)
Total
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$0
77.7
79.9
70.0
E:\FR\FM\19DEP2.SGM
Total
(3%)
$0
56.1
57.7
50.5
19DEP2
$0
67.1
69.0
60.4
Federal Register / Vol. 77, No. 244 / Wednesday, December 19, 2012 / Proposed Rules
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B. Executive Order 13132—Federalism
This proposed regulation will not
have substantial direct effects on the
States, on the relationship between the
national government and the States, or
on distribution of power and
responsibilities among the various
levels of government. This proposed
rule implements the Presidential
Memorandum of May 17, 2012
‘‘Implementing the Prison Rape
Elimination Act’’ by recommending
national DHS standards for the
detection, prevention, reduction, and
punishment of sexual abuse in DHS
immigration detention and holding
facilities. In drafting the standards, DHS
was mindful of its obligation to meet the
President’s objectives while also
minimizing conflicts between State law
and Federal interests.
Insofar, however, as the proposal sets
forth standards that might apply to
immigration detention facilities and
holding facilities operated by State and
local governments and private entities,
this proposed rule has the potential to
affect the States, the relationship
between the Federal government and
the States, and the distribution of power
and responsibilities among the various
levels of government and private
entities. With respect to the State and
local agencies, as well as the private
entities, that own and operate these
facilities across the country, the
Presidential Memorandum provides
DHS with no direct authority to
mandate binding standards for their
facilities. Instead, these standards will
impact State, local, and private entities
only to the extent that they make
voluntary decisions to contract with
DHS for the confinement of immigration
detainees. This approach is fully
consistent with DHS’s historical
relationship to State and local agencies
in this context. Therefore, in accordance
with Executive Order 13132, DHS has
determined that this rule does not have
sufficient federalism implications to
warrant the preparation of a Federalism
Assessment.
Notwithstanding the determination
that the formal consultation process
described in Executive Order 13132 is
not required for this rule, DHS
welcomes consultation with
representatives of State and local
prisons and jails, juvenile facilities,
community corrections programs, and
lockups—among other individuals and
groups—during the course of this
rulemaking.
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C. Executive Order 12988—Civil Justice
Reform
This regulation meets the applicable
standards set forth in sections 3(a) and
3(b)(2) of Executive Order 12988.
D. Unfunded Mandates Reform Act of
1995
Section 202 of the Unfunded Mandate
Reform Act of 1995 (UMRA) (Pub. L.
104–4, 109 Stat. 48, 2 U.S.C. 1532)
generally requires agencies to prepare a
statement before submitting any rule
that may result in an annual
expenditure of $100 million or more
(adjusted annually for inflation) by
State, local, or tribal governments, or by
the private sector. DHS has assessed the
probable impact of these proposed
regulations and believes these
regulations may result in an aggregate
expenditure by State and local
governments of approximately $4.3
million in the first year.
However, DHS believes the
requirements of the UMRA do not apply
to these regulations because UMRA
excludes from its definition of ‘‘Federal
intergovernmental mandate’’ those
regulations imposing an enforceable
duty on other levels of government
which are ‘‘a condition of Federal
assistance.’’ 2 U.S.C. 658(5)(A)(i)(I).
Compliance with these standards, as
proposed, would be a condition of
ongoing Federal assistance through
implementation of the standards in new
contracts and contract renewals. While
DHS does not believe that a formal
statement pursuant to the UMRA is
required, it has, for the convenience of
the public, summarized as follows
various matters discussed at greater
length elsewhere in this rulemaking
which would have been included in a
UMRA statement should that have been
required:
• These standards are being issued
pursuant to the Presidential
Memorandum of May 17, 2012, and
DHS detention authorities.
• A qualitative and quantitative
assessment of the anticipated costs and
benefits of these standards appears
below in the Regulatory Flexibility Act
section;
• DHS does not believe that these
standards will have an effect on the
national economy, such as an effect on
productivity, economic growth, full
employment, creation of productive
jobs, or international competitiveness of
United States goods and services;
• Before it issues final regulations
implementing standards DHS will:
(1) Provide notice of these
requirements to potentially affected
small governments, which it has done
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75323
by publishing this notice of proposed
rulemaking, and by other activities;
(2) Enable officials of affected small
governments to provide meaningful and
timely input, via the methods listed
above; and
(3) Work to inform, educate, and
advise small governments on
compliance with the requirements.
• As discussed above in the Initial
Regulatory Impact Assessment
summary, DHS has identified and
considered a reasonable number of
regulatory alternatives and from those
alternatives has attempted to select the
least costly, most cost effective, or least
burdensome alternative that achieves
DHS’s objectives.
E. Small Business Regulatory
Enforcement Fairness Act of 1996
Under section 213(a) of the Small
Business Regulatory Enforcement
Fairness Act of 1996, Public Law 104–
121, DHS wants to assist small entities
in understanding this proposed rule so
that they can better evaluate its effects
on them and participate in the
rulemaking. If the proposed rule would
affect your small business, organization,
or governmental jurisdiction and you
have questions concerning its
provisions or options for compliance,
please contact DHS via the address or
phone number provided in the FOR
FURTHER INFORMATION CONTACT section
above. DHS will not retaliate against
small entities that question or complain
about this rule or about any policy or
action by DHS related to this rule.
F. Regulatory Flexibility Act
DHS drafted this proposed rule so as
to minimize its impact on small entities,
in accordance with the Regulatory
Flexibility Act (RFA), 5 U.S.C. 601–612,
while meeting its intended objectives.
The term ‘‘small entities’’ comprises
small business, not-for-profit
organizations that are independently
owned and operated and are not
dominant in their fields, and
governmental jurisdictions with
populations of less than 50,000. Based
on presently available information, DHS
is unable to state with certainty that the
proposed rule, if promulgated as a final
rule, would not have any effect on small
entities of the type described in 5 U.S.C.
601(3). Accordingly, DHS has prepared
an Initial Regulatory Flexibility Impact
Analysis (IRFA) in accordance with 5
U.S.C. 603.
1. A Description of the Reasons Why the
Action by the Agency Is Being
Considered
In 2003 Congress passed PREA, 42
U.S.C. 15601. PREA directs the Attorney
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Federal Register / Vol. 77, No. 244 / Wednesday, December 19, 2012 / Proposed Rules
General to promulgate national
standards for enhancing the prevention,
detection, reduction, and punishment of
prison rape. On May 17, 2012, President
Obama issued a Presidential
Memorandum confirming the goals of
PREA and directing Federal agencies
with confinement facilities to issue
regulations or procedures within 120
days of his Memorandum to satisfy the
requirements of PREA. This regulation
responds to and fulfills the President’s
direction by proposing comprehensive,
national regulations for the detection,
prevention, and reduction of prison rape
at DHS confinement facilities.
2. A Succinct Statement of the
Objectives of, and Legal Basis for, the
Proposed Rule
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On May 17, 2012, DOJ released a final
rule setting national standards to
prevent, detect, and respond to prison
rape for facilities operated by the
Bureau of Prisons and the USMS. The
final rule was published in the Federal
Register on June 20, 2012. 77 FR 37106
(June 20, 2012). In its final rule, DOJ
concluded that PREA ‘‘encompass[es]
any Federal confinement facility
‘whether administered by [the]
government or by a private organization
on behalf of such government.’’’ Id. at
37113 (quoting 42 U.S.C. 15609(7)). DOJ
recognized, however, that, in general,
each Federal agency is accountable for,
and has statutory authority to regulate
the operations of its own facilities and
is best positioned to determine how to
implement Federal laws and rules that
govern its own operations, staff, and
persons in custody. Id. The same day
that DOJ released its final rule,
President Obama issued a Presidential
Memorandum directing Federal
agencies with confinement facilities to
issue regulations or procedures within
120 days of his Memorandum to satisfy
the requirements of PREA.
DHS uses a variety of legal
authorities, which are listed below in
the ‘‘Authority’’ provision preceding the
proposed regulatory text, to detain
individuals in confinement facilities.
Most individuals detained by DHS are
detained in the immigration removal
process, and normally DHS derives its
detention authority for these actions
from section 236(a) of the INA, 8 U.S.C.
1226(a), which provides the authority to
arrest and detain an alien pending a
decision on whether the alien is to be
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Jkt 229001
removed from the United States, and
section 241(a)(2) of the INA, 8 U.S.C.
1231(a)(2), which provides the authority
to detain an alien during the period
following the issuance of an order of
removal. DHS components, however,
use many other legal authorities to meet
their statutory mandates and to detain
individuals during the course of
executing DHS missions.
The objective of the proposed rule is
to propose minimum requirements for
DHS immigration detention and holding
facilities for the prevention, detection,
and response to sexual abuse. The rule,
if made final, would ensure prompt and
coordinated response and intervention,
proper treatment for victims, discipline
and prosecution of perpetrators, and
effective oversight and monitoring to
prevent and deter sexual abuse.
3. A Description and, Where Feasible,
an Estimate of the Number of Small
Entities To Which the Proposed Rule
Will Apply
The proposed rule would affect
owners of DHS confinement facilities,
including private owners, State and
local governments, and the Federal
government. DHS has two types of
confinement facilities: (1) Immigration
detention facilities, and (2) holding
facilities. Holding facilities tend to be
short-term in nature. ICE, in particular,
is charged with administration of the
immigration detention facilities while
CBP and ICE each have many holding
facilities under their detention
authority. The analysis below addresses
immigration detention facilities and
holding facilities separately.
i. Immigration Detention Facilities
ICE divides its detention facilities into
two groups: there are 158 for use over
72 hours, and 91 that typically hold
detainees for more than 24 hours and
less than 72 hours. These are treated
separately, below. Further, there are
several types of immigration detention
facilities. Service processing center
(SPC) facilities are ICE-owned facilities
and staffed by a combination of Federal
and contract staff. Contract detention
facilities (CDFs) are owned by a private
company and contracted directly with
ICE. Detention services at
Intergovernmental Service Agreement
(IGSA) facilities are provided to ICE by
State or local governments(s) through
agreements with ICE and may be owned
by the State or local government, or by
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a private entity. Finally, there are two
types of IGSA facilities: dedicated and
non-dedicated. Dedicated IGSA
facilities hold only detained aliens
whereas non-dedicated facilities hold a
mixture of detained aliens and inmates.
ICE does not include USMS facilities
used by ICE under intergovernmental
agreements in the scope of this
rulemaking. Those facilities would be
covered by the DOJ PREA standards.
Any references to authorized
immigration detention facilities is
exclusive of these 119 USMS IGA
facilities.
Of the current 158 ICE detention
facilities that are for use over 72 hours,
6 are owned by the Federal government
and are not subject to the Regulatory
Flexibility Act (RFA). An additional 64
are covered not by this proposed rule
but by the DOJ PREA rule, as USMS IGA
facilities. Of the 88 facilities subject to
the RFA, there are 79 distinct entities.
DHS uses ICE information and public
databases such as Manta.com and data
from the U.S. Census Bureau 15 to search
for entity type (public, private, parent,
subsidiary, etc.), primary line of
business, employee size, revenue,
population, and any other necessary
information. This information is used to
determine if an entity is considered
small by SBA size standards, within its
primary line of business.
Of the 79 entities owning immigration
detention facilities and subject to the
RFA, the search returned 75 entities for
which sufficient data are available to
determine if they are small entities, as
defined by the RFA. The table below
shows the North American Industry
Classification System (NAICS) codes
corresponding with the number of
facilities for which data are available.
There are 27 small governmental
jurisdictions, 1 small business, and 1
small not-for-profit. In order to ensure
that the interests of small entities are
adequately considered, DHS assumes
that all entities without available
ownership, NAICS, revenue, or
employment data to determine size are
small. Therefore, DHS estimates there
are a total of 33 small entities to which
this rule would apply. The table below
shows the number of small entities by
type for which data are available.
15 U.S. Census Bureau, State and County
QuickFacts, 2010 Population Data, available at
https://quickfacts.census.gov/qfd/
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Federal Register / Vol. 77, No. 244 / Wednesday, December 19, 2012 / Proposed Rules
75325
TABLE 5—SMALL ENTITIES BY TYPE—IMMIGRATION DETENTION FACILITIES
Type
Entities found
SBA size standard
Small Governmental Jurisdiction ..............................................
Small Business .........................................................................
27
1
Small Organization ...................................................................
1
Subtotal ..............................................................................
29
Entities without Available Information .......................................
4
Total Small Entities ....................................................
33
ICE also has shorter-term immigration
detention facilities, for several reasons:
Some of ICE’s immigration detention
facilities are governed by IGSAs that
limit the length of an immigration
detainee’s stay to under 72 hours for
various reasons. Some of these facilities
have limited bed space that prohibits
longer stays by detainees. Others are
used primarily under special
circumstances such as housing a
detainee temporarily to facilitate
detainee transfers or to hold a detainee
for court appearances in a different
jurisdiction. In some circumstances the
under 72-hour facilities are located in
Population less than 50,000.
$7 million (NAICS 488999)
$30 million (NAICS 488119).
Independently owned and operated not-for-profit not dominant in its field.
rural areas that only occasionally have
immigration detainees.
At the time of writing, ICE has 91
immigration detention facilities for use
under 72 hours. Of those, three are
owned by the Federal or State
government and are not subject to the
RFA. An additional 55 are covered not
by this proposed rule but by the DOJ
PREA rule, as USMS IGA facilities. Of
the 33 facilities subject to the RFA, all
are owned by distinct entities. Again,
DHS uses public databases such as
Manta.com and U.S. Census Bureau to
search for entity type, primary line of
business, employee size, revenue,
population, and any other necessary
information needed to determine if an
entity is considered small by SBA size
standards.
Of the 33 entities owning immigration
detention facilities and subject to the
RFA, all have sufficient data available to
determine if they are small entities as
defined by the RFA. The table below
shows the NAICS codes corresponding
with the number of facilities for which
data are available. DHS determines there
are 10 small governmental jurisdictions,
0 small businesses, and 0 small
organizations. The table below shows
the number of small entities by type for
which data are available.
TABLE 6—SMALL ENTITIES BY TYPE—OTHER DHS CONFINEMENT FACILITIES
Type
Entities found
Small Governmental Jurisdiction ..............................................
Small Business .........................................................................
Small Organization ...................................................................
10
0
0
Total Small Entities ............................................................
10
At the time of writing, ICE has 2
immigration detention facilities that are
considered family residential facilities.
Both are owned by counties. Again,
DHS uses public databases such as
Manta.com and U.S. Census Bureau to
search for entity type, primary line of
business, employee size, revenue,
population, and any other necessary
information needed to determine if an
entity is considered small by SBA size
standards. DHS was able to obtain
sufficient data to determine if they are
small entities. Based on the size of the
counties, DHS determines neither
would be considered small
governmental jurisdictions as defined
by the RFA.
srobinson on DSK4SPTVN1PROD with
SBA size standard
responsible for funding any facility
modifications once CBP has begun
operations at the location. As such, any
modifications at these facilities as a
result of this rule will have no direct
impact on the facilities.
U.S. Immigration and Customs
Enforcement. Most ICE hold rooms are
in ICE field offices and satellite offices.
ICE estimates it has 149 holding
facilities that would be covered under
the proposed rule. None of these
facilities would be considered small
entities under the RFA.
ii. Holding Facilities
U.S. Customs and Border Protection.
CBP operates 768 facilities with holding
facilities. Of the 768, 364 are owned by
private sector entities. CBP is
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Population less than 50,000.
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4. A Description of the Projected
Reporting, Recordkeeping, and Other
Compliance Requirements of the
Proposed Rule, Including an Estimate of
the Classes of Small Entities That Will
Be Subject to the Requirement and the
Types of Professional Skills Necessary
for Preparation of the Report or Record
With regard to non-DHS facilities, the
requirements of the proposed rule are
applicable only to new detention
contracts with the Federal Government,
and to contract renewals. To the extent
this rule increases costs to any
detainment facilities, which may be
small entities, it may be reflected in the
cost paid by the Federal Government for
the contract. Costs associated with
implementing the proposed rule paid by
the Federal Government to small
entities are transfer payments ultimately
born by the Federal Government.
However, DHS cannot say with certainty
how much, if any, of these costs will be
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paid in the form of increased bed rates
for facilities. Therefore, for the purposes
of this analysis, DHS assumes all costs
associated with the proposed rule will
be borne by the facility. The following
discussion addresses the proposed
provisions for which facilities currently
operating under the NDS may incur
implementation costs.
i. Contracting With Other Non-DHS
Entities for the Confinement of
Detainees, § 115.12
The proposed rule would require that
any new contracts or contract renewals
comply with the proposed rule and
provide for agency contract monitoring
to ensure that the contractor is
complying with these standards.
Therefore, DHS adds a 20-hour
opportunity cost of time for the
contractor to read and process the
modification, determine if a request for
a rate increase is necessary, and have
discussions with the government if
needed. DHS estimates this provision
may cost a facility approximately $1,488
(20 hours × $74.41) in the first year.16
srobinson on DSK4SPTVN1PROD with
ii. Zero Tolerance of Sexual Abuse;
Prevention of Sexual Abuse
Coordinator, § 115.11
The proposed rule would require
immigration detention facilities to have
a written zero-tolerance policy for
sexual abuse and establish a Prevention
of Sexual Assault (PSA) Compliance
Manager at each facility. ICE is not
requiring facilities to hire any new staff
for these responsibilities; rather ICE
believes the necessary PSA Compliance
Manager duties can be collateral duties
for a current staff member.
For some of the standards proposed in
this rulemaking, the actual effort
required to comply with the standard
will presumably be undertaken by the
PSA Compliance Manager. The costs of
compliance with those standards are
thus essentially subsumed within the
cost of this standard. For this reason,
and to avoid double counting, many
standards are assessed in their as having
minimal to zero cost even though they
will require some resources to ensure
16 Bureau of Labor Statistics, Occupational
Employment Statistics (OES), May 2011, NAICS
999300, SOC 11–1021 General and Operations
Manager Median Hourly Wage, retrieved on June
29, 2012 from https://www.bls.gov/oes/2011/may/
naics4_999300.htm. Loaded for benefits. Bureau of
Labor Statistics, Employer Cost for Employee
Compensation, June 2011, Table 3: Employer Costs
per hour worked for employee compensation and
costs as a percent of total compensation: State and
local government workers, by major occupational
and industry group, Service Occupations, Salary
and Compensation Percent of Total Compensation,
retrieved on June 29, 2012 from https://www.bls.gov/
news.release/archives/ecec_09082011.pdf. $74.41 =
$44.42/0.597.
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compliance; this is because the cost of
those resources is assigned to this
standard to the extent DHS assumes the
primary responsibility for complying
with the standard will lie with the PSA
Compliance Manager. The table below
presents the provisions and
requirements DHS assumes would be
the responsibility of the PSA
Compliance Manger, and are included
in the costs estimated for this provision.
cross-gender pat-down searches;
prohibit physical examinations for the
sole purpose of determining gender;
require training of law enforcement staff
on proper procedures for conducting
pat-down searches, including
transgender and intersex detainees; and,
implement policies on staff viewing of
showering, performing bodily functions,
and changing clothes.
The restrictions placed on crossgender pat-down searches would be a
TABLE 7—ASSUMED PSA COMPLIANCE new requirement for facilities operating
DUTIES—IMMIGRATION under the NDS or 2008 PBNDS, and a
MANAGER
DETENTION FACILITIES
modified requirement for facilities
operating under the 2011 PBNDS.18
Proposed standard
ICE’s detention population is 10 percent
female, and 90 percent male. In
115.11 ...... Zero tolerance of sexual abuse.
115.21 ...... Evidence protocols and forensic comparison, 13 percent of correctional
officers at Federal confinement
medical examinations.
facilities 19 and 28 percent at jails are
115.31 ...... Staff training.
115.32 ...... Volunteer and contractor train- female.20 Though there may be
ing.
disproportionate gender ratios of staff to
115.34 ...... Specialized training: Investiga- detainees at some individual facilities,
tions.
the overall national statistics do not
115.63* .... Reporting to other confinement
indicate that there would be a
facilities.
significant problem with compliance.
115.65 ...... Coordinated response.
115.67 ...... Agency protection against retal- Facilities are allowed to conduct crossgender pat down searches on male
iation.
115.86 ...... Sexual abuse incident reviews.
detainees when, after reasonable
115.87 ...... Data collection.
diligence by the facility, a member of
115.93* .... Audits.
the same gender is not available at the
* Indicates new requirement for facilities time. The pat-down restrictions for
under 2011 PBNDS or FRS
female detainees are more stringent.
DHS spoke with some SPCs and CDFs Female detainees only comprise 10
percent of the overall population, and
who had SAAPICs required under the
one to five percent are held at ICE’s
2008 PBNDS. Based on these
dedicated female facility. The Family
discussions, DHS estimates a PSA
Residential Standards, under which the
Compliance Manager will spend, on
dedicated female facility operates,
average, 114 hours in the first year and
already prohibit cross-gender pat78 hours thereafter, which includes
downs.
writing/revising policies related to
sexual abuse and working with auditors.
DHS does not expect any facilities to
DHS estimates this provision may cost
hire new staff or lay off any staff
a facility approximately $5,330 (114
specifically to meet the proposed
hours × $46.75) in the first year.17
requirement. Instead, DHS expects that
iii. Limits to Cross-Gender Viewing and facilities which may have an
unbalanced gender ratio take this
Searches, § 115.15
requirement into consideration during
The proposed requirement would
hiring decisions resulting from normal
prohibit cross-gender pat-down searches attrition and staff turnover. However,
unless, after reasonable diligence, staff
DHS requests comments from facilities
of the same gender is not available at the on this conclusion. Please include
time the pat-down search is required
information that would help determine
(for male detainees), or in exigent
circumstances (for female and male
18 Specifically, the 2011 PBNDS permits crossdetainees alike). In addition, it would
gender pat-down searches of women when staff of
the same gender is not available at the time the patban cross-gender strip or body cavity
down search is required. Under the proposed
searches except in exigent
standard, cross-gender searches of females would be
circumstances; require documentation
allowed only in exigent circumstances.
of all strip and body cavity searches and
19 Bureau of Justice Statistics, Census of State and
17 Bureau
of Labor Statistics, Occupational
Employment Statistics (OES), May 2011, NAICS
999300, SOC 33–1011 First Line Supervisors of
Correctional Officers Median Hourly Wage,
retrieved on June 29, 2012 from https://www.bls.gov/
oes/2011/may/oes331011.htm. Loaded for benefits.
$46.75 = $29.67/0.597
PO 00000
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Fmt 4701
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Federal Correctional Facilities, 2005, page 4,
retrieved on August 13, 2012 from https://
www.bjs.gov/content/pub/pdf/csfcf05.pdf.
20 Department of Justice, Final Regulatory Impact
Analysis, section 5.6.15.1 Analysis and
Methodology for Adult Facilities of standards
115.15, retrieved May 24 from www.ojp.usdoj.gov/
programs/pdfs/prea_ria.pdf.
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and monetize the possible impact to
facilities.
DHS includes a cost for facilities to
examine their staff rosters, gender ratios,
and staffing plans for all shifts for
maximum compliance with cross gender
pat downs. The length of time it takes
for facilities to adjust staffing plans,
strategies, and schedules for gender
balance while ensuring there is
adequate detainee supervision and
monitoring pursuant to section 115.13
will vary with the size of the facility.
DHS estimates this may take a
supervisor 12 hours initially. DHS
anticipates facilities will be able to
incorporate these considerations into
regular staffing decisions in the future.
DHS estimates the restrictions on crossgender pat-downs may cost a facility
approximately $561 (12 hours × $46.75)
in the first year.
The requirement for documentation of
cross-gender pat-down searches would
be new for all facilities, regardless of the
version of the detention standards under
which the facility operates. Presumably,
cross-gender pat-down searches of
female detainees would occur rarely, as
the proposed rule would allow them in
exigent circumstances only. However,
cross-gender pat-down searches of male
detainees may happen more frequently.
DHS believes this requirement would be
a notable burden on facilities both for
the process of documenting the patdown, but also keeping these records
administratively. Therefore, as we
discuss below, DHS includes an
opportunity cost for this provision. ICE
does not currently track the number of
cross-gender pat-down searches, or any
pat-down searches conducted. ICE
requests comment from facilities on the
number of cross-gender pat-down
searches conducted. Please include
details that would help with an
aggregate estimate, such as the average
daily population of detainees at your
facility, the number of pat-downs that
may occur daily, the percentage that are
cross-gender, etc.
Because DHS believes this may be a
noticeable burden on facilities, DHS
includes a rough estimate using
assumptions. DHS also welcomes
comment on these assumptions.
Detainees may receive a pat-down for a
number of reasons. All detainees receive
a pat-down upon intake to the facility,
detainees may receive a pat-down after
visitation, before visiting the attorney
room, if visiting medical, if in
segregation, etc. Therefore, DHS
assumes that in any given day,
approximately 50 percent of detainees
may receive a pat-down. DHS uses the
ratio of male guards to male detainees
and female guards to female detainees
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as a proxy for the percentage of these
pat-downs that would be cross-gender,
realizing that this may not be
representative of every facility, the
circumstances at the time a pat-down is
required, nor the results after the staff
realignment previously discussed. As
referenced previously, between 72 and
87 percent of guards are male and 90
percent of detainees are male. Therefore,
to estimate a rough order of magnitude,
DHS assumes between 3 and 18 percent
of pat-downs of male detainees may be
cross-gender, with a primary estimate of
10 percent.
DHS finds the total average daily
population of male detainees at the 43
facilities classified as small entities and
takes the average to determine an
average daily population of 93 for a
facility classified as a small entity (4,457
× 90% ÷ 43). Then DHS applies the
methodology described above to
estimate that approximately 2,000 cross
gender pat-downs may be conducted at
an average small entity annually (93
male ADP × 50% receive pat-down daily
× 365 days × 10% cross-gender), which
is rounded to the nearest thousand due
to uncertainty. DHS estimates it will
require an average of 5 minutes of staff
for documentation. DHS estimates this
provision may cost a facility
approximately $5,435 (5 minutes ×
$32.61 per hour), annually.
The total estimate per small entity for
proposed section 115.15 is $5,996 ($561
for staff realignment + $5,435 for crossgender pat-down documentation).
iv. Evidence Protocols and Forensic
Medical Examinations, § 115.21
The proposed rule would require ICE
and any of its immigration detention
facilities to establish a protocol for the
investigation of allegations of sexual
abuse or the referral of allegations to
investigators. In addition, where
appropriate, at no cost to the detainee,
a forensic medical exam should be
offered and an outside victim advocate
shall be made available for support if
requested.
DHS includes a cost for facilities to
enter into a memorandum of
understanding (MOU) with entities that
provide victim advocate services, such
as rape crisis centers. DHS estimates it
will require approximately 20 hours of
staff time to negotiate and settle on each
MOU. DHS estimates this provision may
cost a facility approximately $1,488 (20
hours × $74.41).
v. Staff Training, § 115.31, Volunteer
and Contractor Training, § 115.32
Under section 115.31 the proposed
rule would require that any facility staff
and employee who may have contact
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75327
with immigration detention facilities
have training on specific items related
to prevention, detection, and response
to sexual abuse. In addition, under
section 115.32 the proposed rule would
require that any volunteers and
contractors who may have contact with
immigration detention facilities also
receive training on specific items related
to prevention, detection, and response
to sexual abuse.21 Both sections would
also require facilities to maintain
documentation that all staff, employees,
contractors, and volunteers have
completed the training requirements.
DHS uses the NCIC 2-hour training as
an approximation for the length of the
training course to fulfill the proposed
requirements. DHS estimates this
provision may cost a facility
approximately $20,922 (2 hours × 290
staff and contractors × $32.61) + (2
hours × 30 volunteers × $33.47).22 23
vi. Specialized Training: Investigations,
§§ 115.34, 115.134
The proposed rule would require the
agency or facility to provide specialized
training on sexual abuse and effective
cross-agency coordination to agency or
facility investigators, respectively, who
conduct investigations into alleged
sexual abuse at immigration detention
facilities.
DHS conducts investigations of all
allegations of detainee sexual abuse in
detention facilities. The 2012 ICE
SAAPID mandates that ICE’s OPR
provide specialized training to OPR
investigators and other ICE staff.
However, facilities may also conduct
their own investigations. However,
because ICE conducts investigations
into the allegations, training for facility
investigators would likely be less
specialized than required of ICE
investigators. DHS includes a cost for
the time required for training
investigators. DHS estimates the training
may take approximately 1 hour. DHS
21 ICE does not keep record of the number of staff
and contractors at contract facilities. The estimates
represent the results from a small sample, stratified
by facility type. The low and high estimates
represent one standard deviation below and above
the mean. ICE assumes one new under 72-hour nondedicated IGSA facility annually and one new over
72-hour non-dedicated IGSA facility annually, and
approximately 290 staff and contractors per new
facility.
22 Though there may be other types of facility staff
or contractors that would require this training, such
as medical practitioners or administrative staff,
DHS assumes correctional officers and their
supervisors comprise the majority of staff with
detainee contact.
23 Bureau of Labor Statistics, Occupational
Employment Statistics (OES), May 2011, SOC 00–
0000 All Occupations Median Hourly Wage,
retrieved on August 16, 2012 from https://
www.bls.gov/oes/2011/may/naics4_999300.htm.
Loaded for benefits. $33.47 = $19.98/0.597.
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estimates this provision may cost a
facility approximately $468 (1 hour × 10
investigators × $46.75).24 25
vii. Specialized Training: Medical and
Mental Health Care, § 115.35
The proposed rule would require
specialized training to DHS medical and
mental health care staff. In addition, it
would require all facilities to have
policies and procedures to ensure that
the facility trains or certifies all full- or
part-time facility medical and mental
health care staff in procedures for
treating victims of sexual abuse, in
facilities where medical or mental
health staff may be assigned these
activities.26
DHS searched for continuing medical
education courses that focused on the
evaluation and treatment for victims of
sexual assault. Based on the results,
DHS estimates an average course will be
one hour in length and cost between $10
and $15, and can be completed online.
DHS estimates this provision may cost
a facility approximately $1,957 (30
medical and mental health care
practitioners × ($50.23 × 1 hr + $15)).27
viii. Detainee Access to Outside
Confidential Support Services, § 115.53
The proposed rule would require
facilities to maintain or attempt to enter
into MOUs with organizations that
provide legal advocacy and confidential
emotional support services for victims
of sexual abuse. It also requires notices
of these services be made available to
detainees, as appropriate.
DHS includes a cost for facilities to
enter into a MOU with entities that
provide legal advocacy and confidential
support services, such as services
provided by a rape crisis center. DHS
estimates it will require approximately
20 hours of staff time to negotiate and
settle on each MOU. DHS estimates this
provision may cost a facility
approximately $1,488 (20 hours ×
$74.41).
ix. Audits, § 115.93
Facilities may also incur costs for reaudits. Re-audits can be requested in the
event that the facility does not achieve
compliance with each standard or if the
facility files an appeal with the agency
regarding any specific finding that it
believes to be incorrect. Costs for these
audits would be borne by the facility,
however the request for these re-audits
is at the discretion of the facility.
x. Additional Implementation Costs
Facilities contracting with DHS
agencies may incur organizational costs
related to proper planning and overall
execution of the rulemaking, in addition
to the specific implementation costs
facilities are estimated to incur for each
of the proposed requirements. The
burden resulting from the time required
to read the rulemaking, research how it
might impact facility operations,
procedures, and budget, as well as
consideration of how best to execute the
rulemaking requirements or other costs
of overall execution. This is exclusive of
the time required under section 115.12
to determine and agree upon the new
terms of the contract and the specific
requirements expected to be performed
by the facility PSA Compliance Manager
under section 115.11.
To account for these costs, DHS adds
an additional category of
implementation costs for immigration
detention facilities. Implementation
costs will vary by the size of the facility,
a facility’s current practices, and other
facility-specific factors. DHS assumes
the costs any additional implementation
costs might occur as a result of the
provisions with start-up costs, such as
entering into MOUs, rather than
provisions with action or on-going costs,
such as training. DHS estimates
additional implementation costs as 10
percent of the total costs of provisions
with a start-up cost. DHS requests
comment on this assumption. The tables
below present the estimates for
additional implementation costs. DHS
estimates this provision may cost a
facility approximately $1,579 (10% ×
($1,488 for section 115.12 + $5,330 for
section 115.11 + $5,996 for section
115.15 + $1,488 for section 115.21 +
$1,488 for section 115.53)).
xi. Total Cost per Facility
DHS estimates the total cost per
immigration detention facility under the
NDS for compliance with the standards
is approximately $40,716 for the first
year. In subsequent years, DHS
estimates the costs drop to
approximately $9,990. The following
table summarizes the preceding
discussion.
TABLE 8—ESTIMATED COST PER SMALL ENTITY UNDER NDS—IMMIGRATION DETENTION FACILITIES
Cost in
year 1
Proposed provision
srobinson on DSK4SPTVN1PROD with
115.12 Consulting with non-DHS entities for the confinement of detainees ................................................................
115.11 Zero tolerance of sexual abuse; PSA Coordinator* .........................................................................................
115.15 Limits to cross-gender viewing and searches ..................................................................................................
115.21 Evidence protocols and forensic medical examinations ...................................................................................
115.31 & 115.32 * Staff training & Volunteer and contractor training ...........................................................................
115.34 Specialized training: Investigations ...................................................................................................................
115.35 Specialized training: Medical and mental health care ......................................................................................
115.53 Detainee access to outside confidential support Services ...............................................................................
Additional Implementation Costs * ...................................................................................................................................
24 ICE does not keep record of the number of
investigators at contract facilities. The estimates
represent the results from a small sample, stratified
by facility type. The low and high estimates
represent one standard deviation below and above
the mean. ICE assumes one new under 72-hour nondedicated IGSA facility annually and one new over
72-hour non-dedicated IGSA facility annually, and
based on the data from the sample of facilities, 10
investigators per new facility.
25 Bureau of Labor Statistics, Occupational
Employment Statistics (OES), May 2011, NAICS
99300, Median Wage Rate for SOC 33–1011 First-
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Line Supervisors of Correctional Officers, retrieved
on August 16, 2012 from https://www.bls.gov/oes/
2011/may/naics4_999300.htm. Loaded for benefits.
$46.75 = $27.91/0.597
26 ICE does not keep record of the number of
medical and mental health care providers at
contract facilities. The estimates represent the
results from a small sample, stratified by facility
type. The low and high estimates represent one
standard deviation below and above the mean. ICE
assumes one new under 72-hour non-dedicated
IGSA facility annually and one new over 72-hour
non-dedicated IGSA facility annually, and based on
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$1,488
5,330
5,996
1,488
20,922
468
1,957
1,488
1,579
On-going
cost
$0
3,647
5,435
0
0
0
0
0
908
the data from the sample of facilities, 30 medical
and mental health care providers per new facility.
27 Bureau of Labor Statistics, Occupational
Employment Statistics (OES), May 2011, NAICS
99300, Weighted Average Median Wage Rate for
SOC 29–1062 Family and General Practitioners; 29–
1066 Psychiatrists; 29–1071 Physician Assistants;
29–1111 Registered Nurses; 29–2053 Psychiatric
Technicians; and 29–2061 Licensed Practical and
Licensed Vocational Nurses, retrieved on August
16, 2012 from https://www.bls.gov/oes/2011/may/
naics4_999300.htm. Loaded for benefits. $50.23 =
$29.99/0.597.
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TABLE 8—ESTIMATED COST PER SMALL ENTITY UNDER NDS—IMMIGRATION DETENTION FACILITIES—Continued
Cost in
year 1
Proposed provision
Total ..........................................................................................................................................................................
40,716
On-going
cost
9,990
* Provisions for which DHS estimates there may be on-going costs.
srobinson on DSK4SPTVN1PROD with
DHS welcomes comments on this
analysis. Members of the public should
please submit a comment, as described
in this proposed rule under ‘‘Public
Participation,’’ if they think that their
business, organization, or governmental
jurisdiction qualifies as a small entity
and that this proposed rule would have
a significant economic impact on it. It
would be helpful if commenters provide
DHS with as much of the following
information as possible: Does the
commenter’s facility currently have a
contract with ICE? What does the
commenter expect to be the type and
extent of the direct impact on the
commenter’s facility? What are any
recommended alternative measures that
would mitigate the impact on a small
business, organization, or governmental
jurisdiction?
5. An Identification, to the Extent
Practicable, of All Relevant Federal
Rules That May Duplicate, Overlap, or
Conflict With the Proposed Rule
On May 17, 2012, DOJ released a final
rule setting national standards to
prevent, detect, and respond to prison
rape. 77 FR 37106 (June 20, 2012). The
final rule is applicable to facilities
operated by DOJ entities including the
Bureau of Prisons and the USMS. While
many of the immigration detention
facilities with which DHS contracts may
be facilities that would also be subject
to the DOJ rule, the specific
characteristics of immigration detention
facilities differ in certain respects from
other facilities with regard to the
manner in which they are operated and
the composition of their population.
Therefore, DHS promulgated its own
rulemaking to account for these
differences.
In preparing this proposed rule, DHS
has utilized its existing sexual abuse
policies and procedures as a baseline for
setting DHS standards. However,
recognizing that one of the key purposes
of PREA is to ‘‘develop and implement
national standards for the detection,
prevention, reduction, and punishment
of prison rape,’’ DHS has coordinated its
proposed regulations with the final
standards in the DOJ rulemaking to the
extent practicable, given the differences
in the types and operations of the
facilities. DHS does not expect local
jurisdictions with which DHS has
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contracts to have conflicts with any
differences in the requirements between
the two rulemakings. DHS, however,
welcomes comment on this conclusion.
6. A Description of Any Significant
Alternatives to the Proposed Rule
Which Accomplish the Stated
Objectives of Applicable Statutes and
Which Minimize Any Significant
Economic Impact of the Proposed Rule
on Small Entities
DHS considered a longer phase-in
period for small entities subject to the
rulemaking. A longer period would
reduce immediate burden on small
entities with current contracts. The
current requirements propose that
facilities must comply with the
standards upon renewal of a contract or
exercising a contract option. Essentially,
this would phase-in all authorized
immigration detention facilities within a
year of the effective date of the final
rule. DHS is willing to work with small
facilities upon contract renewal in
implementing these standards.
DHS also considered requiring lesser
standards, such as those under the
National Detention Standards (NDS) or
the 2008 PBNDS for small entities.
However, DHS rejected this alternative
because DHS believes in the importance
of protecting detainees from, and
providing treatment after, instances of
sexual abuse, regardless of a facility’s
size.
G. Paperwork Reduction Act
DHS is proposing to set standards for
the prevention, detection, and response
to sexual abuse in its confinement
facilities. For DHS facilities and as
incorporated in DHS contracts, these
standards will require covered facilities
to retain and report to the agency certain
specified information relating to sexual
abuse prevention planning, responsive
planning, education and training, and
investigations, as well as to collect,
retain, and report to the agency certain
specified information relating to
allegations of sexual abuse within the
covered facility. DHS believes that most
of the information collection
requirements placed on facilities
already are requirements derived from
existing contracts with facilities for
immigration detention. However, DHS
is including these requirements as part
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Fmt 4701
Sfmt 4702
of an information collection request,
pursuant to the Paperwork Reduction
Act (PRA), so as to ensure clarity of
requirements associated with this
rulemaking.
DHS will be submitting the following
information collection request to the
Office of Management and Budget
(OMB) for review and clearance in
accordance with the review procedures
of the Paperwork Reduction Act of 1995.
The proposed information collection
requirements are outlined in this
proposed rule to obtain comments from
the public and affected entities. All
comments and suggestions, or questions
regarding additional information,
should be directed to Alexander Y.
Hartman, Office of Policy; U.S.
Immigration and Customs Enforcement,
Department of Homeland Security;
Potomac Center North, 500 12th Street
SW., Washington, DC 20536; Telephone:
(202) 732–4292 (not a toll-free number).
Written comments and suggestions from
the public and affected agencies
concerning the collection of information
are encouraged. Your comments on the
information collection-related aspects of
this rule should address one or more of
the following four points:
(1) Evaluate whether the collection of
information is necessary for the proper
performance of the functions of the
agency, including whether the
information will have practical utility;
(2) Evaluate the accuracy of the
agency’s estimate of the burden of the
collection of information, including the
validity of the methodology and
assumptions used;
(3) Enhance the quality, utility, and
clarity of the information to be
collected; and
(4) Minimize the burden of the
collection of information on those who
are to respond, including through the
use of appropriate automated,
electronic, mechanical, or other
technological collection techniques or
other forms of information technology,
e.g., permitting electronic submission of
responses. In particular, DHS requests
comments on the recordkeeping cost
burden imposed by this rule and will
use the information gained through such
comments to assist in calculating the
cost burden.
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Overview of This Information
Collection
(1) Type of Information Collection:
New collection.
(2) Title of the Form/Collection:
Standards to Prevent, Detect, and
Respond to Sexual Abuse and Assault in
DHS Confinement Facilities.
(3) Agency form number, if any, and
the applicable component of DHS
sponsoring the collection: No form.
(4) Affected public who will be asked
or required to respond, as well as a brief
abstract:
Primary: Federal governments, State
governments, local governments, and
businesses or other for profits.
Other: None.
Abstract: DHS is publishing a notice
of proposed rulemaking (NPRM) to
adopt standards for the detection,
prevention, and response to sexual
abuse in its confinement facilities.
These standards will require covered
facilities to retain, and report to the
agency certain specified information
relating to sexual abuse prevention
planning, education and training,
responsive planning, and investigations,
as well as to collect and retain certain
specified information relating to
allegations of sexual abuse within the
facility. Covered facilities include: 126
DHS immigration detention facilities
and holding facilities.
(5) An estimate of the total number of
responses/respondents and the total
amount of time estimated for
respondents in an average year to keep
the required records is: 1,379,533
responses annually; 118,348 hours. The
breakout of the estimated burden and
responses are stated in the table
immediately below. However, the
number or responses from each
immigration detention facility will vary
depending on a variety of factors which
may include: How many annual
allegations, the number of staff at each
facility, and the number of detainees
held at a facility.
(6) An estimate of the total public
burden (in hours) associated with the
collection: 118,348 hours. There are no
current information collection
requirements based on a PRA
instrument or approved collection on
facilities to retain certain sexual abuse
incident data. This information
collection will be the first regulationbased national data collection for DHS
facility-reported information on sexual
abuse within correctional facilities,
characteristics of the victims and
perpetrators, circumstances surrounding
the incidents, and how incidents are
reported, tracked, and adjudicated. For
Function
Incident reviews ..................................................................................
Maintaining case records of allegations .............................................
Reporting Requirements:
Reporting to other confinement facilities ............................................
Annual report for agency ....................................................................
ICE Review of Facility Policies and Procedures:
Medical staff training policy ................................................................
Staff disciplinary policy .......................................................................
Administrative investigation policy ......................................................
Provide Evidence of Background Investigation:
Background Investigation Records .....................................................
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Total .............................................................................................
If additional information is required
contact: Alexander Y. Hartman; Office
of Policy; U.S. Immigration and
Customs Enforcement, Department of
Homeland Security; Potomac Center
North, 500 12th Street SW., Washington,
DC 20536; Telephone: (202) 732–4292
(not a toll-free number).
19:02 Dec 18, 2012
Jkt 229001
Subpart A—Immigration Detention
Facilities
Subpart B—Holding Facilities
Avg. annual
responses
NPRM cite
Documentation & Recordkeeping:
Strip and visual body cavity searches ................................................
Cross-gender pat-downs ....................................................................
Reports and referrals of allegations ...................................................
Detainee education .............................................................................
Administrative segregation .................................................................
Training records ..................................................................................
VerDate Mar<15>2010
the facilities that already maintain such
records, there will be no additional
burden of recordkeeping and reporting
as their current recordkeeping and
reporting will be sufficient for the need
of DHS. The DHS rule would not
impose a requirement on facilities to
maintain duplicative records. However,
for the purposes of this collection of
information, DHS has estimated the
burden as if the collection and reporting
requirements are new for all 126
facilities.
The recordkeeping requirements set
forth by this rule are new requirements
that will require a new OMB Control
Number. DHS is seeking comment on
these new requirements as part of this
NPRM. These new requirements will
require covered facilities to retain
certain specified information relating to
sexual abuse prevention planning,
responsive planning, education and
training, investigations and to collect
and retain certain specified information
relating to allegations of sexual abuse
within the confinement facility. The
proposed recordkeeping requirements
may be found in the following sections
of the proposed rule:
115.15(e) .........................................
115.15 (d) ........................................
115.22 (b), 115.51(c), 115.61 (a) ....
115.33 (c) ........................................
115.43 (a) ........................................
115.31(c), 115.32(c), 115.34(b),
115.35(c).
115.86(a), 115.87(b) ........................
115.87(a) .........................................
500
444,000
50
882,520
500
37,550
83
37,000
25
73,543
125
3,129
50
50
100
100
115.63 (c) ........................................
115.86(b) .........................................
50
50
4
50
115.35(c) .........................................
115.76(b) .........................................
115.71(c), (d) ...................................
45
45
45
223
223
223
115.17(c), (d) ...................................
14,079
3,520
..........................................................
1,379,533
118,348
List of Subjects in 6 CFR Part 115
Administrative practice and
procedure, Aliens, Immigration,
Reporting and recordkeeping
requirements.
Accordingly, Part 115 of Title 6 of the
Code of Federal Regulations is proposed
to be added to read as follows:
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Avg. annual
hour burden
Sfmt 4702
PART 115—SEXUAL ABUSE AND
ASSAULT PREVENTION STANDARDS
Sec.
115.5 General definitions.
115.6 Definitions related to sexual abuse
and assault.
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Subpart A—Standards for Immigration
Detention Facilities Coverage
115.10 Coverage of DHS immigration
detention facilities.
Prevention Planning
115.11 Zero tolerance of sexual abuse;
Prevention of Sexual Abuse Coordinator.
115.12 Contracting with non-DHS entities
for the confinement of detainees.
115.13 Detainee supervision and
monitoring.
115.14 Juvenile and family detainees.
115.15 Limits to cross-gender viewing and
searches.
115.16 Accommodating detainees with
disabilities and detainees who are
limited English proficient.
115.17 Hiring and promotion decisions.
115.18 Upgrades to facilities and
technologies.
Responsive Planning
115.21 Evidence protocols and forensic
medical examinations.
115.22 Policies to ensure investigation of
allegations and appropriate agency
oversight.
Medical and Mental Care
115.81 Medical and mental health
assessments; history of sexual abuse.
115.82 Access to emergency medical and
mental health services.
115.83 Ongoing medical and mental health
care for sexual abuse victims and
abusers.
Data Collection and Review
115.86 Sexual abuse incident reviews.
115.87 Data collection.
115.88 Data review for corrective action.
115.89 Data storage, publication, and
destruction.
Audits and Compliance
115.93 Audits of standards.
Additional Provisions in Agency Policies
115.95 Additional provisions in agency
policies.
Subpart B—Standards for DHS Holding
Facilities Coverage
115.110 Coverage of DHS holding facilities.
75331
115.164 Responder duties.
115.165 Coordinated response.
115.166 Protection of detainees from
contact with alleged abusers.
115.167 Agency protection against
retaliation.
Investigations
115.171 Criminal and administrative
investigations.
115.172 Evidentiary standard for
administrative investigations.
Discipline
115.176 Disciplinary sanctions for staff.
115.177 Corrective action for contractors
and volunteers.
Medical and Mental Care
115.181 [Reserved]
115.182 Access to emergency medical
services.
Data Collection and Review
115.186 Sexual abuse incident reviews.
115.187 Data collection.
115.188 Data review for corrective action.
115.189 Data storage, publication, and
destruction.
Assessment for Risk of Sexual Victimization
and Abusiveness
115.41 Assessment for risk of victimization
and abusiveness.
115.42 Use of assessment information.
115.43 Protective custody.
Prevention Planning
115.111 Zero tolerance of sexual abuse;
Prevention of Sexual Abuse Coordinator.
115.112 Contracting with non-DHS entities
for the confinement of detainees.
115.113 Detainee supervision and
monitoring.
115.114 Juvenile and family detainees.
115.115 Limits to cross-gender viewing and
searches.
115.116 Accommodating detainees with
disabilities and detainees who are
limited English proficient.
115.117 Hiring and promotion decisions.
115.118 Upgrades to facilities and
technologies.
Reporting
115.51 Detainee reporting.
115.52 Grievances.
115.53 Detainee access to outside
confidential support services.
115.54 Third-party reporting.
Responsive Planning
115.121 Evidence protocols and forensic
medical examinations.
115.122 Policies to ensure investigation of
allegations and appropriate agency
oversight.
Authority: 5 U.S.C. 301, 552, 552a; 8 U.S.C.
1103, 1182, 1223, 1224, 1225, 1226, 1227,
1228, 1231, 1251, 1253, 1255, 1330, 1362; 18
U.S.C. 4002, 4013(c)(4); Pub. L. 107–296, 116
Stat. 2135 (6 U.S.C. 101, et seq.); 8 CFR part
2.
Official Response Following a Detainee
Report
115.61 Staff reporting duties.
115.62 Protection duties.
115.63 Reporting to other confinement
facilities.
115.64 Responder duties.
115.65 Coordinated response.
115.66 Protection of detainees from contact
with alleged abusers.
115.67 Agency protection against
retaliation.
115.68 Post-allegation protective custody.
Training and Education
115.131 Employee, contractor, and
volunteer training.
115.132 Notification to detainees of the
agency’s zero-tolerance policy.
115.133 [Reserved]
115.134 Specialized training:
Investigations.
§ 115.5
Investigations
115.71 Criminal and administrative
investigations.
115.72 Evidentiary standard for
administrative investigations.
115.73 Reporting to detainees.
Reporting
115.151 Detainee reporting.
115.152 [Reserved]
115.153 [Reserved]
115.154 Third-party reporting.
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Training and Education
115.31 Staff training.
115.32 Volunteer and contractor training.
115.33 Detainee education.
115.34 Specialized training: Investigations.
115.35 Specialized training: Medical and
mental health care.
Discipline
115.76 Disciplinary sanctions for staff.
115.77 Corrective action for contractors and
volunteers.
115.78 Disciplinary sanctions for detainees.
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Jkt 229001
Assessment for Risk of Sexual Victimization
and Abusiveness
115.141 Assessment for risk of
victimization and abusiveness.
Official Response Following a Detainee
Report
115.161 Staff reporting duties.
115.162 Agency protection duties.
115.163 Reporting to other confinement
facilities.
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Audits and Compliance
115.193 Audits of standards.
Additional Provisions in Agency Policies
115.195 Additional provisions in agency
policies.
Subpart C—External Auditing and
Corrective Action
115.201 Scope of audits.
115.202 Auditor qualifications.
115.203 Audit contents and findings.
115.204 Audit corrective action plan.
115.205 Audit appeals.
General definitions.
For purposes of this part, the term—
Agency means the unit or component
of DHS responsible for operating or
supervising any facility, or part of a
facility, that confines detainees.
Agency head means the principal
official of an agency.
Contractor means a person who or
entity that provides services on a
recurring basis pursuant to a contractual
agreement with the agency or facility.
Detainee means any person detained
in an immigration detention facility or
holding facility.
Employee means a person who works
directly for the agency.
Exigent circumstances means any set
of temporary and unforeseen
circumstances that require immediate
action in order to combat a threat to the
security or institutional order of a
facility or a threat to the safety or
security of any person.
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19DEP2
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Facility means a place, building (or
part thereof), set of buildings, structure,
or area (whether or not enclosing a
building or set of buildings) that was
built or retrofitted for the purpose of
detaining individuals and is routinely
used by the agency to detain individuals
in its custody. References to
requirements placed on facilities extend
to the entity responsible for the direct
operation of the facility.
Facility head means the principal
official responsible for a facility.
Family unit means a group of
detainees that includes one or more
non-United States citizen juvenile(s)
accompanied by his/her/their parent(s)
or legal guardian(s), none of whom has
a known history of criminal or
delinquent activity, or of sexual abuse,
violence or substance abuse.
Gender nonconforming means having
an appearance or manner that does not
conform to traditional societal gender
expectations.
Holding facility means a facility that
contains holding cells, cell blocks, or
other secure enclosures that are:
(1) Under the control of the agency;
and
(2) Primarily used for the short-term
confinement of individuals who have
recently been detained, or are being
transferred to or from a court, jail,
prison, other agency, or other unit of the
facility or agency.
Immigration detention facility means
a confinement facility operated by or
pursuant to contract with U.S.
Immigration and Customs Enforcement
(ICE) that routinely holds persons for
over 24 hours pending resolution or
completion of immigration removal
operations or processes, including
facilities that are operated by ICE,
facilities that provide detention services
under a contract awarded by ICE, or
facilities used by ICE pursuant to an
Intergovernmental Service Agreement.
Intersex means having sexual or
reproductive anatomy or chromosomal
pattern that does not seem to fit typical
definitions of male or female. Intersex
medical conditions are sometimes
referred to as disorders of sex
development.
Juvenile means any person under the
age of 18.
Law enforcement staff means officers
or agents of the agency or facility that
are responsible for the supervision and
control of detainees in a holding facility.
Medical practitioner means a health
professional who, by virtue of
education, credentials, and experience,
is permitted by law to evaluate and care
for patients within the scope of his or
her professional practice. A ‘‘qualified
medical practitioner’’ refers to such a
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16:27 Dec 18, 2012
Jkt 229001
professional who has also successfully
completed specialized training for
treating sexual abuse victims.
Mental health practitioner means a
mental health professional who, by
virtue of education, credentials, and
experience, is permitted by law to
evaluate and care for patients within the
scope of his or her professional practice.
A ‘‘qualified mental health practitioner’’
refers to such a professional who has
also successfully completed specialized
training for treating sexual abuse
victims.
Pat-down search means a sliding or
patting of the hands over the clothed
body of a detainee by staff to determine
whether the individual possesses
contraband.
Security staff means employees
primarily responsible for the
supervision and control of detainees in
housing units, recreational areas, dining
areas, and other program areas of an
immigration detention facility.
Staff means employees or contractors
of the agency or facility, including any
entity that operates within the facility.
Strip search means a search that
requires a person to remove or arrange
some or all clothing so as to permit a
visual inspection of the person’s breasts,
buttocks, or genitalia.
Substantiated allegation means an
allegation that was investigated and
determined to have occurred.
Transgender means a person whose
gender identity (i.e., internal sense of
feeling male or female) is different from
the person’s assigned sex at birth.
Unfounded allegation means an
allegation that was investigated and
determined not to have occurred.
Unsubstantiated allegation means an
allegation that was investigated and the
investigation produced insufficient
evidence to make a final determination
as to whether or not the event occurred.
Volunteer means an individual who
donates time and effort on a recurring
basis to enhance the activities and
programs of the agency or facility.
§ 115.6 Definitions related to sexual abuse
and assault.
For purposes of this part, the term—
Sexual abuse includes—
(1) Sexual abuse and assault of a
detainee by another detainee; and
(2) Sexual abuse and assault of a
detainee by a staff member, contractor,
or volunteer.
Sexual abuse of a detainee by another
detainee includes any of the following
acts by one or more detainees, prisoners,
inmates, or residents of the facility in
which the detainee is housed who, by
force, coercion, or intimidation, or if the
victim did not consent or was unable to
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Fmt 4701
Sfmt 4702
consent or refuse, engages in or attempts
to engage in:
(1) Contact between the penis and the
vulva or anus and, for purposes of this
subparagraph, contact involving the
penis upon penetration, however slight;
(2) Contact between the mouth and
the penis, vulva or anus;
(3) Penetration, however slight, of the
anal or genital opening of another
person by a hand or finger or by any
object;
(4) Touching of the genitalia, anus,
groin, breast, inner thighs or buttocks,
either directly or through the clothing,
with an intent to abuse, humiliate,
harass, degrade or arouse or gratify the
sexual desire of any person; or
(5) Threats, intimidation, or other
actions or communications by one or
more detainees aimed at coercing or
pressuring another detainee to engage in
a sexual act.
Sexual abuse of a detainee by a staff
member, contractor, or volunteer
includes any of the following acts, if
engaged in by one or more staff
members, volunteers, or contract
personnel who, with or without the
consent of the detainee, engages in or
attempts to engage in:
(1) Contact between the penis and the
vulva or anus and, for purposes of this
subparagraph, contact involving the
penis upon penetration, however slight;
(2) Contact between the mouth and
the penis, vulva, or anus;
(3) Penetration, however slight, of the
anal or genital opening of another
person by a hand or finger or by any
object that is unrelated to official duties
or where the staff member, contractor,
or volunteer has the intent to abuse,
arouse, or gratify sexual desire;
(4) Intentional touching of the
genitalia, anus, groin, breast, inner
thighs or buttocks, either directly or
through the clothing, that is unrelated to
official duties or where the staff
member, contractor, or volunteer has the
intent to abuse, arouse, or gratify sexual
desire;
(5) Threats, intimidation, harassment,
indecent, profane or abusive language,
or other actions or communications,
aimed at coercing or pressuring a
detainee to engage in a sexual act;
(6) Repeated verbal statements or
comments of a sexual nature to a
detainee;
(7) Any display of his or her
uncovered genitalia, buttocks, or breast
in the presence of an inmate, detainee,
or resident, or
(8) Unnecessary or inappropriate
visual surveillance of a detainee.
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Subpart A—Standards for Immigration
Detention Facilities Coverage
§ 115.10 Coverage of DHS immigration
detention facilities.
This subpart covers ICE immigration
detention facilities. Standards set forth
in Subpart A are not applicable to
Department of Homeland Security
(DHS) holding facilities.
Prevention Planning
§ 115.11 Zero tolerance of sexual abuse;
Prevention of Sexual Abuse Coordinator.
(a) The agency shall have a written
policy mandating zero tolerance toward
all forms of sexual abuse and outlining
the agency’s approach to preventing,
detecting, and responding to such
conduct.
(b) The agency shall employ or
designate an upper-level, agency-wide
Prevention of Sexual Abuse Coordinator
(PSA Coordinator) with sufficient time
and authority to develop, implement,
and oversee agency efforts to comply
with these standards in all of its
immigration detention facilities.
(c) Each facility shall have a written
policy mandating zero tolerance toward
all forms of sexual abuse and outlining
the facility’s approach to preventing,
detecting, and responding to such
conduct. The agency shall review and
approve each facility’s written policy.
(d) Each facility shall employ or
designate a Prevention of Sexual Abuse
Compliance Manager (PSA Compliance
Manager) who shall serve as the facility
point of contact for the agency PSA
Coordinator and who has sufficient time
and authority to oversee facility efforts
to comply with facility sexual abuse
prevention and intervention policies
and procedures.
§ 115.12 Contracting with non-DHS entities
for the confinement of detainees.
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(a) When contracting for the
confinement of detainees in
immigration detention facilities
operated by non-DHS private or public
agencies or other entities, including
other government agencies, the agency
shall include in any new contracts or
contract renewals the entity’s obligation
to adopt and comply with these
standards.
(b) Any new contracts or contract
renewals shall provide for agency
contract monitoring to ensure that the
contractor is complying with these
standards.
§ 115.13 Detainee supervision and
monitoring.
(a) Each facility shall ensure that it
maintains sufficient supervision of
detainees, including through
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appropriate staffing levels and, where
applicable, video monitoring, to protect
detainees against sexual abuse.
(b) Each facility shall develop and
document comprehensive detainee
supervision guidelines to determine and
meet the facility’s detainee supervision
needs, and shall review those guidelines
at least annually.
(c) In determining adequate levels of
detainee supervision and determining
the need for video monitoring, the
facility shall take into consideration the
physical layout of each facility, the
composition of the detainee population,
the prevalence of substantiated and
unsubstantiated incidents of sexual
abuse, the findings and
recommendations of sexual abuse
incident review reports, and any other
relevant factors, including but not
limited to the length of time detainees
spend in agency custody.
(d) Each facility shall conduct
frequent unannounced security
inspections to identify and deter sexual
abuse of detainees. Such inspections
shall be implemented for night as well
as day shifts. Each facility shall prohibit
staff from alerting others that these
supervisory rounds are occurring,
unless such announcement is related to
the legitimate operational functions of
the facility.
§ 115.14
Juvenile and family detainees.
(a) In general, juveniles should be
detained in the least restrictive setting
appropriate to the juvenile’s age and
special needs, provided that such
setting is consistent with the need to
protect the juvenile’s well-being and
that of others, as well as with any other
laws, regulations, or legal requirements.
(b) The facility shall hold juveniles
apart from adult detainees, minimizing
sight, sound, and physical contact,
unless the juvenile is in the presence of
an adult member of the family unit, and
provided there are no safety or security
concerns with the arrangement.
(c) In determining the existence of a
family unit for detention purposes, the
agency shall seek to obtain reliable
evidence of a family relationship.
(d) The agency and facility shall
provide priority attention to
unaccompanied alien children as
defined by 6 U.S.C. 279(g)(2), including
transfer to a Department of Health and
Human Services Office of Refugee
Resettlement facility within 72 hours,
except in exceptional circumstances, in
accordance with 8 U.S.C. 1232(b)(3).
(e) If a juvenile has been convicted as
an adult of crime related to sexual
abuse, the agency shall provide the
facility and the Department of Health
and Human Services Office of Refugee
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75333
Resettlement with the releasable
information regarding the conviction(s)
to ensure the appropriate placement of
the alien in a Department of Health and
Human Services Office of Refugee
Resettlement facility.
§ 115.15 Limits to cross-gender viewing
and searches.
(a) Searches may be necessary to
ensure the safety of officers, civilians
and detainees; to detect and secure
evidence of criminal activity; and to
promote security, safety, and related
interests at immigration detention
facilities.
(b) Cross-gender pat-down searches of
male detainees shall not be conducted
unless, after reasonable diligence, staff
of the same gender is not available at the
time the pat-down search is required or
in exigent circumstances.
(c) Cross-gender pat-down searches of
female detainees shall not be conducted
unless in exigent circumstances.
(d) All cross-gender pat-down
searches shall be documented.
(e) Cross-gender strip searches or
cross-gender visual body cavity searches
shall not be conducted except in exigent
circumstances, including consideration
of officer safety, or when performed by
medical practitioners. Facility staff shall
not conduct visual body cavity searches
of juveniles and, instead, shall refer all
such body cavity searches of juveniles
to a medical practitioner.
(f) All strip searches and visual body
cavity searches shall be documented.
(g) Each facility shall implement
policies and procedures that enable
detainees to shower, perform bodily
functions, and change clothing without
being viewed by staff of the opposite
gender, except in exigent circumstances
or when such viewing is incidental to
routine cell checks or is otherwise
appropriate in connection with a
medical examination or monitored
bowel movement. Such policies and
procedures shall require staff of the
opposite gender to announce their
presence when entering an area where
detainees are likely to be showering,
performing bodily functions, or
changing clothing.
(h) The facility shall permit detainees
in Family Residential Facilities to
shower, perform bodily functions, and
change clothing without being viewed
by staff, except in exigent circumstances
or when such viewing is incidental to
routine cell checks or is otherwise
appropriate in connection with a
medical examination or monitored
bowel movement.
(i) The facility shall not search or
physically examine a detainee for the
sole purpose of determining the
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detainee’s gender. If the detainee’s
gender is unknown, it may be
determined during conversations with
the detainee, by reviewing medical
records, or, if necessary, learning that
information as part of a broader medical
examination conducted in private, by a
medical practitioner.
(j) The agency shall train security staff
in proper procedures for conducting
pat-down searches, including crossgender pat-down searches and searches
of transgender and intersex detainees.
All pat-down searches shall be
conducted in a professional and
respectful manner, and in the least
intrusive manner possible, consistent
with security needs and existing agency
policy, including consideration of
officer safety.
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§ 115.16 Accommodating detainees with
disabilities and detainees who are limited
English proficient.
(a) The agency and each facility shall
take appropriate steps to ensure that
detainees with disabilities (including,
for example, detainees who are deaf or
hard of hearing, those who are blind or
have low vision, or those who have
intellectual, psychiatric, or speech
disabilities) have an equal opportunity
to participate in or benefit from all
aspects of the agency’s and facility’s
efforts to prevent, detect, and respond to
sexual abuse. Such steps shall include,
when necessary to ensure effective
communication with detainees who are
deaf or hard of hearing, providing access
to in-person, telephonic, or video
interpretive services that enable
effective, accurate, and impartial
interpretation, both receptively and
expressively, using any necessary
specialized vocabulary. In addition, the
agency and facility shall ensure that any
written materials related to sexual abuse
are provided in formats or through
methods that ensure effective
communication with detainees with
disabilities, including detainees who
have intellectual disabilities, limited
reading skills, or who are blind or have
low vision. An agency or facility is not
required to take actions that it can
demonstrate would result in a
fundamental alteration in the nature of
a service, program, or activity, or in
undue financial and administrative
burdens, as those terms are used in
regulations promulgated under title II of
the Americans with Disabilities Act, 28
CFR 35.164.
(b) The agency and each facility shall
take steps to ensure meaningful access
to all aspects of the agency’s and
facility’s efforts to prevent, detect, and
respond to sexual abuse to detainees
who are limited English proficient,
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including steps to provide in-person or
telephonic interpretive services that
enable effective, accurate, and impartial
interpretation, both receptively and
expressively, using any necessary
specialized vocabulary.
(c) In matters relating to allegations of
sexual abuse, the agency and each
facility shall provide in-person or
telephonic interpretation services that
enable effective, accurate, and impartial
interpretation, by someone other than
another detainee, unless the detainee
expresses a preference for a detainee
interpreter, and the agency determines
that such interpretation is appropriate.
The provision of interpreter services by
minors, alleged abusers, detainees who
witnessed the alleged abuse, and
detainees who have a significant
relationship with the alleged abuser is
not appropriate in matters relating to
allegations of sexual abuse.
§ 115.17
Hiring and promotion decisions.
(a) An agency or facility shall not hire
or promote anyone who may have
contact with detainees, and shall not
enlist the services of any contractor or
volunteer who may have contact with
detainees, who has engaged in sexual
abuse in a prison, jail, holding facility,
community confinement facility,
juvenile facility, or other institution (as
defined in 42 U.S.C. 1997); who has
been convicted of engaging or
attempting to engage in sexual activity
facilitated by force, overt or implied
threats of force, or coercion, or if the
victim did not consent or was unable to
consent or refuse; or who has been
civilly or administratively adjudicated
to have engaged in such activity.
(b) An agency or facility considering
hiring or promoting staff shall ask all
applicants who may have contact with
detainees directly about previous
misconduct described in paragraph (a)
of this section, in written applications
or interviews for hiring or promotions
and in any interviews or written selfevaluations conducted as part of
reviews of current employees. Agencies
and facilities shall also impose upon
employees a continuing affirmative duty
to disclose any such misconduct. The
agency, consistent with law, shall make
its best efforts to contact all prior
institutional employers of an applicant
for employment, to obtain information
on substantiated allegations of sexual
abuse or any resignation during a
pending investigation of alleged sexual
abuse.
(c) Before hiring new staff who may
have contact with detainees, the agency
or facility shall conduct a background
investigation to determine whether the
candidate for hire is suitable for
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employment with the facility or agency,
including a criminal background
records check. Upon request by the
agency, the facility shall submit for the
agency’s approval written
documentation showing the detailed
elements of the facility’s background
check for each staff member and the
facility’s conclusions. The agency shall
conduct an updated background
investigation every five years for agency
employees who may have contact with
detainees. The facility shall require an
updated background investigation every
five years for those facility staff who
may have contact with detainees and
who work in immigration-only
detention facilities.
(d) The agency or facility shall also
perform a background investigation
before enlisting the services of any
contractor who may have contact with
detainees. Upon request by the agency,
the facility shall submit for the agency’s
approval written documentation
showing the detailed elements of the
facility’s background check for each
contractor and the facility’s conclusions.
(e) Material omissions regarding such
misconduct, or the provision of
materially false information, shall be
grounds for termination or withdrawal
of an offer of employment, as
appropriate.
(f) Unless prohibited by law, the
agency shall provide information on
substantiated allegations of sexual abuse
involving a former employee upon
receiving a request from an institutional
employer for whom such employee has
applied to work.
(g) In the event the agency contracts
with a facility for the confinement of
detainees, the requirements of this
section otherwise applicable to the
agency also apply to the facility and its
staff.
§ 115.18 Upgrades to facilities and
technologies.
(a) When designing or acquiring any
new facility and in planning any
substantial expansion or modification of
existing facilities, the facility or agency,
as appropriate, shall consider the effect
of the design, acquisition, expansion, or
modification upon their ability to
protect detainees from sexual abuse.
(b) When installing or updating a
video monitoring system, electronic
surveillance system, or other monitoring
technology in an immigration detention
facility, the facility or agency, as
appropriate, shall consider how such
technology may enhance their ability to
protect detainees from sexual abuse.
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§ 115.21 Evidence protocols and forensic
medical examinations.
(a) To the extent that the agency or
facility is responsible for investigating
allegations of sexual abuse involving
detainees, it shall follow a uniform
evidence protocol that maximizes the
potential for obtaining usable physical
evidence for administrative proceedings
and criminal prosecutions. The protocol
shall be developed in coordination with
DHS and shall be developmentally
appropriate for juveniles, where
applicable.
(b) The agency and each facility
developing an evidence protocol
referred to in paragraph (a) of this
section, shall consider how best to
utilize available community resources
and services to provide valuable
expertise and support in the areas of
crisis intervention and counseling to
most appropriately address victims’
needs. Each facility shall establish
procedures to make available, to the full
extent possible, outside victim services
following incidents of sexual abuse; the
facility shall attempt to make available
to the victim a victim advocate from a
rape crisis center. If a rape crisis center
is not available to provide victim
advocate services, the agency shall
provide these services by making
available a qualified staff member from
a community-based organization, or a
qualified agency staff member. A
qualified agency staff member or a
qualified community-based staff
member means an individual who has
received education concerning sexual
assault and forensic examination issues
in general. The outside or internal
victim advocate shall provide emotional
support, crisis intervention,
information, and referrals.
(c) Where evidentiarily or medically
appropriate, at no cost to the detainee,
and only with the detainee’s consent,
the facility shall arrange for an alleged
victim detainee to undergo a forensic
medical examination by qualified health
care personnel.
(d) As requested by a victim, the
presence of his or her outside or internal
victim advocate, including any available
victim advocacy services offered by a
hospital conducting a forensic exam,
shall be allowed for support during a
forensic exam and investigatory
interviews.
(e) To the extent that the agency is not
responsible for investigating allegations
of sexual abuse, the agency or the
facility shall request that the
investigating agency follow the
requirements of paragraphs (a) through
(d) of this section.
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§ 115.22 Policies to ensure investigation of
allegations and appropriate agency
oversight.
(a) The agency shall establish an
agency protocol, and shall require each
facility to establish a facility protocol, to
ensure that each allegation of sexual
abuse is investigated by the agency or
facility, or referred to an appropriate
investigative authority. The agency shall
ensure that an administrative or
criminal investigation is completed for
all allegations of sexual abuse.
(b) The agency shall ensure that the
agency and facility protocols required
by paragraph (a) of this section, include
a description of responsibilities of the
agency, the facility, and any other
investigating entities; and require the
documentation and maintenance, for at
least five years, of all reports and
referrals of allegations of sexual abuse.
(c) The agency shall post its protocols
on its Web site; each facility shall also
post its protocols on its Web site, if it
has one, or otherwise make the protocol
available to the public.
(d) Each facility protocol shall ensure
that all allegations are promptly
reported to the agency as described in
paragraphs (e) and (f) of this section,
and, unless the allegation does not
involve potentially criminal behavior,
are promptly referred for investigation
to an appropriate law enforcement
agency with the legal authority to
conduct criminal investigations. A
facility may separately, and in addition
to the above reports and referrals,
conduct its own investigation.
(e) When a detainee, prisoner, inmate,
or resident of the facility in which an
alleged detainee victim is housed is
alleged to be the perpetrator of detainee
sexual abuse, the facility shall ensure
that the incident is promptly reported to
the Joint Intake Center, the ICE Office of
Professional Responsibility or the DHS
Office of Inspector General, as well as
the appropriate ICE Field Office
Director, and, if it is potentially
criminal, referred to an appropriate law
enforcement agency having jurisdiction
for investigation.
(f) When a staff member, contractor,
or volunteer is alleged to be the
perpetrator of detainee sexual abuse, the
facility shall ensure that the incident is
promptly reported to the Joint Intake
Center, the ICE Office of Professional
Responsibility or the DHS Office of
Inspector General, as well as to the
appropriate ICE Field Office Director,
and to the local government entity or
contractor that owns or operates the
facility. If the incident is potentially
criminal, the facility shall ensure that it
is promptly referred to an appropriate
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75335
law enforcement agency having
jurisdiction for investigation.
(g) The agency shall ensure that all
allegations of detainee sexual abuse are
promptly reported to the PSA
Coordinator, and to the appropriate
offices within the agency and within
DHS to ensure appropriate oversight of
the investigation.
(h) The agency shall ensure that any
alleged detainee victim of sexual abuse
that is criminal in nature is provided
access to U nonimmigrant visa
information.
Training and Education
§ 115.31
Staff training.
(a) The agency shall train, or require
the training of, all employees who may
have contact with immigration
detainees, and all facility staff, to be
able to fulfill their responsibilities
under this part, including training on:
(1) The agency’s and the facility’s
zero-tolerance policies for all forms of
sexual abuse;
(2) The right of detainees and staff to
be free from sexual abuse, and from
retaliation for reporting sexual abuse;
(3) Definitions and examples of
prohibited and illegal sexual behavior;
(4) Recognition of situations where
sexual abuse may occur;
(5) Recognition of physical,
behavioral, and emotional signs of
sexual abuse, and methods of
preventing and responding to such
occurrences;
(6) How to avoid inappropriate
relationships with detainees;
(7) How to communicate effectively
and professionally with detainees,
including lesbian, gay, bisexual,
transgender, intersex, or gender
nonconforming detainees;
(8) Procedures for reporting
knowledge or suspicion of sexual abuse;
and
(9) The requirement to limit reporting
of sexual abuse to personnel with a
need-to-know in order to make
decisions concerning the victim’s
welfare and for law enforcement or
investigative purposes.
(b) All current facility staff, and all
agency employees who may have
contact with immigration detention
facility detainees, shall be trained
within one year of [EFFECTIVE DATE
OF FINAL RULE], and the agency or
facility shall provide refresher
information every two years.
(c) The agency and each facility shall
document that staff that may have
contact with immigration facility
detainees have completed the training.
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Volunteer and contractor training.
(a) The facility shall ensure that all
volunteers and contractors who have
contact with detainees have been
trained on their responsibilities under
the agency’s and the facility’s sexual
abuse prevention, detection,
intervention and response policies and
procedures.
(b) The level and type of training
provided to volunteers and contractors
shall be based on the services they
provide and level of contact they have
with detainees, but all volunteers and
contractors who have contact with
detainees shall be notified of the
agency’s and the facility’s zero-tolerance
policies regarding sexual abuse and
informed how to report such incidents.
(c) Each facility shall receive and
maintain written confirmation that
contractors and volunteers who may
have contact with immigration facility
detainees have completed the training.
srobinson on DSK4SPTVN1PROD with
§ 115.33
Detainee education.
(a) During the intake process, each
facility shall ensure that the detainee
orientation program notifies and
informs detainees about the agency’s
and the facility’s zero-tolerance policies
for all forms of sexual abuse and
includes (at a minimum) instruction on:
(1) Prevention and intervention
strategies;
(2) Definitions and examples of
detainee-on-detainee sexual abuse, staffon-detainee sexual abuse and coercive
sexual activity;
(3) Explanation of methods for
reporting sexual abuse, including to any
staff member, including a staff member
other than an immediate point-ofcontact line officer (e.g., the compliance
manager or a mental health specialist),
the DHS Office of Inspector General,
and the Joint Intake Center;
(4) Information about self-protection
and indicators of sexual abuse;
(5) Prohibition against retaliation,
including an explanation that reporting
sexual abuse shall not negatively impact
the detainee’s immigration proceedings;
and
(6) The right of a detainee who has
been subjected to sexual abuse to
receive treatment and counseling.
(b) Each facility shall provide the
detainee notification, orientation, and
instruction in formats accessible to all
detainees, including those who are
limited English proficient, deaf, visually
impaired or otherwise disabled, as well
as to detainees who have limited
reading skills.
(c) The facility shall maintain
documentation of detainee participation
in the intake process orientation.
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(d) Each facility shall post on all
housing unit bulletin boards the
following notices:
(1) The DHS-prescribed sexual assault
awareness notice;
(2) The name of the Prevention of
Sexual Abuse Compliance Manager; and
(3) The name of local organizations
that can assist detainees who have been
victims of sexual abuse.
(e) The facility shall make available
and distribute the DHS-prescribed
‘‘Sexual Assault Awareness
Information’’ pamphlet.
(f) Information about reporting sexual
abuse shall be included in the agency
Detainee Handbook made available to
all immigration detention facility
detainees.
§ 115.34 Specialized training:
Investigations.
(a) In addition to the general training
provided to all facility staff and
employees pursuant to § 115.31, the
agency or facility shall provide
specialized training on sexual abuse and
effective cross-agency coordination to
agency or facility investigators,
respectively, who conduct
investigations into allegations of sexual
abuse at immigration detention
facilities. All investigations into alleged
sexual abuse must be conducted by
qualified investigators.
(b) The agency and facility must
maintain written documentation
verifying specialized training provided
to investigators pursuant to this
paragraph.
§ 115.35 Specialized training: Medical and
mental health care.
(a) The agency shall provide
specialized training to DHS or agency
employees who serve as full- and parttime medical practitioners or full- and
part-time mental health practitioners in
immigration detention facilities where
medical and mental health care is
provided.
(b) The training required by this
section shall cover, at a minimum, the
following topics:
(1) How to detect and assess signs of
sexual abuse;
(2) How to respond effectively and
professionally to victims of sexual
abuse,
(3) How and to whom to report
allegations or suspicions of sexual
abuse, and
(4) How to preserve physical evidence
of sexual abuse. If medical staff
employed by the agency conduct
forensic examinations, such medical
staff shall receive the appropriate
training to conduct such examinations.
(c) The agency shall review and
approve the facility’s policy and
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procedures to ensure that facility
medical staff is trained in procedures for
examining and treating victims of sexual
abuse, in facilities where medical staff
may be assigned these activities.
Assessment for Risk of Sexual
Victimization and Abusiveness
§ 115.41 Assessment for risk of
victimization and abusiveness.
(a) The facility shall assess all
detainees on intake to identify those
likely to be sexual aggressors or sexual
victims and shall house detainees to
prevent sexual abuse, taking necessary
steps to mitigate any such danger. Each
new arrival shall be kept separate from
the general population until he/she is
classified and may be housed
accordingly.
(b) The initial classification process
and initial housing assignment should
be completed within twelve hours of
admission to the facility.
(c) The facility shall also consider, to
the extent that the information is
available, the following criteria to assess
detainees for risk of sexual
victimization:
(1) Whether the detainee has a mental,
physical, or developmental disability;
(2) The age of the detainee;
(3) The physical build and appearance
of the detainee;
(4) Whether the detainee has
previously been incarcerated;
(5) The nature of the detainee’s
criminal history;
(6) Whether the detainee has any
convictions for sex offenses against an
adult or child;
(7) Whether the detainee has selfidentified as gay, lesbian, bisexual,
transgender, intersex, or gender
nonconforming;
(8) Whether the detainee has selfidentified as having previously
experienced sexual victimization; and
(9) The detainee’s own concerns about
his or her physical safety.
(d) The initial screening shall
consider prior acts of sexual abuse, prior
convictions for violent offenses, and
history of prior institutional violence or
sexual abuse, as known to the facility,
in assessing detainees for risk of being
sexually abusive.
(e) The facility shall reassess each
detainee’s risk of victimization or
abusiveness between 60 and 90 days
from the date of initial assessment, and
at any other time when warranted based
upon the receipt of additional, relevant
information or following an incident of
abuse or victimization.
(f) Detainees shall not be disciplined
for refusing to answer, or for not
disclosing complete information in
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response to, questions asked pursuant to
paragraphs (c)(1), (c)(7), (c)(8), or (c)(9)
of this section.
(g) The facility shall implement
appropriate controls on the
dissemination within the facility of
responses to questions asked pursuant
to this standard in order to ensure that
sensitive information is not exploited to
the detainee’s detriment by staff or other
detainees or inmates.
§ 115.42
Use of assessment information.
(a) The facility shall use the
information from the risk assessment
under § 115.41 of this part to inform
assignment of detainees to housing,
recreation and other activities, and
voluntary work. The agency shall make
individualized determinations about
how to ensure the safety of each
detainee.
(b) When making assessment and
housing decisions for a transgender or
intersex detainee, the facility shall
consider the detainee’s gender selfidentification and an assessment of the
effects of placement on the detainee’s
health and safety. The facility shall
consult a medical or mental health
professional as soon as practicable on
this assessment. The facility should not
base placement decisions of transgender
or intersex detainees solely on the
identity documents or physical anatomy
of the detainee; a detainee’s selfidentification of his/her gender and selfassessment of safety needs shall always
be taken into consideration as well. The
facility’s placement of a transgender or
intersex detainee shall be consistent
with the safety and security
considerations of the facility, and
placement and programming
assignments for each transgender or
intersex detainee shall be reassessed at
least twice each year to review any
threats to safety experienced by the
detainee.
(c) When operationally feasible,
transgender and intersex detainees shall
be given the opportunity to shower
separately from other detainees.
srobinson on DSK4SPTVN1PROD with
§ 115.43
Protective custody.
(a) The facility shall develop and
follow written procedures consistent
with the standards in this Subpart A for
each facility governing the management
of its administrative segregation unit.
These procedures, which should be
developed in consultation with the ICE
Enforcement and Removal Operations
Field Operations Director having
jurisdiction for the facility, must
document detailed reasons for
placement of an individual in
administrative segregation.
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(b) Use of administrative segregation
by facilities to protect vulnerable
detainees shall be restricted to those
instances where reasonable efforts have
been made to provide appropriate
housing and shall be made for the least
amount of time practicable, and when
no other viable housing options exist, as
a last resort. The facility should assign
such detainees to administrative
segregation for protective custody only
until an alternative means of separation
from likely abusers can be arranged, and
such an assignment shall not ordinarily
exceed a period of 30 days.
(c) Facilities that place detainees in
administrative segregation for protective
custody shall provide those detainees
access to programs, visitation, counsel
and other services available to the
general population to the maximum
extent practicable.
(d) Facilities shall implement written
procedures for the regular review of all
detainees held in administrative
segregation, as follows:
(1) A supervisory staff member shall
conduct a review within 72 hours of the
detainee’s placement in administrative
segregation to determine whether
segregation is still warranted; and
(2) A supervisory staff member shall
conduct, at a minimum, an identical
review after the detainee has spent
seven days in administrative
segregation, and every week thereafter
for the first 30 days, and every 10 days
thereafter.
Reporting
§ 115.51
Detainee reporting.
(a) The agency and each facility shall
develop policies and procedures to
ensure that detainees have multiple
ways to privately report sexual abuse,
retaliation for reporting sexual abuse, or
staff neglect or violations of
responsibilities that may have
contributed to such incidents. The
agency and each facility shall also
provide instructions on how detainees
may contact their consular official, the
DHS Office of the Inspector General or,
as appropriate, another designated
office, to confidentially and, if desired,
anonymously, report these incidents.
(b) The agency shall also provide, and
the facility shall inform the detainees of,
at least one way for detainees to report
sexual abuse to a public or private entity
or office that is not part of the agency,
and that is able to receive and
immediately forward detainee reports of
sexual abuse to agency officials,
allowing the detainee to remain
anonymous upon request.
(c) Facility policies and procedures
shall include provisions for staff to
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accept reports made verbally, in writing,
anonymously, and from third parties
and to promptly document any verbal
reports.
§ 115.52
Grievances.
(a) The facility shall permit a detainee
to file a formal grievance related to
sexual abuse at any time during, after,
or in lieu of lodging an informal
grievance or complaint.
(b) The facility shall not impose a
time limit on when a detainee may
submit a grievance regarding an
allegation of sexual abuse.
(c) The facility shall implement
written procedures for identifying and
handling time-sensitive grievances that
involve an immediate threat to detainee
health, safety, or welfare related to
sexual abuse.
(d) Facility staff shall bring medical
emergencies to the immediate attention
of proper medical personnel for further
assessment.
(e) The facility shall issue a decision
on the grievance within five days of
receipt.
(f) To prepare a grievance, a detainee
may obtain assistance from another
detainee, the housing officer or other
facility staff, family members, or legal
representatives. Staff shall take
reasonable steps to expedite requests for
assistance from these other parties.
§ 115.53 Detainee access to outside
confidential support services.
(a) Each facility shall utilize available
community resources and services to
provide valuable expertise and support
in the areas of crisis intervention,
counseling, investigation and the
prosecution of sexual abuse perpetrators
to most appropriately address victims’
needs. The facility shall maintain or
attempt to enter into memoranda of
understanding or other agreements with
community service providers or, if local
providers are not available, with
national organizations that provide legal
advocacy and confidential emotional
support services for immigrant victims
of crime.
(b) Each facility’s written policies
shall establish procedures to include
outside agencies in the facility’s sexual
abuse prevention and intervention
protocols, if such resources are
available.
(c) Each facility shall make available
to detainees information about local
organizations that can assist detainees
who have been victims of sexual abuse,
including mailing addresses and
telephone numbers (including toll-free
hotline numbers where available). If no
such local organizations exist, the
facility shall make available the same
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information about national
organizations. The facility shall enable
reasonable communication between
detainees and these organizations and
agencies, in as confidential a manner as
possible.
§ 115.54
Third-party reporting.
Each facility shall establish a method
to receive third-party reports of sexual
abuse in its immigration detention
facilities and shall make available to the
public information on how to report
sexual abuse on behalf of a detainee.
Official Response Following a Detainee
Report
§ 115.61
Staff reporting duties.
(a) The agency and each facility shall
require all staff to report immediately
and according to agency policy any
knowledge, suspicion, or information
regarding an incident of sexual abuse
that occurred in a facility; retaliation
against detainees or staff who reported
such an incident; and any staff neglect
or violation of responsibilities that may
have contributed to an incident or
retaliation. The agency shall review and
approve facility policies and procedures
and shall ensure that the facility
specifies appropriate reporting
procedures, including a method by
which staff can report outside of the
chain of command.
(b) Staff members who become aware
of alleged sexual abuse shall
immediately follow the reporting
requirements set forth in the agency’s
and facility’s written policies and
procedures.
(c) Apart from such reporting, staff
shall not reveal any information related
to a sexual abuse report to anyone other
than to the extent necessary to help
protect the safety of the victim or
prevent further victimization of other
detainees or staff in the facility, make
medical treatment, investigation, law
enforcement, or other security and
management decisions.
(d) If the alleged victim is under the
age of 18 or considered a vulnerable
adult under a State or local vulnerable
persons statute, the agency shall report
the allegation to the designated State or
local services agency under applicable
mandatory reporting laws.
srobinson on DSK4SPTVN1PROD with
§ 115.62
Protection duties.
16:27 Dec 18, 2012
(a) Upon receiving an allegation that
a detainee was sexually abused while
confined at another facility, the agency
or facility whose staff received the
allegation shall notify the appropriate
office of the facility where the alleged
abuse occurred.
(b) The notification provided in
paragraph (a) of this section shall be
provided as soon as possible, but no
later than 72 hours after receiving the
allegation.
(c) The agency or facility shall
document that it has provided such
notification.
(d) The agency or facility office that
receives such notification, to the extent
the facility is covered by this subpart,
shall ensure that the allegation is
referred for investigation in accordance
with these standards and reported to the
appropriate ICE Field Office Director.
§ 115.64
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Responder duties.
(a) Upon learning of an allegation that
a detainee was sexually abused, the first
security staff member to respond to the
report, or his or her supervisor, shall be
required to:
(1) Separate the alleged victim and
abuser;
(2) Preserve and protect, to the
greatest extent possible, any crime scene
until appropriate steps can be taken to
collect any evidence;
(3) If the abuse occurred within a time
period that still allows for the collection
of physical evidence, request the alleged
victim not to take any actions that could
destroy physical evidence, including, as
appropriate, washing, brushing teeth,
changing clothes, urinating, defecating,
smoking, drinking, or eating; and
(4) If the sexual abuse occurred within
a time period that still allows for the
collection of physical evidence, ensure
that the alleged abuser does not take any
actions that could destroy physical
evidence, including, as appropriate,
washing, brushing teeth, changing
clothes, urinating, defecating, smoking,
drinking, or eating.
(b) If the first staff responder is not a
security staff member, the responder
shall be required to request that the
alleged victim not take any actions that
could destroy physical evidence and
then notify security staff.
§ 115.65
If an agency employee or facility staff
member has a reasonable belief that a
detainee is subject to a substantial risk
of imminent sexual abuse, he or she
shall take immediate action to protect
the detainee.
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§ 115.63 Reporting to other confinement
facilities.
Coordinated response.
(a) Each facility shall develop a
written institutional plan to coordinate
actions taken by staff first responders,
medical and mental health practitioners,
investigators, and facility leadership in
response to an incident of sexual abuse.
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(b) Each facility shall use a
coordinated, multidisciplinary team
approach to responding to sexual abuse.
(c) If a victim of sexual abuse is
transferred between DHS immigration
detention facilities, the sending facility
shall, as permitted by law, inform the
receiving facility of the incident and the
victim’s potential need for medical or
social services.
(d) If a victim is transferred from a
DHS immigration detention facility to a
non-DHS facility, the sending facility
shall, as permitted by law, inform the
receiving facility of the incident and the
victim’s potential need for medical or
social services, unless the victim
requests otherwise.
§ 115.66 Protection of detainees from
contact with alleged abusers.
Staff, contractors, and volunteers
suspected of perpetrating sexual abuse
shall be removed from all duties
requiring detainee contact pending the
outcome of an investigation.
§ 115.67 Agency protection against
retaliation.
Staff, contractors, and volunteers, and
immigration detention facility
detainees, shall not retaliate against any
person, including a detainee, who
reports, complains about, or participates
in an investigation into an allegation of
sexual abuse, or for participating in
sexual activity as a result of force,
coercion, threats, or fear of force. For at
least 90 days following a report of
sexual abuse, the agency and facility
shall monitor to see if there are facts
that may suggest possible retaliation by
detainees or staff, and shall act
promptly to remedy any such
retaliation. Items the agency should
monitor include any detainee
disciplinary reports, housing, or
program changes, or negative
performance reviews or reassignments
of staff. DHS shall continue such
monitoring beyond 90 days if the initial
monitoring indicates a continuing need.
§ 115.68 Post-allegation protective
custody.
(a) The facility shall take care to place
detainee victims of sexual abuse in a
supportive environment that represents
the least restrictive housing option
possible (e.g., protective custody),
subject to the requirements of § 115.43.
(b) Detainee victims shall not be held
for longer than five days in any type of
administrative segregation, except in
unusual circumstances or at the request
of the detainee.
(c) A detainee victim who is in
protective custody after having been
subjected to sexual abuse shall not be
returned to the general population until
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completion of a proper re-assessment,
taking into consideration any increased
vulnerability of the detainee as a result
of the sexual abuse.
Investigations
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§ 115.71 Criminal and administrative
investigations.
(a) If the facility has responsibility for
investigating allegations of sexual abuse,
all investigations into alleged sexual
abuse must be prompt, thorough,
objective, and conducted by specially
trained, qualified investigators.
(b) Upon conclusion of a criminal
investigation where the allegation was
substantiated, an administrative
investigation shall be conducted. Upon
conclusion of a criminal investigation
where the allegation was
unsubstantiated, the facility shall
review any available completed
criminal investigation reports to
determine whether an administrative
investigation is necessary or
appropriate. Administrative
investigations shall be conducted after
consultation with the appropriate
investigative office within DHS, and the
assigned criminal investigative entity.
(c)(1) The facility shall develop
written procedures for administrative
investigations, including provisions
requiring:
(i) Preservation of direct and
circumstantial evidence, including any
available physical and DNA evidence
and any available electronic monitoring
data;
(ii) Interviewing alleged victims,
suspected perpetrators, and witnesses;
(iii) Reviewing prior complaints and
reports of sexual abuse involving the
suspected perpetrator;
(iv) Assessment of the credibility of
an alleged victim, suspect, or witness,
without regard to the individual’s status
as detainee, staff, or employee, and
without requiring any detainee who
alleges sexual abuse to submit to a
polygraph;
(v) An effort to determine whether
actions or failures to act at the facility
contributed to the abuse; and
(vi) Documentation of each
investigation by written report, which
shall include a description of the
physical and testimonial evidence, the
reasoning behind credibility
assessments, and investigative facts and
findings; and
(vii) Retention of such reports for as
long as the alleged abuser is detained or
employed by the agency or facility, plus
five years.
(2) Such procedures shall govern the
coordination and sequencing of the two
types of investigations, in accordance
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with paragraph (b) of this section, to
ensure that the criminal investigation is
not compromised by an internal
administrative investigation.
(d) The agency shall review and
approve the facility policy and
procedures for coordination and
conduct of internal administrative
investigations with the assigned
criminal investigative entity to ensure
non-interference with criminal
investigations.
(e) The departure of the alleged abuser
or victim from the employment or
control of the facility or agency shall not
provide a basis for terminating an
investigation.
(f) When outside agencies investigate
sexual abuse, the facility shall cooperate
with outside investigators and shall
endeavor to remain informed about the
progress of the investigation.
§ 115.72 Evidentiary standard for
administrative investigations.
When an administrative investigation
is undertaken, the agency shall impose
no standard higher than a
preponderance of the evidence in
determining whether allegations of
sexual abuse are substantiated.
§ 115.73
Reporting to detainees.
The agency shall, when the detainee
is still in immigration detention, or
where otherwise feasible, following an
investigation into a detainee’s allegation
of sexual abuse, notify the detainee as
to the result of the investigation and any
responsive action taken.
Discipline
§ 115.76
Disciplinary sanctions for staff.
(a) Staff shall be subject to
disciplinary or adverse action up to and
including removal from their position
and the Federal service for substantiated
allegations of sexual abuse or for
violating agency or facility sexual abuse
policies.
(b) The agency shall review and
approve facility policies and procedures
regarding disciplinary or adverse
actions for staff and shall ensure that the
facility policy and procedures specify
disciplinary or adverse actions for staff,
up to and including removal from their
position and from the Federal service,
when there is a substantiated allegation
of sexual abuse, or when there has been
a violation of agency sexual abuse rules,
policies, or standards. Removal from
their position and from the Federal
service is the presumptive disciplinary
sanction for staff who have engaged in
or attempted or threatened to engage in
sexual abuse, as defined under
paragraphs (1) through (4), (7), and (8)
of the definition of sexual abuse of a
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75339
detained by a staff member, contractor,
or volunteer in § 115.6 of this part.
(c) Each facility shall report all
removals or resignations in lieu of
removal for violations of agency or
facility sexual abuse policies to
appropriate law enforcement agencies,
unless the activity was clearly not
criminal.
(d) Each facility shall make reasonable
efforts to report removals or resignations
in lieu of removal for violations of
agency or facility sexual abuse policies
to any relevant licensing bodies, to the
extent known.
§ 115.77 Corrective action for contractors
and volunteers.
(a) Any contractor or volunteer who
has engaged in sexual abuse shall be
prohibited from contact with detainees.
Each facility shall make reasonable
efforts to report to any relevant licensing
body, to the extent known, incidents of
substantiated sexual abuse by a
contractor or volunteer. Such incidents
shall also be reported to law
enforcement agencies, unless the
activity was clearly not criminal.
(b) Contractors and volunteers
suspected of perpetrating sexual abuse
shall be removed from all duties
requiring detainee contact pending the
outcome of an investigation.
(c) The facility shall take appropriate
remedial measures, and shall consider
whether to prohibit further contact with
detainees by contractors or volunteers
who have not engaged in sexual abuse,
but have violated other provisions
within these standards.
§ 115.78 Disciplinary sanctions for
detainees.
(a) Each facility shall subject a
detainee to disciplinary sanctions
pursuant to a formal disciplinary
process following an administrative or
criminal finding that the detainee
engaged in sexual abuse.
(b) At all steps in the disciplinary
process provided in paragraph (a), any
sanctions imposed shall be
commensurate with the severity of the
committed prohibited act and intended
to encourage the detainee to conform
with rules and regulations in the future.
(c) Each facility holding detainees in
custody shall have a detainee
disciplinary system with progressive
levels of reviews, appeals, procedures,
and documentation procedure.
(d) The disciplinary process shall
consider whether a detainee’s mental
disabilities or mental illness contributed
to his or her behavior when determining
what type of sanction, if any, should be
imposed.
(e) The facility shall not discipline a
detainee for sexual contact with staff
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unless there is a finding that the staff
member did not consent to such contact.
(f) For the purpose of disciplinary
action, a report of sexual abuse made in
good faith based upon a reasonable
belief that the alleged conduct occurred
shall not constitute falsely reporting an
incident or lying, even if an
investigation does not establish
evidence sufficient to substantiate the
allegation.
Medical and Mental Care
§ 115.81 Medical and mental health
assessments; history of sexual abuse.
(a) If the assessment pursuant to
§ 115.41 of this part indicates that a
detainee has experienced prior sexual
victimization or perpetrated sexual
abuse, staff shall ensure, subject to the
circumstances surrounding the
indication, that the detainee is
immediately referred to a qualified
medical or mental health practitioner
for medical and/or mental health
follow-up as appropriate.
(b) When a referral for medical followup is initiated, the detainee shall receive
a health evaluation no later than two
working days from the date of
assessment.
(c) When a referral for mental health
follow-up is initiated, the detainee shall
receive a mental health evaluation no
later than 72 hours after the referral.
§ 115.82 Access to emergency medical
and mental health services.
(a) Detainee victims of sexual abuse in
immigration detention facilities shall
have timely, unimpeded access to
emergency medical treatment and crisis
intervention services, including
emergency contraception and sexually
transmitted infections prophylaxis, in
accordance with professionally accepted
standards of care, where appropriate
under medical or mental health
professional standards.
(b) Emergency medical treatment
services provided to the victim shall be
without financial cost and regardless of
whether the victim names the abuser or
cooperates with any investigation
arising out of the incident.
srobinson on DSK4SPTVN1PROD with
§ 115.83 Ongoing medical and mental
health care for sexual abuse victims and
abusers.
(a) Each facility shall offer medical
and mental health evaluation and, as
appropriate, treatment to all detainees
who have been victimized by sexual
abuse while in immigration detention.
(b) The evaluation and treatment of
such victims shall include, as
appropriate, follow-up services,
treatment plans, and, when necessary,
referrals for continued care following
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their transfer to, or placement in, other
facilities, or their release from custody.
(c) The facility shall provide such
victims with medical and mental health
services consistent with the community
level of care.
(d) Detainee victims of sexually
abusive vaginal penetration by a male
abuser while incarcerated shall be
offered pregnancy tests. If pregnancy
results from an instance of sexual abuse,
the victim shall receive timely and
comprehensive information about
lawful pregnancy-related medical
services and timely access to all lawful
pregnancy-related medical services.
(e) Detainee victims of sexual abuse
while detained shall be offered tests for
sexually transmitted infections as
medically appropriate.
(f) Treatment services shall be
provided to the victim without financial
cost and regardless of whether the
victim names the abuser or cooperates
with any investigation arising out of the
incident.
(g) The facility shall attempt to
conduct a mental health evaluation of
all known detainee-on-detainee abusers
within 60 days of learning of such abuse
history and offer treatment when
deemed appropriate by mental health
practitioners.
Data Collection and Review
§ 115.86
Sexual abuse incident reviews.
(a) Each facility shall conduct a sexual
abuse incident review at the conclusion
of every investigation of sexual abuse
and, where the allegation was not
determined to be unfounded, prepare a
written report recommending whether
the allegation or investigation indicates
that a change in policy or practice could
better prevent, detect, or respond to
sexual abuse. The facility shall
implement the recommendations for
improvement, or shall document its
reasons for not doing so in a written
response. Both the report and response
shall be forwarded to the agency PSA
Coordinator.
(b) Each facility shall conduct an
annual review of all sexual abuse
investigations and resulting incident
reviews to assess and improve sexual
abuse intervention, prevention and
response efforts. The results and
findings of the annual review shall be
provided to the agency PSA
Coordinator.
§ 115.87
Data collection.
(a) Each facility shall maintain all
case records associated with claims of
sexual abuse, including incident
reports, investigative reports, offender
information, case disposition, medical
and counseling evaluation findings, and
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recommendations for post-release
treatment, if necessary, and/or
counseling in accordance with these
standards and applicable agency
policies, and in accordance with
established schedules. The DHS Office
of Inspector General shall maintain the
official investigative file related to
claims of sexual abuse investigated by
the DHS Office of Inspector General.
(b) On an ongoing basis, the PSA
Coordinator shall work with relevant
facility PSA Compliance Managers and
DHS entities to share data regarding
effective agency response methods to
sexual abuse.
(c) On a regular basis, the PSA
Coordinator shall prepare a report for
ICE leadership compiling information
received about all incidents or
allegations of sexual abuse of detainees
in immigration detention during the
period covered by the report, as well as
ongoing investigations and other
pending cases.
(d) On an annual basis, the PSA
Coordinator shall aggregate, in a manner
that will facilitate the agency’s ability to
detect possible patterns and help
prevent future incidents, the incidentbased sexual abuse data, including the
number of reported sexual abuse
allegations determined to be
substantiated, unsubstantiated, or
unfounded, or for which investigation is
ongoing, and for each incident found to
be substantiated, information
concerning:
(1) The date, time, location, and
nature of the incident;
(2) The demographic background of
the victim and perpetrator (including
citizenship, age, and gender);
(3) The reporting timeline for the
incident (including the name of
individual who reported the incident,
and the date and time the report was
received);
(4) Any injuries sustained by the
victim;
(5) Post-report follow up responses
and action taken by the facility (e.g.,
housing placement/custody
classification, medical examination,
mental health counseling, etc.); and
(6) Any sanctions imposed on the
perpetrator.
(e) Upon request, the agency shall
provide all data described in this
section from the previous calendar year
to the Office for Civil Rights and Civil
Liberties no later than June 30.
§ 115.88
Data review for corrective action.
(a) The agency shall review data
collected and aggregated pursuant to
§ 115.87 of this part in order to assess
and improve the effectiveness of its
sexual abuse prevention, detection, and
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response policies, practices, and
training, including by:
(1) Identifying problem areas;
(2) Taking corrective action on an
ongoing basis; and
(3) Preparing an annual report of its
findings and corrective actions for each
immigration detention facility, as well
as the agency as a whole.
(b) Such report shall include a
comparison of the current year’s data
and corrective actions with those from
prior years and shall provide an
assessment of the agency’s progress in
preventing, detecting, and responding to
sexual abuse.
(c) The agency’s report shall be
approved by the agency head and made
readily available to the public through
its Web site.
(d) The agency may redact specific
material from the reports, when
appropriate for safety or security, but
must indicate the nature of the material
redacted.
§ 115.89 Data storage, publication, and
destruction.
(a) The agency shall ensure that data
collected pursuant to § 115.87 of this
part are securely retained in accordance
with agency record retention policies
and the agency protocol regarding
investigation of allegations.
(b) The agency shall make all
aggregated sexual abuse data from
immigration detention facilities under
its direct control and from any private
agencies with which it contracts
available to the public at least annually
on its Web site consistent with existing
agency information disclosure policies
and processes.
(c) Before making aggregated sexual
abuse data publicly available, the
agency shall remove all personal
identifiers.
Audits and Compliance
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§ 115.93
Audits of standards.
(a) During the three-year period
starting on [DATE ONE YEAR PLUS 60
DAYS AFTER EFFECTIVE DATE OF
FINAL RULE], and during each threeyear period thereafter, the agency shall
ensure that each of its immigration
detention facilities is audited at least
once.
(b) The agency may request an
expedited audit if the agency has reason
to believe that a particular facility may
be experiencing problems relating to
sexual abuse. The recommendation may
also include referrals to resources that
may assist the agency with PREArelated issues.
(c) Audits under this section shall be
conducted pursuant to §§ 115.201
through 115.205 of Subpart C.
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(d) Audits under this section shall be
coordinated by the agency with the DHS
Office for Civil Rights and Civil
Liberties.
Additional Provisions in Agency
Policies
§ 115.95 Additional provisions in agency
policies.
The regulations in Subpart A establish
minimum requirements for agencies and
facilities. Agency and facility policies
may include additional requirements.
Subpart B—Standards for DHS Holding
Facilities
Coverage
§ 115.110
facilities.
Coverage of DHS holding
Subpart B covers all DHS holding
facilities. Standards found in Subpart A
of this Part are not applicable to DHS
facilities except ICE immigration
detention facilities.
Prevention Planning
§ 115.111 Zero tolerance of sexual abuse;
Prevention of Sexual Abuse Coordinator.
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§ 115.113 Detainee supervision and
monitoring.
(a) The agency shall ensure that each
facility maintains sufficient supervision
of detainees, including through
appropriate staffing levels and, where
applicable, video monitoring, to protect
detainees against sexual abuse.
(b) The agency shall develop and
document comprehensive detainee
supervision guidelines to determine and
meet each facility’s detainee supervision
needs, and shall review those
supervision guidelines and their
application at each facility at least
annually.
(c) In determining adequate levels of
detainee supervision and determining
the need for video monitoring, agencies
shall take into consideration the
physical layout of each holding facility,
the composition of the detainee
population, the prevalence of
substantiated and unsubstantiated
incidents of sexual abuse, the findings
and recommendations of sexual abuse
incident review reports, and any other
relevant factors, including but not
limited to the length of time detainees
spend in agency custody.
(a) The agency shall have a written
policy mandating zero tolerance toward
all forms of sexual abuse and outlining
the agency’s approach to preventing,
detecting, and responding to such
conduct.
(b) The agency shall employ or
designate an upper-level, agency-wide
PSA Coordinator with sufficient time
and authority to develop, implement,
and oversee agency efforts to comply
with these standards in all of its holding
facilities.
§ 115.114
§ 115.112 Contracting with non-DHS
entities for the confinement of detainees.
(a) Searches may be necessary to
ensure the safety of officers, civilians
and detainees; to detect and secure
evidence of criminal activity; and to
promote security, safety, and related
interests at DHS holding facilities.
(b) Cross-gender strip searches or
cross-gender visual body cavity searches
shall not be conducted except in exigent
circumstances, including consideration
of officer safety, or when performed by
medical practitioners. An agency shall
not conduct visual body cavity searches
of juveniles and, instead, shall refer all
such body cavity searches of juveniles
to a medical practitioner.
(c) All strip searches and visual body
cavity searches shall be documented.
(d) The agency shall implement
policies and procedures that enable
detainees to shower (where showers are
available), perform bodily functions,
and change clothing without being
viewed by staff of the opposite gender,
(a) An agency that contracts for the
confinement of detainees in holding
facilities operated by non-DHS private
or public agencies or other entities,
including other government agencies,
shall include in any new contracts or
contract renewals the entity’s obligation
to adopt and comply with these
standards.
(b) Any new contracts or contract
renewals shall provide for agency
contract monitoring to ensure that the
contractor is complying with these
standards.
(c) To the extent an agency contracts
for confinement of holding facility
detainees, all rules in this subpart that
apply to the agency shall apply to the
contractor, and all rules that apply to
staff or employees shall apply to
contractor staff.
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Juvenile and family detainees.
(a) In general, juveniles shall be
detained in the least restrictive setting
appropriate to the juvenile’s age and
special needs, provided that such
setting is consistent with the need to
protect the juvenile’s well-being and
that of others, as well as with any other
laws, regulations, or legal requirements.
(b) Unaccompanied juveniles shall be
held separately from adult detainees.
§ 115.115 Limits to cross-gender viewing
and searches.
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except in exigent circumstances or
when such viewing is incidental to
routine cell checks or is otherwise
appropriate in connection with a
medical examination or monitored
bowel movement under medical
supervision. Such policies and
procedures shall require staff of the
opposite gender to announce their
presence when entering an area where
detainees are likely to be showering,
performing bodily functions, or
changing clothing.
(e) The agency and facility shall not
search or physically examine a detainee
for the sole purpose of determining the
detainee’s gender. If the detainee’s
gender is unknown, it may be
determined during conversations with
the detainee, by reviewing medical
records (if available), or, if necessary,
learning that information as part of a
broader medical examination conducted
in private, by a medical practitioner.
(f) The agency shall train law
enforcement staff in proper procedures
for conducting pat-down searches,
including cross-gender pat-down
searches and searches of transgender
and intersex detainees. All pat-down
searches shall be conducted in a
professional and respectful manner, and
in the least intrusive manner possible,
consistent with security needs and
existing agency policy, including
consideration of officer safety.
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§ 115.116 Accommodating detainees with
disabilities and detainees who are limited
English proficient.
(a) The agency shall take appropriate
steps to ensure that detainees with
disabilities (including, for example,
detainees who are deaf or hard of
hearing, those who are blind or have
low vision, or those who have
intellectual, psychiatric, or speech
disabilities), have an equal opportunity
to participate in or benefit from all
aspects of the agency’s efforts to
prevent, detect, and respond to sexual
abuse. Such steps shall include, when
necessary to ensure effective
communication with detainees who are
deaf or hard of hearing, providing access
to in-person, telephonic, or video
interpretive services that enable
effective, accurate, and impartial
interpretation, both receptively and
expressively, using any necessary
specialized vocabulary. In addition, the
agency shall ensure that any written
materials related to sexual abuse are
provided in formats or through methods
that ensure effective communication
with detainees with disabilities,
including detainees who have
intellectual disabilities, limited reading
skills, or who are blind or have low
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vision. An agency is not required to take
actions that it can demonstrate would
result in a fundamental alteration in the
nature of a service, program, or activity,
or in undue financial and administrative
burdens, as those terms are used in
regulations promulgated under title II of
the Americans with Disabilities Act, 28
CFR 35.164.
(b) The agency shall take reasonable
steps to ensure meaningful access to all
aspects of the agency’s efforts to
prevent, detect, and respond to sexual
abuse to detainees who are limited
English proficient, including steps to
provide in-person or telephonic
interpretive services that enable
effective, accurate, and impartial
interpretation, both receptively and
expressively, using any necessary
specialized vocabulary.
(c) In matters relating to allegations of
sexual abuse, the agency shall provide
in-person or telephonic interpretation
services that enable effective, accurate,
and impartial interpretation, by
someone other than another detainee,
unless the detainee expresses a
preference for a detainee interpreter,
and the agency determines that such
interpretation is appropriate. The
provision of interpreter services by
minors, alleged abusers, detainees who
witnessed the alleged abuse, and
detainees who have a significant
relationship with the alleged abuser is
not appropriate in matters relating to
allegations of sexual abuse is not
appropriate in matters relating to
allegations of sexual abuse.
§ 115.117
Hiring and promotion decisions.
(a) The agency shall not hire or
promote anyone who may have contact
with detainees, and shall not enlist the
services of any contractor or volunteer
who may have contact with detainees,
who has engaged in sexual abuse in a
prison, jail, holding facility, community
confinement facility, juvenile facility, or
other institution (as defined in 42 U.S.C.
1997); who has been convicted of
engaging or attempting to engage in
sexual activity facilitated by force, overt
or implied threats of force, or coercion,
or if the victim did not consent or was
unable to consent or refuse; or who has
been civilly or administratively
adjudicated to have engaged in such
activity.
(b) When the agency is considering
hiring or promoting staff, it shall ask all
applicants who may have contact with
detainees directly about previous
misconduct described in paragraph (a)
of this section, in written applications
or interviews for hiring or promotions
and in any interviews or written selfevaluations conducted as part of
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reviews of current employees. The
agency shall also impose upon
employees a continuing affirmative duty
to disclose any such misconduct.
(c) Before hiring new employees who
may have contact with detainees, the
agency shall require a background
investigation to determine whether the
candidate for hire is suitable for
employment with the agency. The
agency shall conduct an updated
background investigation for agency
employees every five years.
(d) The agency shall also perform a
background investigation before
enlisting the services of any contractor
who may have contact with detainees.
(e) Material omissions regarding such
misconduct, or the provision of
materially false information, shall be
grounds for termination or withdrawal
of an offer of employment, as
appropriate.
(f) Unless prohibited by law, the
agency shall provide information on
substantiated allegations of sexual abuse
involving a former employee upon
receiving a request from an institutional
employer for whom such employee has
applied to work.
(g) In the event the agency contracts
with a facility for the confinement of
detainees, the requirements of this
section otherwise applicable to the
agency also apply to the facility.
§ 115.118 Upgrades to facilities and
technologies.
(a) When designing or acquiring any
new holding facility and in planning
any substantial expansion or
modification of existing holding
facilities, the agency shall consider the
effect of the design, acquisition,
expansion, or modification upon the
agency’s ability to protect detainees
from sexual abuse.
(b) When installing or updating a
video monitoring system, electronic
surveillance system, or other monitoring
technology in a holding facility, the
agency shall consider how such
technology may enhance the agency’s
ability to protect detainees from sexual
abuse.
Responsive Planning
§ 115.121 Evidence protocols and forensic
medical examinations.
(a) To the extent that the agency is
responsible for investigating allegations
of sexual abuse in its holding facilities,
the agency shall follow a uniform
evidence protocol that maximizes the
potential for obtaining usable physical
evidence for administrative proceedings
and criminal prosecutions. The protocol
shall be developed in coordination with
DHS and shall be developmentally
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appropriate for juveniles, where
applicable.
(b) In developing the protocol referred
to in paragraph (a) of this section, the
agency shall consider how best to utilize
available community resources and
services to provide valuable expertise
and support in the areas of crisis
intervention and counseling to most
appropriately address victims’ needs.
(c) Where evidentiarily or medically
appropriate, at no cost to the detainee,
and only with the detainee’s consent,
the agency shall arrange for or refer the
alleged victim detainee to a medical
facility to undergo a forensic medical
examination.
(d) If, in connection with an allegation
of sexual abuse, the detainee is
transported for a forensic examination
to an outside hospital that offers victim
advocacy services, the detainee shall be
permitted to use such services to the
extent available, consistent with
security needs. (e) To the extent that the
agency is not responsible for
investigating allegations of sexual abuse,
the agency shall request that the
investigating agency follow the
requirements of paragraphs (a) through
(d) of this section.
srobinson on DSK4SPTVN1PROD with
§ 115.122 Policies to ensure investigation
of allegations and appropriate agency
oversight.
(a) The agency shall establish a
protocol to ensure that each allegation
of sexual abuse is investigated by the
agency, or referred to an appropriate
investigative authority.
(b) The agency protocol shall be
developed in coordination with DHS
investigative entities; shall include a
description of the responsibilities of
both the agency and the investigative
entities; and shall require the
documentation and maintenance, for at
least five years, of all reports and
referrals of allegations of sexual abuse.
The agency shall post its protocol on its
Web site, redacted if appropriate.
(c) The agency protocol shall ensure
that each allegation is promptly
reported to the Joint Intake Center and,
unless the allegation does not involve
potentially criminal behavior, promptly
referred for investigation to an
appropriate law enforcement agency
with the legal authority to conduct
criminal investigations. The agency may
separately, and in addition to the above
reports and referrals, conduct its own
investigation.
(d) The agency shall ensure that all
allegations of detainee sexual abuse are
promptly reported to the PSA
Coordinator, and to the appropriate
offices within the agency and within
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DHS to ensure appropriate oversight of
the investigation.
(e) The agency shall ensure that any
alleged detainee victim of sexual abuse
that is criminal in nature is provided
access to U nonimmigrant visa
information.
Training and Education
§ 115.131 Employee, contractor, and
volunteer training.
(a) The agency shall train, or require
the training of all employees,
contractors, and volunteers who may
have contact with holding facility
detainees, to be able to fulfill their
responsibilities under these standards,
including training on:
(1) The agency’s zero-tolerance
policies for all forms of sexual abuse;
(2) The right of detainees and
employees to be free from sexual abuse,
and from retaliation for reporting sexual
abuse;
(3) Definitions and examples of
prohibited and illegal sexual behavior;
(4) Recognition of situations where
sexual abuse may occur;
(5) Recognition of physical,
behavioral, and emotional signs of
sexual abuse, and methods of
preventing such occurrences;
(6) Procedures for reporting
knowledge or suspicion of sexual abuse;
(7) How to communicate effectively
and professionally with detainees,
including lesbian, gay, bisexual,
transgender, intersex, or gender
nonconforming detainees; and
(8) The requirement to limit reporting
of sexual abuse to personnel with a
need-to-know in order to make
decisions concerning the victim’s
welfare and for law enforcement or
investigative purposes.
(b) All current employees, contractors
and volunteers who may have contact
with holding facility detainees shall be
trained within two years of the effective
date of these standards, and the agency
shall provide refresher information, as
appropriate.
(c) The agency shall document those
employees who may have contact with
detainees have completed the training
and receive and maintain for at least
five years confirmation that contractors
and volunteers have completed the
training.
§ 115.132 Notification to detainees of the
agency’s zero-tolerance policy.
The agency shall make public its zerotolerance policy regarding sexual abuse
and ensure that key information
regarding the agency’s zero-tolerance
policy is visible or continuously and
readily available to detainees, for
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example, through posters, detainee
handbooks, or other written formats.
§ 115.133
[Reserved]
§ 115.134 Specialized training:
Investigations.
(a) In addition to the training
provided to employees, DHS agencies
with responsibility for holding facilities
shall provide specialized training on
sexual abuse and effective cross-agency
coordination to agency investigators
who conduct investigations into
allegations of sexual abuse at holding
facilities. All investigations into alleged
sexual abuse must be conducted by
qualified investigators.
(b) The agency must maintain written
documentation verifying specialized
training provided to agency
investigators pursuant to this
subsection.
Assessment for Risk of Sexual
Victimization and Abusiveness
§ 115.141 Assessment for risk of
victimization and abusiveness.
(a) Before placing any detainees
together in a holding facility, agency
staff shall consider whether, based on
the information before them, a detainee
may be at a high risk of being sexually
abused and, when appropriate, shall
take necessary steps to mitigate any
such danger to the detainee.
(b) All detainees who may be held
overnight with other detainees shall be
assessed to determine their risk of being
sexually abused by other detainees or
sexually abusive toward other detainees;
staff shall ask each such detainee about
his or her own concerns about his or her
physical safety.
(c) The agency shall also consider, to
the extent that the information is
available, the following criteria to assess
detainees for risk of sexual
victimization:
(1) Whether the detainee has a mental,
physical, or developmental disability;
(2) The age of the detainee;
(3) The physical build and appearance
of the detainee;
(4) Whether the detainee has
previously been incarcerated;
(5) The nature of the detainee’s
criminal history; and
(6) Whether the detainee has any
convictions for sex offenses against an
adult or child;
(7) Whether the detainee has selfidentified as gay, lesbian, bisexual,
transgender, intersex, or gender
nonconforming;
(8) Whether the detainee has selfidentified as having previously
experienced sexual victimization; and
(9) The detainee’s own concerns about
his or her physical safety.
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(d) If detainees are identified pursuant
to the assessment under this section to
be at high risk of victimization, staff
shall provide such detainees with
heightened protection, to include
continuous direct sight and sound
supervision, single-cell housing, or
placement in a cell actively monitored
on video by a staff member sufficiently
proximate to intervene, unless no such
option is determined to be feasible.
(e) The facility shall implement
appropriate controls on the
dissemination of sensitive information
provided by detainees under this
section.
Reporting
§ 115.151
Detainee reporting.
(a) The agency shall develop policies
and procedures to ensure that the
detainees have multiple ways to
privately report sexual abuse, retaliation
for reporting sexual abuse, or staff
neglect or violations of responsibilities
that may have contributed to such
incidents, and shall provide instructions
on how detainees may contact the DHS
Office of the Inspector General or, as
appropriate, another designated office,
to confidentially and, if desired,
anonymously, report these incidents.
(b) The agency shall also provide, and
shall inform the detainees of, at least
one way for detainees to report sexual
abuse to a public or private entity or
office that is not part of the agency, and
that is able to receive and immediately
forward detainee reports of sexual abuse
to agency officials, allowing the
detainee to remain anonymous upon
request.
(c) Agency policies and procedures
shall include provisions for staff to
accept reports made verbally, in writing,
anonymously, and from third parties
and to promptly document any verbal
reports.
§ 115.152
[Reserved]
§ 115.153
[Reserved]
§ 115.154
Third-party reporting.
The agency shall establish a method
to receive third-party reports of sexual
abuse in its holding facilities. The
agency shall make available to the
public information on how to report
sexual abuse on behalf of a detainee.
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Official Response Following a Detainee
Report
§ 115.161
Staff reporting duties.
(a) The agency shall require all staff
to report immediately and according to
agency policy any knowledge,
suspicion, or information regarding an
incident of sexual abuse that occurred to
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any detainee; retaliation against
detainees or staff who reported such an
incident; and any staff neglect or
violation of responsibilities that may
have contributed to an incident or
retaliation. Agency policy shall include
methods by which staff can report
misconduct outside of their chain of
command.
(b) Staff members who become aware
of alleged sexual abuse shall
immediately follow the reporting
requirements set forth in the agency’s
written policies and procedures.
(c) Apart from such reporting, the
agency and staff shall not reveal any
information related to a sexual abuse
report to anyone other than to the extent
necessary to make medical treatment,
investigation, law enforcement, or other
security and management decisions.
(d) If the alleged victim is under the
age of 18 or considered a vulnerable
adult under a State or local vulnerable
persons statute, the agency shall report
the allegation to the designated State or
local services agency under applicable
mandatory reporting laws.
§ 115.162
Agency protection duties.
When an agency employee has a
reasonable belief that a detainee is
subject to a substantial risk of imminent
sexual abuse, he or she shall take
immediate action to protect the
detainee.
§ 115.163
facilities.
Reporting to other confinement
(a) Upon receiving an allegation that
a detainee was sexually abused while
confined at another facility, the agency
that received the allegation shall notify
the appropriate office or the agency
where the alleged abuse occurred.
(b) The notification provided in
paragraph (a) shall be provided as soon
as possible, but no later than 72 hours
after receiving the allegation.
(c) The agency shall document that it
has provided such notification.
(d) The agency office that receives
such notification, to the extent the
facility is covered by this subpart, shall
ensure that the allegation is referred for
investigation in accordance with these
standards.
§ 115.164
Responder duties.
(a) Upon learning of an allegation that
a detainee was sexually abused, the first
law enforcement staff member to
respond to the report, or his or her
supervisor, shall be required to:
(1) Separate the alleged victim and
abuser;
(2) Preserve and protect, to the
greatest extent possible, any crime scene
until appropriate steps can be taken to
collect any evidence;
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(3) If the sexual abuse occurred within
a time period that still allows for the
collection of physical evidence, request
the alleged victim not to take any
actions that could destroy physical
evidence, including, as appropriate,
washing, brushing teeth, changing
clothes, urinating, defecating, smoking,
drinking, or eating; and
(4) If the abuse occurred within a time
period that still allows for the collection
of physical evidence, ensure that the
alleged abuser does not take any actions
that could destroy physical evidence,
including, as appropriate, washing,
brushing teeth, changing clothes,
urinating, defecating, smoking,
drinking, or eating.
(b) If the first staff responder is not a
law enforcement staff member, the
responder shall be required to request
that the alleged victim not take any
actions that could destroy physical
evidence and then notify law
enforcement staff.
§ 115.165
Coordinated response.
(a) The agency shall develop a written
institutional plan and use a coordinated,
multidisciplinary team approach to
responding to sexual abuse.
(b) If a victim of sexual abuse is
transferred between DHS holding
facilities, the agency shall, as permitted
by law, inform the receiving facility of
the incident and the victim’s potential
need for medical or social services.
(c) If a victim is transferred from a
DHS holding facility to a non-DHS
facility, the agency shall, as permitted
by law, inform the receiving facility of
the incident and the victim’s potential
need for medical or social services,
unless the victim requests otherwise.
§ 115.166 Protection of detainees from
contact with alleged abusers.
Agency management shall consider
whether any staff, contractor, or
volunteer alleged to have perpetrated
sexual abuse should be removed from
duties requiring detainee contact
pending the outcome of an
investigation, and shall do so if the
seriousness and plausibility of the
allegation make removal appropriate.
§ 115.167 Agency protection against
retaliation.
Agency employees shall not retaliate
against any person, including a
detainee, who reports, complains about,
or participates in an investigation into
an allegation of sexual abuse, or for
participating in sexual activity as a
result of force, coercion, threats, or fear
of force.
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Investigations
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§ 115.171 Criminal and administrative
investigations.
(a) If the agency has responsibility for
investigating allegations of sexual abuse,
all investigations into alleged sexual
abuse must be prompt, thorough,
objective, and conducted by specially
trained, qualified investigators.
(b) Upon conclusion of a criminal
investigation where the allegation was
substantiated, an administrative
investigation shall be conducted. Upon
conclusion of a criminal investigation
where the allegation was
unsubstantiated, the facility shall
review any available completed
criminal investigation reports to
determine whether an administrative
investigation is necessary or
appropriate. Administrative
investigations shall be conducted after
consultation with the appropriate
investigative office within DHS and the
assigned criminal investigative entity.
(c) The facility shall develop written
procedures for administrative
investigations, including provisions
requiring:
(1) Preservation of direct and
circumstantial evidence, including any
available physical and DNA evidence
and any available electronic monitoring
data;
(2) Interviewing alleged victims,
suspected perpetrators, and witnesses;
(3) Reviewing prior complaints and
reports of sexual abuse involving the
suspected perpetrator;
(4) Assessment of the credibility of an
alleged victim, suspect, or witness,
without regard to the individual’s status
as detainee, staff, or employee, and
without requiring any detainee who
alleges sexual abuse to submit to a
polygraph;
(5) Documentation of each
investigation by written report, which
shall include a description of the
physical and testimonial evidence, the
reasoning behind credibility
assessments, and investigative facts and
findings; and
(6) Retention of such reports for as
long as the alleged abuser is detained or
employed by the agency or facility, plus
five years. Such procedures shall
establish the coordination and
sequencing of the two types of
investigations, in accordance with
paragraph (b) of this section, to ensure
that the criminal investigation is not
compromised by an internal
administrative investigation.
(d) The departure of the alleged
abuser or victim from the employment
or control of the agency shall not
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provide a basis for terminating an
investigation.
(e) When outside agencies investigate
sexual abuse, the agency shall cooperate
with outside investigators and shall
endeavor to remain informed about the
progress of the investigation.
§ 115.172 Evidentiary standard for
administrative investigations.
When an administrative investigation
is undertaken, the agency shall impose
no standard higher than a
preponderance of the evidence in
determining whether allegations of
sexual abuse are substantiated.
Discipline
§ 115.176
Disciplinary sanctions for staff.
(a) Staff shall be subject to
disciplinary or adverse action up to and
including removal from their position
and the Federal service for substantiated
allegations of sexual abuse or violating
agency sexual abuse policies.
(b) The agency shall review and
approve policy and procedures
regarding disciplinary or adverse action
for staff and shall ensure that the policy
and procedures specify disciplinary or
adverse actions for staff, up to and
including removal from their position
and from the Federal service, when
there is a substantiated allegation of
sexual abuse, or when there has been a
violation of agency sexual abuse rules,
policies, or standards. Removal from
their position and from the Federal
service is the presumptive disciplinary
sanction for staff who have engaged in
or attempted or threatened to engage in
sexual abuse, as defined under
paragraphs (1) through (4), (7), and (8)
of the definition of sexual abuse of a
detained by a staff member, contractor,
or volunteer in § 115.6 of this part.
(c) Each facility shall report all
removals or resignations in lieu of
removal for violations of agency or
facility sexual abuse policies to
appropriate law enforcement agencies,
unless the activity was clearly not
criminal.
(d) Each agency shall make reasonable
efforts to report removals or resignations
in lieu of removal for violations of
agency or facility sexual abuse policies
to any relevant licensing bodies, to the
extent known.
§ 115.177 Corrective action for contractors
and volunteers.
(a) Any contractor or volunteer
suspected of perpetrating sexual abuse
shall be prohibited from contact with
detainees. The agency shall also
consider whether to prohibit further
contact with detainees by contractors or
volunteers who have not engaged in
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75345
sexual abuse, but have violated other
provisions within these standards. The
agency shall be responsible for promptly
reporting sexual abuse allegations and
incidents involving alleged contractor or
volunteer perpetrators to an appropriate
law enforcement agency as well as to
the Joint Intake Center or another
appropriate DHS investigative office in
accordance with DHS policies and
procedures. The agency shall make
reasonable efforts to report to any
relevant licensing body, to the extent
known, incidents of substantiated
sexual abuse by a contractor or
volunteer.
(b) Contractors and volunteers
suspected of perpetrating sexual abuse
may be removed from all duties
requiring detainee contact pending the
outcome of an investigation, as
appropriate.
Medical and Mental Care
§ 115.181
[Reserved]
§ 115.182
services.
Access to emergency medical
(a) Detainee victims of sexual abuse in
holding facilities shall have timely,
unimpeded access to emergency
medical treatment.
(b) Emergency medical treatment
services provided to the victim shall be
without financial cost and regardless of
whether the victim names the abuser or
cooperates with any investigation
arising out of the incident.
Data Collection and Review
§ 115.186
Sexual abuse incident reviews.
(a) The agency shall conduct a sexual
abuse incident review at the conclusion
of every investigation of sexual abuse
and, where the allegation was not
determined to be unfounded, prepare a
written report recommending whether
the allegation or investigation indicates
that a change in policy or practice could
better prevent, detect, or respond to
sexual abuse. The agency shall
implement the recommendations for
improvement, or shall document its
reasons for not doing so in a written
response. Both the report and response
shall be forwarded to the agency PSA
Coordinator.
(b) The agency shall conduct an
annual review of all sexual abuse
investigations and resulting incident
reviews to assess and improve sexual
abuse intervention, prevention and
response efforts.
§ 115.187
Data collection.
(a) The agency shall maintain all
agency case records associated with
claims of sexual abuse, in accordance
with these standards and applicable
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agency policies, and in accordance with
established schedules. The DHS Office
of Inspector General shall maintain the
official investigative file related to
claims of sexual abuse investigated by
the DHS Office of Inspector General.
(b) On an annual basis, the PSA
Coordinator shall aggregate, in a manner
that will facilitate the agency’s ability to
detect possible patterns and help
prevent future incidents, the incidentbased sexual abuse data available,
including the number of reported sexual
abuse allegations determined to be
substantiated, unsubstantiated, or
unfounded, or for which investigation is
ongoing, and for each incident found to
be substantiated, such information as is
available to the PSA Coordinator
concerning:
(1) The date, time, location, and
nature of the incident;
(2) The demographic background of
the victim and perpetrator (including
citizenship, age, and gender);
(3) The reporting timeline for the
incident (including the name of
individual who reported the incident,
and the date and time the report was
received);
(4) Any injuries sustained by the
victim;
(5) Post-report follow up responses
and action taken by the agency (e.g.,
supervision, referral for medical or
mental health services, etc.); and
(6) Any sanctions imposed on the
perpetrator.
(c) The agency shall maintain, review,
and collect data as needed from all
available agency records.
(d) Upon request, the agency shall
provide all such data from the previous
calendar year to the PSA Coordinator
and to the Office for Civil Rights and
Civil Liberties no later than June 30.
srobinson on DSK4SPTVN1PROD with
§ 115.188
action.
Data review for corrective
(a) The agency shall review data
collected and aggregated pursuant to
§ 115.187 of this part in order to assess
and improve the effectiveness of its
sexual abuse prevention, detection, and
response policies, practices, and
training, including by:
(1) Identifying problem areas;
(2) Taking corrective action on an
ongoing basis; and
(3) Preparing an annual report of its
findings and corrective actions for the
agency as a whole.
(b) Such report shall include a
comparison of the current year’s data
and corrective actions with those from
prior years and shall provide an
assessment of the agency’s progress in
preventing, detecting, and responding to
sexual abuse.
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(c) The agency’s report shall be
approved by the agency head and made
readily available to the public through
its Web site.
(d) The agency may redact specific
material from the reports, when
appropriate for safety or security, but
must indicate the nature of the material
redacted.
§ 115.189 Data storage, publication, and
destruction.
(a) The agency shall ensure that data
collected pursuant to § 115.187 of this
part are securely retained in accordance
with agency record retention policies
and the agency protocol regarding
investigation of allegations.
(b) The agency shall make all
aggregated sexual abuse data from
holding facilities under its direct control
and from any private agencies with
which it contracts available to the
public at least annually on its Web site
consistent with agency information
disclosure policies and processes.
(c) Before making aggregated sexual
abuse data publicly available, the
agency shall remove all personal
identifiers.
Audits and Compliance
§ 115.193
Audits of standards.
(a) Within three years of [DATE ONE
YEAR PLUS 60 DAYS AFTER
EFFECTIVE DATE OF FINAL RULE],
the agency shall ensure that each of its
immigration holding facilities that
houses detainees overnight is audited.
For any such holding facility
established after [DATE ONE YEAR
PLUS 60 DAYS AFTER EFFECTIVE
DATE OF FINAL RULE], the agency
shall ensure that the facility is audited
within three years . Audits of new
holding facilities as well as holding
facilities that have previously failed to
meet the standards shall occur as soon
as practicable within the three-year
cycle; however, where it is necessary to
prioritize, priority shall be given to
facilities that have previously failed to
meet the standards.
(1) Audits required under this
paragraph (a) shall:
(i) Include a determination whether
the holding facility is low-risk based on
its physical characteristics and whether
it passes the audit conducted pursuant
to paragraph (a)(1)(ii) of this section,
(ii) Be conducted pursuant to
§§ 115.201 through 115.205 of Subpart
C, and
(iii) Be coordinated by the agency
with the DHS Office for Civil Rights and
Civil Liberties.
(b) Following an audit, the agency
shall ensure that any immigration
holding facility that houses detainees
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overnight and is determined to be lowrisk, based on its physical
characteristics and passing its most
recent audit, is audited at least once
every five years.
(1) Audits required under this
paragraph (b) shall:
(i) Include a determination whether
the holding facility is low-risk based on
its physical characteristics and whether
it passes the audit conducted pursuant
to paragraph (b)(1)(ii) of this section,
(ii) Be conducted pursuant to
§§ 115.201 through 115.205 of Subpart
C, and
(iii) Be coordinated by the agency
with the DHS Office for Civil Rights and
Civil Liberties.
(c) Following an audit, the agency
shall ensure that any immigration
holding facility that houses detainees
overnight and is determined to not be
low-risk, based on its physical
characteristics or not passing its most
recent audit, is audited at least once
every three years.
(1) Audits required under this
paragraph (c) shall:
(i) Include a determination whether
the holding facility is low-risk based on
its physical characteristics and whether
it passes the audit conducted by
paragraph (c)(1)(ii) of this section,
(ii) Be conducted pursuant to
§§ 115.201 through 115.205 of Subpart
C, and
(iii) Be coordinated by the agency
with the DHS Office for Civil Rights and
Civil Liberties.
Additional Provisions in Agency
Policies
§ 115.195
policies.
Additional provisions in agency
The regulations in Subpart B establish
minimum requirements for agencies.
Agency policies may include additional
requirements.
Subpart C—External Auditing and
Corrective Action
§ 115.201
Scope of audits.
(a) The agency shall develop and
issue an instrument that is coordinated
with the DHS Office for Civil Rights and
Civil Liberties, which will provide
guidance on the conduct of and contents
of the audit;
(b) The auditor shall review all
relevant agency-wide policies,
procedures, reports, internal and
external audits, and accreditations for
each facility type.
(c) The audits shall review, at a
minimum, a sampling of relevant
documents and other records and
information for the most recent one-year
period.
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(d) The auditor shall have access to,
and shall observe, all areas of the
audited facilities.
(e) The agency shall provide the
auditor with relevant documentation to
complete a thorough audit of the
facility.
(f) The auditor shall retain and
preserve all documentation (including,
e.g., videotapes and interview notes)
relied upon in making audit
determinations. Such documentation
shall be provided to the agency upon
request.
(g) The auditor shall interview a
representative sample of detainees and
of staff, and the facility shall make space
available suitable for such interviews.
(h) The auditor shall review a
sampling of any available videotapes
and other electronically available data
that may be relevant to the provisions
being audited.
(i) The auditor shall be permitted to
conduct private interviews with
detainees.
(j) Detainees shall be permitted to
send confidential information or
correspondence to the auditor.
(k) Auditors shall attempt to solicit
input from community-based or victim
advocates who may have insight into
relevant conditions in the facility.
(l) All sensitive but unclassified
information provided to auditors will
include appropriate designations and
limitations on further dissemination.
Auditors will be required to follow all
appropriate procedures for handling and
safeguarding such information.
§ 115.202
Auditor qualifications.
srobinson on DSK4SPTVN1PROD with
(a) An audit shall be conducted by
entities or individuals outside of the
agency that have relevant audit
experience.
(b) All auditors shall be certified by
the agency and the agency shall develop
and issue procedures regarding the
certification process, which shall
include training requirements.
(c) No audit may be conducted by an
auditor who has received financial
compensation from the agency being
VerDate Mar<15>2010
16:27 Dec 18, 2012
Jkt 229001
audited (except for compensation
received for conducting other audits, or
other consulting related to detention
reform) within the three years prior to
the agency’s retention of the auditor.
(d) The agency shall not employ,
contract with, or otherwise financially
compensate the auditor for three years
subsequent to the agency’s retention of
the auditor, with the exception of
contracting for subsequent audits or
other consulting related to detention
reform.
§ 115.203
Audit contents and findings.
(a) Each audit shall include a
certification by the auditor that no
conflict of interest exists with respect to
his or her ability to conduct an audit of
the facility under review.
(b) Audit reports shall state whether
facility policies and procedures comply
with relevant standards.
(c) For each of these standards, the
auditor shall determine whether the
audited facility reaches one of the
following findings: Exceeds Standard
(substantially exceeds requirement of
standard); Meets Standard (substantial
compliance; complies in all material
ways with the standard for the relevant
review period); Does Not Meet Standard
(requires corrective action). The audit
summary shall indicate, among other
things, the number of provisions the
facility has achieved at each grade level.
(d) Audit reports shall describe the
methodology, sampling sizes, and basis
for the auditor’s conclusions with regard
to each standard provision for each
audited facility, and shall include
recommendations for any required
corrective action.
(e) Auditors shall redact any
personally identifiable detainee or staff
information from their reports, but shall
provide such information to the agency
upon request.
(f) The agency shall ensure that the
auditor’s final report is published on the
agency’s Web site if it has one, or is
otherwise made readily available to the
public. The agency shall redact any
sensitive but unclassified information
PO 00000
Frm 00049
Fmt 4701
Sfmt 9990
75347
(including law enforcement sensitive
information) prior to providing such
reports publicly.
§ 115.204
Audit corrective action plan.
(a) A finding of ‘‘Does Not Meet
Standard’’ with one or more standards
shall trigger a 180-day corrective action
period.
(b) The auditor and the agency, with
the facility if practicable, shall jointly
develop a corrective action plan to
achieve compliance.
(c) The auditor shall take necessary
and appropriate steps to verify
implementation of the corrective action
plan, such as reviewing updated
policies and procedures or re-inspecting
portions of a facility.
(d) After the 180-day corrective action
period ends, the auditor shall issue a
final determination as to whether the
facility has achieved compliance with
those standards requiring corrective
action.
(e) If the facility does not achieve
compliance with each standard, it may
(at its discretion and cost) request a
subsequent audit once it believes that is
has achieved compliance.
§ 115.205
Audit appeals.
(a) A facility may lodge an appeal
with the agency regarding any specific
audit finding that it believes to be
incorrect. Such appeal must be lodged
within 90 days of the auditor’s final
determination.
(b) If the agency determines that the
facility has stated good cause for a reevaluation, the facility may commission
a re-audit by an auditor mutually agreed
upon by the agency and the facility. The
facility shall bear the costs of this reaudit.
(c) The findings of the re-audit shall
be considered final.
Janet Napolitano,
Secretary of Homeland Security.
[FR Doc. 2012–29916 Filed 12–18–12; 8:45 am]
BILLING CODE 9110–9B–P
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[Federal Register Volume 77, Number 244 (Wednesday, December 19, 2012)]
[Proposed Rules]
[Pages 75299-75347]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-29916]
[[Page 75299]]
Vol. 77
Wednesday,
No. 244
December 19, 2012
Part III
Department of Homeland Security
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6 CFR Part 115
Standards To Prevent, Detect, and Respond to Sexual Abuse and Assault
in Confinement Facilities; Proposed Rule
Federal Register / Vol. 77 , No. 244 / Wednesday, December 19, 2012 /
Proposed Rules
[[Page 75300]]
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DEPARTMENT OF HOMELAND SECURITY
6 CFR Part 115
[ICEB-2012-0003]
RIN 1653-AA65
Standards To Prevent, Detect, and Respond to Sexual Abuse and
Assault in Confinement Facilities
AGENCY: Department of Homeland Security.
ACTION: Notice of proposed rulemaking.
-----------------------------------------------------------------------
SUMMARY: The Department of Homeland Security (DHS) proposes to issue
regulations setting standards to prevent, detect, and respond to sexual
abuse and assault in DHS confinement facilities.
DATES: Comments and related material must either be submitted to our
online docket via https://www.regulations.gov on or before 11:59 p.m. on
February 19, 2013 or reach the Mail or Hand Delivery/Courier address
listed below in ADDRESSES by that date.
ADDRESSES: You may submit comments, identified by DHS Docket No. ICEB-
2012-0003, by one of the following methods:
Federal eRulemaking Portal: https://www.regulations.gov.
Follow the instructions for submitting comments.
Mail: Office of Policy; U.S. Immigration and Customs
Enforcement, Department of Homeland Security; Potomac Center North, 500
12th Street SW., Washington, DC 20536; Contact Telephone Number (202)
732-4292. To ensure proper handling, please reference DHS Docket No.
ICEB-2012-0003 on your correspondence.
Hand Delivery/Courier: Office of Policy; U.S. Immigration
and Customs Enforcement, Department of Homeland Security; Potomac
Center North, 500 12th Street SW., Washington, DC 20536; Telephone:
(202) 732-4292 between 9 a.m. and 5 p.m., Monday through Friday, except
Federal holidays.
To avoid duplication, please use only one of these three methods.
See the ``Public Participation'' portion of the SUPPLEMENTARY
INFORMATION section below for instructions on submitting comments.
FOR FURTHER INFORMATION CONTACT: Alexander Y. Hartman, Office of
Policy; U.S. Immigration and Customs Enforcement, Department of
Homeland Security; Potomac Center North, 500 12th Street SW.,
Washington, DC 20536; Telephone: (202) 732-4292 (not a toll-free
number).
SUPPLEMENTARY INFORMATION:
I. Public Participation and Request for Comments
We encourage you to participate in this rulemaking by submitting
comments and related materials. Please note that all comments received
are considered part of the public record and made available for public
inspection online at https://www.regulations.gov and in the DHS public
docket. Such information includes personal identifying information
(such as your name, address, etc.) voluntarily submitted by the
commenter.
You are not required to submit personal identifying information in
order to comment on this rule. Nevertheless, if you still want to
submit personal identifying information (such as your name, address,
etc.) as part of your comment, but do not want it to be posted online
or made available in the public docket, you must include the phrase
``PERSONAL IDENTIFYING INFORMATION'' in the first paragraph of your
comment. You must also place all the personal identifying information
you do not want posted online or made available in the public docket in
the first paragraph of your comment and identify what information you
want redacted.
If you want to submit confidential business information as part of
your comment, but do not want it to be posted online or made available
in the public docket, you must include the phrase ``CONFIDENTIAL
BUSINESS INFORMATION'' in the first paragraph of your comment. You must
also prominently identify confidential business information to be
redacted within the comment. If a comment has so much confidential
business information that it cannot be effectively redacted, all or
part of that comment may not be posted online or made available in the
public docket.
Personal identifying information and confidential business
information identified and located as set forth above will be redacted
and the comment, in redacted form, will be posted online and placed in
the DHS public docket file. Please note that the Freedom of Information
Act applies to all comments received. If you wish to inspect the
agency's public docket file in person by appointment, please see the
FOR FURTHER INFORMATION CONTACT section above.
A. Submitting Comments
If you submit a comment, please include the docket number for this
rulemaking (ICEB-2012-0003), indicate the specific section of this
document to which each comment applies, and provide a reason for each
suggestion or recommendation. You may submit your comments and material
online or by mail or hand delivery. Please use only one of these means.
To submit your comment online, go to https://www.regulations.gov,
click on the ``submit a comment'' box, which will then become
highlighted in blue. In the ``Document Type'' drop down menu select
``Proposed Rule'' and insert ``ICEB-2012-0003'' in the ``Keyword'' box.
Click ``Search'' then click on the balloon shape in the ``Actions''
column. If you submit comments by mail or hand delivery, submit them in
an unbound format, no larger than 8\1/2\ by 11 inches, suitable for
copying and electronic filing. If you submit comments by mail and would
like to know that they reached the mailing address, please enclose a
stamped, self-addressed postcard or envelope.
We will consider all comments and material received during the
comment period and may change this proposed rule based on your
comments.
B. Viewing Comments and Documents
To view comments, as well as documents mentioned in this preamble
as being available in the docket, go to https://www.regulations.gov, and
click on the ``read comments'' box, which will then become highlighted
in blue. In the ``Keyword'' box insert ``ICEB-2012-0003'', click
``Search'' and then click ``Open Docket Folder'' in the ``Actions''
column. Individuals without internet access can make alternate
arrangements for viewing comments and documents related to this
rulemaking by contacting DHS at the contact number listed in the FOR
FURTHER INFORMATION CONTACT section above.
C. Public Meeting
We do not now plan to hold a public meeting, but you may submit a
request for one to the docket using one of the methods specified under
ADDRESSES. In your request, explain why you believe a public meeting
would be beneficial. If we determine that a public meeting would aid
this rulemaking, we will hold one at a time and place announced by a
later notice in the Federal Register.
II. Abbreviations
ADA Americans with Disability Act of 1990, as amended
ANPRM Advance Notice of Proposed Rulemaking
BJS Bureau of Justice Statistics
CBP U.S. Customs and Border Protection
CDF Contract Detention Facility
CFR Code of Federal Regulations
CMD Custody Management Division
CRCL DHS Office for Civil Rights and Civil Liberties
DHS Department of Homeland Security
[[Page 75301]]
DOJ Department of Justice
ERO Enforcement and Removal Operations
FR Federal Register
HHS Department of Health and Human Services
ICE U.S. Immigration and Customs Enforcement
IGSA Intergovernmental Service Agreement
INA Immigration and Nationality Act
IRIA Initial Regulatory Impact Analysis
LEP Limited English Proficiency
NAICS North American Industry Classification System
NPREC National Prison Rape Elimination Commission
NPRM Notice of Proposed Rulemaking
OMB Office of Management and Budget
PBNDS Performance Based National Detention Standards
PLRA Prison Litigation Reform Act
PREA Prison Rape Elimination Act of 2003
PSA Prevention of Sexual Abuse
RFA Regulatory Flexibility Act
SAAPID Sexual Abuse and Assault Prevention and Intervention
Directive
SPC Service Processing Center
SSV Survey of Sexual Violence
UMRA Unfunded Mandate Reform Act of 1995
U.S.C. United States Code
USMS U.S. Marshals Service
III. Executive Summary
A. Purpose of the Regulatory Action
The purpose of this regulatory action is to propose regulations
setting standards to prevent, detect, and respond to sexual abuse in
Department of Homeland Security (DHS) confinement facilities.\1\ Sexual
violence, against any victim, is an assault on human dignity and an
affront to American values. Many victims report persistent, even
lifelong mental and physical suffering. As the National Prison Rape
Elimination Commission explained in its 2009 report:
---------------------------------------------------------------------------
\1\ As discussed in greater detail below, in these proposed
standards, ``sexual abuse'' includes sexual abuse and assault of a
detainee by another detainee, as well as sexual abuse and assault of
a detainee by a staff member, contractor, or volunteer.
Until recently * * * the public viewed sexual abuse as an
inevitable feature of confinement. Even as courts and human rights
standards increasingly confirmed that prisoners have the same
fundamental rights to safety, dignity, and justice as individuals
living at liberty in the community, vulnerable men, women, and
children continued to be sexually victimized by other prisoners and
corrections staff. Tolerance of sexual abuse of prisoners in the
government's custody is totally incompatible with American
values.\2\
---------------------------------------------------------------------------
\2\ National Prison Rape Elimination Commission Report 1 (2009),
https://www.ncjrs.gov/pdffiles1/226680.pdf.
The commitment to eliminate sexual abuse behind bars applies equally to
DHS confinement facilities, which detain individuals for civil
immigration purposes. Sexual abuse is not an inevitable feature of
detention, and with DHS's strong commitment, DHS immigration detention
and holding facilities can have a culture that promotes safety and
refuses to tolerate abuse. DHS is fully committed to a zero-tolerance
policy against sexual abuse in its confinement facilities, and the
proposed standards will effectively apply that policy across DHS
confinement facilities. DHS is also fully committed to the full
implementation of the proposed standards in DHS confinement facilities,
and to robust oversight of these facilities to ensure this
implementation.
The proposed standards build on current U.S. Immigration and
Customs Enforcement (ICE) Performance Based National Detention
Standards (PBNDS) and other DHS detention policies, and respond to the
President's May 17, 2012 Memorandum, ``Implementing the Prison Rape
Elimination Act,'' which directs all agencies with Federal confinement
facilities to work with the Attorney General to propose rules or
procedures setting standards to prevent, detect, and respond to sexual
abuse in confinement facilities. DHS seeks and welcomes public comments
to this proposal.
B. Summary of the Provisions of the Regulatory Action
The proposed DHS provisions span eleven categories that were
originally used by the National Prison Rape Elimination Commission
(NPREC) to discuss and evaluate prison rape elimination standards:
prevention planning, responsive planning, training and education,
assessment for risk of sexual victimization and abusiveness, reporting,
official response following a detainee report, investigations,
discipline, medical and mental care, data collection and review, and
audits and compliance. Each provision proposed under these categories
reflects the DHS experience in confinement of individuals and draws
upon the unique experiences and requirements DHS faces in fulfilling
its missions.
For example, DHS has broken down the standards to cover two
distinct types of DHS facilities: (1) Immigration detention facilities,
which are overseen by U.S. Immigration and Customs Enforcement (ICE)
and used for longer-term detention of individuals involved in
immigration removal operations or processes; and (2) holding
facilities, which are used by ICE, U.S Customs and Border Protection
(CBP), and other DHS component agencies for temporary administrative
detention of individuals pending transfer to a court, jail, prison,
other agency or other unit of the facility or agency.
In addition, the standards reflect the characteristics of the
population encountered by DHS in carrying out its border security and
immigration enforcement missions by providing, for example, for
language assistance services for limited-English proficient detainees,
safe detention of family units, and other provisions specific to DHS's
needs. A more detailed discussion of all of the proposed provisions in
the rulemaking is included below in section V of this notice of
proposed rulemaking, ``Discussion of Proposed Rule,'' including a
section-by-section analysis of the DHS proposal.
C. Costs and Benefits
The anticipated costs of full nationwide compliance with the
proposed rule, if ultimately made final, as well as the benefits of
reducing the prevalence of sexual abuse in DHS immigration detention
facilities and holding facilities, are discussed at length in section
VI, entitled ``Statutory and Regulatory Requirements--Executive Orders
12866 and 13563'' and in the accompanying Initial Regulatory Impact
Analysis (IRIA), which is found in the Federal rulemaking docket for
this rulemaking.
As shown in the Summary Table below, DHS estimates that the costs
of these standards would be approximately $57.7 million over the period
2013-2022, discounted at 7 percent, or $8.2 million per year when
annualized at a 7 percent discount rate.
With respect to benefits, DHS conducts what is known as a ``break
even analysis,'' by first estimating the monetary value of preventing
various types of sexual abuse (from incidents involving violence to
inappropriate touching) and then, using those values, calculating the
reduction in the annual number of victims that would need to occur for
the benefits of the rule to equal the cost of compliance. This analysis
begins by estimating the current levels of sexual abuse in covered
facilities. In 2011, ICE had two substantiated sexual abuse allegations
in immigration detention facilities. During the same year, DHS
experienced one substantiated allegation of sexual abuse of an
individual detained in a DHS holding facility. (This does not include
allegations involved in still-open investigations or allegations
outside the scope of these proposed regulations.) The regulatory impact
analysis extrapolates the number of substantiated and founded
allegations at immigration detention facilities based on the premise
that there may be additional detainees
[[Page 75302]]
who may have experienced sexual abuse, but did not report it.
Next, DHS estimates how much monetary benefit (to the victim and to
society) accrues from reducing the annual number of victims of sexual
abuse. This is, of course, an imperfect endeavor, given the inherent
difficulty in assigning a dollar figure to the cost of such an event.
Executive Order 13563 states that agencies ``may consider (and discuss
qualitatively) values that are difficult or impossible to quantify,
including equity, human dignity, fairness, and distributive impacts.''
Each of these values is relevant here, including human dignity, which
is offended by acts of sexual abuse.
DHS uses the DOJ estimates of unit avoidance values for sexual
abuse. DOJ estimates extrapolate from the existing economic and
criminological literature regarding rape in the community.\3\ The RIA
concludes that when all facilities and costs are phased into the
rulemaking, the breakeven point would be reached if the standards
reduced the annual number of incidents of sexual abuse by 55 from the
estimated benchmark levels, which is 79 percent of the total number of
assumed incidents in ICE confinement facilities, including an estimated
number of those who may not have reported an incident. Chapter 3 of the
IRIA presents detailed descriptions of the monetized benefits and
break-even results. The Summary Table, below, presents a summary of the
benefits and costs of the Notice of Proposed Rulemaking (NPRM). The
costs are discounted at seven percent.
---------------------------------------------------------------------------
\3\ Department of Justice, National Standards to Prevent,
Detect, and Respond to Prison Rape, Final Rule, Final Regulatory
Impact Analysis, Docket No. DOJ-OAG-2011-0002, available at
www.regulations.gov.
Summary Table--Estimated Costs and Benefits of NPRM
[$millions]
----------------------------------------------------------------------------------------------------------------
Immigration Total DHS
detention Holding PREA
facilities facilities rulemaking
----------------------------------------------------------------------------------------------------------------
10-Year Cost Annualized at 7% Discount Rate..................... $4.9 $3.3 $8.2
% Reduction of Sexual Abuse Victims to Break Even with Monetized N/A N/A * 79%
Costs..........................................................
-----------------------------------------------
Non-monetized Benefits.......................................... An increase in the general wellbeing and
morale of detainees and staff, the value of
equity, human dignity, and fairness for
detainees in DHS custody.
-----------------------------------------------
Net Benefits.................................................... N/A N/A N/A
----------------------------------------------------------------------------------------------------------------
* For ICE confinement facilities.
IV. Background
Rape is violent, destructive, and a crime, no matter where it takes
place. In response to concerns related to incidents of rape of
prisoners in Federal, State, and local prisons and jails, as well as
the lack of data available about such incidents, Congress passed PREA
in July 2003. The bill became law with the President's signature in
September 2003. See Public Law 108-79 (Sept. 4, 2003). Some of the key
purposes of the statute were to ``develop and implement national
standards for the detection, prevention, reduction, and punishment of
prison rape,'' and to ``increase the available data and information on
the incidence of prison rape.'' 42 U.S.C. 15602(3), (4). As the
memorandum issued by the President on May 17, 2012 makes clear, the
Administration concluded that PREA applies to all federal confinement
facilities, including those operated by DHS.
To accomplish these ends, PREA established the NPREC to conduct a
``comprehensive legal and factual study of the penological, physical,
mental, medical, social, and economic impacts of prison rape in the
United States,'' and to recommend national standards for the reduction
of prison rape. 42 U.S.C. 15606. PREA charged the Attorney General,
within one year of NPREC issuing its report, to ``publish a final rule
adopting national standards for the detection, prevention, reduction,
and punishment of prison rape * * * based upon the independent judgment
of the Attorney General, after giving due consideration to the
recommended national standards provided by [NPREC] * * * and being
informed by such data, opinions, and proposals that the Attorney
General determines to be appropriate to consider.'' 42 U.S.C.
15607(a)(1)-(2).
The NPREC released its findings and recommended national standards
in a report (the NPREC report) dated June 23, 2009. The report is
available at https://www.ncjrs.gov/pdffiles1/226680.pdf. In that report,
NPREC set forth four sets of recommended national standards for
eliminating prison rape and other forms of sexual abuse. Each set was
applicable to one of four unique confinement settings: (1) Adult
prisons and jails; (2) lockups; (3) juvenile facilities; and (4)
community corrections facilities. NPREC report at pgs. 215-235. The
NPREC report recommends supplemental standards for facilities with
immigration detainees. Id. at 219-220. Specifically, and of particular
interest to DHS, the NPREC made eleven recommendations for supplemental
standards for facilities with immigration detainees and four
recommendations for supplemental standards for family facilities. NPREC
felt that standards for facilities with immigrant detainees must be
enforced in any facility that is run by ICE or through an ICE contract.
Although immigrants are detained in various settings, efforts to
prevent and respond to sexual abuse should require attention to the
vulnerabilities of this detained population.
As stated above, PREA provides that the Attorney General's final
rule ``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, opinion, and proposals that the Attorney General determines to be
appropriate to consider.'' 42 U.S.C. 15607(a)(2).
A. Department of Justice Rulemaking
In response to the NPREC report, the Attorney General established a
PREA Working Group to review the NPREC's proposed standards and to
assist him in the rulemaking process. The Working Group included
representatives from DOJ offices including the Access to
[[Page 75303]]
Justice Initiative, the Bureau of Prisons (including the National
Institute of Corrections), the Civil Rights Division, the Executive
Office for United States Attorneys, the Office of Legal Policy, the
Office of Legislative Affairs, the Office of Justice Programs
(including the Bureau of Justice Assistance, the Bureau of Justice
Statistics (BJS), the National Institute of Justice, the Office of
Juvenile Justice and Delinquency Prevention, and the Office for Victims
of Crime), the Office on Violence Against Women, and the United States
Marshals Service. On March 10, 2010, DOJ published an advance notice of
proposed rulemaking (ANPRM) to solicit public comment on the NPREC's
proposed standards and to receive information useful in publishing a
proposed rule proffering national standards as required under PREA. 75
FR 11077 (Mar. 10, 2010). Throughout the rulemaking process, DOJ
solicited and received substantial public input in the form of written
comments and from listening sessions with key stakeholders. In general,
the commenters to the DOJ ANPRM supported the broad goals of PREA and
the overall intent of the NPREC's recommendations. The commenters were
sharply divided, however, as to the merits of a number of the NPREC's
recommended national standards. Some commenters, particularly those
whose responsibilities involve the care and custody of detainees,
expressed concern that the NPREC's recommended national standards
implementing PREA would impose unduly burdensome costs on already tight
State and local government budgets. Other commenters, particularly
advocacy groups concerned with protecting the health and safety of
detainees, expressed concern that the NPREC's standards were not
protective enough, and, therefore, would not fully achieve PREA's
goals.
On February 3, 2011, after reviewing the public input to the ANPRM,
DOJ issued a notice of proposed rulemaking (NPRM) setting forth
proposed national PREA standards. 76 FR 6248 (Feb. 3, 2011). The DOJ
NPRM solicited comments on DOJ's proposed standards, and posed 64
specific questions on the proposed standards and the accompanying
economic analysis.
In response to the NPRM, DOJ received over 1,300 comments,
representing the same broad range of stakeholders as commented to the
DOJ ANPRM. Commenters provided general assessments of DOJ's efforts as
well as specific and detailed recommendations regarding each standard.
Pertinent to DHS, there was specific concern expressed by the
commenters with respect to NPREC's recommended supplemental standards
for immigration detention number six, which proposed to mandate that
immigration detainees be housed separately from criminal detainees. The
NPRM noted that several comments to the DOJ ANPRM raised a concern that
this requirement would impose a significant burden on jails and
prisons, which often do not have the capacity to house immigration
detainees and criminal detainees separately. Id. The NPRM also noted
DOJ's concern about other proposed supplemental standards, such as
imposing separate training requirements, and requiring agencies to
attempt to enter into separate memoranda of understanding with
immigration-specific community service providers. Id. Furthermore,
comments to the NPRM addressed whether the proposed standards should
cover immigration detention facilities, prompting DOJ to examine the
application of PREA to other federal confinement facilities, which is
discussed further below.
Following the public comment period for the NPRM, DOJ issued a
final rule setting national standards to prevent, detect, and respond
to prison rape. 77 FR 37106 (June 20, 2012). The final rule
incorporates changes based upon the public comments and sets a national
framework of standards to prevent, detect, and respond to prison rape
at DOJ confinement facilities, as well as State prisons and local
jails.
B. Application of PREA Standards to Other Federal Confinement
Facilities
DOJ's NPRM interpreted PREA to bind only facilities operated by the
Bureau of Prisons, and extended the standards to U.S. Marshals Service
(USMS) facilities under other authorities of the Attorney General. 76
FR 6248, 6265. Numerous commenters criticized this interpretation of
the statute. In light of those comments, DOJ re-examined whether PREA
extends to Federal facilities beyond those operated by DOJ and
concluded that PREA does, in fact, encompass any Federal confinement
facility ``whether administered by [the] government or by a private
organization on behalf of such government.'' 42 U.S.C. 15609(7).
In its final rule, DOJ further concluded that, in general, each
Federal department is accountable for, and has statutory authority to
regulate, the operations of its own facilities and, therefore, is best
positioned to determine how to implement the federal laws and rules
that govern its own operations, the conduct of its own employees, and
the safety of persons in its custody. 77 FR 37106, 37113. In
particular, DOJ noted that DHS possesses great knowledge and experience
regarding the specific characteristics of its immigration facilities,
which differ in certain respects from DOJ, State, and local facilities
with regard to the manner in which they are operated and the
composition of their populations. Thus, and given each department's
various statutory authorities to regulate conditions of detention, DOJ
stated that Federal departments with confinement facilities, like DHS,
will work with the Attorney General to issue rules or procedures
consistent with PREA.
C. The Presidential Memorandum on Implementing the Prison Rape
Elimination Act
On May 17, 2012, the same day DOJ released its final rule,
President Obama issued a Presidential Memorandum reiterating the goals
of PREA and directing Federal agencies with confinement facilities that
are not already subject to the DOJ final rule to propose rules or
procedures necessary to satisfy the requirements of PREA within 120
days of the Memorandum. In the Memorandum, the President firmly
establishes that sexual violence, against any victim, is an assault on
human dignity and an affront to American values, and that PREA
established a ``zero-tolerance standard'' for rape in prisons in the
United States. The Memorandum further expresses the Administration's
conclusion that PREA encompasses all Federal confinement facilities,
including those operated by executive departments and agencies other
than DOJ, whether administered by the Federal Government or by an
organization on behalf of the Federal Government, and that each agency
is responsible for, and must be accountable for, the operations of its
own confinement facilities. The President charged each agency, within
the agency's own expertise, to determine how to implement the Federal
laws and rules that govern its own operations, but to ensure that all
agencies that operate confinement facilities adopt high standards to
prevent, detect, and respond to sexual abuse. The President directed
all agencies with Federal confinement facilities that are not already
subject to the DOJ final rule, such as DHS, to work with the Attorney
General to propose rules or procedures that will satisfy the
requirements of PREA.
As Congress and the President have concluded, sexual abuse in
custodial environments is a serious concern with dire consequences for
victims. DHS is firmly committed to protecting detainees from all forms
of sexual abuse.
[[Page 75304]]
By this regulation, DHS responds to and fulfills the President's
directive by proposing comprehensive, national regulations for the
detection, prevention and reduction of sexual abuse at DHS immigration
detention facilities and at DHS holding facilities.
D. Types of DHS Confinement Facilities
Unlike DOJ, which followed the pattern of the NPREC report by
issuing regulations related to four types of confinement facilities,
DHS has just two types of confinement facilities: (1) Immigration
detention facilities and (2) holding facilities.\4\
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\4\ For simplicity, all persons confined in DHS immigration
detention facilities and holding facilities are referred to as
``detainees'' in this rulemaking.
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As proposed in this rule, DHS defines an immigration detention
facility as a ``confinement facility operated by or affiliated with
U.S. Immigration and Customs Enforcement (ICE) that routinely holds
persons for over 24 hours pending resolution or completion of
immigration removal operations or processes, including facilities that
are operated by ICE, facilities that provide detention services under a
contract awarded by ICE, or facilities used by ICE pursuant to an
Intergovernmental Service Agreement.'' These facilities are designed
for long-term detention (more than 24 hours) and house the largest
number of DHS detainees. ICE is the only DHS component agency with
immigration detention facilities, and it has several types of such
facilities: service processing center (SPC) facilities are ICE-owned
facilities staffed by a combination of Federal employees and contract
staff; contract detention facilities (CDFs) are owned by private
companies and contracted directly with ICE; detention services at
Intergovernmental Service Agreement (IGSA) facilities are provided to
ICE by States or local governments through agreements and may be owned
by the State or local government, or a private entity; and
Intergovernmental Agreement (IGA) facilities are provided to ICE by
States or local governments through intergovernmental agreements and
may be owned by the State or local government, but not private
entities. In addition, there are two types of IGSA facilities:
dedicated IGSA facilities, which house only detained aliens, and non-
dedicated IGSA facilities, which house a variety of detainees. The
standards set forth in Subpart A of these proposed regulations are
meant ultimately to apply to all of these various types of immigration
detention facilities--but not, notably, to USMS facilities used by ICE
under intergovernmental agreements; those facilities and their
immigrant detainees would be covered by the DOJ PREA standards and not
the provisions within Subpart A of these proposed rules.
The proposed regulations would not apply to CDF and IGSA facilities
directly; rather, standards for these facilities would be phased in
through new contracts and contract renewals. Specifically, the proposed
regulations would require that when contracting for the confinement of
detainees in immigration detention facilities operated by non-DHS
private or public agencies or other entities, the agency include in any
new contracts or contract renewals the obligation to adopt and comply
with these standards. In other words, DHS intends to enforce the
proposed standards though terms in its contracts with facilities.
DHS defines a holding facility similarly to DOJ's definition of
``lockup.'' A ``holding facility'' is a facility that contains holding
cells, cell blocks, or other secure enclosures that are: (1) Under the
control of the agency; and (2) primarily used for the short-term
confinement of individuals who have recently been detained, or are
being transferred to or from a court, jail, prison, or other agency.
These facilities, which are operated by ICE, CBP, or other DHS
components, are designed for confinement that is short-term in nature,
but are permanent structures intended primarily for the purpose of such
confinement. Temporary-use hold rooms and other types of short-term
confinement areas not primarily used for confinement are not amenable
to compliance with these standards, but are covered by other DHS
policies and procedures. We discuss the distinctions between these
facilities in more detail later in this proposal.
1. ICE Detention Facilities
As stated above, the NPREC report contained eleven recommended
standards for facilities with immigration detainees and four
recommended standards specifically addressing family facilities. ICE
oversees immigration detention facilities nationwide. The vast majority
of facilities are operated through government contracts, State and
local entities, private entities, or other federal agencies. The ICE
Office of Enforcement and Removal Operations (ERO) is the subdivision
within ICE that manages ICE operations related to the immigration
detention system.
ERO is responsible for providing adequate and appropriate custody
management to support the immigration removal process. This includes
providing traditional and alternative custody arrangements for those in
removal proceedings, providing aliens access to legal resources and
representatives of advocacy groups, and facilitating the appearance of
detained aliens at immigration court hearings. Through various
immigration detention reform initiatives, ERO is committed to providing
and maintaining appropriate conditions of confinement, providing
required medical and mental healthcare, housing detainees in the least
restrictive setting commensurate with their criminal background,
ensuring appropriate conditions for all detainees, employing fiscal
accountability, increasing transparency, and strengthening critical
oversight, including efforts to ensure compliance with applicable
detention standards through inspection programs.
The ERO Custody Management Division (CMD) provides policy and
oversight for the administrative custody of immigration detainees; one
of the most highly transient and diverse populations of any
correctional or detention system in the world. CMD's mission is to
manage ICE detention operations efficiently and effectively to provide
for the safety, security and care of aliens in ERO custody.
ERO is currently responsible for providing custody management to
approximately 158 authorized immigration detention facilities,
consisting of 6 SPCs, 7 CDFs, 9 dedicated IGSA facilities, and 136 non-
dedicated IGSA facilities (of which 64 are covered by the DOJ PREA
rule, not this proposed rule, because they are USMS IGA facilities).
ERO has 91 other authorized immigration detention facilities that
typically hold detainees for more than 24 hours and less than 72 hours,
including 55 USMS IGA facilities and 36 non-dedicated IGSA facilities.
In addition, ICE has 149 holding facilities that hold detainees for
less than 24 hours. These holding facilities are nationwide and are
located within ICE ERO Field and Sub-Field Offices.
2. ICE Sexual Abuse and Assault Policies
The proposed regulation for immigration detention facilities and
holding facilities discussed in this rulemaking supports existing
sexual abuse policies promulgated by ICE, including ICE's PBNDS 2011
and its 2012 Sexual Abuse and Assault Prevention and Intervention
Directive (SAAPID),\5\ which provide strong
[[Page 75305]]
safeguards against all sexual abuse of individuals within its custody,
consistent with the goals of the PREA.
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\5\ ICE, Performance-Based National Detention Standards (2011),
https://www.ice.gov/doclib/detention-standards/2011/pbnds2011.pdf;
ICE, Directive No. 11062.1: Sexual Abuse and Assault Prevention and
Intervention (2012), https://www.ice.gov/detention-standards. These
documents are available, redacted as appropriate, in the docket for
this rule where indicated under ADDRESSES.
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ICE's PBNDS 2011 standard on ``Sexual Abuse and Assault Prevention
and Intervention'' was developed in order to enhance protections for
immigration detainees as well as ensure a swift and effective response
to allegations of sexual abuse. This standard derived in significant
part from earlier policies contained in the agency's PBNDS 2008,
promulgated in response to the passage of PREA, and took into
consideration the subsequently released recommendations of the NPREC
(including those for facilities housing immigration detainees) in June
2009 and ensuing draft standards later issued by DOJ in its Advance
Notice of Proposed Rulemaking in March 2010. In drafting the PBNDS
2011, ICE also incorporated the input of the DHS Office for Civil
Rights and Civil Liberties (CRCL), local and national advocacy
organizations, and representatives of DOJ (including correctional
experts from the Bureau of Prisons) on methods for accomplishing the
objectives of PREA in ICE's operational context, and closely consulted
information and best practices reflected in policies of international
corrections systems, statistical data on sexual violence collected by
the DOJ BJS, and reports published by the United Nations High
Commissioner for Refugees and the Inter-American Commission on Human
Rights of the Organization of American States regarding sexual abuse
and other issues affecting vulnerable populations in U.S. correctional
systems. The PBNDS 2011 establish responsibilities of all immigration
detention facility staff with respect to preventative measures such as
screening, staff training, and detainee education, as well as effective
response to all incidents of sexual abuse, including timely reporting
and notification, protection of victims, provision of medical and
mental health care, investigation, and monitoring of incident data.
The 2012 ICE SAAPID complements the requirements established by the
2011 PBNDS by delineating ICE-wide policy and procedures and
corresponding duties of agency employees for reporting, responding to,
investigating, and monitoring incidents of sexual abuse. In conjunction
with the PBNDS, the Directive ensures an integrated and comprehensive
system of preventing and responding to all incidents or allegations of
sexual abuse of individuals in ICE custody.
ICE's combined policies prescribe a comprehensive range of
protections against sexual abuse addressing prevention planning,
reporting, response and intervention, investigation, and oversight,
including: articulation of facility zero-tolerance policies;
designation of facility and agency sexual abuse coordinators; screening
and classification of detainees; staff training; detainee education;
detainee reporting methods; staff reporting and notification; first
responder duties following incidents or allegations of sexual abuse
(including to protect victims and preserve evidence); emergency and
ongoing medical and mental health services; investigation procedures
and coordination; discipline of assailants; and sexual abuse incident
data collection and review.
These policies are tailored to the unique operational and
logistical circumstances encountered in the DHS confinement system in
order to maximize their effective achievement of the goals of the PREA
within the immigration detention context. To further improve
transparency and enforcement, DHS has decided to issue this regulation
and adopt the overall structure of the DOJ standards, as well as the
wholesale text of various individual DOJ standards where it has deemed
them appropriate and efficacious for DHS facilities, to meet the
President's goal of setting high standards, government-wide, consistent
with the goals of PREA. Where appropriate, DHS has also used the
results of DOJ research and considered public comments submitted in
response to the DOJ ANPRM and NPRM in formulating the DHS proposals.
3. U.S. Customs and Border Protection Detention Facilities
U.S. Customs and Border Protection (CBP) has a priority mission of
keeping terrorists and their weapons out of the United States. CBP is
also responsible for securing and facilitating trade and travel while
enforcing hundreds of U.S. statutes and regulations, including
immigration and drug laws. All persons, baggage, and other merchandise
arriving in or leaving the United States are subject to inspection and
search by CBP officials under legal authorities for any number of
reasons relating to its immigration, customs, and other law enforcement
activities.
CBP detains individuals in a wide range of facilities. CBP detains
some individuals in secured detention areas, while others are detained
in open seating areas where agents or officers interact with the
detainee. CBP uses ``hold rooms'' in its facilities for case
processing, and to search, detain, or interview persons who are being
processed. CBP does not currently contract for staff within its holding
facilities, but exercises oversight of detainees with its own
employees.
CBP generally detains individuals for only the short time necessary
for inspection and processing, including pending release or transfer of
custody to appropriate agencies. Some examples of situations in which
CBP detains individuals prior to transferring them to other agencies
are: (1) Persons processed for administrative immigration violations
may, for example, be repatriated to contiguous territory or transferred
to ICE pending removal from the United States or removal proceedings
with the Executive Office of Immigration Review; (2) unaccompanied
alien children placed in removal proceedings under section 240 of the
Immigration and Nationality Act (INA), 8 U.S.C. 1229a, are transferred,
in coordination with ICE, to the Department of Health and Human
Services (HHS), Office of Refugee Resettlement; (3) persons detained
for criminal prosecution are temporarily held pending case processing
and transfer to other Federal, State, local or tribal law enforcement
agencies. CBP policies and directives currently cover these and other
detention scenarios.
4. CBP Detention Directives and Guidance
The various CBP policies and directives containing guidance on the
topics addressed in these proposed regulations include, but are not
limited to:
Personal Search Handbook, Office of Field Operations, CIS HB 3300-
04B, July 2004--describes the procedures for personal searches as well
as detention of juveniles, short-term detention, and those persons
being detained who require medical examinations. The handbook further
details the procedures for transportation of, detention of and,
reporting procedures for persons detained for prolonged medical
examinations as well as detentions lasting more than two hours.
CBP Directive No. 3340-030B, Secure Detention, Transport and Escort
Procedures at Ports of Entry--includes general guidelines on detention.
The policy also defines procedures for the handling of juveniles,
medical situations, meals, water, restrooms, phone notifications,
sanitation of the hold room, restraining procedures, classification of
detainees,
[[Page 75306]]
transportation, emergency procedures, escort procedures, transfer
procedures, and property disposition.
U.S. Border Patrol Policy No. 08-11267, Hold Rooms and Short-Term
Custody--establishes national policy describing the responsibilities
and procedures for the short-term custody of persons in Border Patrol
hold rooms pending case disposition. The policy also contains
requirements regarding the handling of juveniles in Border Patrol
custody.
DHS referenced all of these policies in its consideration of DHS-
wide standards to prevent, detect, and respond to sexual abuse in DHS
confinement facilities. The policies are available, redacted as
appropriate, in the docket for this rule where indicated under
ADDRESSES.
V. Discussion of Proposed Rule
A. The DHS Proposal
Sexual violence, against any victim, is an assault on human
dignity. Such acts are particularly damaging in the detention
environment, where the power dynamic is heavily skewed against victims
and recourse is often limited. Until recently, however, this has been
widely viewed as an inevitable aspect of imprisonment within the United
States. This view is not only incorrect but incompatible with American
values.
DHS keeps records of any known or alleged sexual abuse incidents in
its facilities. ICE keeps records of any claims in its Joint Integrity
Case Management System (JICMS). ICE records indicate 138 sexual abuse
allegations from 2010 to June 2012. Of those, 57 percent were inmate-
or detainee-on-detainee allegations, 38 percent were contract staff-on-
detainee, and the remaining 5 percent were ICE and/or State or local
staff-on-detainee. These figures are unacceptable to DHS and the
Administration, which has articulated a ``zero-tolerance'' standard for
sexual abuse in confinement facilities. Accordingly, DHS has a mandate
to work towards eliminating all such incidents.
With respect to its proposal, DHS did not begin its work from a
blank slate. Many correctional administrators have developed and
implemented policies and practices to more effectively prevent and
respond to sexual abuse in DHS confinement facilities. DHS applauds
these efforts, and views them as an excellent first step. However, DHS
needs a national effort to meet PREA's goals and comply with the
President's directive that can be applied effectively to all covered
facilities in light of their particular physical characteristics, the
nature of their diverse populations, and resource constraints.
DHS appreciates the considerable work DOJ has done in this area,
and also recognizes that each DHS component has extensive expertise
regarding its own facilities, particularly those housing unique
populations, and that each DHS component is best positioned to
determine how to implement the Federal laws and rules that govern its
own operations, the conduct of its own employees, and the safety of
persons in its custody. Thus DHS, because of its own unique
circumstances, has adopted the overall structure of DOJ's regulations
and has used its content to inform the provisions of this proposed
rule, but has tailored individual provisions to maximize their efficacy
in DHS confinement facilities.
DHS also emphasizes that these proposed standards are not intended
to establish a safe harbor for otherwise constitutionally-deficient
conditions regarding detainee sexual abuse. Likewise, while the DHS
standards aim to include a variety of best practices, the need to adopt
standards applicable to a wide range of facilities while accounting for
costs of implementation means that the proposed standards do not
incorporate every promising avenue of combating sexual abuse. The
proposed standards represent policies and practices that are attainable
by DHS components and their contractors, while recognizing that other
DHS policies and procedures can, and in some cases currently do, exceed
these standards in a variety of ways. DHS applauds such efforts, and
encourages its components and contractors to further support the
identification and adoption of additional innovative methods to protect
detainees from sexual abuse.
B. Section by Section Analysis
The DHS proposal follows the DOJ rule in devising separate sets of
standards tailored to different types of confinement facilities
utilized by the DHS: ``immigration detention facilities'' and ``holding
facilities.'' Each set of standards consists of the same eleven
categories used by the DOJ rule: prevention planning, responsive
planning, training and education, assessment for risk of sexual
victimization and abusiveness, reporting, official response following a
detainee report, investigations, discipline, medical and mental care,
data collection and review, and audits and compliance. As in the DOJ
rule, a General Definitions section applicable to both sets of
standards is provided.
Definitions. Sections 115.5 and 115.6 provide definitions for key
terms used in the proposed standards, including definitions related to
sexual abuse. The definitions in this section largely mirror those used
in the DOJ rule, with adjustments as necessary for DHS operational
contexts. DHS has also largely relied on the NPREC's definitions in the
Glossary sections that accompanied the NPREC's four sets of standards,
but has made a variety of adjustments and has eliminated definitions
for various terms that either do not appear in the DHS proposed
standards or whose meaning is sufficiently clear so as not to need
defining. Below is an explanation for key definitions modified or added
by DHS:
Agency. The rule proposes to define agency as the unit or component
of DHS responsible for operating or supervising any facility, or part
of a facility, that confines detainees. This definition reflects the
common understanding of the term agency as a unit of the Federal
government and permits DHS to more appropriately and clearly place
responsibility for compliance with the individual standards set forth
in the proposed rule on the DHS component responsible for overseeing or
supervising the facility, including the DHS component's responsibility
for implementing DHS policy.
Exigent circumstances. The rule proposes a definition for this
term, which is used in several standards. The term is defined to mean
``any set of temporary and unforeseen circumstances that require
immediate action in order to combat a threat to the security or
institutional order of a facility or a threat to the safety or security
of any person.'' Such circumstances include, for example, the
unforeseen absence of a staff member whose presence is indispensable to
carrying out a specific standard, or an outbreak of violence within the
facility that requires immediate action.
Facility. A facility for purposes of the proposed rule means a
place, building (or part thereof), set of buildings, structure, or area
(whether or not enclosing a building or set of buildings) that was
built or retrofitted for the purpose of detaining individuals and is
routinely used by the agency to detain individuals in its custody. The
proposed rule also clarifies that ``[r]eferences to requirements placed
on facilities extend to the entity responsible for the direct operation
of the facility'' to ensure that there is no ambiguity about each
operator's responsibility to comply with given standards within the
proposed rule. In the case of long-term detention facilities and
holding facilities used by ICE, this generally refers to the
[[Page 75307]]
corporate contractor or State or local government entity responsible
for the day-to-day operation of the facility. In the case of CBP
holding facilities, this generally refers to the agency itself. This
definition does not include temporary locations--such as U.S. Coast
Guard vessels, hotel rooms, and conference rooms--temporarily or
sporadically used to detain individuals for short periods of time
during agency operations.
Family unit. DHS, unlike DOJ, oversees a Family Residential Program
which houses non-criminal residents in a family-friendly, shelter-like
setting. In order to facilitate placing families into this arrangement,
ICE is required to identify family units. As such, DHS proposes to
adopt the definition of ``family unit'' from the ICE Family Detention
and Intake Guidance.\6\ In the Guidance, and in this proposed rule,
family unit means a group of detainees that includes one or more non-
United States citizen juvenile(s) accompanied by his/her/their
parent(s) or legal guardian(s), none of whom has a known history of
criminal or delinquent activity, or of sexual abuse, violence, or
substance abuse.
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\6\ See Memorandum from David J. Venturella, Acting Dir., Office
of Detention and Removal Operations, to Field Office Directors (Aug.
14, 2009). This document is available, redacted as appropriate, in
the docket for this rule where indicated under ADDRESSES.
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Holding Facility. The DHS proposed rule uses the DOJ's definition
of ``lockup,'' as the basis for its definition of ``holding facility''
which is more consistent with terminology used throughout DHS policy
documents. Important to this definition is that the holding facility
must be ``primarily used'' for the short-term confinement of
individuals who have recently been detained. As with the definition of
``facility'' above, the definition does not include temporary
locations--such as U.S. Coast Guard vessels, hotel rooms, and
conference rooms--temporarily or sporadically used to detain
individuals for short periods of time during agency operations. These
are governed separately by other agency operational policies.
Immigration detention facility. DHS detains the largest number of
its detainees at ICE immigration detention facilities around the
country. DHS and ICE define an immigration detention facility as a
confinement facility operated by or affiliated with ICE that routinely
holds persons for over 24 hours pending resolution or completion of
immigration removal operations or processes, including facilities that
are operated by ICE, facilities that provide detention services under a
contract awarded by ICE, or facilities used by ICE pursuant to an IGSA.
ICE ERO is responsible for providing custody management to
approximately 158 authorized immigration detention facilities that
house detainees for over 72 hours, including 6 SPCs, 7 CDFs, 9
dedicated IGSA facilities, and 136 non-dedicated IGSA facilities (62 of
the non-dedicated IGSA facilities and 2 of the dedicated IGSA
facilities are covered by the DOJ PREA rule, not this proposed rule,
because they are USMS IGA facilities). ICE ERO also provides custody
management to an additional 91 authorized immigration detention
facilities that are contracted to hold detainees for less than 72
hours, including 36 non-dedicated IGSA facilities and 55 USMS IGA
facilities. The provisions within Subpart A below apply to all of the
facilities just mentioned that are not USMS facilities, which are
already covered by the DOJ PREA rule: 94 over 72-hour facilities and 36
under 72-hour facilities. Please see Table 1 in Section VI.A.2 Summary
of Affected Populations.
Juvenile. DHS's existing detention policies define a juvenile as
any person under the age of 18. The DOJ rule further qualified this
with the phrase ``unless under adult court supervision and confined or
detained in a prison or jail.'' DHS does not operate or oversee prison
or jail facilities and, as such, this phrase was not included as it is
not applicable to DHS facilities. DHS does not incorporate this
qualification because the juveniles DHS detains are detained for civil
administrative purposes.
Sexual abuse. The DHS definition of sexual abuse in the proposed
rule differs slightly from DOJ's definition of sexual abuse in the DOJ
final rule. Both the DHS and DOJ standards define staff-on-detainee
sexual abuse to cover all types of sexual contact between detainees and
staff members, volunteers, or contractors that is unrelated to proper
searches or medical duties, as well as any attempts by staff to engage
in such contact or to coerce a detainee into doing so. Detainee-on-
detainee sexual abuse is similarly defined by both standards to
encompass all types of sexual contact between detainees accomplished
through force, coercion, or intimidation. In order to account for the
fact that DHS detainees are often held with prisoners, inmates, and
facility residents, the proposed rule includes sexual abuse of a
detainee by a prisoner, inmate, or resident in the definition of
``sexual abuse of a detainee by another detainee.'' However, whereas
the DOJ standards include attempted acts of sexual abuse (in addition
to completed acts of sexual abuse) only in their definition of staff-
on-detainee abuse, DHS believes it is important to provide equal
protection against attempted sexual abuse in all instances, and
therefore includes attempted acts of sexual abuse in its definitions of
both staff-on-detainee and detainee-on-detainee sexual abuse. In
addition, DOJ separately defines sexual harassment by an inmate to
include ``[r]epeated and unwelcome sexual advances, requests for sexual
favors, or verbal comments, gestures, or actions of a derogatory or
offensive sexual nature by one inmate, detainee, or resident directed
toward another.'' DHS, instead, incorporates much of the same behavior
into the proposed definition of sexual abuse, which forbids ``threats,
intimidation, or other actions or communications by one or more
detainees aimed at coercing or pressuring another detainee to engage in
a sexual act.''
In addition, DHS has included sexual harassment within its
definition of staff-on-detainee sexual abuse, as DHS believes that
combating precursors to sexual abuse represents an important aspect of
preventing sexual abuse. DHS also has included unnecessary or
inappropriate visual surveillance of a detainee as part of the
definition of sexual abuse of a detainee by a staff member, contractor,
or volunteer. The DHS prohibition on unnecessary or inappropriate
visual surveillance is consistent with and addresses the same types of
conduct as DOJ's prohibition on voyeurism, as that term is defined in
DOJ's PREA final rule. Under the DHS rule, unnecessary or inappropriate
surveillance generally derives from a prurient interest and is carried
out through one or a series of embarrassing, intimidating, or degrading
incidents involving leering, unnecessary supervision, or improper
photography or videotaping of the detainee in a state of undress or
performing bodily functions. For example, as DOJ explained in its PREA
final rule, a staff member who happens to witness a detainee in a state
of undress while conducting rounds has not engaged in unnecessary and
inappropriate visual surveillance. On the other hand, a staff member
who, outside of their official duties, takes images of all or part of a
detainee's naked body, or of an inmate performing bodily functions, for
the staff member's own use or for further distribution, has likely
engaged in unnecessary and inappropriate visual surveillance.
Coverage: Section 115.10 clarifies that Subpart A of the proposed
rule is only applicable to ICE immigration detention
[[Page 75308]]
facilities. DHS holding facilities are governed by Subpart B of the
proposed rule. DHS recognizes the importance of preventing, detecting,
and responding to all sexual abuse, but also that the resources and
environment of immigration detention facilities and holding facilities
are different by nature and need to have a respectively different set
of standards tailored to each of them for an effective outcome.
Prevention Planning: Sections 115.11, 115.111, 115.12, 115.112,
115.13, 115.113, 115.14, 115.114, 115.15, 115.115, 115.16, 115.116,
115.17, 115.117, 115.18 and 115.118. DHS believes it is important to
establish what actions facilities are expected to take to prevent
sexual abuse. Sections 115.11 and 115.111 require each DHS agency
responsible for operation of confinement facilities and each
immigration detention facility covered by Subpart A to establish a
written zero-tolerance policy toward sexual abuse outlining the
agency's or facility's approach to preventing, detecting, and
responding to such conduct.
Sections 115.11 and 115.111 also mandate that each covered agency
appoint an upper-level, agency-wide Prevention of Sexual Abuse
Coordinator (PSA Coordinator) to oversee agency efforts to comply with
DHS sexual abuse prevention, detection, and response standards and that
each immigration detention facility covered by Subpart A appoint a
Prevention of Sexual Abuse Compliance Manager (PSA Compliance Manager)
to oversee facility efforts in this regard. A similar facility-level
requirement is not included for Subpart B holding facilities, as those
are very numerous, often small, and operated directly by the agency,
and thus overseen by the PSA Coordinator through the normal agency
chain of command.
With respect to the reporting level of the DHS component PSA
Coordinator, DHS's proposed standard requires that the position be
``upper-level'' but does not require that the coordinator report
directly to the DHS component head. The PSA Coordinator should have
access to agency and facility leadership on a regular basis, and have
the authority to work with other staff, managers, and supervisors to
effectuate change if necessary. By contrast, the facility-specific PSA
Compliance Manager need not be ``upper-level,'' but should have access
to facility staff, managers, and supervisors in order to guide
implementation of facility sexual abuse prevention and intervention
policies and procedures.
Sections 115.12 and 115.112 require that agencies that contract
with private entities for the confinement of detainees include the
entity's obligation to comply with the DHS sexual abuse standards in
new contracts or contract renewals. Although the proposed regulation
would not directly apply to non-DHS private or public agencies or other
entities, the proposed regulation requires that new contracts or
renewals include the entity's obligation to adopt and comply with these
standards and ``provide for agency contract monitoring to ensure that
the contractor is complying with these standards.''
Sections 115.13 and 115.113 govern the supervision and monitoring
of detainees. The DHS proposal recognizes that direct staff supervision
and video monitoring are two methods of achieving one goal: reducing
the opportunity for sexual abuse to occur unseen. DHS recognizes that
different agencies and facilities rely on staffing and technology to
varying degrees depending upon their specific characteristics.
Accordingly, the DHS proposal considers these issues together.
DHS is also mindful that staffing and video-monitoring systems are
both expensive. Staff salaries and benefits are typically the largest
item in a correctional agency's budget, see, e.g., National Institute
of Corrections, Staffing Analysis: Workbook for Jails (2d ed.) at 2,
and economies of scale are difficult to obtain: increasing staffing by
25% is likely to increase staff costs by 25%. Likewise, video-
monitoring systems may be beyond the financial reach of some agencies
and facilities, although the costs of such systems may diminish in
future years as technology advances.
DHS, however, recognizes the importance of detainee supervision in
combating sexual abuse and believes that the correctional community
shares this view. See, e.g., American Correctional Association, Public
Correctional Policy on Offender Sexual Abuse (Jan. 12, 2005)
(recommending that agencies ``[m]aintain adequate and appropriate
levels of staff to protect detainees against sexual assault'').
Although proper detainee supervision and monitoring cannot eliminate
the risk of sexual abuse, it can play a key role in reducing
opportunities for it to occur.
At the same time, DHS recognizes that determining adequate detainee
supervision and monitoring is a facility-specific enterprise. For
example, the appropriate means of supervision and monitoring, including
appropriate staffing levels, depends upon a variety of factors,
including (but not necessarily limited to) the physical layout of a
facility, the security level and gender of the detainees, whether the
facility houses adults or juveniles, the length of time detainees
reside in the facility, the amount of programming that the facility
offers, and the facility's population density (i.e., comparing the
number of detainees to the number of beds or square feet). Also, the
facility's reliance on video monitoring and other technology may reduce
staffing requirements, as long as the facility employs sufficient staff
to monitor the video feeds or other technologies such as call buttons
or sensors. The viability of technology may in turn depend upon, among
other factors, the characteristics of the confined population.
Due to the complex interaction of these factors, DHS does not
believe that it is possible to craft an agency-wide or facility-wide
formula that would set appropriate staffing levels for all
populations--although DHS is aware that some States do set such levels
for juvenile facilities. Nor is it likely that an auditor would be able
to determine the appropriate staffing level in the limited amount of
time available to conduct an audit. Relying on reported incidents of
sexual abuse to determine appropriate staffing levels is also an
imperfect method given the uncertainty as to whether an incident will
be reported. Indeed, facilities where detainees feel comfortable
reporting abuse, and where investigations are conducted effectively,
may be more likely than other facilities to experience substantiated
allegations of sexual abuse, even if the facility is safer than its
counterparts. For this reason, DHS, like DOJ, has opted not to adopt
general across-the-board standards on this issue, as proposed by some
commenters to the DOJ rulemaking.
Accordingly, DHS is of the view that any standard that governs
detainee supervision and monitoring must protect detainees by providing
sufficient clarity as to its requirements, recognizing that the
adequacy of detainee supervision and monitoring depends on several
factors that interact differently for each facility, and accounting for
the costs involved in employing additional staff and in purchasing and
deploying additional technology. The agency or the facility itself
must, therefore, make its own comprehensive assessment of adequate
supervision levels, taking into account its use, if any, of video
monitoring or other technology. The fact that multiple factors bear on
the adequacy of detainee supervision and monitoring is no barrier to
requiring an agency to conduct such an assessment for each of its
facilities. The agency or facility must reassess at least annually such
adequate
[[Page 75309]]
supervision and monitoring, including through appropriate staffing
levels, and should also reassess its use of video monitoring systems
and other technologies. This annual assessment will include an
examination of the adequacy of resources the agency or facility has
available to ensure adequate levels of detainee supervision and
monitoring. The purpose of mandating such inquiries within these
standards is to institutionalize the practice of assessing detainee
supervision and monitoring in the context of considering how
supervision and monitoring contribute to efforts to combat sexual
abuse. DHS is interested in receiving comments on whether and to what
extent this standard should include additional or alternative
requirements.
DHS notes, however, that this standard, like all the standards, is
not intended to serve as a legal safe harbor. A facility that makes its
best efforts to design and comply with its detainee supervision plan is
not necessarily in compliance with legal requirements, even if a
staffing shortfall is due to budgetary factors beyond its control.
DHS also believes that heightened protection should be accorded
detainees who are assessed to be at a high risk of victimization for
sexual abuse. The proposed rule thus provides in the holding facility
context under proposed 115.141 that the agency provide such detainees
heightened protection, to include continuous direct sight and sound
supervision, single-cell housing, or placement in a cell actively
monitored on video by a staff member sufficiently proximate to
intervene, unless no such option is determined to be feasible. In the
immigration detention context, heightened protection is addressed at
another section of the proposed rule, 115.43, which imposes
requirements more consistent with the long-term detention context and
the more extensive resources found within those facilities, including
consideration of administrative segregation. The proposed rule also
includes proposed 115.13(d), which calls for unannounced security
inspections to augment the safety of detainees held in the immigration
detention facilities. This provision is not included in the holding
facility provisions as the agency visual supervision of detainees in
that context is frequently direct and more continuous than in the long-
term detention context.
In general, DHS provides that juveniles will be detained in the
least restrictive setting appropriate to the juvenile's age and special
needs, provided that such setting is consistent with the need to
protect the juvenile's well-being and that of others, as well as any
other laws, regulations, or legal requirements. Nearly all juveniles in
ICE detention are located in family facilities, specifically in two
family detention facilities that house juvenile detainees along with
adult family members. Although the concern raised by potential mixing
of adult and juvenile populations is thus unlikely to be an issue in
ICE facilities as a whole, DHS has proposed a standard in section
115.14 that restricts, but does not forbid, the placement of juveniles
in adult facilities. This provision is in recognition that it is
possible under certain circumstances that adult and juvenile
populations potentially could mix and it is important to clarify in
regulation that DHS seeks to restrict such an outcome whenever
possible.
The BJS previously reported that, based on its surveys of facility
administrators, 20.6% of victims of substantiated incidents of inmate-
on-inmate sexual violence in adult jails in 2005 were under the age of
18, and 13% of such victims in 2006 were under 18,\7\ despite the fact
that under-18 inmates accounted for less than one percent of the total
jail population in both years.\8\ These findings derived from facility
responses to the BJS's Survey of Sexual Violence (SSV), which was
administered to a representative sampling of jail facilities in
addition to all Federal and State prison facilities. However, upon
further review, BJS has determined that these figures are not
statistically significant due to the small number of reported incidents
and the small number of jails contained in the sample. Indeed, in
reporting data from the 2007 and 2008 SSVs, BJS determined that the
standard errors around the under-18 estimates for adult jails were
excessively large, and consequently did not report the estimates
separately, but rather reported combined figures for inmates under the
age of 25. BJS has now determined that it should have done the same for
2005 and 2006.
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\7\ See Beck, Sexual Violence Reported by Correctional
Authorities, 2005, Table 4, BJS (2006); and Beck, Sexual Violence
Reported by Correctional Authorities, 2006, Appendix Table 5, BJS
(2007).
\8\ See Minton, Jail Inmates at Midyear 2010--Statistical
Tables, Table 7, BJS (2011).
---------------------------------------------------------------------------
However, this conclusion does not impact the findings of the same
BJS surveys performed in State prisons, which surveyed all State
prisons (in contrast to the jails surveys, which included only a
sampling of jails). According to SSV reports, from 2005 through 2008,
1.5% of victims of substantiated incidents of inmate-on-inmate sexual
violence in State prisons were under 18, even though under-18 inmates
constituted less than 0.2% of the State prison population. While the
number of such substantiated incidents is small from 2005 through
2008--a total of 10--the combined data indicates that State prison
inmates under the age of 18 are more than eight times as likely as the
average State prison inmate to have experienced a substantiated
incident of sexual abuse. Furthermore, the true prevalence of sexual
abuse is undoubtedly higher than the number of substantiated incidents,
due to the fact that many incidents are not reported, and some
incidents that are reported are not able to be verified and thus are
not classified as ``substantiated.'' Indeed, it is quite possible that
prison inmates under 18 are more reluctant than the average inmate to
report an incident because of their age and relative newness to the
prison system.
DOJ's review of State procedures in its final rule indicates that
at least 28 States have laws, regulations, or policies that restrict
the confinement of juveniles in adult facilities in varying degrees.
Some jurisdictions house these juveniles in juvenile facilities until
they reach a threshold age and then transfer them to an adult facility.
Other jurisdictions require physical separation or sight and sound
separation between these juveniles and adult offenders. Yet other
jurisdictions maintain dedicated programs, facilities, or housing units
for juveniles in the adult system. Overall, there appears to be a
national trend toward limiting interaction between juveniles and adult
inmates. In recent years, a number of States have imposed greater
restrictions on the placement of juveniles in adult facilities or have
passed legislation to allow juveniles tried as adults to be housed in
juvenile facilities.\9\
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\9\ See 77 FR 37106, 37128 n.14 (June 20, 2012) (citing 42 Pa.
C.S.A. Sec. 6327 (under-18 Pennsylvania inmates awaiting trial as
adults may be detained in juvenile facilities until reaching 18);
Va. S.B. 259, 2010 Gen. Assem., Reg. Sess. (eff. July 1, 2010)
(presumption that under-18 Virginia inmates awaiting trial as adults
be held in juvenile facilities); Colo. Rev. Stat. Sec. 19-2-517
(2012) (preventing 14 and 15-year-olds from being tried as adults
except in murder and sexual assault cases; requires prosecutors to
state reasons and hear from defense counsel before exercising
discretion to try 16 and 17-year-olds as adults); Ariz. S.B. 1009,
49th Leg., 2d Reg. Sess. (2010) (eliminating eligibility of some
juveniles to be tried as adults by requiring a criminal charge
brought against the juvenile to be based on their age at the time
the offense was committed and not when the charge was filed); Utah
H.B. 14, Gen. Sess. (Utah 2010) (granting justice court judge
discretion to transfer a matter at any time to juvenile court if it
is in the best interest of the minor and the juvenile court
concurs); Miss. S.B. 2969, 2010 Leg., Reg. Sess. (2010) (limiting
the types of felonies that 17 year olds can be tried for as an
adult);Wash. Rev. Code Sec. 13.04.030(1)(e)(v)(E)(III) (2012)
(allowing juveniles to be transferred back to juvenile court upon
agreement of the defense and prosecution); Wash. Rev. Code Sec.
13.40.020 (14) (providing that juveniles previously transferred to
adult court are not automatically treated as adults for future
charges if found not guilty of original charge); 2009 Nev. Stat. 239
(raising the age a juvenile may be presumptively certified as an
adult from 14 to 16); Me. Rev. Stat. Ann. tit. 17-A Sec. 1259
(2011) (providing that juveniles under 16 who receive adult prison
sentence must serve sentence in juvenile correctional facility until
their 18th birthday); 2008 Ind. Acts 1142-1144 (limiting juvenile
courts' ability to waive jurisdiction to felonies and requiring
access for Indiana criminal justice institute inspection and
monitoring of facilities that are or have been used to house or hold
juveniles); Conn. Gen. Stat. Sec. 54-76b-c (2012) (creating
presumption that 16-17 year olds are eligible to be tried as
youthful offenders unless they are charged with a serious felony or
had previously been convicted of a felony or adjudicated a serious
juvenile offender); 75 Del. Laws 269 (2005) (limiting Superior
Court's original jurisdiction over robbery cases involving juveniles
to crimes committed by juveniles who had previously been adjudicated
delinquent for a felony charge and thereafter committed a robbery in
which a deadly weapon was displayed or serious injury inflicted);
705 Ill. Comp. Stat. 405/5-130 (2011) (eliminating the requirement
that 15-17 year olds charged with aggravated battery with a firearm
and violations of the Illinois Controlled Substances Act, while on
or near school or public housing agency grounds, be tried as
adults)).
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[[Page 75310]]
Furthermore, several accrediting and correctional associations have
formulated position statements, issued standards, or provided comments
urging either that all persons under 18 be held in juvenile facilities
only, or that they be housed separately from adult inmates. For
example, the National Commission on Correctional Healthcare, the
American Jail Association, the National Juvenile Detention Association,
and the National Association of Juvenile Correctional Agencies all
support separate housing or placement for juveniles.\10\ So too does
the American Bar Association.\11\
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\10\ See Letter from Campaign from Youth Justice, et al., to
Attorney General Holder, at 4, April 4, 2011; NCCHC Position
Statement, Health Services to Adolescents in Adult Correctional
Facilities, adopted May 17, 1998, https://www.ncchc.org/resources/statements/adolescents.html.
\11\ See ABA Criminal Justice Standards on the Treatment of
Prisoners, at 23-3.2(b), https://www.americanbar.org/content/dam/aba/publications/criminal_justice_standards/Treatment_of_Prisoners.authcheckdam.pdf.
---------------------------------------------------------------------------
Although many jurisdictions have moved away from incarcerating
adults with juveniles, a significant number of juveniles continue to be
integrated into the adult inmate population. DOJ estimates that in
2009, approximately 2,778 juveniles were incarcerated in State prisons
and 7,218 were held in local jails.\12\
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\12\ See West, Prison Inmates at Midyear 2009--Statistical
Tables, Table 21, BJS (Rev. 2011); Minton, Jail Inmates at Midyear
2010--Statistical Tables, Table 6, BJS (Rev. 2011).
---------------------------------------------------------------------------
Taking these statistics and DHS operational requirements into
consideration, DHS has decided to propose standards aimed at preventing
unsupervised contact with adults without inadvertently causing harm to
juveniles. The standard requires juveniles to be detained in the least
restrictive setting appropriate to the juvenile's age and special
needs, provided that such setting is consistent with the need to
protect the juvenile's well-being and that of others, as well as any
other laws, regulations or legal requirements.
In section 115.14, Juvenile and family detainees, the proposed
standard for ICE immigration detention facilities is consistent with
ICE's Family Detention and Intake Guidance and recognizes that in some
circumstances ICE detains families together. Under this standard, ICE
immigration detention facilities would not be required to hold
juveniles apart from adults if the adult is a member of the family unit
and no other adult non-relative detainees are in the same detention
cell, and provided there are no safety or security concerns with the
arrangement. ICE policy and the standards would further require that
facilities provide priority attention to unaccompanied alien children,
as defined by 6 U.S.C. 279, whom DHS is legally required to transfer to
a HHS Office of Refugee Resettlement facility within 72 hours, except
in exceptional circumstances. If the unaccompanied alien child has been
convicted of a sexual abuse-related crime as an adult, ICE will provide
the entity taking custody of the juvenile--generally the facility or
the HHS Office of Refugee Resettlement--with the releasable information
regarding the conviction(s) to ensure the appropriate placement of the
alien in an HHS Office of Refugee Resettlement facility.
Section 115.114, the standard for detaining juveniles in holding
facilities, leaves open the possibility that families detained while
travelling or living together may be detained together, while providing
that unaccompanied juveniles be held separately from adult detainees.
This distinction is intended to protect unaccompanied juveniles who may
be at an increased vulnerability to sexual abuse by virtue of their
unaccompanied status but permit families travelling together to remain
together while confined for temporary processing or other agency
operations.
With these sections, DHS is mindful of agency concerns regarding
cost, feasibility, and preservation of State law prerogatives. The
proposed standard still affords facilities and agencies some
flexibility in devising an approach to protecting juveniles. Compliance
may be achieved by, for example: (1) Confining juveniles to a separate
unit, (2) transferring juveniles to a facility within the agency that
enables them to be confined to a separate unit, (3) entering into a
cooperative agreement with an outside jurisdiction to enable
compliance, or (4) ceasing to confine juveniles in adult facilities as
a matter of policy, or State or local law. Agencies may, of course,
combine these approaches as they see fit.
Sections 115.15 and 115.115 address limits on cross-gender viewing
and searches. The proposed rule would require policies and procedures
that enable detainees to shower (where showers are available), perform
bodily functions, and change clothing without being viewed by staff of
the opposite gender, except in exigent circumstances or when such
viewing is incidental to routine cell checks or is otherwise
appropriate in connection with a medical examination or bowel movement
under medical supervision. The proposed rule would also require that
staff of the opposite gender announce their presence when entering an
area where detainees are likely to be showering, performing bodily
functions, or changing clothing. The rule would further prohibit cross-
gender strip searches except in exigent circumstances, or when
performed by medical practitioners, and prohibits facility staff from
conducting body cavity searches of juveniles, requiring instead that
all body cavity searches of juveniles be referred to a medical
practitioner. These DHS provisions are the same for immigration
detention facilities and holding facilities, and reflect the existing
policies related to ICE immigration detention operations.
In Subpart A, the DHS proposal imposes limits on immigration
detention facilities' cross-gender searches that are broader in scope
than the DOJ PREA final rule, generally prohibiting cross-gender pat-
down searches of all detainees, male or female. The DOJ regulations
governing adult prisons and jails prohibit cross-gender pat-down
searches of female inmates only, with a relatively narrow exception for
exigent circumstances. DHS adopts the DOJ standard on cross-gender pat-
down searches of female inmates (for DHS's purposes, female detainees).
DHS has also incorporated the PBNDS 2011 standard prohibiting cross-
gender pat-down searches of male detainees, with an exception for
situations where, after reasonable diligence, staff of the same gender
is not available at the time the pat-down search is required or in
exigent circumstances. DHS intends this
[[Page 75311]]
standard to require facilities to make considerable efforts to
facilitate same-gender staff availability. Whereas DOJ's rule is being
phased in over three to five years, depending on the size of the
affected facility, DHS proposes implementation of this standard at the
same time as all other requirements placed on facilities through this
rulemaking. DHS is soliciting public comment on this proposed approach
to restrictions on cross-gender pat-down searches.
DOJ explained in its final rule that it had received numerous
comments on its proposed limits on cross-gender pat-down searches
during the course of its rulemaking. Multiple State and local agencies
expressed concern about a complete prohibition on cross-gender pat-down
searches, as applied to male inmates. The commenters wrote that such a
requirement might affect an agency's ability either to hire significant
numbers of additional male staff or to lay off significant numbers of
female staff, due to their overwhelmingly male inmate population and
substantial percentage of female staff. In addition, many agencies
expressed concern that the necessary adjustments to their workforce
could violate Federal or State equal employment opportunity laws. DHS
has taken note of these comments in formulating its proposals but
believes its circumstances can accommodate the proposed prohibition of
cross-gender pat-down searches unless staff of the same gender is not
available, after reasonable diligence, or in exigent circumstances.
Accordingly, and consistent with existing DHS policies, in Section
115.15, DHS proposes to prohibit cross-gender pat-down searches in its
immigration detention facilities unless, after reasonable diligence,
staff of the same gender is not available at the time the pat-down
search is required (for male detainees), or in exigent circumstances
(for female and male detainees alike). DHS proposes to require that all
cross-gender pat-down searches conducted pursuant to these exceptions
be documented. Cross-gender pat-downs are not prohibited in the holding
facility context, in Section 115.115, because of the exigencies
encountered in those environments and the staffing and timing
constraints in those small and short-term facilities.
Sections 115.15 and 115.115, consistent with existing DHS policy,
also bar examinations of detainees for the sole purpose of determining
gender status. Rather, if the detainee's gender is unknown, it may be
determined during conversations with the detainee, by reviewing medical
records (if available), or, if necessary, learning that information as
part of a broader medical examination conducted in private by a medical
practitioner. The proposed standard also mandates that agencies train
security staff, in the immigration detention facility context, and law
enforcement staff, in the holding facility context, in proper
procedures for conducting all pat-down searches, including cross-gender
pat-down searches and searches of transgender and intersex detainees.
The DHS standard mandates that all pat-down searches be conducted in a
professional and respectful manner, and in the least intrusive manner
possible consistent with security needs, including officer safety
concerns, and existing agency policy.
Sections 115.16 and 115.116 govern the accommodation of detainees
with disabilities and detainees with limited English proficiency (LEP).
As the NPREC noted, ``[t]he ability of all detainees to communicate
effectively and directly with staff, without having to rely on detainee
interpreters, is crucial for ensuring that they are able to report
sexual abuse as discreetly as possible.'' Prison/Jail Standards at 13.
Moreover, the Americans with Disabilities Act (ADA) requires State and
local governments and their instrumentalities to make their services,
programs, and activities accessible to individuals with all types of
disabilities. See 42 U.S.C. 12132. The ADA also requires State and
local governments to ensure that their communications with individuals
with disabilities affecting communication (blindness, low vision,
deafness, or other speech or hearing disability) are as effective as
their communications with individuals without disabilities. In
addition, the ADA requires each State and local government to make
reasonable modifications to its policies, practices, and procedures
when necessary to avoid discrimination against individuals with
disabilities, unless it can demonstrate that making the modifications
would fundamentally alter the nature of the relevant service, program,
or activity. These nondiscrimination obligations apply to all
confinement facilities operated by or on behalf of State or local
governments. See Pa. Dep't of Corr. v. Yeskey, 524 U.S. 206, 209-10
(1998).
DHS's proposed standard requires all facilities to take appropriate
steps to ensure that detainees with disabilities (including, for
example, detainees who are deaf or hard of hearing, those who are blind
or have low vision, or those who have intellectual, psychiatric, or
speech disabilities) have an equal opportunity to participate in or
benefit from all aspects of the agency's efforts to prevent, detect,
and respond to sexual abuse. Such steps would include, when necessary,
ensuring effective communication with detainees who are deaf or hard of
hearing, and providing access to in-person, telephonic, or video
interpretive services. In addition, DHS will provide all facilities
with written materials related to sexual abuse in formats or through
methods that ensure effective communication with detainees with
disabilities, including detainees who have intellectual disabilities,
limited reading skills, or who are blind or have low vision. Consistent
with DOJ regulations under title II of the ADA, 28 CFR 35.164, the
agency would not be required to take actions that it can demonstrate
would result in a fundamental alteration in the nature of a service,
program, or activity, or in undue financial and administrative burdens.
Similarly, DHS agencies would be required to take reasonable steps
to ensure meaningful access for LEP detainees to all aspects of the
agency's efforts to prevent, detect, and respond to sexual abuse,
including steps to provide in-person or telephonic interpretive
services to enable effective, accurate, and impartial interpretation,
both receptively and expressively, using any necessary specialized
vocabulary. These requirements are consistent with the existing DHS-
wide Language Access Plan.\13\
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\13\ The DHS Language Access Plan can be found at www.dhs.gov/crcl-lep.
---------------------------------------------------------------------------
With respect to relying on detainee interpreters, 115.16(c) limits
reliance on detainee interpreters in circumstances related to
allegations of sexual abuse. Specifically, the DHS standard proposes to
require that the agency provide access to in-person or telephonic
interpretation services by someone other than another detainee when
dealing with issues related to sexual abuse, but would not prohibit
reliance on a detainee interpreter where the detainee expresses a
preference for a detainee interpreter and the agency determines that
such interpretation is appropriate. A detainee would not be an
appropriate interpreter if he or she is the alleged abuser or a witness
to the alleged abuse, or has some significant relationship with the
alleged abuser. The provision of interpreter services by minors,
alleged abusers, detainees who witnessed the alleged abuse, and
detainees who have a significant relationship with the alleged abuser
to provide interpretation is not appropriate in matters relating to
allegations of sexual abuse. This provision is intended to ensure
access to
[[Page 75312]]
the effective, accurate, and impartial interpretation that is essential
when addressing sensitive issues such as those involving allegations of
sexual abuse, but to accommodate detainees who prefer to have another
detainee interpret for them.
DHS re-emphasizes that the requirements in this proposed standard
are not intended to relieve agencies of any preexisting obligations
imposed by the ADA, the Rehabilitation Act of 1973, or the meaningful
access requirements of Title VI of the Civil Rights Act of 1964, 42
U.S.C. 2000d et seq., and Executive Order 13166. DHS encourages all
agencies to refer to the relevant statutes, regulations, and guidance
when determining the extent of their obligations.
Sections 115.17 and 115.117 govern hiring and promotion decisions.
Like the DOJ standards, the proposed DHS standard would restrict
agencies' ability to hire or enlist the services of anyone who may have
contact with detainees and who previously engaged in sexual abuse in a
prison, jail, holding facility, community confinement facility,
juvenile facility, or other institution (as defined in 42 U.S.C. 1997);
who has been convicted of engaging or attempting to engage in sexual
activity facilitated by force, overt or implied threats of force, or
coercion, or if the victim did not consent or was unable to consent or
refuse; or who has been civilly or administratively adjudicated to have
engaged in such activity. The agency or facilities will also be
required to consider any substantiated allegations of sexual abuse made
against staff in making promotion decisions.
Finally, like the DOJ final rule, the DHS proposal would require a
background investigation before the agency or facility hires employees,
staff, or contractors who may have contact with detainees. These
background investigations will include accessing the standard criminal
records databases maintained and widely used by law enforcement
agencies. To ensure that facilities perform a background investigation
consistent with agency standards, DHS proposes to require the facility
to provide written documentation to the agency upon request showing the
elements completed in the background check and the facility's final
determination for the agency's approval. DHS will repeat these
background checks for agency employees every five years. In addition,
these proposed standards would require an updated background
investigation every five years for those facility staff who may have
contact with detainees and who work in immigration-only detention
facilities. Unlike the DOJ final rule, however, DHS does not propose to
require all facilities to repeat the background checks every five
years; the burden of this requirement seems to outweigh its beneficial
effect, particularly given that many facility staff do not frequently
have contact with immigrant detainees.
Sections 115.18 and 115.118 require agencies and facilities to
consider the effect of any facility designs, modifications, or
technological upgrades on efforts to combat sexual abuse when designing
or expanding facilities and when installing or updating a video
monitoring system or other technology. DHS believes that it is
appropriate to require agencies to consider the impact of their
physical and technological upgrades. Indeed, the American Correctional
Association has recommended that, as a means of deterring sexual abuse,
agencies should promote facility design that enables effective
supervision within facilities, including, for instance, direct lines of
sight, video monitoring systems, and other physical and technology
features. American Correctional Association, Public Correctional Policy
on Offender on Offender Sexual Abuse (Jan. 12, 2005; Jan. 27, 2010).
DHS agrees that it needs to be forward-looking in its strategy to
prevent sexual abuse in its immigration detention and holding
facilities, and believes that this provision will institute appropriate
strategic thinking within DHS and its partners for future construction.
Responsive Planning: Sections 115.21, 115.121, 115.22 and 115.122.
DHS believes it is important to establish standards that address how
facilities are expected to respond to an incident of sexual abuse.
Sections 115.21 and 115.121 set forth requirements to ensure each
agency and facility establishes a protocol for the investigation of
allegations of sexual abuse, or the referral of allegations of sexual
abuse to the appropriate investigative authorities. Agencies and
facilities are also required to establish protocols that maximize the
potential for preserving usable physical evidence for administrative or
criminal proceedings, and are required to publish the agency and
facility protocols on their respective Web sites, or otherwise make
those protocols available to the public. In addition, all detainee
victims must be provided access to a forensic medical examination as
appropriate, at no cost to the detainee.
These proposed standards make clear that DHS components and
facilities must have protocols in place that maximize the potential for
obtaining usable physical evidence. Similarly, the proposed standard
specifies that the protocol must be developmentally appropriate for
juveniles, where applicable. Recognizing the value of victim advocacy
services in these circumstances, the proposed standards provide that
immigration detention facilities must establish procedures to make
available, to the extent possible, outside victim services following
incidents of sexual abuse. DHS holding facilities would also be
required to consider how best to utilize available community resources
and victim services and if, in connection with an allegation of sexual
abuse at a holding facility, the detainee is transported for an
examination to an outside hospital that offers victim advocacy
services, the detainee would be permitted to use such services to the
extent available, consistent with DHS security needs.
This proposed standard takes into account the fact that some DHS
component agencies and facilities are not responsible for investigating
alleged sexual abuse within their facilities and that those agencies
and facilities may not be able to dictate the conduct of investigations
conducted by outside entities, such as law enforcement agencies. In
such situations, the proposed standard requires the agency or facility
to request that the investigating entity follow the relevant
investigatory requirements set out in the standard.
Sections 115.22 and 115.122 propose standards to ensure that, to
the extent the agency is responsible for investigating allegations of
sexual abuse, an administrative and/or criminal investigation is
completed for all allegations of sexual abuse. Where the agency or
facility is not responsible for conducting such investigation, they
would ensure that the allegations are promptly referred to an
appropriate entity with the legal authority to conduct the
investigation. The DHS proposal thus mandates that each DHS component
have in place policies to ensure that allegations of sexual abuse
either are investigated by the agency or are promptly referred to an
appropriate entity for investigation. In order for the PSA Coordinator
to have appropriate oversight of these allegations across the agency,
and to support the PSA Coordinator's recordkeeping and reporting
functions, all incidents of detainee sexual abuse would be promptly
reported to the PSA Coordinator, and to the appropriate offices within
the agency and within DHS.
Sections 115.22 and 115.122 also would require that when an
allegation of detainee abuse that is criminal in
[[Page 75313]]
nature is being investigated, each agency shall ensure that any alleged
detainee victim of criminal sexual abuse is provided access to relevant
information regarding the U nonimmigrant visa process. DHS intends to
implement this requirement by providing either the phone number to an
appropriate national hotline or relevant informational materials
printed by U.S. Citizenship and Immigration Services. In addition,
facilities are required to post lists of pro bono legal service
providers with contact information and Legal Orientation Program
presentations and materials to assist detainees seeking information
regarding the U nonimmigrant visa process. Should the available
informational resources change, DHS will change its practices
accordingly to satisfy this requirement.
Training and Education: Sections 115.31, 115.131, 115.32, 115.132,
115.33, 115.34, 115.134, and 115.35. DHS believes that training for
individuals who may have contact with detainees is a key component in
combating sexual abuse. Training will create awareness on the topic of
sexual abuse in facilities, clarify staff responsibilities, provide
staff with information regarding reporting mechanisms, and provide
specialized information for staff with key roles in responding to
sexual abuse. In addition, each standard in this category requires
documentation that the required training was provided. In order to
facilitate compliance, such documentation may be electronic.
Sections 115.31 and 115.131 require that all employees who have
contact with detainees, and all facility staff receive training
concerning sexual abuse, with refresher training to be provided
thereafter as appropriate. This training must include at a minimum: the
agency's zero-tolerance policies for all forms of sexual abuse; the
right of detainees and staff to be free from sexual abuse, and from
retaliation for reporting sexual abuse; definitions and examples of
prohibited and illegal sexual behavior; recognition of situations where
sexual abuse may occur; recognition of physical, behavioral, and
emotional signs of sexual abuse, and methods of preventing such
occurrences; and procedures for reporting knowledge or suspicion of
sexual abuse; the requirement to limit reporting of sexual abuse to
personnel with a need-to-know in order to make decisions concerning the
victim's welfare and for law enforcement or investigative purposes. The
agency or facility would need to document completion of the training
and complete the training for current staff within one year of the
effective date of the standard for immigration detention facilities and
within two years of the effective date of the standard for holding
facilities. The proposal permits holding facilities a longer period of
time to implement the training. In light of the very large number of
CBP personnel who will receive this training, two years is a more
appropriate timeframe to ensure completion of the training. In the
meantime, the agency will publish and disseminate to all agency
personnel the agency policy mandating zero tolerance toward all forms
of sexual abuse.
Section 115.32 ensures that volunteers and contractors at
immigration detention facilities have been trained on their
responsibilities under the agency's and the facility's sexual abuse
prevention, detection, intervention and response policies and
procedures; in holding facilities, volunteers and contractors are
covered by 115.131.
DHS believes that educating detainees concerning sexual abuse
protections is of the utmost importance. Section 115.132 requires the
agency to make public its zero-tolerance policy regarding sexual abuse
and ensure that key information regarding the agency's zero-tolerance
policy is visible or continuously and readily available to detainees,
for example, through posters, detainee handbooks, or other written
formats.
Separately, section 115.33 requires each immigration detention
facility to inform detainees about the agency's and the facility's
zero-tolerance policies regarding sexual abuse. DHS believes that
regular communication and publication of these policies are important
means of creating the appropriate tone to ensure compliance. As such,
section 115.33 requires that information about combating sexual abuse
is provided to individuals in custody upon intake. Several agency
commenters to the DOJ PREA proposed rule expressed concern that DOJ's
standard would impose a vague mandate by requiring the provision of
comprehensive education to detainees within a ``reasonably brief period
of time'' following intake. The proposed DHS standard for immigration
detention facilities requires the provision of comprehensive education
upon intake, and not following intake. Given the relatively short
amount of time that individuals are detained in DHS holding facilities,
this requirement is limited to Subpart A.
Sections 115.34 and 115.134 require that the agency or facility
provide specialized training to agency or facility investigators who
conduct investigations into allegations of sexual abuse at confinement
facilities, and require that all investigations into alleged sexual
abuse be conducted by qualified investigators. To the extent not
already included in agency training, ICE and CBP will train
investigators on sexual abuse investigations, covering interviewing
sexual abuse and assault victims; sexual abuse evidence collection in
confinement settings; and the criteria and evidence required for
administrative action or prosecutorial referral. DHS is also interested
in receiving feedback on how it can provide additional assistance to
facilities in developing and administering such training.
Section 115.35 requires that the agency provide specialized
training to DHS employees who serve as full- and part-time medical
practitioners and mental health practitioners in immigration detention
facilities where medical and mental health care is provided. DHS
believes that investigative and medical staff members serve vital roles
in the response to sexual abuse and, due to the nature of their
responsibilities, require additional training in order to be effective.
With regard to facility medical staff, the standard requires that the
agency review and approve the facility's policy and procedures to
ensure that facility medical staff is trained in procedures for
examining and treating victims of sexual abuse. A parallel standard is
not included for DHS holding facilities, which usually do not employ or
contract for medical or mental health practitioners.
Assessment for Risk of Sexual Victimization and Abusiveness:
Sections 115.41, 115.141 and 115.42 and 115.43. DHS believes that the
proper assessment of detainees is crucial to preventing sexual abuse.
Protection of detainees in immigration detention and holding facilities
requires that agencies and facilities obtain information from detainees
and use such information to assign detainees to facilities or specific
cells in which they are likely to be safe. These proposed standards are
substantially similar to those implemented by DOJ, except that
reassessment is required to take place 60-90 days after the initial
assessment, rather than 30 days after. The average length of stay in
ICE detention is 26 days, with many detainees staying just a few days
or weeks more than that average. In addition, ICE has a robust onsite
monitoring and review process that includes routine interaction with
ICE detainees. This monitoring would allow ICE to be made aware of any
[[Page 75314]]
additional, relevant information after the intake assessment, to
determine whether a reassessment is appropriate.
Sections 115.41 and 115.141 require that before placing any
detainees together in a holding facility or housing unit, staff
consider whether, based on the information before them, a detainee may
be at a high risk of being sexually abused or abusing others. When
appropriate, staff shall take necessary steps to mitigate any such
danger to the detainee. In the list of factors to consider, DHS
proposes, to the extent that the information is available, that the
agency consider whether the detainee has a mental, physical, or
developmental disability; the age of the detainee; the physical build
and appearance of the detainee; whether the detainee has previously
been incarcerated; the nature of the detainee's criminal history;
whether the detainee has any convictions for sex offenses against an
adult or child; whether the detainee has self-identified as being gay,
lesbian, bisexual, transgender, intersex, or gender nonconforming;
whether the detainee has self-identified as having previously
experienced sexual victimization; and the detainee's own concerns about
his or her physical safety. For holding facilities, under section
115.141, the proposed standard adds an abbreviated risk assessment
process for facilities that do not hold detainees overnight, and a more
extensive risk assessment process for holding facilities where
detainees may be held overnight with other detainees.
Section 115.42 requires administrators of immigration detention
facilities to use the information obtained in an assessment interview
in order to separate individuals who are at risk of abuse from those at
high risk of being sexually abusive. The proposed DHS regulation is
substantially similar to the NPREC's standard with one exception. The
proposed standard does not include the NPREC's recommended ban on
assigning detainees to particular units solely on the basis of sexual
orientation or gender identity, but requires that the facility consider
detainees' gender self-identification and make an individualized
assessment of the effects of placement on detainee mental health and
well-being. DHS believes that retaining some flexibility will allow
facilities to employ a variety of options tailored to the needs of
detainees with a goal of offering the least restrictive and safest
environment for individuals.
Section 115.43 governs the use of protective custody. Due to the
importance of protective custody, DHS believes it warrants its own
standard, applicable only to immigration detention facilities, as other
types of DHS confinement facilities usually do not have protective
custody assignments of this nature. The proposed standard provides that
administrative segregation shall be used to protect vulnerable
populations only in those instances where reasonable efforts have been
made to provide appropriate housing, and shall be used for the least
amount of time practicable, and when no other viable housing options
exist, as a last resort. DHS recognizes that protective custody may be
necessary in a confinement setting to ensure the safety of detainees
and staff. However, DHS also notes that the prospect of placement in
segregated housing may deter detainees from reporting sexual abuse. The
new standard attempts to balance these concerns and ensure that
alternatives to involuntary protective custody are considered. In
addition, the proposed standard reflects the NPREC's recommendation
that, to the extent possible, facilities that place detainees in
administrative segregation for protective custody should provide those
detainees access to programs, services, visitation, counsel and other
services available to the general population to the maximum extent
practicable.
Reporting: Sections 115.51, 115.151, 115.52, 115.53, 115.54, and
115.154. DHS believes that reporting instances of sexual abuse is
critical to deterring future acts.
Sections 115.51 and 115.151 require agencies to enable detainees to
privately report sexual abuse, retaliation for reporting sexual abuse,
and related misconduct. The NPREC recommendations proposed that
agencies be required to allow detainees to report abuse to an outside
public entity, which would then forward reports to the facility head
``except when [a detainee] requests confidentiality.'' Several
commenters to the DOJ PREA rulemaking expressed concern that a public
entity would be required to ignore reports of criminal activity if a
detainee requested confidentiality. DHS proposes that detainees be
provided instruction on how to contact the DHS Office of the Inspector
General or, as appropriate, another designated office, to
confidentially report sexual abuse. However, DHS will also provide and
facilities shall inform the detainees of at least one way for detainees
to report sexual abuse to a public or private entity or office not part
of the agency, and that is able to receive and immediately forward
detainee's reports of sexual abuse to agency officials allowing the
detainee to remain anonymous, upon request. In light of the short time
in which individuals are detained in holding facilities, the
requirement in section 115.151 would be met if information regarding
consular notification is posted in holding facilities. DHS further
proposes that policies and procedures include provisions for staff to
accept reports of sexual abuse, and to promptly document any verbal
reports.
Consistent with existing policy, DHS employees may report
misconduct outside their chain of command to, for instance, the Joint
Intake Center; likewise, the proposed rule requires an option for staff
of non-chain-of-command reporting.
Section 115.52 governs grievance procedures and the methods by
which detainees can, if they choose, file grievances related to sexual
abuse. First, the proposal requires that facilities not impose any
deadline on the submission of a grievance regarding sexual abuse
incidents. Detainees are to be permitted to file a formal grievance at
any time before, during, after, or in lieu of lodging an informal
complaint related to sexual abuse. The facility then must issue a
decision on the formal grievance within five days of receipt. To
prepare a grievance, a detainee may obtain assistance from fellow
detainees, the housing officer, other facility staff, family members,
attorneys, or outside advocates. DHS does not use a formal grievance
process to govern holding facilities because of the short-term,
transitory nature of detention in such facilities; detainees can use
any of the methods in Section 115.151 to report misconduct.
Several State correctional agencies asserted in comments to the DOJ
PREA rulemaking that imposing a standard governing the exhaustion of
administrative remedies would undermine or violate the Prison
Litigation Reform Act (PLRA). DOJ determined that its corresponding
standards were not, however, inconsistent with the PLRA. And in any
event, the PLRA does not apply to immigration detainees, even if they
are housed in correctional settings. See 18 U.S.C. 1997e.
Several agency commenters to the DOJ PREA rulemaking stated that a
requirement to treat any notification of an alleged sexual assault as a
grievance, regardless of the method by which notification was made
(other than by notification by a fellow inmate), would pose
administrative difficulties, particularly when such notification came
from a third party. Commenters suggested that it would be burdensome
and impracticable to require staff to complete a grievance form on
behalf of
[[Page 75315]]
an inmate whenever staff learns of an allegation of sexual abuse. DHS
agrees with these commenters and has not included a similar provision
in its proposed rule.
Section 115.53 requires that agencies provide detainees access to
outside confidential support services, similar to the NPREC's
recommended standard. The DHS proposed standard modifies the NPREC's
recommended language, which would require communications to be
``private, confidential, and privileged, to the extent allowable by
Federal, State, and local law.'' Instead, the proposed DHS rule
requires that each facility consider utilizing available community
resources and services to provide valuable expertise and support in the
areas of crisis intervention, counseling, investigation and the
prosecution of sexual abuse perpetrators to most appropriately address
victims' needs. DHS recognizes that allowing detainee access to outside
victim advocacy organizations can greatly benefit detainees who have
experienced sexual abuse yet who may be reluctant to report it to
facility administrators, and notes that some agencies, such as the
California Department of Corrections and Rehabilitation, have
established successful pilot programs working with outside
organizations.\14\ At the same time, DHS recognizes that communications
with outsiders raise legitimate security concerns. The proposed DHS
standard strikes a balance by allowing confidentiality while
recognizing the importance of safeguarding security. The DHS proposal
further requires each facility's written policies to establish
procedures to include outside agencies in the facility's sexual abuse
prevention and intervention protocols, if resources are available, and
to make available to detainees the names of local organizations that
can assist detainee victims of sexual abuse. PSA Compliance Managers
are in the best position to assist with identifying these community
victim service resources given their familiarity with the local
environment and should make such contact information available to
victims. Under current ICE policy, the PSA Compliance Managers are
required to develop written protocols, including any available outside
agencies/resources in the facility's sexual abuse and assault
prevention and intervention program. Again, DHS does not propose a
requirement for access to outside confidential support services in DHS
holding facilities due to the very short-term, transitory nature of
detention in such facilities.
---------------------------------------------------------------------------
\14\ See Testimony of Wendy Still, Assoc. Dir. of Female
Offender Program and Services, Cal. Dep't of Corr. and Rehab.,
Testimony at a Public Hearing of the National Prison Rape
Elimination Commission, Confidentiality and Reporting: Medical
Ethics, Victim Safety, and Facility Security 230 (Dec. 5, 2007).
---------------------------------------------------------------------------
Sections 115.54 and 115.154 require that immigration detention
facilities and holding facilities establish a method to receive third-
party reports of sexual abuse and publicly distribute information on
how to report such abuse on behalf of a detainee. DHS believes this
provision is essential to promptly receiving reports of sexual abuse,
as some reports of sexual abuse may undoubtedly come to the attention
of third parties before they are brought to the agency.
Official Response Following a Detainee Report: Sections 115.61,
115.161, 115.62, 115.162, 115.63, 115.163, 115.64, 115.164, 115.65,
115.165, 115.66, 115.67 and 115.167. DHS proposes standards addressing
the appropriate official response following a report of sexual abuse.
These standards are intended to ensure coordinated, thorough, and
complete reactions to reports of sexual abuse.
Sections 115.61 and 115.161 set forth staff and agency reporting
duties regarding incidents of sexual abuse. The standards require all
staff to report immediately and according to agency or facility policy:
(1) Any knowledge, suspicion, or information regarding an incident of
sexual abuse that occurred in any facility; (2) retaliation against
detainees or staff who reported such an incident; and (3) any staff
neglect or violation of responsibilities that may have contributed to
an incident or retaliation. The standards would prohibit the agency
from revealing any information related to a sexual abuse report to
anyone other than to the extent necessary to make medical treatment,
investigation, law enforcement, and other security and management
decisions.
Sections 115.62 and 115.162 require generally that when an agency
employee has a reasonable belief that a detainee is subject to a
substantial risk of imminent sexual abuse, the agency must take
immediate action to protect the detainee. Section 115.62 further places
this protection duty on facility staff, given that in the immigration
detention facility context often the facility staff is best positioned
to take such protective action, for example, when conducting initial
intake or receiving a detainee from another facility.
Sections 115.63 sets forth responsibilities for reporting
allegations of sexual abuse to other confinement facilities. Upon
receiving an allegation that a detainee was sexually abused, the
facility is required to: (1) If the alleged sexual abuse occurred at a
different facility than where it was reported, ensure that the
appropriate office of the facility where the sexual abuse is alleged to
have occurred is notified as soon as possible, but no later than 72
hours after receiving the allegation; (2) document the efforts taken
under this section; and (3) ensure the allegation is referred for
investigation, to the extent that the facility that receives the
notification is covered by these regulations. Section 115.163 proposes
that these same requirements also apply to DHS holding facilities, but
instead places the reporting and documentation requirements on the
agency, given that DHS components are responsible for the management
and operation of DHS holding facilities.
Sections 115.64 and 115.164 address responder duties. Upon learning
of an allegation that a detainee was sexually abused, the first
security staff member at an immigration detention facility or law
enforcement staff member at a holding facility to respond to the
report, or his or her supervisor, would be required to separate the
alleged victim and abuser, and to preserve and protect, to the greatest
extent possible, any crime scene until appropriate steps can be taken
to collect any evidence. If the abuse occurred within a time period
that still allows for the collection of physical evidence, the agency
would be required to request that the alleged victim not take any
actions that could destroy physical evidence, including, as
appropriate, washing, brushing teeth, changing clothes, urinating,
defecating, smoking, drinking, or eating. Similarly, if the abuse
occurred within a time period that still allows for the collection of
physical evidence, the agency would be required to ensure that the
alleged abuser does not take any actions that could destroy physical
evidence, including, as appropriate, washing, brushing teeth, changing
clothes, urinating, defecating, smoking, drinking, or eating.
Sections 115.65 and 115.165 require a coordinated approach to
responding to sexual abuse. This includes utilizing a multidisciplinary
team approach, with appropriate information sharing, as permitted by
law, in the case of a transfer of a victim of sexual abuse between DHS
facilities or from a DHS facility to a non-DHS facility.
Section 115.66 requires the agency to remove staff suspected of
perpetrating sexual abuse from all duties requiring detainee contact
pending the outcome of an investigation. In Section 115.166, the DHS
proposal includes a similar
[[Page 75316]]
requirement for holding facilities, adjusted to reflect the smaller
staff at holding facilities that would make an absolute rule
administratively onerous. The proposal requires supervisors to
affirmatively consider removing staff pending the completion of an
investigation, and to remove them if the seriousness and/or
plausibility of the allegation make such removal appropriate.
Section 115.67 would require that agency and/or facility staff, and
immigration detention facility detainees, not retaliate against any
person, including a detainee, who reports, complains about, or
participates in an investigation into an allegation of sexual abuse, or
for participating in sexual activity as a result of force, coercion,
threats, or fear of force. Section 115.167 prescribes the same
requirement for agency employees at DHS holding facilities. Retaliation
for reporting instances of sexual abuse and for cooperating with sexual
abuse investigations is a real and serious threat in detention
facilities. Fear of retaliation, such as being subjected to harsh or
hostile conditions, being attacked by other detainees, or suffering
harassment from staff, may prevent many detainees and staff from
reporting sexual abuse, which in turn would make it difficult to keep
facilities safe and secure.
Section 115.68 requires facilities to take care to place detainee
victims of sexual abuse in a supportive environment that represents the
least restrictive housing option possible. A detainee in protective
custody who has been subjected to sexual abuse shall not be returned to
the general population until proper re-assessment, taking into
consideration any increased vulnerability of the detainee as a result
of the abuse, is completed. In addition, section 115.68 proposes that
detainee victims shall not be held for longer than five days in any
type of administrative segregation, except in unusual circumstances or
at the request of the detainee. DHS does not propose such post-
allegation protective custody requirements for the holding facility
context. Detainees in a holding facility typically are in such
confinement for a short period of time only and, accordingly, provision
of post-allegation protective custody is not appropriate.
Investigations: Sections 115.71, 115.171, 115.72, 115.172, 115.73.
It is important to set standards to govern investigations of
allegations of sexual abuse. The DHS standard requires that
investigations by the agency or facility with responsibility for
investigating the allegations of sexual abuse be prompt, thorough,
objective, fair, and concluded by specially trained, qualified
investigators. The standard does not distinguish between third-party
allegations of abuse and allegations from a victim, staff, etc. In
instances where the agency or facility does not investigate allegations
of sexual abuse, it must refer the allegation to the appropriate
investigating authority. Because sexual abuse often has no witnesses
and often leaves no visible injuries, investigators must be diligent in
tracking down all possible evidence, including collecting DNA and
electronic monitoring data, conducting interviews, assessing the
credibility of alleged victims, witnesses, or suspects, document each
investigation by written report, to include descriptions of the
physical and testimonial evidence, reviewing prior complaints and
reports of sexual abuse involving the alleged perpetrator, and
retaining the report for as a long as the alleged abuser is detained or
employed by the agency or facility plus an additional five years. The
departure of the alleged abuser or victim from the employment or
control of the facility or agency shall not provide a basis for
terminating an investigation. Because of the delicate nature of these
investigations, investigators should be trained in conducting sexual
abuse investigations.
The proposed DHS standard also includes a requirement to establish
a process for an administrative investigation of substantiated
allegations of sexual abuse, only after consultation with the assigned
criminal investigative entity or after a criminal investigation has
concluded. Where a criminal investigation determines that an allegation
was unsubstantiated, the standard nonetheless requires a review of any
completed criminal investigation reports to determine whether an
administrative investigation is necessary or appropriate. DHS intends
the standard to ensure proper sequencing of the investigations and
preservation of investigative resources should the leading
investigation, usually the criminal investigation, find the allegations
unsubstantiated.
Sections 115.72 and 115.172 set forth parameters on the evidentiary
standard for administrative investigations regarding allegations of
sexual abuse. Under these proposed standards, when an administrative
investigation is undertaken the agency shall impose no standard higher
than a preponderance of the evidence in determining whether allegations
of sexual abuse are substantiated. This is the same standard found in
the DOJ PREA final rule.
Section 115.73 addresses the agency's duty to report to detainees,
a topic that the NPREC included as part of its Investigations (IN)-1
standard. Specifically, following an investigation into a detainee's
allegation of sexual abuse, the agency shall notify the detainee as to
the result of the investigation when the detainee is still in
immigration detention, as well as where otherwise feasible. DHS does
not propose a comparable provision to govern holding facilities,
because holding facility detainees would no longer be in the custody of
the holding facility by the time the investigation is completed.
The NPREC's recommended standard would require a facility to
``notif[y] victims and/or other complainants in writing of
investigation outcomes and any disciplinary or criminal sanctions,
regardless of the source of the allegation.'' Several agency commenters
to the DOJ PREA rulemaking expressed concern with the NPREC's proposal
on security or privacy grounds. These commenters questioned the wisdom
of providing written information to victims and third-party
complainants, where such information could easily become widely known
throughout the facility and possibly endanger other detainees or staff.
In addition, commenters noted that privacy laws may restrict the
dissemination of certain information about staff members. DHS believes
that its proposed standard strikes the proper balance between staff
members' privacy rights and the detainee's right to know the outcome of
the investigation, while protecting the security of both detainees and
staff.
Discipline: Sections 115.76, 115.176, 115.77 and 115.177. DHS
proposes two standards to ensure appropriate and proper discipline in
relation to cases of sexual abuse with regard to staff, contractors,
and volunteers. These standards are substantively similar to those
offered by the NPREC and DOJ in its PREA final rule.
Sections 115.76 and 115.176 govern disciplinary sanctions for staff
members who violate sexual abuse policies, regardless of whether they
have been found criminally culpable. Imposing appropriate disciplinary
sanctions against such staff members is critical not only to providing
a just resolution to substantiated allegations of sexual abuse and
sexual harassment but also to fostering a culture of zero tolerance for
such acts. Staff are subject to disciplinary sanctions up to and
including removal for violating agency sexual abuse rules, policies or
standards. Removal from their position and from the Federal service is
the
[[Page 75317]]
presumptive disciplinary sanction for staff who have engaged in or
threatened to engage in sexual abuse, as defined under the definition
of sexual abuse of a detainee by a staff member, contractor, or
volunteer, paragraphs (1)-(4) and (7)-(8). Sections 115.76 and 115.176
further require the agency to review and approve policies and
procedures regarding disciplinary sanctions for staff at immigration
detention facilities and holding facilities. In order to limit the
potential for additional sexual abuse by former staff, sections 115.76
and 115.176 would require that all removals or resignations in lieu of
removal for violations of agency sexual abuse policies be reported to
law enforcement agencies, unless the activity was clearly not criminal,
and reasonable efforts be made to report such removals or resignations
in lieu of removal to any licensing bodies, to the extent known.
Sections 115.77 and 115.177 govern corrective action for
contractors and volunteers who have engaged in sexual abuse. DHS
proposes to require that any contractor or volunteer who has engaged in
sexual abuse be prohibited from contact with detainees. These sections
would also require that reasonable efforts be made to report to any
licensing body, to the extent known, incidents of substantiated sexual
abuse by a contractor or volunteer.
Section 115.78 addresses the circumstance where a detainee is
alleged to have sexually abused another detainee in an immigration
detention facility. Holding detainees accountable for such abuse is an
essential deterrent and a critical component of a zero-tolerance
policy. As with sanctions against staff, sanctions against detainees
must be fair and proportional, taking into consideration the detainee's
actions, disciplinary history, mental disabilities or mental illness,
and sanctions imposed on other detainees in similar situations, and
must send a clear message that sexual abuse is not tolerated. The
disciplinary process must also take into account any mitigating
factors, such as mental illness or mental disability, and must consider
whether to incorporate therapy, counseling, or other interventions that
might help reduce recidivism. Holding facilities generally do not hold
detainees for prolonged periods of time and do not impose discipline,
and so agencies are not made responsible under these proposed standards
for imposing disciplinary sanctions on holding facility detainees.
Medical and Mental Health Care: Sections 115.81, 115.82, 115.182
and 115.83. DHS has proposed three standards to ensure that detainees
receive the appropriate medical and mental health care. Each proposed
standard is substantially similar to that recommended by the NPREC and
adopted by DOJ in its PREA rulemaking.
Section 115.81 requires that, pursuant to the assessment for risk
of victimization and abusiveness in section 115.41, facility staff
shall ensure immediate referral to a qualified medical or mental
practitioner, as appropriate, for detainees found to have experienced
prior sexual victimization or perpetrated sexual abuse. Although the
proposed standards do not require detainees to answer the assessment
questions, detainees should be informed that disclosing prior sexual
victimization and abuse is in their own best interest as such
information is used both to determine whether follow-up care is needed
and where the detainee can be safely placed within the facility. The
DHS proposal does not provide for these requirements in DHS holding
facilities because detainees with medical needs are referred for
treatment outside the holding facility instead of provided the
treatment in the holding facilities themselves.
Some commenters to the DOJ PREA proposed rule suggested that the
NPREC's recommended standard would be too costly because it would
require that medical or mental health practitioners conduct these
interviews. Unlike the NPREC's standard, the proposed DHS standard does
not specify who should conduct this inquiry, but instead requires the
detainee to receive a health evaluation no later than two working days
from the date of the assessment, when a referral for a medical follow-
up is initiated. In addition, when a referral for mental health follow-
up is initiated, the detainee shall receive a mental health evaluation
no later than 72 hours after the referral.
Neither the NPREC's recommended standard nor DHS's proposed
standard applies to holding facilities. The proposed standard is not
appropriate for holding facilities given the short time that those
facilities are responsible for detainee care.
Sections 115.82 and 115.182, like the DOJ PREA final rule, require
that victims of sexual abuse have timely, unimpeded access to emergency
medical treatment if they have been a victim of sexual abuse. Under
section 115.82, similar to the DOJ PREA final rule, the proposed DHS
standard applicable to immigration detention facilities would expressly
require timely, unimpeded access to emergency contraception and
sexually transmitted infections prophylaxis, in accordance with
professionally accepted standards of care, where appropriate under
professional medical standards. Like the DOJ PREA final rule's standard
on lockup detention, however, the proposed standard applicable to DHS
holding facilities would not require such facilities to provide
emergency contraception or sexually transmitted infections prophylaxis,
in light of the very short-term nature of holding facility detention.
Consistent with its obligation to provide timely, unimpeded access to
emergency medical treatment, a DHS holding facility would transfer such
a detainee to an appropriate emergency medical provider, which would be
expected to provide such care as appropriate. Emergency medical
treatment services would be provided to the victim at no financial cost
to the victim and regardless of whether the victim names the abuser or
cooperates with any investigation arising out of the incident.
Section 115.83 requires that victims of sexual abuse receive access
to ongoing medical and mental health care. This proposed standard
recognizes that victims of sexual abuse can experience a range of
physical injuries and emotional reactions, even long after the abuse
has occurred, that can require medical or mental health attention.
Thus, this standard requires facilities to offer ongoing medical and
mental health care during the victim's detention consistent with the
community level of care for as long as such care is needed, without
financial cost and regardless of whether the victim names the abuser or
cooperates with any investigation arising out of the incident. This
access to care includes pregnancy tests for detainee victims of sexual
abuse including vaginal penetration by a male abuser. DHS believes that
if specific mental health concerns have contributed to the abuse,
treatment may improve facility security. The DHS proposal does not
provide for these requirements in DHS holding facilities because
agencies refer holding facility detainees with emergency medical needs
for treatment instead of providing medical care in the holding
facilities themselves.
Data Collection and Review: Sections 115.86, 115.186, 115.87,
115.187, 115.88, 115.188, 115.89 and 115.189. DHS has proposed
standards addressing how agencies and facilities should collect and
review data to identify those policies and practices that are
contributing to or failing to prevent sexual abuse.
Sections 115.86 and 115.186 set forth the requirements for sexual
abuse incident reviews, including when
[[Page 75318]]
reviews should take place and who should take part. The sexual abuse
review is separate from the sexual abuse investigation, and is intended
to evaluate whether the facility's or agency's policies and procedures
would benefit from change in light of the incident or allegation. By
contrast, the investigation is intended to determine whether the abuse
actually occurred. A review would be required after every
investigation, and consider whether changes in policy or practice could
better prevent, detect, or respond to sexual abuse incidents like the
one alleged. The DHS proposal further would require an annual review of
all sexual abuse investigations, in order to assess and improve sexual
abuse intervention, prevention and response efforts. Some commenters to
the DOJ PREA rulemaking raised concerns about the cost of conducting
sexual abuse incident reviews. There are, however, facilities that
already do these reviews, and DHS believes that the required steps need
not be onerous. The purpose of this requirement is not to require a
duplicative investigation but rather to require the facility or agency
to pause and consider what lessons, if any, it can learn from the
investigation it has conducted and what additional steps, if any, it
should take to further protect detainees.
Sections 115.87 and 115.187 specify the incident-based data each
agency or facility is required to collect in order to detect possible
patterns and help prevent future incidents. The agency or facility
would be required, under this standard, to aggregate the incident-based
sexual abuse data at least annually and to maintain, review, and
collect data as needed from all available agency records. The agency
would work with facilities to collect and aggregate the data in a
manner that will facilitate the agency's ability to detect possible
patterns and help prevent future incidents. Section 115.87 would
provide for the PSA Coordinator to work on an ongoing basis with the
relevant PSA Compliance Managers and DHS entities to share data
regarding effective agency response methods to allegations of sexual
abuse. Upon request, the agency would be required to provide all such
data from the previous calendar year to the DHS Office for Civil Rights
and Civil Liberties no later than June 30 of the next calendar year.
Sections 115.88 and 115.188 describe how the collected data should
be analyzed and reported. The proposed DHS standard mandates that
agencies use the data to identify problem areas, take ongoing
corrective action, and prepare an annual report for each facility as
well as the agency as a whole, including a comparison with data from
previous years. The report must be made public through the agency's Web
site or other means to help promote agency accountability.
Sections 115.89 and 115.189 provide guidance on how to store,
publish, and retain the data collected pursuant to sections 115.87 and
115.187. Data must be stored in a way that protects its integrity and
must be retained for an adequate length of time. In addition, data must
protect the confidentiality of victims and alleged perpetrators. This
standard also requires that the agency make its aggregated data
publicly available at least annually on its Web site, consistent with
existing agency information disclosure policies and processes,
following the removal of all personal identifiers.
Audits and Compliance: Sections 115.93, 115.193, 115.201, 115.202,
115.203, 115.204, and 115.205. Like the NPREC and DOJ, DHS believes
that audits are critical to ensuring that facilities are doing all they
can to eliminate sexual abuse in detention facilities. The NPREC's
proposed standard would require triennial audits of all facilities. The
NPREC explained its inclusion of this standard as follows:
Publicly available audits allow agencies, legislative bodies,
and the public to learn whether facilities are complying with the
PREA standards. Audits can also be a resource for the Attorney
General in determining whether States are meeting their statutory
responsibilities. Public audits help focus an agency's efforts and
can serve as the basis upon which an agency can formulate a plan to
correct any identified deficiencies.
Prison/Jail Standards at 57.
Numerous agency commenters to the DOJ PREA rulemaking criticized
the NPREC's proposals on various grounds, including cost, duplication
of audits performed by accrediting organizations, duplication of
existing State oversight, and the possibility that disagreements in
interpretation could lead to inconsistencies in auditing. Other
commenters endorsed the NPREC's proposal as necessary to ensure proper
oversight; some commenters suggested that audits should be more
frequent than once every three years.
DHS believes that audits can play a key role in implementation of
sexual abuse prevention standards. The proposed standards for audits
clarify the requirements for an audit to be considered adequate and
transparent. All audits would be required to be conducted using an
audit instrument developed by the agency, in coordination with CRCL.
CRCL has extensive experience in conducting civil rights site
inspections of detention facilities, including inspections and
investigations relating to sexual abuse prevention and response. The
agency would coordinate external audits with CRCL, to ensure that CRCL
is informed about the operation of the audit program and any findings
relating to non-compliance, in support of CRCL's statutory advice and
oversight role with respect to civil rights issues.
DHS believes that external audits are necessary to ensure that the
audits are conducted independently and objectively, and with the full
confidence of the public. In these proposed standards, DHS has
incorporated many of DOJ's standards related to external auditing and
has tailored them to suit the unique characteristics of immigration
detention and holding facilities. The proposed DHS standards set forth
in sections 115.201-205 would prescribe methods governing the conduct
of such audits, including provisions for reasonable inspections of
facilities, review of documents, and interviews of staff and detainees.
The DHS proposed standards would require that external audits be
conducted by an outside entity or individual with relevant experience
and certified by the agency. The DHS standards would preclude use of an
outside auditor with a financial relationship with the agency within
three years of an audit, except for contracts for other audits or for
detention-reform related consulting.
DHS has attempted to incorporate objective criteria and written
documentation requirements into these proposed standards wherever
practicable, although auditors would retain appropriate discretion. The
proposed standards provide that a facility would be required to allow
the auditor to enter and tour facilities, review documents, and
interview staff and detainees to conduct a comprehensive audit. The
auditor would be permitted to review all relevant agency-wide policies,
procedures, reports, and internal and external audits, as well as a
sampling of relevant documents and other records and information for
the most recent one-year period. Under the DHS proposed standards, the
auditor would be permitted to request and receive copies of any
relevant documents (including electronically stored information), and
would be required to retain and preserve all documentation (such as
videotapes and interview notes) relied upon in making audit
determinations. In order to enhance the effectiveness of external
audits, the proposed standards would permit the auditor to conduct
[[Page 75319]]
private interviews with detainees, and detainees would be permitted to
send confidential information or correspondence to the auditor in the
same manner as if they were communicating with legal counsel. Auditors
would be required to attempt to communicate with community-based or
victim advocates who may have insight into relevant conditions in the
facility.
This rule proposes that the external auditor would determine
whether the audited facility reaches one of the following: ``Exceeds
Standard'' (substantially exceeds requirement of standard); ``Meets
Standard'' (substantial compliance; complies in all material ways with
the standard for the relevant review period); or ``Does Not Meet
Standard'' (requires corrective action). The auditor would be required
to prepare an audit summary indicating the number of provisions the
facility has achieved at each grade level.
Any finding of ``Does Not Meet Standard'' would trigger a 180-day
corrective action period. Under the proposed standards, the auditor,
the agency, and the facility (if it is not operated by the agency)
would jointly develop a corrective action plan to achieve compliance.
The auditor would be required to take necessary and appropriate steps
to verify implementation of the corrective action plan, such as
reviewing updated policies and procedures or re-inspecting portions of
a facility. After the end of the 180-day corrective action period, the
auditor would be required to issue a final determination as to whether
the facility has achieved compliance with those standards requiring
corrective action. In the event that the facility does not achieve
compliance with each standard, it would have the opportunity (at its
discretion and cost) to request a subsequent audit, once it believes
that it has achieved compliance. A facility would be permitted to file
an appeal with the agency regarding any specific finding that it
believes to be incorrect. If the agency determines that the facility
has demonstrated good cause for a re-evaluation, the facility may, at
its complete discretion and cost, commission a re-audit by a mutually
agreed upon external auditor. The agency may also, in its complete
discretion, commission a re-audit of any facility for any reason it
deems appropriate. In order to further promote transparency, the
proposed standards also provide that the agency would ensure that the
auditor's final report is published on the agency's Web site.
Immigration Detention Facilities
The proposed standards provide that external audits of immigration
detention facilities shall be conducted on a triennial cycle. During
the three-year cycle, the agency would ensure that each immigration
detention facility is audited at least once. DHS believes that this
standard would allow substantial flexibility in scheduling audits
within each three-year cycle while ensuring that external facility
audits occur regularly. In addition, DHS provides a procedure for an
expedited audit in the event the agency has reason to believe that a
particular facility may be experiencing problems related to sexual
abuse.
Immigration Holding Facilities
DHS operates immigration holding facilities under the authority of
both CBP and ICE. The ICE holding facilities do not generally house
detainees overnight and thus are not covered by the auditing
requirements for holding facilities under proposed section 115.193.
CBP operates 768 holding facilities at ports of entry and Border
Patrol stations, checkpoints, and processing facilities across the
country. These holding facilities, which far outnumber those facilities
operated directly by any other corrections/detention/law enforcement
authority, nationwide (including ICE, the Bureau of Prisons, and other
agencies), are currently subject to oversight by the CBP Office of
Internal Affairs. All these holding facilities taken together hold, on
average, approximately 1,100 detainees a day; however, hundreds of them
may be unused on any given day.
For the CBP holding facilities that house detainees overnight, DHS
proposes a two-part audit process. The proposed standards provide that
all holding facilities that house detainees overnight shall be subject
to an external audit within three years of the effective date of the
rule. If an external audit determines that a holding facility is low-
risk based on (1) whether it passed its current audit and (2) its
physical characteristics, including lines of sight, other design
features, and video and other monitoring technologies, the facility
will be classified as low-risk. Low-risk facilities would be subject to
further external audits once every five years, unless design changes
are made that could increase the risk of sexual abuse. Facilities that
are not classified as low-risk would be subject to audits once every
three years. If additional holding facilities are established, they
would be subject to an initial audit within three years to determine if
they are low-risk. Audits of new holding facilities as well as holding
facilities that have previously failed to meet the standards shall
occur as soon as practicable within the three-year cycle. Where it is
necessary to prioritize, priority shall be given to facilities that
have previously failed to meet the standards.
Solicitation of Comments Specific to Audits
Given the potential costs associated with the proposed auditing
requirements DHS is specifically seeking public input on the following:
Would external audits of immigration detention facilities
and/or holding facilities conducted through random sampling be
sufficient to assess the scope of compliance with the standards of this
proposed rule?
Once a holding facility is designated as low risk, would
it be a more cost effective yet still sufficient approach to furthering
compliance with the standards to externally audit a random selection of
such facilities instead of re-auditing each such facility once every
five years?
Would the potential benefits associated with requiring
external audits outweigh the potential costs?
Is there a better approach to external audits other than
the approaches discussed in this proposed rule?
In an external auditing process, what types of entities or
individuals should qualify as external auditors?
Would external audits of immigration detention facilities
conducted through random sampling be sufficient to assess the scope of
compliance with the standards of this proposed rule?
Additional Provisions in Agency Policies. Sections 115.95 and 115.195
provide that the regulations in both Subparts A and B establish minimum
requirements for agencies. As such, they do not preclude agency
policies from including additional requirements.
VI. Statutory and Regulatory Requirements
A. Executive Orders 12866 and 13563
Executive Orders 12866 and 13563 direct agencies to assess the
costs and benefits of available regulatory alternatives and, if
regulation is necessary, to select regulatory approaches that maximize
net benefits (including potential economic, environmental, public
health and safety effects, distributive impacts, and equity). Executive
Order 13563
[[Page 75320]]
emphasizes the importance of quantifying both costs and benefits, of
reducing costs, of harmonizing rules, and of promoting flexibility. DHS
considers this to be a ``significant regulatory action,'' although not
an economically significant regulatory action, under section 3(f) of
Executive Order 12866. Accordingly, the Office of Management and Budget
(OMB) has reviewed this regulation. The IRIA, summarized below, is
available in the docket. It contains a discussion of the costs and
benefits of this rule.
1. Summary of Proposed Rule
The objective of the proposed rule is to propose minimum
requirements for DHS immigration detention and holding facilities for
the prevention, detection, and response to sexual abuse. The proposed
rule, if made final, would require prevention planning; prompt and
coordinated response and intervention; training and education of staff,
contractors, volunteers and detainees; proper treatment for victims;
procedures for investigation, discipline and prosecution of
perpetrators; data collection and review for corrective action; and
audits for compliance with the standards. The cost estimates set forth
in this analysis represent the costs of compliance with, and
implementation of, the proposed standards in facilities within the
scope of the proposed rulemaking.
2. Summary of Affected Population
DHS has two types of confinement facilities: (1) Immigration
detention facilities, and (2) holding facilities. Immigration detention
facilities, which are operated or supervised by ICE, routinely hold
persons for over 24 hours pending resolution or completion of
immigration removal or processing. Holding facilities, used and
maintained by DHS components including ICE and CBP, tend to be short-
term. The analysis below presents immigration detention facilities and
holding facilities separately.
This proposed rule will directly regulate the Federal Government,
notably any DHS agency with immigration detention facilities or holding
facilities. The sections below describe and quantify, where possible,
the number of affected DHS immigration detention facilities or holding
facilities.
a. Subpart A--Immigration Detention Facilities
ICE is the only DHS component with immigration detention
facilities. ICE holds detainees during proceedings to determine whether
they will be removed from the United States, and pending their removal,
in ICE-owned facilities or in facilities contracting with ICE.
Therefore, though this rule will directly regulate the Federal
Government, it would require that its standards ultimately apply to
some State and local governments as well as private entities through
contracts with DHS. The types of authorized ICE immigration detention
facilities are as follows:
Contract Detention Facility (CDF)--owned by a private
company and contracted directly with the government;
Service Processing Center (SPC)--full service immigration
facilities owned by the government and staffed by a combination of
Federal and contract staff;
Intergovernmental Service Agreement Facility (IGSA)--
facilities at which detention services are provided to ICE by State or
local government(s) through agreements with ICE and which may fall
under public or private ownership and may be fully dedicated
immigration facilities (housing detained aliens only) or non-dedicated
facilities (housing various detainees).
ICE enters into Intergovernmental Service Agreements (IGSAs) with
States and counties across the country to use space in jails and
prisons for civil immigration detention purposes. Some of these
facilities are governed by IGSAs that limit the length of an
immigration detainee's stay to under 72 hours. Some of these facilities
have limited bed space that precludes longer stays by detainees. Others
are used primarily under special circumstances such as housing a
detainee temporarily to facilitate detainee transfers or to hold a
detainee for court appearances in a different jurisdiction. In some
circumstances the under 72-hour facilities house immigration detainees
only occasionally.
At the time of writing, ICE owns or has contracts with
approximately 158 authorized immigration detention facilities that hold
detainees for more than 72 hours. The 158 facilities consist of 6 SPCs,
7 CDFs, 9 dedicated IGSA facilities, and 136 non-dedicated IGSA
facilities. (64 of the IGSA facilities are covered by the DOJ PREA, not
this proposed rule, because they are USMS IGA facilities.) As the USMS
IGA facilities are not within the scope of this rulemaking, this
analysis covers the 94 authorized SPC, CDF, dedicated IGSA, and non-
dedicated IGSA immigration detention facilities that hold detainees for
more than 72 hours.
ICE additionally has 91 authorized immigration detention facilities
that are contracted to hold detainees for less than 72 hours. All 91
facilities are non-dedicated IGSA facilities, but 55 of them are
covered by the DOJ PREA rule, not this proposed rule, because they are
USMS IGA facilities. Again, ICE excludes the USMS IGA facilities from
the scope of this rulemaking and analysis; the analysis covers the 36
authorized non-dedicated IGSA immigration detention facilities that
hold detainees for under 72 hours. Facilities that are labeled by ICE
as ``under 72-hour'' still meet the definition of immigration detention
facilities, because they process detainees for detention intake.
Detainees housed in these facilities are processed into the facility
just as they would be in a long-term detention facility.
Furthermore, ICE also has two authorized family residential
centers. These are IGSA facilities that house only ICE detainees. One
of the facilities accommodates families subject to mandatory detention
and the other is a dedicated female facility. ICE family residential
centers are subject to the immigration detention facility standards
proposed in Subpart A. The table below summarizes the facilities
included in this analysis. For the purposes of the cost analysis in
Chapter 2, DHS includes the family residential facilities in the cost
estimates for the over 72-hour authorized immigration detention
facilities.
Table 1--Summary of ICE Authorized Immigration Detention Facilities
----------------------------------------------------------------------------------------------------------------
Family
Facility Over 72 hours Under 72 hours Residential
----------------------------------------------------------------------------------------------------------------
Non-Dedicated IGSA........................................ 74 36 0
SPC....................................................... 6 0 0
CDF....................................................... 7 0 0
Dedicated IGSA............................................ 7 0 2
-----------------------------------------------------
[[Page 75321]]
Total Covered by Rule................................. 94 36 2
-----------------------------------------------------
USMS IGA \a\.............................................. 64 55 0
-----------------------------------------------------
Total Authorized Facilities............................... 158 91 2
----------------------------------------------------------------------------------------------------------------
\a\ Not within the scope of the proposed rule
b. Subpart B--Holding Facilities
A holding facility may contain holding cells, cell blocks, or other
secure locations that are: (1) under the control of the agency and (2)
primarily used for the confinement of individuals who have recently
been detained, or are being transferred to another agency.
ii. U.S. Immigration and Customs Enforcement
Most ICE holding rooms are in ICE field offices and satellite
offices. These rooms are rooms or areas that are specifically designed
and built for temporarily housing detainees in ICE Enforcement and
Removal Operations (ERO) offices. It may also include staging
facilities. ICE holding facilities as presented in this analysis are
exclusive of hold rooms or staging areas at immigration detention
facilities, which are covered by the standards of the immigration
detention facility under Subpart A of this proposed rule. ICE has 149
holding facilities that would be covered under Subpart B of the
proposed rule.
i. U.S. Customs and Border Protection
There is a wide range of facilities where CBP detains individuals.
Some individuals are detained in secured detention areas, while others
are detained in open seating areas where agents or officers interact
with the detainee. Hold rooms in CBP facilities where case processing
occurs are used to search, detain, or interview persons who are being
processed. CBP operates 768 holding facilities at ports of entry and
Border Patrol stations, checkpoints, and processing facilities across
the country.
3. Estimated Costs of Proposed Rule
The proposed rule will cover DHS immigration detention facilities
and holding facilities. Table 2 summarizes the number of facilities
covered by the proposed rulemaking over ten years.
Table 2--Estimated Population Summary for Proposed Rule
----------------------------------------------------------------------------------------------------------------
Immigration Holding facilities
detention ------------------------------------
Year facilities Total
------------------ ICE CBP
ICE
----------------------------------------------------------------------------------------------------------------
1....................................... 132 149 768 1,049
2....................................... 134 149 768 1,051
3....................................... 136 149 768 1,053
4....................................... 138 149 768 1,055
5....................................... 140 149 768 1,057
6....................................... 142 149 768 1,059
7....................................... 144 149 768 1,061
8....................................... 146 149 768 1,063
9....................................... 148 149 768 1,065
10...................................... 150 149 768 1,067
----------------------------------------------------------------------------------------------------------------
The cost estimates set forth in this analysis represent the costs
of compliance with, and implementation of, the proposed standards in
facilities within the scope of the proposed rulemaking. This analysis
concludes that compliance with the proposed standards, in the
aggregate, would be approximately 57.7 million, discounted at 7
percent, over the period 2013-2022, or 8.2 million per year when
annualized at a 7 percent discount rate. Table 3 below, presents a 10-
year summary of the estimated benefits and costs of the Notice of
Proposed Rulemaking (NPRM).
Table 3--Total Cost of NPRM
[$millions]
----------------------------------------------------------------------------------------------------------------
Immigration detention Holding facilities subpart B
facilities subpart A --------------------------------
Year -------------------------------- Total
Over 72 hours Under 72 hours ICE CBP
----------------------------------------------------------------------------------------------------------------
1............................... $4.2 $1.4 $0.0 $5.6 $11.2
2............................... 3.6 1.1 0.0 5.5 10.2
3............................... 3.6 1.1 0.0 3.6 8.3
4............................... 3.7 1.1 0.0 2.4 7.1
5............................... 3.7 1.1 0.0 2.4 7.2
[[Page 75322]]
6............................... 3.7 1.1 0.0 2.3 7.2
7............................... 3.7 1.1 0.0 2.3 7.2
8............................... 3.8 1.1 0.0 2.3 7.2
9............................... 3.8 1.1 0.0 2.3 7.2
10.............................. 3.8 1.2 0.0 2.3 7.3
-------------------------------------------------------------------------------
Total....................... 37.6 11.4 0.0 31.0 79.9
===============================================================================
Total (7%)...................... 26.4 8.0 0.0 23.2 57.7
Total (3%)...................... 32.1 9.7 0.0 27.2 69.0
Annualized (7%)................. 3.8 1.1 0.0 3.3 8.2
Annualized (3%)................. 3.8 1.1 0.0 3.2 8.1
----------------------------------------------------------------------------------------------------------------
The total cost, discounted at 7 percent, consists of 34.5 million
for immigration detention facilities under Subpart A, and 23.2 million
for holding facilities under Subpart B. The largest costs for
immigration detention facilities are for staff training, documentation
of cross-gender pat-downs, duties for the Prevention of Sexual Abuse
Compliance Manager, and audit requirements. DHS estimates zero
compliance costs for ICE holding facilities under the proposed rule as
the requirements of ICE's Sexual Abuse and Assault Prevention and
Intervention Directive and other ICE policies are commensurate with the
requirements of the proposed rule. The largest costs for CBP holding
facilities are staff training, audits, and facility design
modifications and monitoring technology upgrades.
4. Estimated Benefits of the Rule
DHS has not estimated the anticipated benefits of this proposed
rule. Instead, DHS conducts what is known as a ``break even analysis,''
by first estimating the monetary value of preventing victims of various
types of sexual abuse (from incidents involving violence to
inappropriate touching) and then, using those values, calculating the
reduction in the annual number of victims that would need to occur for
the benefits of the rule to equal the cost of compliance. The IRIA
concludes that when all facilities and costs are phased into the
rulemaking, the break even point would be reached if the standards
reduced the annual number of incidents of sexual abuse by 55 from the
estimated benchmark level, which is 79 percent of the total number of
assumed incidents in ICE confinement facilities, including those who
may not have reported an incident.
5. Alternatives
As alternatives to the preferred regulatory regime proposed in the
NPRM, DHS examined three other options. The first is taking no
regulatory action. For over 72-hour immigration detention facilities,
the 2011 PBNDS sexual abuse standards might reach all facilities over
time as the new version of the standards are implemented at facilities
as planned. However, in the absence of regulatory action, proposed
sexual abuse standards for ICE under 72-hour immigration detention
facilities and DHS holding facilities would remain largely the same.
DHS also considered requiring the ICE immigration detention
facilities that are only authorized to hold detainees for under 72
hours to meet the proposed standards for holding facilities under
Subpart B, rather than the standards for immigration detention in
Subpart A, as proposed in the NPRM. The standards proposed in Subpart B
are somewhat less stringent than those for immigration detention
facilities, as appropriate for facilities holding detainees for a much
shorter time and with an augmented level of direct supervision.
Finally, DHS considered changing the audit requirements proposed
under sections 115.93 and 115.193. Immigration detention facilities
currently undergo several layers of inspections for compliance with
ICE's detention standards. This alternative would have allowed ICE to
incorporate the audit requirements for the proposed standards into
current inspection procedures. However, it would require outside
auditors for all immigration detention facilities. For holding
facilities that hold detainees overnight, it would require 10 internal
audits, 10 external audits, and 3 audits by CRCL be conducted annually.
The following table presents the 10-year costs of the alternatives
compared to the costs of the NPRM. These costs of these alternatives
are discussed in detail in Chapter 2 of the IRIA.
Table 4--Cost Comparison of Regulatory Alternatives to the Proposed NPRM
[$millions]
----------------------------------------------------------------------------------------------------------------
10-Year total costs by alternative Total Total (7%) Total (3%)
----------------------------------------------------------------------------------------------------------------
Alternative 1--No Action............................... $0 $0 $0
Alternative 2--Under 72-Hour........................... 77.7 56.1 67.1
Alternative 3--Proposed Rule........................... 79.9 57.7 69.0
Alternative 4--Audit Requirements...................... 70.0 50.5 60.4
----------------------------------------------------------------------------------------------------------------
[[Page 75323]]
B. Executive Order 13132--Federalism
This proposed regulation will not have substantial direct effects
on the States, on the relationship between the national government and
the States, or on distribution of power and responsibilities among the
various levels of government. This proposed rule implements the
Presidential Memorandum of May 17, 2012 ``Implementing the Prison Rape
Elimination Act'' by recommending national DHS standards for the
detection, prevention, reduction, and punishment of sexual abuse in DHS
immigration detention and holding facilities. In drafting the
standards, DHS was mindful of its obligation to meet the President's
objectives while also minimizing conflicts between State law and
Federal interests.
Insofar, however, as the proposal sets forth standards that might
apply to immigration detention facilities and holding facilities
operated by State and local governments and private entities, this
proposed rule has the potential to affect the States, the relationship
between the Federal government and the States, and the distribution of
power and responsibilities among the various levels of government and
private entities. With respect to the State and local agencies, as well
as the private entities, that own and operate these facilities across
the country, the Presidential Memorandum provides DHS with no direct
authority to mandate binding standards for their facilities. Instead,
these standards will impact State, local, and private entities only to
the extent that they make voluntary decisions to contract with DHS for
the confinement of immigration detainees. This approach is fully
consistent with DHS's historical relationship to State and local
agencies in this context. Therefore, in accordance with Executive Order
13132, DHS has determined that this rule does not have sufficient
federalism implications to warrant the preparation of a Federalism
Assessment.
Notwithstanding the determination that the formal consultation
process described in Executive Order 13132 is not required for this
rule, DHS welcomes consultation with representatives of State and local
prisons and jails, juvenile facilities, community corrections programs,
and lockups--among other individuals and groups--during the course of
this rulemaking.
C. Executive Order 12988--Civil Justice Reform
This regulation meets the applicable standards set forth in
sections 3(a) and 3(b)(2) of Executive Order 12988.
D. Unfunded Mandates Reform Act of 1995
Section 202 of the Unfunded Mandate Reform Act of 1995 (UMRA) (Pub.
L. 104-4, 109 Stat. 48, 2 U.S.C. 1532) generally requires agencies to
prepare a statement before submitting any rule that may result in an
annual expenditure of $100 million or more (adjusted annually for
inflation) by State, local, or tribal governments, or by the private
sector. DHS has assessed the probable impact of these proposed
regulations and believes these regulations may result in an aggregate
expenditure by State and local governments of approximately $4.3
million in the first year.
However, DHS believes the requirements of the UMRA do not apply to
these regulations because UMRA excludes from its definition of
``Federal intergovernmental mandate'' those regulations imposing an
enforceable duty on other levels of government which are ``a condition
of Federal assistance.'' 2 U.S.C. 658(5)(A)(i)(I). Compliance with
these standards, as proposed, would be a condition of ongoing Federal
assistance through implementation of the standards in new contracts and
contract renewals. While DHS does not believe that a formal statement
pursuant to the UMRA is required, it has, for the convenience of the
public, summarized as follows various matters discussed at greater
length elsewhere in this rulemaking which would have been included in a
UMRA statement should that have been required:
These standards are being issued pursuant to the
Presidential Memorandum of May 17, 2012, and DHS detention authorities.
A qualitative and quantitative assessment of the
anticipated costs and benefits of these standards appears below in the
Regulatory Flexibility Act section;
DHS does not believe that these standards will have an
effect on the national economy, such as an effect on productivity,
economic growth, full employment, creation of productive jobs, or
international competitiveness of United States goods and services;
Before it issues final regulations implementing standards
DHS will:
(1) Provide notice of these requirements to potentially affected
small governments, which it has done by publishing this notice of
proposed rulemaking, and by other activities;
(2) Enable officials of affected small governments to provide
meaningful and timely input, via the methods listed above; and
(3) Work to inform, educate, and advise small governments on
compliance with the requirements.
As discussed above in the Initial Regulatory Impact
Assessment summary, DHS has identified and considered a reasonable
number of regulatory alternatives and from those alternatives has
attempted to select the least costly, most cost effective, or least
burdensome alternative that achieves DHS's objectives.
E. Small Business Regulatory Enforcement Fairness Act of 1996
Under section 213(a) of the Small Business Regulatory Enforcement
Fairness Act of 1996, Public Law 104-121, DHS wants to assist small
entities in understanding this proposed rule so that they can better
evaluate its effects on them and participate in the rulemaking. If the
proposed rule would affect your small business, organization, or
governmental jurisdiction and you have questions concerning its
provisions or options for compliance, please contact DHS via the
address or phone number provided in the FOR FURTHER INFORMATION CONTACT
section above. DHS will not retaliate against small entities that
question or complain about this rule or about any policy or action by
DHS related to this rule.
F. Regulatory Flexibility Act
DHS drafted this proposed rule so as to minimize its impact on
small entities, in accordance with the Regulatory Flexibility Act
(RFA), 5 U.S.C. 601-612, while meeting its intended objectives. The
term ``small entities'' comprises small business, not-for-profit
organizations that are independently owned and operated and are not
dominant in their fields, and governmental jurisdictions with
populations of less than 50,000. Based on presently available
information, DHS is unable to state with certainty that the proposed
rule, if promulgated as a final rule, would not have any effect on
small entities of the type described in 5 U.S.C. 601(3). Accordingly,
DHS has prepared an Initial Regulatory Flexibility Impact Analysis
(IRFA) in accordance with 5 U.S.C. 603.
1. A Description of the Reasons Why the Action by the Agency Is Being
Considered
In 2003 Congress passed PREA, 42 U.S.C. 15601. PREA directs the
Attorney
[[Page 75324]]
General to promulgate national standards for enhancing the prevention,
detection, reduction, and punishment of prison rape. On May 17, 2012,
President Obama issued a Presidential Memorandum confirming the goals
of PREA and directing Federal agencies with confinement facilities to
issue regulations or procedures within 120 days of his Memorandum to
satisfy the requirements of PREA. This regulation responds to and
fulfills the President's direction by proposing comprehensive, national
regulations for the detection, prevention, and reduction of prison rape
at DHS confinement facilities.
2. A Succinct Statement of the Objectives of, and Legal Basis for, the
Proposed Rule
On May 17, 2012, DOJ released a final rule setting national
standards to prevent, detect, and respond to prison rape for facilities
operated by the Bureau of Prisons and the USMS. The final rule was
published in the Federal Register on June 20, 2012. 77 FR 37106 (June
20, 2012). In its final rule, DOJ concluded that PREA ``encompass[es]
any Federal confinement facility `whether administered by [the]
government or by a private organization on behalf of such
government.''' Id. at 37113 (quoting 42 U.S.C. 15609(7)). DOJ
recognized, however, that, in general, each Federal agency is
accountable for, and has statutory authority to regulate the operations
of its own facilities and is best positioned to determine how to
implement Federal laws and rules that govern its own operations, staff,
and persons in custody. Id. The same day that DOJ released its final
rule, President Obama issued a Presidential Memorandum directing
Federal agencies with confinement facilities to issue regulations or
procedures within 120 days of his Memorandum to satisfy the
requirements of PREA.
DHS uses a variety of legal authorities, which are listed below in
the ``Authority'' provision preceding the proposed regulatory text, to
detain individuals in confinement facilities. Most individuals detained
by DHS are detained in the immigration removal process, and normally
DHS derives its detention authority for these actions from section
236(a) of the INA, 8 U.S.C. 1226(a), which provides the authority to
arrest and detain an alien pending a decision on whether the alien is
to be removed from the United States, and section 241(a)(2) of the INA,
8 U.S.C. 1231(a)(2), which provides the authority to detain an alien
during the period following the issuance of an order of removal. DHS
components, however, use many other legal authorities to meet their
statutory mandates and to detain individuals during the course of
executing DHS missions.
The objective of the proposed rule is to propose minimum
requirements for DHS immigration detention and holding facilities for
the prevention, detection, and response to sexual abuse. The rule, if
made final, would ensure prompt and coordinated response and
intervention, proper treatment for victims, discipline and prosecution
of perpetrators, and effective oversight and monitoring to prevent and
deter sexual abuse.
3. A Description and, Where Feasible, an Estimate of the Number of
Small Entities To Which the Proposed Rule Will Apply
The proposed rule would affect owners of DHS confinement
facilities, including private owners, State and local governments, and
the Federal government. DHS has two types of confinement facilities:
(1) Immigration detention facilities, and (2) holding facilities.
Holding facilities tend to be short-term in nature. ICE, in particular,
is charged with administration of the immigration detention facilities
while CBP and ICE each have many holding facilities under their
detention authority. The analysis below addresses immigration detention
facilities and holding facilities separately.
i. Immigration Detention Facilities
ICE divides its detention facilities into two groups: there are 158
for use over 72 hours, and 91 that typically hold detainees for more
than 24 hours and less than 72 hours. These are treated separately,
below. Further, there are several types of immigration detention
facilities. Service processing center (SPC) facilities are ICE-owned
facilities and staffed by a combination of Federal and contract staff.
Contract detention facilities (CDFs) are owned by a private company and
contracted directly with ICE. Detention services at Intergovernmental
Service Agreement (IGSA) facilities are provided to ICE by State or
local governments(s) through agreements with ICE and may be owned by
the State or local government, or by a private entity. Finally, there
are two types of IGSA facilities: dedicated and non-dedicated.
Dedicated IGSA facilities hold only detained aliens whereas non-
dedicated facilities hold a mixture of detained aliens and inmates. ICE
does not include USMS facilities used by ICE under intergovernmental
agreements in the scope of this rulemaking. Those facilities would be
covered by the DOJ PREA standards. Any references to authorized
immigration detention facilities is exclusive of these 119 USMS IGA
facilities.
Of the current 158 ICE detention facilities that are for use over
72 hours, 6 are owned by the Federal government and are not subject to
the Regulatory Flexibility Act (RFA). An additional 64 are covered not
by this proposed rule but by the DOJ PREA rule, as USMS IGA facilities.
Of the 88 facilities subject to the RFA, there are 79 distinct
entities. DHS uses ICE information and public databases such as
Manta.com and data from the U.S. Census Bureau \15\ to search for
entity type (public, private, parent, subsidiary, etc.), primary line
of business, employee size, revenue, population, and any other
necessary information. This information is used to determine if an
entity is considered small by SBA size standards, within its primary
line of business.
---------------------------------------------------------------------------
\15\ U.S. Census Bureau, State and County QuickFacts, 2010
Population Data, available at https://quickfacts.census.gov/qfd/
---------------------------------------------------------------------------
Of the 79 entities owning immigration detention facilities and
subject to the RFA, the search returned 75 entities for which
sufficient data are available to determine if they are small entities,
as defined by the RFA. The table below shows the North American
Industry Classification System (NAICS) codes corresponding with the
number of facilities for which data are available. There are 27 small
governmental jurisdictions, 1 small business, and 1 small not-for-
profit. In order to ensure that the interests of small entities are
adequately considered, DHS assumes that all entities without available
ownership, NAICS, revenue, or employment data to determine size are
small. Therefore, DHS estimates there are a total of 33 small entities
to which this rule would apply. The table below shows the number of
small entities by type for which data are available.
[[Page 75325]]
Table 5--Small Entities by Type--Immigration Detention Facilities
------------------------------------------------------------------------
Type Entities found SBA size standard
------------------------------------------------------------------------
Small Governmental 27 Population less than
Jurisdiction. 50,000.
Small Business................ 1 $7 million (NAICS
488999)
................ $30 million (NAICS
488119).
Small Organization............ 1 Independently owned
and operated not-for-
profit not dominant
in its field.
------------------
Subtotal.................. 29 ......................
------------------
Entities without Available 4 ......................
Information.
------------------
Total Small Entities.. 33 ......................
------------------------------------------------------------------------
ICE also has shorter-term immigration detention facilities, for
several reasons: Some of ICE's immigration detention facilities are
governed by IGSAs that limit the length of an immigration detainee's
stay to under 72 hours for various reasons. Some of these facilities
have limited bed space that prohibits longer stays by detainees. Others
are used primarily under special circumstances such as housing a
detainee temporarily to facilitate detainee transfers or to hold a
detainee for court appearances in a different jurisdiction. In some
circumstances the under 72-hour facilities are located in rural areas
that only occasionally have immigration detainees.
At the time of writing, ICE has 91 immigration detention facilities
for use under 72 hours. Of those, three are owned by the Federal or
State government and are not subject to the RFA. An additional 55 are
covered not by this proposed rule but by the DOJ PREA rule, as USMS IGA
facilities. Of the 33 facilities subject to the RFA, all are owned by
distinct entities. Again, DHS uses public databases such as Manta.com
and U.S. Census Bureau to search for entity type, primary line of
business, employee size, revenue, population, and any other necessary
information needed to determine if an entity is considered small by SBA
size standards.
Of the 33 entities owning immigration detention facilities and
subject to the RFA, all have sufficient data available to determine if
they are small entities as defined by the RFA. The table below shows
the NAICS codes corresponding with the number of facilities for which
data are available. DHS determines there are 10 small governmental
jurisdictions, 0 small businesses, and 0 small organizations. The table
below shows the number of small entities by type for which data are
available.
Table 6--Small Entities by Type--Other DHS Confinement Facilities
------------------------------------------------------------------------
Type Entities found SBA size standard
------------------------------------------------------------------------
Small Governmental 10 Population less than
Jurisdiction. 50,000.
Small Business................ 0 ......................
Small Organization............ 0 ......................
------------------
Total Small Entities...... 10 ......................
------------------------------------------------------------------------
At the time of writing, ICE has 2 immigration detention facilities
that are considered family residential facilities. Both are owned by
counties. Again, DHS uses public databases such as Manta.com and U.S.
Census Bureau to search for entity type, primary line of business,
employee size, revenue, population, and any other necessary information
needed to determine if an entity is considered small by SBA size
standards. DHS was able to obtain sufficient data to determine if they
are small entities. Based on the size of the counties, DHS determines
neither would be considered small governmental jurisdictions as defined
by the RFA.
ii. Holding Facilities
U.S. Customs and Border Protection. CBP operates 768 facilities
with holding facilities. Of the 768, 364 are owned by private sector
entities. CBP is responsible for funding any facility modifications
once CBP has begun operations at the location. As such, any
modifications at these facilities as a result of this rule will have no
direct impact on the facilities.
U.S. Immigration and Customs Enforcement. Most ICE hold rooms are
in ICE field offices and satellite offices. ICE estimates it has 149
holding facilities that would be covered under the proposed rule. None
of these facilities would be considered small entities under the RFA.
4. A Description of the Projected Reporting, Recordkeeping, and Other
Compliance Requirements of the Proposed Rule, Including an Estimate of
the Classes of Small Entities That Will Be Subject to the Requirement
and the Types of Professional Skills Necessary for Preparation of the
Report or Record
With regard to non-DHS facilities, the requirements of the proposed
rule are applicable only to new detention contracts with the Federal
Government, and to contract renewals. To the extent this rule increases
costs to any detainment facilities, which may be small entities, it may
be reflected in the cost paid by the Federal Government for the
contract. Costs associated with implementing the proposed rule paid by
the Federal Government to small entities are transfer payments
ultimately born by the Federal Government. However, DHS cannot say with
certainty how much, if any, of these costs will be
[[Page 75326]]
paid in the form of increased bed rates for facilities. Therefore, for
the purposes of this analysis, DHS assumes all costs associated with
the proposed rule will be borne by the facility. The following
discussion addresses the proposed provisions for which facilities
currently operating under the NDS may incur implementation costs.
i. Contracting With Other Non-DHS Entities for the Confinement of
Detainees, Sec. 115.12
The proposed rule would require that any new contracts or contract
renewals comply with the proposed rule and provide for agency contract
monitoring to ensure that the contractor is complying with these
standards. Therefore, DHS adds a 20-hour opportunity cost of time for
the contractor to read and process the modification, determine if a
request for a rate increase is necessary, and have discussions with the
government if needed. DHS estimates this provision may cost a facility
approximately $1,488 (20 hours x $74.41) in the first year.\16\
---------------------------------------------------------------------------
\16\ Bureau of Labor Statistics, Occupational Employment
Statistics (OES), May 2011, NAICS 999300, SOC 11-1021 General and
Operations Manager Median Hourly Wage, retrieved on June 29, 2012
from https://www.bls.gov/oes/2011/may/naics4_999300.htm. Loaded for
benefits. Bureau of Labor Statistics, Employer Cost for Employee
Compensation, June 2011, Table 3: Employer Costs per hour worked for
employee compensation and costs as a percent of total compensation:
State and local government workers, by major occupational and
industry group, Service Occupations, Salary and Compensation Percent
of Total Compensation, retrieved on June 29, 2012 from https://www.bls.gov/news.release/archives/ecec_09082011.pdf. $74.41 =
$44.42/0.597.
---------------------------------------------------------------------------
ii. Zero Tolerance of Sexual Abuse; Prevention of Sexual Abuse
Coordinator, Sec. 115.11
The proposed rule would require immigration detention facilities to
have a written zero-tolerance policy for sexual abuse and establish a
Prevention of Sexual Assault (PSA) Compliance Manager at each facility.
ICE is not requiring facilities to hire any new staff for these
responsibilities; rather ICE believes the necessary PSA Compliance
Manager duties can be collateral duties for a current staff member.
For some of the standards proposed in this rulemaking, the actual
effort required to comply with the standard will presumably be
undertaken by the PSA Compliance Manager. The costs of compliance with
those standards are thus essentially subsumed within the cost of this
standard. For this reason, and to avoid double counting, many standards
are assessed in their as having minimal to zero cost even though they
will require some resources to ensure compliance; this is because the
cost of those resources is assigned to this standard to the extent DHS
assumes the primary responsibility for complying with the standard will
lie with the PSA Compliance Manager. The table below presents the
provisions and requirements DHS assumes would be the responsibility of
the PSA Compliance Manger, and are included in the costs estimated for
this provision.
Table 7--Assumed PSA Compliance Manager Duties--Immigration Detention
Facilities
------------------------------------------------------------------------
------------------------------------------------------------------------
Proposed standard
------------------------------------------------------------------------
115.11............................ Zero tolerance of sexual abuse.
115.21............................ Evidence protocols and forensic
medical examinations.
115.31............................ Staff training.
115.32............................ Volunteer and contractor training.
115.34............................ Specialized training:
Investigations.
115.63*........................... Reporting to other confinement
facilities.
115.65............................ Coordinated response.
115.67............................ Agency protection against
retaliation.
115.86............................ Sexual abuse incident reviews.
115.87............................ Data collection.
115.93*........................... Audits.
------------------------------------------------------------------------
* Indicates new requirement for facilities under 2011 PBNDS or FRS
DHS spoke with some SPCs and CDFs who had SAAPICs required under
the 2008 PBNDS. Based on these discussions, DHS estimates a PSA
Compliance Manager will spend, on average, 114 hours in the first year
and 78 hours thereafter, which includes writing/revising policies
related to sexual abuse and working with auditors. DHS estimates this
provision may cost a facility approximately $5,330 (114 hours x $46.75)
in the first year.\17\
---------------------------------------------------------------------------
\17\ Bureau of Labor Statistics, Occupational Employment
Statistics (OES), May 2011, NAICS 999300, SOC 33-1011 First Line
Supervisors of Correctional Officers Median Hourly Wage, retrieved
on June 29, 2012 from https://www.bls.gov/oes/2011/may/oes331011.htm.
Loaded for benefits. $46.75 = $29.67/0.597
---------------------------------------------------------------------------
iii. Limits to Cross-Gender Viewing and Searches, Sec. 115.15
The proposed requirement would prohibit cross-gender pat-down
searches unless, after reasonable diligence, staff of the same gender
is not available at the time the pat-down search is required (for male
detainees), or in exigent circumstances (for female and male detainees
alike). In addition, it would ban cross-gender strip or body cavity
searches except in exigent circumstances; require documentation of all
strip and body cavity searches and cross-gender pat-down searches;
prohibit physical examinations for the sole purpose of determining
gender; require training of law enforcement staff on proper procedures
for conducting pat-down searches, including transgender and intersex
detainees; and, implement policies on staff viewing of showering,
performing bodily functions, and changing clothes.
The restrictions placed on cross-gender pat-down searches would be
a new requirement for facilities operating under the NDS or 2008 PBNDS,
and a modified requirement for facilities operating under the 2011
PBNDS.\18\ ICE's detention population is 10 percent female, and 90
percent male. In comparison, 13 percent of correctional officers at
Federal confinement facilities \19\ and 28 percent at jails are
female.\20\ Though there may be disproportionate gender ratios of staff
to detainees at some individual facilities, the overall national
statistics do not indicate that there would be a significant problem
with compliance. Facilities are allowed to conduct cross-gender pat
down searches on male detainees when, after reasonable diligence by the
facility, a member of the same gender is not available at the time. The
pat-down restrictions for female detainees are more stringent. Female
detainees only comprise 10 percent of the overall population, and one
to five percent are held at ICE's dedicated female facility. The Family
Residential Standards, under which the dedicated female facility
operates, already prohibit cross-gender pat-downs.
---------------------------------------------------------------------------
\18\ Specifically, the 2011 PBNDS permits cross-gender pat-down
searches of women when staff of the same gender is not available at
the time the pat-down search is required. Under the proposed
standard, cross-gender searches of females would be allowed only in
exigent circumstances.
\19\ Bureau of Justice Statistics, Census of State and Federal
Correctional Facilities, 2005, page 4, retrieved on August 13, 2012
from https://www.bjs.gov/content/pub/pdf/csfcf05.pdf.
\20\ Department of Justice, Final Regulatory Impact Analysis,
section 5.6.15.1 Analysis and Methodology for Adult Facilities of
standards 115.15, retrieved May 24 from www.ojp.usdoj.gov/programs/pdfs/prea_ria.pdf.
---------------------------------------------------------------------------
DHS does not expect any facilities to hire new staff or lay off any
staff specifically to meet the proposed requirement. Instead, DHS
expects that facilities which may have an unbalanced gender ratio take
this requirement into consideration during hiring decisions resulting
from normal attrition and staff turnover. However, DHS requests
comments from facilities on this conclusion. Please include information
that would help determine
[[Page 75327]]
and monetize the possible impact to facilities.
DHS includes a cost for facilities to examine their staff rosters,
gender ratios, and staffing plans for all shifts for maximum compliance
with cross gender pat downs. The length of time it takes for facilities
to adjust staffing plans, strategies, and schedules for gender balance
while ensuring there is adequate detainee supervision and monitoring
pursuant to section 115.13 will vary with the size of the facility. DHS
estimates this may take a supervisor 12 hours initially. DHS
anticipates facilities will be able to incorporate these considerations
into regular staffing decisions in the future. DHS estimates the
restrictions on cross-gender pat-downs may cost a facility
approximately $561 (12 hours x $46.75) in the first year.
The requirement for documentation of cross-gender pat-down searches
would be new for all facilities, regardless of the version of the
detention standards under which the facility operates. Presumably,
cross-gender pat-down searches of female detainees would occur rarely,
as the proposed rule would allow them in exigent circumstances only.
However, cross-gender pat-down searches of male detainees may happen
more frequently. DHS believes this requirement would be a notable
burden on facilities both for the process of documenting the pat-down,
but also keeping these records administratively. Therefore, as we
discuss below, DHS includes an opportunity cost for this provision. ICE
does not currently track the number of cross-gender pat-down searches,
or any pat-down searches conducted. ICE requests comment from
facilities on the number of cross-gender pat-down searches conducted.
Please include details that would help with an aggregate estimate, such
as the average daily population of detainees at your facility, the
number of pat-downs that may occur daily, the percentage that are
cross-gender, etc.
Because DHS believes this may be a noticeable burden on facilities,
DHS includes a rough estimate using assumptions. DHS also welcomes
comment on these assumptions. Detainees may receive a pat-down for a
number of reasons. All detainees receive a pat-down upon intake to the
facility, detainees may receive a pat-down after visitation, before
visiting the attorney room, if visiting medical, if in segregation,
etc. Therefore, DHS assumes that in any given day, approximately 50
percent of detainees may receive a pat-down. DHS uses the ratio of male
guards to male detainees and female guards to female detainees as a
proxy for the percentage of these pat-downs that would be cross-gender,
realizing that this may not be representative of every facility, the
circumstances at the time a pat-down is required, nor the results after
the staff realignment previously discussed. As referenced previously,
between 72 and 87 percent of guards are male and 90 percent of
detainees are male. Therefore, to estimate a rough order of magnitude,
DHS assumes between 3 and 18 percent of pat-downs of male detainees may
be cross-gender, with a primary estimate of 10 percent.
DHS finds the total average daily population of male detainees at
the 43 facilities classified as small entities and takes the average to
determine an average daily population of 93 for a facility classified
as a small entity (4,457 x 90% / 43). Then DHS applies the methodology
described above to estimate that approximately 2,000 cross gender pat-
downs may be conducted at an average small entity annually (93 male ADP
x 50% receive pat-down daily x 365 days x 10% cross-gender), which is
rounded to the nearest thousand due to uncertainty. DHS estimates it
will require an average of 5 minutes of staff for documentation. DHS
estimates this provision may cost a facility approximately $5,435 (5
minutes x $32.61 per hour), annually.
The total estimate per small entity for proposed section 115.15 is
$5,996 ($561 for staff realignment + $5,435 for cross-gender pat-down
documentation).
iv. Evidence Protocols and Forensic Medical Examinations, Sec. 115.21
The proposed rule would require ICE and any of its immigration
detention facilities to establish a protocol for the investigation of
allegations of sexual abuse or the referral of allegations to
investigators. In addition, where appropriate, at no cost to the
detainee, a forensic medical exam should be offered and an outside
victim advocate shall be made available for support if requested.
DHS includes a cost for facilities to enter into a memorandum of
understanding (MOU) with entities that provide victim advocate
services, such as rape crisis centers. DHS estimates it will require
approximately 20 hours of staff time to negotiate and settle on each
MOU. DHS estimates this provision may cost a facility approximately
$1,488 (20 hours x $74.41).
v. Staff Training, Sec. 115.31, Volunteer and Contractor Training,
Sec. 115.32
Under section 115.31 the proposed rule would require that any
facility staff and employee who may have contact with immigration
detention facilities have training on specific items related to
prevention, detection, and response to sexual abuse. In addition, under
section 115.32 the proposed rule would require that any volunteers and
contractors who may have contact with immigration detention facilities
also receive training on specific items related to prevention,
detection, and response to sexual abuse.\21\ Both sections would also
require facilities to maintain documentation that all staff, employees,
contractors, and volunteers have completed the training requirements.
---------------------------------------------------------------------------
\21\ ICE does not keep record of the number of staff and
contractors at contract facilities. The estimates represent the
results from a small sample, stratified by facility type. The low
and high estimates represent one standard deviation below and above
the mean. ICE assumes one new under 72-hour non-dedicated IGSA
facility annually and one new over 72-hour non-dedicated IGSA
facility annually, and approximately 290 staff and contractors per
new facility.
---------------------------------------------------------------------------
DHS uses the NCIC 2-hour training as an approximation for the
length of the training course to fulfill the proposed requirements. DHS
estimates this provision may cost a facility approximately $20,922 (2
hours x 290 staff and contractors x $32.61) + (2 hours x 30 volunteers
x $33.47).22 23
---------------------------------------------------------------------------
\22\ Though there may be other types of facility staff or
contractors that would require this training, such as medical
practitioners or administrative staff, DHS assumes correctional
officers and their supervisors comprise the majority of staff with
detainee contact.
\23\ Bureau of Labor Statistics, Occupational Employment
Statistics (OES), May 2011, SOC 00-0000 All Occupations Median
Hourly Wage, retrieved on August 16, 2012 from https://www.bls.gov/oes/2011/may/naics4_999300.htm. Loaded for benefits. $33.47 =
$19.98/0.597.
---------------------------------------------------------------------------
vi. Specialized Training: Investigations, Sec. Sec. 115.34, 115.134
The proposed rule would require the agency or facility to provide
specialized training on sexual abuse and effective cross-agency
coordination to agency or facility investigators, respectively, who
conduct investigations into alleged sexual abuse at immigration
detention facilities.
DHS conducts investigations of all allegations of detainee sexual
abuse in detention facilities. The 2012 ICE SAAPID mandates that ICE's
OPR provide specialized training to OPR investigators and other ICE
staff. However, facilities may also conduct their own investigations.
However, because ICE conducts investigations into the allegations,
training for facility investigators would likely be less specialized
than required of ICE investigators. DHS includes a cost for the time
required for training investigators. DHS estimates the training may
take approximately 1 hour. DHS
[[Page 75328]]
estimates this provision may cost a facility approximately $468 (1 hour
x 10 investigators x $46.75).24 25
---------------------------------------------------------------------------
\24\ ICE does not keep record of the number of investigators at
contract facilities. The estimates represent the results from a
small sample, stratified by facility type. The low and high
estimates represent one standard deviation below and above the mean.
ICE assumes one new under 72-hour non-dedicated IGSA facility
annually and one new over 72-hour non-dedicated IGSA facility
annually, and based on the data from the sample of facilities, 10
investigators per new facility.
\25\ Bureau of Labor Statistics, Occupational Employment
Statistics (OES), May 2011, NAICS 99300, Median Wage Rate for SOC
33-1011 First-Line Supervisors of Correctional Officers, retrieved
on August 16, 2012 from https://www.bls.gov/oes/2011/may/naics4_999300.htm. Loaded for benefits. $46.75 = $27.91/0.597
---------------------------------------------------------------------------
vii. Specialized Training: Medical and Mental Health Care, Sec. 115.35
The proposed rule would require specialized training to DHS medical
and mental health care staff. In addition, it would require all
facilities to have policies and procedures to ensure that the facility
trains or certifies all full- or part-time facility medical and mental
health care staff in procedures for treating victims of sexual abuse,
in facilities where medical or mental health staff may be assigned
these activities.\26\
---------------------------------------------------------------------------
\26\ ICE does not keep record of the number of medical and
mental health care providers at contract facilities. The estimates
represent the results from a small sample, stratified by facility
type. The low and high estimates represent one standard deviation
below and above the mean. ICE assumes one new under 72-hour non-
dedicated IGSA facility annually and one new over 72-hour non-
dedicated IGSA facility annually, and based on the data from the
sample of facilities, 30 medical and mental health care providers
per new facility.
---------------------------------------------------------------------------
DHS searched for continuing medical education courses that focused
on the evaluation and treatment for victims of sexual assault. Based on
the results, DHS estimates an average course will be one hour in length
and cost between $10 and $15, and can be completed online. DHS
estimates this provision may cost a facility approximately $1,957 (30
medical and mental health care practitioners x ($50.23 x 1 hr +
$15)).\27\
---------------------------------------------------------------------------
\27\ Bureau of Labor Statistics, Occupational Employment
Statistics (OES), May 2011, NAICS 99300, Weighted Average Median
Wage Rate for SOC 29-1062 Family and General Practitioners; 29-1066
Psychiatrists; 29-1071 Physician Assistants; 29-1111 Registered
Nurses; 29-2053 Psychiatric Technicians; and 29-2061 Licensed
Practical and Licensed Vocational Nurses, retrieved on August 16,
2012 from https://www.bls.gov/oes/2011/may/naics4_999300.htm. Loaded
for benefits. $50.23 = $29.99/0.597.
---------------------------------------------------------------------------
viii. Detainee Access to Outside Confidential Support Services, Sec.
115.53
The proposed rule would require facilities to maintain or attempt
to enter into MOUs with organizations that provide legal advocacy and
confidential emotional support services for victims of sexual abuse. It
also requires notices of these services be made available to detainees,
as appropriate.
DHS includes a cost for facilities to enter into a MOU with
entities that provide legal advocacy and confidential support services,
such as services provided by a rape crisis center. DHS estimates it
will require approximately 20 hours of staff time to negotiate and
settle on each MOU. DHS estimates this provision may cost a facility
approximately $1,488 (20 hours x $74.41).
ix. Audits, Sec. 115.93
Facilities may also incur costs for re-audits. Re-audits can be
requested in the event that the facility does not achieve compliance
with each standard or if the facility files an appeal with the agency
regarding any specific finding that it believes to be incorrect. Costs
for these audits would be borne by the facility, however the request
for these re-audits is at the discretion of the facility.
x. Additional Implementation Costs
Facilities contracting with DHS agencies may incur organizational
costs related to proper planning and overall execution of the
rulemaking, in addition to the specific implementation costs facilities
are estimated to incur for each of the proposed requirements. The
burden resulting from the time required to read the rulemaking,
research how it might impact facility operations, procedures, and
budget, as well as consideration of how best to execute the rulemaking
requirements or other costs of overall execution. This is exclusive of
the time required under section 115.12 to determine and agree upon the
new terms of the contract and the specific requirements expected to be
performed by the facility PSA Compliance Manager under section 115.11.
To account for these costs, DHS adds an additional category of
implementation costs for immigration detention facilities.
Implementation costs will vary by the size of the facility, a
facility's current practices, and other facility-specific factors. DHS
assumes the costs any additional implementation costs might occur as a
result of the provisions with start-up costs, such as entering into
MOUs, rather than provisions with action or on-going costs, such as
training. DHS estimates additional implementation costs as 10 percent
of the total costs of provisions with a start-up cost. DHS requests
comment on this assumption. The tables below present the estimates for
additional implementation costs. DHS estimates this provision may cost
a facility approximately $1,579 (10% x ($1,488 for section 115.12 +
$5,330 for section 115.11 + $5,996 for section 115.15 + $1,488 for
section 115.21 + $1,488 for section 115.53)).
xi. Total Cost per Facility
DHS estimates the total cost per immigration detention facility
under the NDS for compliance with the standards is approximately
$40,716 for the first year. In subsequent years, DHS estimates the
costs drop to approximately $9,990. The following table summarizes the
preceding discussion.
Table 8--Estimated Cost per Small Entity Under NDS--Immigration
Detention Facilities
------------------------------------------------------------------------
Cost in On-going
Proposed provision year 1 cost
------------------------------------------------------------------------
115.12 Consulting with non-DHS entities for $1,488 $0
the confinement of detainees.................
115.11 Zero tolerance of sexual abuse; PSA 5,330 3,647
Coordinator*.................................
115.15 Limits to cross-gender viewing and 5,996 5,435
searches.....................................
115.21 Evidence protocols and forensic medical 1,488 0
examinations.................................
115.31 & 115.32 * Staff training & Volunteer 20,922 0
and contractor training......................
115.34 Specialized training: Investigations... 468 0
115.35 Specialized training: Medical and 1,957 0
mental health care...........................
115.53 Detainee access to outside confidential 1,488 0
support Services.............................
Additional Implementation Costs *............. 1,579 908
-------------------------
[[Page 75329]]
Total..................................... 40,716 9,990
------------------------------------------------------------------------
* Provisions for which DHS estimates there may be on-going costs.
DHS welcomes comments on this analysis. Members of the public
should please submit a comment, as described in this proposed rule
under ``Public Participation,'' if they think that their business,
organization, or governmental jurisdiction qualifies as a small entity
and that this proposed rule would have a significant economic impact on
it. It would be helpful if commenters provide DHS with as much of the
following information as possible: Does the commenter's facility
currently have a contract with ICE? What does the commenter expect to
be the type and extent of the direct impact on the commenter's
facility? What are any recommended alternative measures that would
mitigate the impact on a small business, organization, or governmental
jurisdiction?
5. An Identification, to the Extent Practicable, of All Relevant
Federal Rules That May Duplicate, Overlap, or Conflict With the
Proposed Rule
On May 17, 2012, DOJ released a final rule setting national
standards to prevent, detect, and respond to prison rape. 77 FR 37106
(June 20, 2012). The final rule is applicable to facilities operated by
DOJ entities including the Bureau of Prisons and the USMS. While many
of the immigration detention facilities with which DHS contracts may be
facilities that would also be subject to the DOJ rule, the specific
characteristics of immigration detention facilities differ in certain
respects from other facilities with regard to the manner in which they
are operated and the composition of their population. Therefore, DHS
promulgated its own rulemaking to account for these differences.
In preparing this proposed rule, DHS has utilized its existing
sexual abuse policies and procedures as a baseline for setting DHS
standards. However, recognizing that one of the key purposes of PREA is
to ``develop and implement national standards for the detection,
prevention, reduction, and punishment of prison rape,'' DHS has
coordinated its proposed regulations with the final standards in the
DOJ rulemaking to the extent practicable, given the differences in the
types and operations of the facilities. DHS does not expect local
jurisdictions with which DHS has contracts to have conflicts with any
differences in the requirements between the two rulemakings. DHS,
however, welcomes comment on this conclusion.
6. A Description of Any Significant Alternatives to the Proposed Rule
Which Accomplish the Stated Objectives of Applicable Statutes and Which
Minimize Any Significant Economic Impact of the Proposed Rule on Small
Entities
DHS considered a longer phase-in period for small entities subject
to the rulemaking. A longer period would reduce immediate burden on
small entities with current contracts. The current requirements propose
that facilities must comply with the standards upon renewal of a
contract or exercising a contract option. Essentially, this would
phase-in all authorized immigration detention facilities within a year
of the effective date of the final rule. DHS is willing to work with
small facilities upon contract renewal in implementing these standards.
DHS also considered requiring lesser standards, such as those under
the National Detention Standards (NDS) or the 2008 PBNDS for small
entities. However, DHS rejected this alternative because DHS believes
in the importance of protecting detainees from, and providing treatment
after, instances of sexual abuse, regardless of a facility's size.
G. Paperwork Reduction Act
DHS is proposing to set standards for the prevention, detection,
and response to sexual abuse in its confinement facilities. For DHS
facilities and as incorporated in DHS contracts, these standards will
require covered facilities to retain and report to the agency certain
specified information relating to sexual abuse prevention planning,
responsive planning, education and training, and investigations, as
well as to collect, retain, and report to the agency certain specified
information relating to allegations of sexual abuse within the covered
facility. DHS believes that most of the information collection
requirements placed on facilities already are requirements derived from
existing contracts with facilities for immigration detention. However,
DHS is including these requirements as part of an information
collection request, pursuant to the Paperwork Reduction Act (PRA), so
as to ensure clarity of requirements associated with this rulemaking.
DHS will be submitting the following information collection request
to the Office of Management and Budget (OMB) for review and clearance
in accordance with the review procedures of the Paperwork Reduction Act
of 1995. The proposed information collection requirements are outlined
in this proposed rule to obtain comments from the public and affected
entities. All comments and suggestions, or questions regarding
additional information, should be directed to Alexander Y. Hartman,
Office of Policy; U.S. Immigration and Customs Enforcement, Department
of Homeland Security; Potomac Center North, 500 12th Street SW.,
Washington, DC 20536; Telephone: (202) 732-4292 (not a toll-free
number). Written comments and suggestions from the public and affected
agencies concerning the collection of information are encouraged. Your
comments on the information collection-related aspects of this rule
should address one or more of the following four points:
(1) Evaluate whether the collection of information is necessary for
the proper performance of the functions of the agency, including
whether the information will have practical utility;
(2) Evaluate the accuracy of the agency's estimate of the burden of
the collection of information, including the validity of the
methodology and assumptions used;
(3) Enhance the quality, utility, and clarity of the information to
be collected; and
(4) Minimize the burden of the collection of information on those
who are to respond, including through the use of appropriate automated,
electronic, mechanical, or other technological collection techniques or
other forms of information technology, e.g., permitting electronic
submission of responses. In particular, DHS requests comments on the
recordkeeping cost burden imposed by this rule and will use the
information gained through such comments to assist in calculating the
cost burden.
[[Page 75330]]
Overview of This Information Collection
(1) Type of Information Collection: New collection.
(2) Title of the Form/Collection: Standards to Prevent, Detect, and
Respond to Sexual Abuse and Assault in DHS Confinement Facilities.
(3) Agency form number, if any, and the applicable component of DHS
sponsoring the collection: No form.
(4) Affected public who will be asked or required to respond, as
well as a brief abstract:
Primary: Federal governments, State governments, local governments,
and businesses or other for profits.
Other: None.
Abstract: DHS is publishing a notice of proposed rulemaking (NPRM)
to adopt standards for the detection, prevention, and response to
sexual abuse in its confinement facilities. These standards will
require covered facilities to retain, and report to the agency certain
specified information relating to sexual abuse prevention planning,
education and training, responsive planning, and investigations, as
well as to collect and retain certain specified information relating to
allegations of sexual abuse within the facility. Covered facilities
include: 126 DHS immigration detention facilities and holding
facilities.
(5) An estimate of the total number of responses/respondents and
the total amount of time estimated for respondents in an average year
to keep the required records is: 1,379,533 responses annually; 118,348
hours. The breakout of the estimated burden and responses are stated in
the table immediately below. However, the number or responses from each
immigration detention facility will vary depending on a variety of
factors which may include: How many annual allegations, the number of
staff at each facility, and the number of detainees held at a facility.
(6) An estimate of the total public burden (in hours) associated
with the collection: 118,348 hours. There are no current information
collection requirements based on a PRA instrument or approved
collection on facilities to retain certain sexual abuse incident data.
This information collection will be the first regulation-based national
data collection for DHS facility-reported information on sexual abuse
within correctional facilities, characteristics of the victims and
perpetrators, circumstances surrounding the incidents, and how
incidents are reported, tracked, and adjudicated. For the facilities
that already maintain such records, there will be no additional burden
of recordkeeping and reporting as their current recordkeeping and
reporting will be sufficient for the need of DHS. The DHS rule would
not impose a requirement on facilities to maintain duplicative records.
However, for the purposes of this collection of information, DHS has
estimated the burden as if the collection and reporting requirements
are new for all 126 facilities.
The recordkeeping requirements set forth by this rule are new
requirements that will require a new OMB Control Number. DHS is seeking
comment on these new requirements as part of this NPRM. These new
requirements will require covered facilities to retain certain
specified information relating to sexual abuse prevention planning,
responsive planning, education and training, investigations and to
collect and retain certain specified information relating to
allegations of sexual abuse within the confinement facility. The
proposed recordkeeping requirements may be found in the following
sections of the proposed rule:
Subpart A--Immigration Detention Facilities
Subpart B--Holding Facilities
----------------------------------------------------------------------------------------------------------------
Avg. annual Avg. annual
Function NPRM cite responses hour burden
----------------------------------------------------------------------------------------------------------------
Documentation & Recordkeeping:
Strip and visual body cavity searches..... 115.15(e)....................... 500 83
Cross-gender pat-downs.................... 115.15 (d)...................... 444,000 37,000
Reports and referrals of allegations...... 115.22 (b), 115.51(c), 115.61 50 25
(a).
Detainee education........................ 115.33 (c)...................... 882,520 73,543
Administrative segregation................ 115.43 (a)...................... 500 125
Training records.......................... 115.31(c), 115.32(c), 115.34(b), 37,550 3,129
115.35(c).
Incident reviews.......................... 115.86(a), 115.87(b)............ 50 100
Maintaining case records of allegations... 115.87(a)....................... 50 100
Reporting Requirements:
Reporting to other confinement facilities. 115.63 (c)...................... 50 4
Annual report for agency.................. 115.86(b)....................... 50 50
ICE Review of Facility Policies and
Procedures:
Medical staff training policy............. 115.35(c)....................... 45 223
Staff disciplinary policy................. 115.76(b)....................... 45 223
Administrative investigation policy....... 115.71(c), (d).................. 45 223
Provide Evidence of Background Investigation:
Background Investigation Records.......... 115.17(c), (d).................. 14,079 3,520
-------------------------------
Total................................. ................................ 1,379,533 118,348
----------------------------------------------------------------------------------------------------------------
If additional information is required contact: Alexander Y.
Hartman; Office of Policy; U.S. Immigration and Customs Enforcement,
Department of Homeland Security; Potomac Center North, 500 12th Street
SW., Washington, DC 20536; Telephone: (202) 732-4292 (not a toll-free
number).
List of Subjects in 6 CFR Part 115
Administrative practice and procedure, Aliens, Immigration,
Reporting and recordkeeping requirements.
Accordingly, Part 115 of Title 6 of the Code of Federal Regulations
is proposed to be added to read as follows:
PART 115--SEXUAL ABUSE AND ASSAULT PREVENTION STANDARDS
Sec.
115.5 General definitions.
115.6 Definitions related to sexual abuse and assault.
[[Page 75331]]
Subpart A--Standards for Immigration Detention Facilities Coverage
115.10 Coverage of DHS immigration detention facilities.
Prevention Planning
115.11 Zero tolerance of sexual abuse; Prevention of Sexual Abuse
Coordinator.
115.12 Contracting with non-DHS entities for the confinement of
detainees.
115.13 Detainee supervision and monitoring.
115.14 Juvenile and family detainees.
115.15 Limits to cross-gender viewing and searches.
115.16 Accommodating detainees with disabilities and detainees who
are limited English proficient.
115.17 Hiring and promotion decisions.
115.18 Upgrades to facilities and technologies.
Responsive Planning
115.21 Evidence protocols and forensic medical examinations.
115.22 Policies to ensure investigation of allegations and
appropriate agency oversight.
Training and Education
115.31 Staff training.
115.32 Volunteer and contractor training.
115.33 Detainee education.
115.34 Specialized training: Investigations.
115.35 Specialized training: Medical and mental health care.
Assessment for Risk of Sexual Victimization and Abusiveness
115.41 Assessment for risk of victimization and abusiveness.
115.42 Use of assessment information.
115.43 Protective custody.
Reporting
115.51 Detainee reporting.
115.52 Grievances.
115.53 Detainee access to outside confidential support services.
115.54 Third-party reporting.
Official Response Following a Detainee Report
115.61 Staff reporting duties.
115.62 Protection duties.
115.63 Reporting to other confinement facilities.
115.64 Responder duties.
115.65 Coordinated response.
115.66 Protection of detainees from contact with alleged abusers.
115.67 Agency protection against retaliation.
115.68 Post-allegation protective custody.
Investigations
115.71 Criminal and administrative investigations.
115.72 Evidentiary standard for administrative investigations.
115.73 Reporting to detainees.
Discipline
115.76 Disciplinary sanctions for staff.
115.77 Corrective action for contractors and volunteers.
115.78 Disciplinary sanctions for detainees.
Medical and Mental Care
115.81 Medical and mental health assessments; history of sexual
abuse.
115.82 Access to emergency medical and mental health services.
115.83 Ongoing medical and mental health care for sexual abuse
victims and abusers.
Data Collection and Review
115.86 Sexual abuse incident reviews.
115.87 Data collection.
115.88 Data review for corrective action.
115.89 Data storage, publication, and destruction.
Audits and Compliance
115.93 Audits of standards.
Additional Provisions in Agency Policies
115.95 Additional provisions in agency policies.
Subpart B--Standards for DHS Holding Facilities Coverage
115.110 Coverage of DHS holding facilities.
Prevention Planning
115.111 Zero tolerance of sexual abuse; Prevention of Sexual Abuse
Coordinator.
115.112 Contracting with non-DHS entities for the confinement of
detainees.
115.113 Detainee supervision and monitoring.
115.114 Juvenile and family detainees.
115.115 Limits to cross-gender viewing and searches.
115.116 Accommodating detainees with disabilities and detainees who
are limited English proficient.
115.117 Hiring and promotion decisions.
115.118 Upgrades to facilities and technologies.
Responsive Planning
115.121 Evidence protocols and forensic medical examinations.
115.122 Policies to ensure investigation of allegations and
appropriate agency oversight.
Training and Education
115.131 Employee, contractor, and volunteer training.
115.132 Notification to detainees of the agency's zero-tolerance
policy.
115.133 [Reserved]
115.134 Specialized training: Investigations.
Assessment for Risk of Sexual Victimization and Abusiveness
115.141 Assessment for risk of victimization and abusiveness.
Reporting
115.151 Detainee reporting.
115.152 [Reserved]
115.153 [Reserved]
115.154 Third-party reporting.
Official Response Following a Detainee Report
115.161 Staff reporting duties.
115.162 Agency protection duties.
115.163 Reporting to other confinement facilities.
115.164 Responder duties.
115.165 Coordinated response.
115.166 Protection of detainees from contact with alleged abusers.
115.167 Agency protection against retaliation.
Investigations
115.171 Criminal and administrative investigations.
115.172 Evidentiary standard for administrative investigations.
Discipline
115.176 Disciplinary sanctions for staff.
115.177 Corrective action for contractors and volunteers.
Medical and Mental Care
115.181 [Reserved]
115.182 Access to emergency medical services.
Data Collection and Review
115.186 Sexual abuse incident reviews.
115.187 Data collection.
115.188 Data review for corrective action.
115.189 Data storage, publication, and destruction.
Audits and Compliance
115.193 Audits of standards.
Additional Provisions in Agency Policies
115.195 Additional provisions in agency policies.
Subpart C--External Auditing and Corrective Action
115.201 Scope of audits.
115.202 Auditor qualifications.
115.203 Audit contents and findings.
115.204 Audit corrective action plan.
115.205 Audit appeals.
Authority: 5 U.S.C. 301, 552, 552a; 8 U.S.C. 1103, 1182, 1223,
1224, 1225, 1226, 1227, 1228, 1231, 1251, 1253, 1255, 1330, 1362; 18
U.S.C. 4002, 4013(c)(4); Pub. L. 107-296, 116 Stat. 2135 (6 U.S.C.
101, et seq.); 8 CFR part 2.
Sec. 115.5 General definitions.
For purposes of this part, the term--
Agency means the unit or component of DHS responsible for operating
or supervising any facility, or part of a facility, that confines
detainees.
Agency head means the principal official of an agency.
Contractor means a person who or entity that provides services on a
recurring basis pursuant to a contractual agreement with the agency or
facility.
Detainee means any person detained in an immigration detention
facility or holding facility.
Employee means a person who works directly for the agency.
Exigent circumstances means any set of temporary and unforeseen
circumstances that require immediate action in order to combat a threat
to the security or institutional order of a facility or a threat to the
safety or security of any person.
[[Page 75332]]
Facility means a place, building (or part thereof), set of
buildings, structure, or area (whether or not enclosing a building or
set of buildings) that was built or retrofitted for the purpose of
detaining individuals and is routinely used by the agency to detain
individuals in its custody. References to requirements placed on
facilities extend to the entity responsible for the direct operation of
the facility.
Facility head means the principal official responsible for a
facility.
Family unit means a group of detainees that includes one or more
non-United States citizen juvenile(s) accompanied by his/her/their
parent(s) or legal guardian(s), none of whom has a known history of
criminal or delinquent activity, or of sexual abuse, violence or
substance abuse.
Gender nonconforming means having an appearance or manner that does
not conform to traditional societal gender expectations.
Holding facility means a facility that contains holding cells, cell
blocks, or other secure enclosures that are:
(1) Under the control of the agency; and
(2) Primarily used for the short-term confinement of individuals
who have recently been detained, or are being transferred to or from a
court, jail, prison, other agency, or other unit of the facility or
agency.
Immigration detention facility means a confinement facility
operated by or pursuant to contract with U.S. Immigration and Customs
Enforcement (ICE) that routinely holds persons for over 24 hours
pending resolution or completion of immigration removal operations or
processes, including facilities that are operated by ICE, facilities
that provide detention services under a contract awarded by ICE, or
facilities used by ICE pursuant to an Intergovernmental Service
Agreement.
Intersex means having sexual or reproductive anatomy or chromosomal
pattern that does not seem to fit typical definitions of male or
female. Intersex medical conditions are sometimes referred to as
disorders of sex development.
Juvenile means any person under the age of 18.
Law enforcement staff means officers or agents of the agency or
facility that are responsible for the supervision and control of
detainees in a holding facility.
Medical practitioner means a health professional who, by virtue of
education, credentials, and experience, is permitted by law to evaluate
and care for patients within the scope of his or her professional
practice. A ``qualified medical practitioner'' refers to such a
professional who has also successfully completed specialized training
for treating sexual abuse victims.
Mental health practitioner means a mental health professional who,
by virtue of education, credentials, and experience, is permitted by
law to evaluate and care for patients within the scope of his or her
professional practice. A ``qualified mental health practitioner''
refers to such a professional who has also successfully completed
specialized training for treating sexual abuse victims.
Pat-down search means a sliding or patting of the hands over the
clothed body of a detainee by staff to determine whether the individual
possesses contraband.
Security staff means employees primarily responsible for the
supervision and control of detainees in housing units, recreational
areas, dining areas, and other program areas of an immigration
detention facility.
Staff means employees or contractors of the agency or facility,
including any entity that operates within the facility.
Strip search means a search that requires a person to remove or
arrange some or all clothing so as to permit a visual inspection of the
person's breasts, buttocks, or genitalia.
Substantiated allegation means an allegation that was investigated
and determined to have occurred.
Transgender means a person whose gender identity (i.e., internal
sense of feeling male or female) is different from the person's
assigned sex at birth.
Unfounded allegation means an allegation that was investigated and
determined not to have occurred.
Unsubstantiated allegation means an allegation that was
investigated and the investigation produced insufficient evidence to
make a final determination as to whether or not the event occurred.
Volunteer means an individual who donates time and effort on a
recurring basis to enhance the activities and programs of the agency or
facility.
Sec. 115.6 Definitions related to sexual abuse and assault.
For purposes of this part, the term--
Sexual abuse includes--
(1) Sexual abuse and assault of a detainee by another detainee; and
(2) Sexual abuse and assault of a detainee by a staff member,
contractor, or volunteer.
Sexual abuse of a detainee by another detainee includes any of the
following acts by one or more detainees, prisoners, inmates, or
residents of the facility in which the detainee is housed who, by
force, coercion, or intimidation, or if the victim did not consent or
was unable to consent or refuse, engages in or attempts to engage in:
(1) Contact between the penis and the vulva or anus and, for
purposes of this subparagraph, contact involving the penis upon
penetration, however slight;
(2) Contact between the mouth and the penis, vulva or anus;
(3) Penetration, however slight, of the anal or genital opening of
another person by a hand or finger or by any object;
(4) Touching of the genitalia, anus, groin, breast, inner thighs or
buttocks, either directly or through the clothing, with an intent to
abuse, humiliate, harass, degrade or arouse or gratify the sexual
desire of any person; or
(5) Threats, intimidation, or other actions or communications by
one or more detainees aimed at coercing or pressuring another detainee
to engage in a sexual act.
Sexual abuse of a detainee by a staff member, contractor, or
volunteer includes any of the following acts, if engaged in by one or
more staff members, volunteers, or contract personnel who, with or
without the consent of the detainee, engages in or attempts to engage
in:
(1) Contact between the penis and the vulva or anus and, for
purposes of this subparagraph, contact involving the penis upon
penetration, however slight;
(2) Contact between the mouth and the penis, vulva, or anus;
(3) Penetration, however slight, of the anal or genital opening of
another person by a hand or finger or by any object that is unrelated
to official duties or where the staff member, contractor, or volunteer
has the intent to abuse, arouse, or gratify sexual desire;
(4) Intentional touching of the genitalia, anus, groin, breast,
inner thighs or buttocks, either directly or through the clothing, that
is unrelated to official duties or where the staff member, contractor,
or volunteer has the intent to abuse, arouse, or gratify sexual desire;
(5) Threats, intimidation, harassment, indecent, profane or abusive
language, or other actions or communications, aimed at coercing or
pressuring a detainee to engage in a sexual act;
(6) Repeated verbal statements or comments of a sexual nature to a
detainee;
(7) Any display of his or her uncovered genitalia, buttocks, or
breast in the presence of an inmate, detainee, or resident, or
(8) Unnecessary or inappropriate visual surveillance of a detainee.
[[Page 75333]]
Subpart A--Standards for Immigration Detention Facilities Coverage
Sec. 115.10 Coverage of DHS immigration detention facilities.
This subpart covers ICE immigration detention facilities. Standards
set forth in Subpart A are not applicable to Department of Homeland
Security (DHS) holding facilities.
Prevention Planning
Sec. 115.11 Zero tolerance of sexual abuse; Prevention of Sexual
Abuse Coordinator.
(a) The agency shall have a written policy mandating zero tolerance
toward all forms of sexual abuse and outlining the agency's approach to
preventing, detecting, and responding to such conduct.
(b) The agency shall employ or designate an upper-level, agency-
wide Prevention of Sexual Abuse Coordinator (PSA Coordinator) with
sufficient time and authority to develop, implement, and oversee agency
efforts to comply with these standards in all of its immigration
detention facilities.
(c) Each facility shall have a written policy mandating zero
tolerance toward all forms of sexual abuse and outlining the facility's
approach to preventing, detecting, and responding to such conduct. The
agency shall review and approve each facility's written policy.
(d) Each facility shall employ or designate a Prevention of Sexual
Abuse Compliance Manager (PSA Compliance Manager) who shall serve as
the facility point of contact for the agency PSA Coordinator and who
has sufficient time and authority to oversee facility efforts to comply
with facility sexual abuse prevention and intervention policies and
procedures.
Sec. 115.12 Contracting with non-DHS entities for the confinement of
detainees.
(a) When contracting for the confinement of detainees in
immigration detention facilities operated by non-DHS private or public
agencies or other entities, including other government agencies, the
agency shall include in any new contracts or contract renewals the
entity's obligation to adopt and comply with these standards.
(b) Any new contracts or contract renewals shall provide for agency
contract monitoring to ensure that the contractor is complying with
these standards.
Sec. 115.13 Detainee supervision and monitoring.
(a) Each facility shall ensure that it maintains sufficient
supervision of detainees, including through appropriate staffing levels
and, where applicable, video monitoring, to protect detainees against
sexual abuse.
(b) Each facility shall develop and document comprehensive detainee
supervision guidelines to determine and meet the facility's detainee
supervision needs, and shall review those guidelines at least annually.
(c) In determining adequate levels of detainee supervision and
determining the need for video monitoring, the facility shall take into
consideration the physical layout of each facility, the composition of
the detainee population, the prevalence of substantiated and
unsubstantiated incidents of sexual abuse, the findings and
recommendations of sexual abuse incident review reports, and any other
relevant factors, including but not limited to the length of time
detainees spend in agency custody.
(d) Each facility shall conduct frequent unannounced security
inspections to identify and deter sexual abuse of detainees. Such
inspections shall be implemented for night as well as day shifts. Each
facility shall prohibit staff from alerting others that these
supervisory rounds are occurring, unless such announcement is related
to the legitimate operational functions of the facility.
Sec. 115.14 Juvenile and family detainees.
(a) In general, juveniles should be detained in the least
restrictive setting appropriate to the juvenile's age and special
needs, provided that such setting is consistent with the need to
protect the juvenile's well-being and that of others, as well as with
any other laws, regulations, or legal requirements.
(b) The facility shall hold juveniles apart from adult detainees,
minimizing sight, sound, and physical contact, unless the juvenile is
in the presence of an adult member of the family unit, and provided
there are no safety or security concerns with the arrangement.
(c) In determining the existence of a family unit for detention
purposes, the agency shall seek to obtain reliable evidence of a family
relationship.
(d) The agency and facility shall provide priority attention to
unaccompanied alien children as defined by 6 U.S.C. 279(g)(2),
including transfer to a Department of Health and Human Services Office
of Refugee Resettlement facility within 72 hours, except in exceptional
circumstances, in accordance with 8 U.S.C. 1232(b)(3).
(e) If a juvenile has been convicted as an adult of crime related
to sexual abuse, the agency shall provide the facility and the
Department of Health and Human Services Office of Refugee Resettlement
with the releasable information regarding the conviction(s) to ensure
the appropriate placement of the alien in a Department of Health and
Human Services Office of Refugee Resettlement facility.
Sec. 115.15 Limits to cross-gender viewing and searches.
(a) Searches may be necessary to ensure the safety of officers,
civilians and detainees; to detect and secure evidence of criminal
activity; and to promote security, safety, and related interests at
immigration detention facilities.
(b) Cross-gender pat-down searches of male detainees shall not be
conducted unless, after reasonable diligence, staff of the same gender
is not available at the time the pat-down search is required or in
exigent circumstances.
(c) Cross-gender pat-down searches of female detainees shall not be
conducted unless in exigent circumstances.
(d) All cross-gender pat-down searches shall be documented.
(e) Cross-gender strip searches or cross-gender visual body cavity
searches shall not be conducted except in exigent circumstances,
including consideration of officer safety, or when performed by medical
practitioners. Facility staff shall not conduct visual body cavity
searches of juveniles and, instead, shall refer all such body cavity
searches of juveniles to a medical practitioner.
(f) All strip searches and visual body cavity searches shall be
documented.
(g) Each facility shall implement policies and procedures that
enable detainees to shower, perform bodily functions, and change
clothing without being viewed by staff of the opposite gender, except
in exigent circumstances or when such viewing is incidental to routine
cell checks or is otherwise appropriate in connection with a medical
examination or monitored bowel movement. Such policies and procedures
shall require staff of the opposite gender to announce their presence
when entering an area where detainees are likely to be showering,
performing bodily functions, or changing clothing.
(h) The facility shall permit detainees in Family Residential
Facilities to shower, perform bodily functions, and change clothing
without being viewed by staff, except in exigent circumstances or when
such viewing is incidental to routine cell checks or is otherwise
appropriate in connection with a medical examination or monitored bowel
movement.
(i) The facility shall not search or physically examine a detainee
for the sole purpose of determining the
[[Page 75334]]
detainee's gender. If the detainee's gender is unknown, it may be
determined during conversations with the detainee, by reviewing medical
records, or, if necessary, learning that information as part of a
broader medical examination conducted in private, by a medical
practitioner.
(j) The agency shall train security staff in proper procedures for
conducting pat-down searches, including cross-gender pat-down searches
and searches of transgender and intersex detainees. All pat-down
searches shall be conducted in a professional and respectful manner,
and in the least intrusive manner possible, consistent with security
needs and existing agency policy, including consideration of officer
safety.
Sec. 115.16 Accommodating detainees with disabilities and detainees
who are limited English proficient.
(a) The agency and each facility shall take appropriate steps to
ensure that detainees with disabilities (including, for example,
detainees who are deaf or hard of hearing, those who are blind or have
low vision, or those who have intellectual, psychiatric, or speech
disabilities) have an equal opportunity to participate in or benefit
from all aspects of the agency's and facility's efforts to prevent,
detect, and respond to sexual abuse. Such steps shall include, when
necessary to ensure effective communication with detainees who are deaf
or hard of hearing, providing access to in-person, telephonic, or video
interpretive services that enable effective, accurate, and impartial
interpretation, both receptively and expressively, using any necessary
specialized vocabulary. In addition, the agency and facility shall
ensure that any written materials related to sexual abuse are provided
in formats or through methods that ensure effective communication with
detainees with disabilities, including detainees who have intellectual
disabilities, limited reading skills, or who are blind or have low
vision. An agency or facility is not required to take actions that it
can demonstrate would result in a fundamental alteration in the nature
of a service, program, or activity, or in undue financial and
administrative burdens, as those terms are used in regulations
promulgated under title II of the Americans with Disabilities Act, 28
CFR 35.164.
(b) The agency and each facility shall take steps to ensure
meaningful access to all aspects of the agency's and facility's efforts
to prevent, detect, and respond to sexual abuse to detainees who are
limited English proficient, including steps to provide in-person or
telephonic interpretive services that enable effective, accurate, and
impartial interpretation, both receptively and expressively, using any
necessary specialized vocabulary.
(c) In matters relating to allegations of sexual abuse, the agency
and each facility shall provide in-person or telephonic interpretation
services that enable effective, accurate, and impartial interpretation,
by someone other than another detainee, unless the detainee expresses a
preference for a detainee interpreter, and the agency determines that
such interpretation is appropriate. The provision of interpreter
services by minors, alleged abusers, detainees who witnessed the
alleged abuse, and detainees who have a significant relationship with
the alleged abuser is not appropriate in matters relating to
allegations of sexual abuse.
Sec. 115.17 Hiring and promotion decisions.
(a) An agency or facility shall not hire or promote anyone who may
have contact with detainees, and shall not enlist the services of any
contractor or volunteer who may have contact with detainees, who has
engaged in sexual abuse in a prison, jail, holding facility, community
confinement facility, juvenile facility, or other institution (as
defined in 42 U.S.C. 1997); who has been convicted of engaging or
attempting to engage in sexual activity facilitated by force, overt or
implied threats of force, or coercion, or if the victim did not consent
or was unable to consent or refuse; or who has been civilly or
administratively adjudicated to have engaged in such activity.
(b) An agency or facility considering hiring or promoting staff
shall ask all applicants who may have contact with detainees directly
about previous misconduct described in paragraph (a) of this section,
in written applications or interviews for hiring or promotions and in
any interviews or written self-evaluations conducted as part of reviews
of current employees. Agencies and facilities shall also impose upon
employees a continuing affirmative duty to disclose any such
misconduct. The agency, consistent with law, shall make its best
efforts to contact all prior institutional employers of an applicant
for employment, to obtain information on substantiated allegations of
sexual abuse or any resignation during a pending investigation of
alleged sexual abuse.
(c) Before hiring new staff who may have contact with detainees,
the agency or facility shall conduct a background investigation to
determine whether the candidate for hire is suitable for employment
with the facility or agency, including a criminal background records
check. Upon request by the agency, the facility shall submit for the
agency's approval written documentation showing the detailed elements
of the facility's background check for each staff member and the
facility's conclusions. The agency shall conduct an updated background
investigation every five years for agency employees who may have
contact with detainees. The facility shall require an updated
background investigation every five years for those facility staff who
may have contact with detainees and who work in immigration-only
detention facilities.
(d) The agency or facility shall also perform a background
investigation before enlisting the services of any contractor who may
have contact with detainees. Upon request by the agency, the facility
shall submit for the agency's approval written documentation showing
the detailed elements of the facility's background check for each
contractor and the facility's conclusions.
(e) Material omissions regarding such misconduct, or the provision
of materially false information, shall be grounds for termination or
withdrawal of an offer of employment, as appropriate.
(f) Unless prohibited by law, the agency shall provide information
on substantiated allegations of sexual abuse involving a former
employee upon receiving a request from an institutional employer for
whom such employee has applied to work.
(g) In the event the agency contracts with a facility for the
confinement of detainees, the requirements of this section otherwise
applicable to the agency also apply to the facility and its staff.
Sec. 115.18 Upgrades to facilities and technologies.
(a) When designing or acquiring any new facility and in planning
any substantial expansion or modification of existing facilities, the
facility or agency, as appropriate, shall consider the effect of the
design, acquisition, expansion, or modification upon their ability to
protect detainees from sexual abuse.
(b) When installing or updating a video monitoring system,
electronic surveillance system, or other monitoring technology in an
immigration detention facility, the facility or agency, as appropriate,
shall consider how such technology may enhance their ability to protect
detainees from sexual abuse.
[[Page 75335]]
Responsive Planning
Sec. 115.21 Evidence protocols and forensic medical examinations.
(a) To the extent that the agency or facility is responsible for
investigating allegations of sexual abuse involving detainees, it shall
follow a uniform evidence protocol that maximizes the potential for
obtaining usable physical evidence for administrative proceedings and
criminal prosecutions. The protocol shall be developed in coordination
with DHS and shall be developmentally appropriate for juveniles, where
applicable.
(b) The agency and each facility developing an evidence protocol
referred to in paragraph (a) of this section, shall consider how best
to utilize available community resources and services to provide
valuable expertise and support in the areas of crisis intervention and
counseling to most appropriately address victims' needs. Each facility
shall establish procedures to make available, to the full extent
possible, outside victim services following incidents of sexual abuse;
the facility shall attempt to make available to the victim a victim
advocate from a rape crisis center. If a rape crisis center is not
available to provide victim advocate services, the agency shall provide
these services by making available a qualified staff member from a
community-based organization, or a qualified agency staff member. A
qualified agency staff member or a qualified community-based staff
member means an individual who has received education concerning sexual
assault and forensic examination issues in general. The outside or
internal victim advocate shall provide emotional support, crisis
intervention, information, and referrals.
(c) Where evidentiarily or medically appropriate, at no cost to the
detainee, and only with the detainee's consent, the facility shall
arrange for an alleged victim detainee to undergo a forensic medical
examination by qualified health care personnel.
(d) As requested by a victim, the presence of his or her outside or
internal victim advocate, including any available victim advocacy
services offered by a hospital conducting a forensic exam, shall be
allowed for support during a forensic exam and investigatory
interviews.
(e) To the extent that the agency is not responsible for
investigating allegations of sexual abuse, the agency or the facility
shall request that the investigating agency follow the requirements of
paragraphs (a) through (d) of this section.
Sec. 115.22 Policies to ensure investigation of allegations and
appropriate agency oversight.
(a) The agency shall establish an agency protocol, and shall
require each facility to establish a facility protocol, to ensure that
each allegation of sexual abuse is investigated by the agency or
facility, or referred to an appropriate investigative authority. The
agency shall ensure that an administrative or criminal investigation is
completed for all allegations of sexual abuse.
(b) The agency shall ensure that the agency and facility protocols
required by paragraph (a) of this section, include a description of
responsibilities of the agency, the facility, and any other
investigating entities; and require the documentation and maintenance,
for at least five years, of all reports and referrals of allegations of
sexual abuse.
(c) The agency shall post its protocols on its Web site; each
facility shall also post its protocols on its Web site, if it has one,
or otherwise make the protocol available to the public.
(d) Each facility protocol shall ensure that all allegations are
promptly reported to the agency as described in paragraphs (e) and (f)
of this section, and, unless the allegation does not involve
potentially criminal behavior, are promptly referred for investigation
to an appropriate law enforcement agency with the legal authority to
conduct criminal investigations. A facility may separately, and in
addition to the above reports and referrals, conduct its own
investigation.
(e) When a detainee, prisoner, inmate, or resident of the facility
in which an alleged detainee victim is housed is alleged to be the
perpetrator of detainee sexual abuse, the facility shall ensure that
the incident is promptly reported to the Joint Intake Center, the ICE
Office of Professional Responsibility or the DHS Office of Inspector
General, as well as the appropriate ICE Field Office Director, and, if
it is potentially criminal, referred to an appropriate law enforcement
agency having jurisdiction for investigation.
(f) When a staff member, contractor, or volunteer is alleged to be
the perpetrator of detainee sexual abuse, the facility shall ensure
that the incident is promptly reported to the Joint Intake Center, the
ICE Office of Professional Responsibility or the DHS Office of
Inspector General, as well as to the appropriate ICE Field Office
Director, and to the local government entity or contractor that owns or
operates the facility. If the incident is potentially criminal, the
facility shall ensure that it is promptly referred to an appropriate
law enforcement agency having jurisdiction for investigation.
(g) The agency shall ensure that all allegations of detainee sexual
abuse are promptly reported to the PSA Coordinator, and to the
appropriate offices within the agency and within DHS to ensure
appropriate oversight of the investigation.
(h) The agency shall ensure that any alleged detainee victim of
sexual abuse that is criminal in nature is provided access to U
nonimmigrant visa information.
Training and Education
Sec. 115.31 Staff training.
(a) The agency shall train, or require the training of, all
employees who may have contact with immigration detainees, and all
facility staff, to be able to fulfill their responsibilities under this
part, including training on:
(1) The agency's and the facility's zero-tolerance policies for all
forms of sexual abuse;
(2) The right of detainees and staff to be free from sexual abuse,
and from retaliation for reporting sexual abuse;
(3) Definitions and examples of prohibited and illegal sexual
behavior;
(4) Recognition of situations where sexual abuse may occur;
(5) Recognition of physical, behavioral, and emotional signs of
sexual abuse, and methods of preventing and responding to such
occurrences;
(6) How to avoid inappropriate relationships with detainees;
(7) How to communicate effectively and professionally with
detainees, including lesbian, gay, bisexual, transgender, intersex, or
gender nonconforming detainees;
(8) Procedures for reporting knowledge or suspicion of sexual
abuse; and
(9) The requirement to limit reporting of sexual abuse to personnel
with a need-to-know in order to make decisions concerning the victim's
welfare and for law enforcement or investigative purposes.
(b) All current facility staff, and all agency employees who may
have contact with immigration detention facility detainees, shall be
trained within one year of [EFFECTIVE DATE OF FINAL RULE], and the
agency or facility shall provide refresher information every two years.
(c) The agency and each facility shall document that staff that may
have contact with immigration facility detainees have completed the
training.
[[Page 75336]]
Sec. 115.32 Volunteer and contractor training.
(a) The facility shall ensure that all volunteers and contractors
who have contact with detainees have been trained on their
responsibilities under the agency's and the facility's sexual abuse
prevention, detection, intervention and response policies and
procedures.
(b) The level and type of training provided to volunteers and
contractors shall be based on the services they provide and level of
contact they have with detainees, but all volunteers and contractors
who have contact with detainees shall be notified of the agency's and
the facility's zero-tolerance policies regarding sexual abuse and
informed how to report such incidents.
(c) Each facility shall receive and maintain written confirmation
that contractors and volunteers who may have contact with immigration
facility detainees have completed the training.
Sec. 115.33 Detainee education.
(a) During the intake process, each facility shall ensure that the
detainee orientation program notifies and informs detainees about the
agency's and the facility's zero-tolerance policies for all forms of
sexual abuse and includes (at a minimum) instruction on:
(1) Prevention and intervention strategies;
(2) Definitions and examples of detainee-on-detainee sexual abuse,
staff-on-detainee sexual abuse and coercive sexual activity;
(3) Explanation of methods for reporting sexual abuse, including to
any staff member, including a staff member other than an immediate
point-of-contact line officer (e.g., the compliance manager or a mental
health specialist), the DHS Office of Inspector General, and the Joint
Intake Center;
(4) Information about self-protection and indicators of sexual
abuse;
(5) Prohibition against retaliation, including an explanation that
reporting sexual abuse shall not negatively impact the detainee's
immigration proceedings; and
(6) The right of a detainee who has been subjected to sexual abuse
to receive treatment and counseling.
(b) Each facility shall provide the detainee notification,
orientation, and instruction in formats accessible to all detainees,
including those who are limited English proficient, deaf, visually
impaired or otherwise disabled, as well as to detainees who have
limited reading skills.
(c) The facility shall maintain documentation of detainee
participation in the intake process orientation.
(d) Each facility shall post on all housing unit bulletin boards
the following notices:
(1) The DHS-prescribed sexual assault awareness notice;
(2) The name of the Prevention of Sexual Abuse Compliance Manager;
and
(3) The name of local organizations that can assist detainees who
have been victims of sexual abuse.
(e) The facility shall make available and distribute the DHS-
prescribed ``Sexual Assault Awareness Information'' pamphlet.
(f) Information about reporting sexual abuse shall be included in
the agency Detainee Handbook made available to all immigration
detention facility detainees.
Sec. 115.34 Specialized training: Investigations.
(a) In addition to the general training provided to all facility
staff and employees pursuant to Sec. 115.31, the agency or facility
shall provide specialized training on sexual abuse and effective cross-
agency coordination to agency or facility investigators, respectively,
who conduct investigations into allegations of sexual abuse at
immigration detention facilities. All investigations into alleged
sexual abuse must be conducted by qualified investigators.
(b) The agency and facility must maintain written documentation
verifying specialized training provided to investigators pursuant to
this paragraph.
Sec. 115.35 Specialized training: Medical and mental health care.
(a) The agency shall provide specialized training to DHS or agency
employees who serve as full- and part-time medical practitioners or
full- and part-time mental health practitioners in immigration
detention facilities where medical and mental health care is provided.
(b) The training required by this section shall cover, at a
minimum, the following topics:
(1) How to detect and assess signs of sexual abuse;
(2) How to respond effectively and professionally to victims of
sexual abuse,
(3) How and to whom to report allegations or suspicions of sexual
abuse, and
(4) How to preserve physical evidence of sexual abuse. If medical
staff employed by the agency conduct forensic examinations, such
medical staff shall receive the appropriate training to conduct such
examinations.
(c) The agency shall review and approve the facility's policy and
procedures to ensure that facility medical staff is trained in
procedures for examining and treating victims of sexual abuse, in
facilities where medical staff may be assigned these activities.
Assessment for Risk of Sexual Victimization and Abusiveness
Sec. 115.41 Assessment for risk of victimization and abusiveness.
(a) The facility shall assess all detainees on intake to identify
those likely to be sexual aggressors or sexual victims and shall house
detainees to prevent sexual abuse, taking necessary steps to mitigate
any such danger. Each new arrival shall be kept separate from the
general population until he/she is classified and may be housed
accordingly.
(b) The initial classification process and initial housing
assignment should be completed within twelve hours of admission to the
facility.
(c) The facility shall also consider, to the extent that the
information is available, the following criteria to assess detainees
for risk of sexual victimization:
(1) Whether the detainee has a mental, physical, or developmental
disability;
(2) The age of the detainee;
(3) The physical build and appearance of the detainee;
(4) Whether the detainee has previously been incarcerated;
(5) The nature of the detainee's criminal history;
(6) Whether the detainee has any convictions for sex offenses
against an adult or child;
(7) Whether the detainee has self-identified as gay, lesbian,
bisexual, transgender, intersex, or gender nonconforming;
(8) Whether the detainee has self-identified as having previously
experienced sexual victimization; and
(9) The detainee's own concerns about his or her physical safety.
(d) The initial screening shall consider prior acts of sexual
abuse, prior convictions for violent offenses, and history of prior
institutional violence or sexual abuse, as known to the facility, in
assessing detainees for risk of being sexually abusive.
(e) The facility shall reassess each detainee's risk of
victimization or abusiveness between 60 and 90 days from the date of
initial assessment, and at any other time when warranted based upon the
receipt of additional, relevant information or following an incident of
abuse or victimization.
(f) Detainees shall not be disciplined for refusing to answer, or
for not disclosing complete information in
[[Page 75337]]
response to, questions asked pursuant to paragraphs (c)(1), (c)(7),
(c)(8), or (c)(9) of this section.
(g) The facility shall implement appropriate controls on the
dissemination within the facility of responses to questions asked
pursuant to this standard in order to ensure that sensitive information
is not exploited to the detainee's detriment by staff or other
detainees or inmates.
Sec. 115.42 Use of assessment information.
(a) The facility shall use the information from the risk assessment
under Sec. 115.41 of this part to inform assignment of detainees to
housing, recreation and other activities, and voluntary work. The
agency shall make individualized determinations about how to ensure the
safety of each detainee.
(b) When making assessment and housing decisions for a transgender
or intersex detainee, the facility shall consider the detainee's gender
self-identification and an assessment of the effects of placement on
the detainee's health and safety. The facility shall consult a medical
or mental health professional as soon as practicable on this
assessment. The facility should not base placement decisions of
transgender or intersex detainees solely on the identity documents or
physical anatomy of the detainee; a detainee's self-identification of
his/her gender and self-assessment of safety needs shall always be
taken into consideration as well. The facility's placement of a
transgender or intersex detainee shall be consistent with the safety
and security considerations of the facility, and placement and
programming assignments for each transgender or intersex detainee shall
be reassessed at least twice each year to review any threats to safety
experienced by the detainee.
(c) When operationally feasible, transgender and intersex detainees
shall be given the opportunity to shower separately from other
detainees.
Sec. 115.43 Protective custody.
(a) The facility shall develop and follow written procedures
consistent with the standards in this Subpart A for each facility
governing the management of its administrative segregation unit. These
procedures, which should be developed in consultation with the ICE
Enforcement and Removal Operations Field Operations Director having
jurisdiction for the facility, must document detailed reasons for
placement of an individual in administrative segregation.
(b) Use of administrative segregation by facilities to protect
vulnerable detainees shall be restricted to those instances where
reasonable efforts have been made to provide appropriate housing and
shall be made for the least amount of time practicable, and when no
other viable housing options exist, as a last resort. The facility
should assign such detainees to administrative segregation for
protective custody only until an alternative means of separation from
likely abusers can be arranged, and such an assignment shall not
ordinarily exceed a period of 30 days.
(c) Facilities that place detainees in administrative segregation
for protective custody shall provide those detainees access to
programs, visitation, counsel and other services available to the
general population to the maximum extent practicable.
(d) Facilities shall implement written procedures for the regular
review of all detainees held in administrative segregation, as follows:
(1) A supervisory staff member shall conduct a review within 72
hours of the detainee's placement in administrative segregation to
determine whether segregation is still warranted; and
(2) A supervisory staff member shall conduct, at a minimum, an
identical review after the detainee has spent seven days in
administrative segregation, and every week thereafter for the first 30
days, and every 10 days thereafter.
Reporting
Sec. 115.51 Detainee reporting.
(a) The agency and each facility shall develop policies and
procedures to ensure that detainees have multiple ways to privately
report sexual abuse, retaliation for reporting sexual abuse, or staff
neglect or violations of responsibilities that may have contributed to
such incidents. The agency and each facility shall also provide
instructions on how detainees may contact their consular official, the
DHS Office of the Inspector General or, as appropriate, another
designated office, to confidentially and, if desired, anonymously,
report these incidents.
(b) The agency shall also provide, and the facility shall inform
the detainees of, at least one way for detainees to report sexual abuse
to a public or private entity or office that is not part of the agency,
and that is able to receive and immediately forward detainee reports of
sexual abuse to agency officials, allowing the detainee to remain
anonymous upon request.
(c) Facility policies and procedures shall include provisions for
staff to accept reports made verbally, in writing, anonymously, and
from third parties and to promptly document any verbal reports.
Sec. 115.52 Grievances.
(a) The facility shall permit a detainee to file a formal grievance
related to sexual abuse at any time during, after, or in lieu of
lodging an informal grievance or complaint.
(b) The facility shall not impose a time limit on when a detainee
may submit a grievance regarding an allegation of sexual abuse.
(c) The facility shall implement written procedures for identifying
and handling time-sensitive grievances that involve an immediate threat
to detainee health, safety, or welfare related to sexual abuse.
(d) Facility staff shall bring medical emergencies to the immediate
attention of proper medical personnel for further assessment.
(e) The facility shall issue a decision on the grievance within
five days of receipt.
(f) To prepare a grievance, a detainee may obtain assistance from
another detainee, the housing officer or other facility staff, family
members, or legal representatives. Staff shall take reasonable steps to
expedite requests for assistance from these other parties.
Sec. 115.53 Detainee access to outside confidential support services.
(a) Each facility shall utilize available community resources and
services to provide valuable expertise and support in the areas of
crisis intervention, counseling, investigation and the prosecution of
sexual abuse perpetrators to most appropriately address victims' needs.
The facility shall maintain or attempt to enter into memoranda of
understanding or other agreements with community service providers or,
if local providers are not available, with national organizations that
provide legal advocacy and confidential emotional support services for
immigrant victims of crime.
(b) Each facility's written policies shall establish procedures to
include outside agencies in the facility's sexual abuse prevention and
intervention protocols, if such resources are available.
(c) Each facility shall make available to detainees information
about local organizations that can assist detainees who have been
victims of sexual abuse, including mailing addresses and telephone
numbers (including toll-free hotline numbers where available). If no
such local organizations exist, the facility shall make available the
same
[[Page 75338]]
information about national organizations. The facility shall enable
reasonable communication between detainees and these organizations and
agencies, in as confidential a manner as possible.
Sec. 115.54 Third-party reporting.
Each facility shall establish a method to receive third-party
reports of sexual abuse in its immigration detention facilities and
shall make available to the public information on how to report sexual
abuse on behalf of a detainee.
Official Response Following a Detainee Report
Sec. 115.61 Staff reporting duties.
(a) The agency and each facility shall require all staff to report
immediately and according to agency policy any knowledge, suspicion, or
information regarding an incident of sexual abuse that occurred in a
facility; retaliation against detainees or staff who reported such an
incident; and any staff neglect or violation of responsibilities that
may have contributed to an incident or retaliation. The agency shall
review and approve facility policies and procedures and shall ensure
that the facility specifies appropriate reporting procedures, including
a method by which staff can report outside of the chain of command.
(b) Staff members who become aware of alleged sexual abuse shall
immediately follow the reporting requirements set forth in the agency's
and facility's written policies and procedures.
(c) Apart from such reporting, staff shall not reveal any
information related to a sexual abuse report to anyone other than to
the extent necessary to help protect the safety of the victim or
prevent further victimization of other detainees or staff in the
facility, make medical treatment, investigation, law enforcement, or
other security and management decisions.
(d) If the alleged victim is under the age of 18 or considered a
vulnerable adult under a State or local vulnerable persons statute, the
agency shall report the allegation to the designated State or local
services agency under applicable mandatory reporting laws.
Sec. 115.62 Protection duties.
If an agency employee or facility staff member has a reasonable
belief that a detainee is subject to a substantial risk of imminent
sexual abuse, he or she shall take immediate action to protect the
detainee.
Sec. 115.63 Reporting to other confinement facilities.
(a) Upon receiving an allegation that a detainee was sexually
abused while confined at another facility, the agency or facility whose
staff received the allegation shall notify the appropriate office of
the facility where the alleged abuse occurred.
(b) The notification provided in paragraph (a) of this section
shall be provided as soon as possible, but no later than 72 hours after
receiving the allegation.
(c) The agency or facility shall document that it has provided such
notification.
(d) The agency or facility office that receives such notification,
to the extent the facility is covered by this subpart, shall ensure
that the allegation is referred for investigation in accordance with
these standards and reported to the appropriate ICE Field Office
Director.
Sec. 115.64 Responder duties.
(a) Upon learning of an allegation that a detainee was sexually
abused, the first security staff member to respond to the report, or
his or her supervisor, shall be required to:
(1) Separate the alleged victim and abuser;
(2) Preserve and protect, to the greatest extent possible, any
crime scene until appropriate steps can be taken to collect any
evidence;
(3) If the abuse occurred within a time period that still allows
for the collection of physical evidence, request the alleged victim not
to take any actions that could destroy physical evidence, including, as
appropriate, washing, brushing teeth, changing clothes, urinating,
defecating, smoking, drinking, or eating; and
(4) If the sexual abuse occurred within a time period that still
allows for the collection of physical evidence, ensure that the alleged
abuser does not take any actions that could destroy physical evidence,
including, as appropriate, washing, brushing teeth, changing clothes,
urinating, defecating, smoking, drinking, or eating.
(b) If the first staff responder is not a security staff member,
the responder shall be required to request that the alleged victim not
take any actions that could destroy physical evidence and then notify
security staff.
Sec. 115.65 Coordinated response.
(a) Each facility shall develop a written institutional plan to
coordinate actions taken by staff first responders, medical and mental
health practitioners, investigators, and facility leadership in
response to an incident of sexual abuse.
(b) Each facility shall use a coordinated, multidisciplinary team
approach to responding to sexual abuse.
(c) If a victim of sexual abuse is transferred between DHS
immigration detention facilities, the sending facility shall, as
permitted by law, inform the receiving facility of the incident and the
victim's potential need for medical or social services.
(d) If a victim is transferred from a DHS immigration detention
facility to a non-DHS facility, the sending facility shall, as
permitted by law, inform the receiving facility of the incident and the
victim's potential need for medical or social services, unless the
victim requests otherwise.
Sec. 115.66 Protection of detainees from contact with alleged
abusers.
Staff, contractors, and volunteers suspected of perpetrating sexual
abuse shall be removed from all duties requiring detainee contact
pending the outcome of an investigation.
Sec. 115.67 Agency protection against retaliation.
Staff, contractors, and volunteers, and immigration detention
facility detainees, shall not retaliate against any person, including a
detainee, who reports, complains about, or participates in an
investigation into an allegation of sexual abuse, or for participating
in sexual activity as a result of force, coercion, threats, or fear of
force. For at least 90 days following a report of sexual abuse, the
agency and facility shall monitor to see if there are facts that may
suggest possible retaliation by detainees or staff, and shall act
promptly to remedy any such retaliation. Items the agency should
monitor include any detainee disciplinary reports, housing, or program
changes, or negative performance reviews or reassignments of staff. DHS
shall continue such monitoring beyond 90 days if the initial monitoring
indicates a continuing need.
Sec. 115.68 Post-allegation protective custody.
(a) The facility shall take care to place detainee victims of
sexual abuse in a supportive environment that represents the least
restrictive housing option possible (e.g., protective custody), subject
to the requirements of Sec. 115.43.
(b) Detainee victims shall not be held for longer than five days in
any type of administrative segregation, except in unusual circumstances
or at the request of the detainee.
(c) A detainee victim who is in protective custody after having
been subjected to sexual abuse shall not be returned to the general
population until
[[Page 75339]]
completion of a proper re-assessment, taking into consideration any
increased vulnerability of the detainee as a result of the sexual
abuse.
Investigations
Sec. 115.71 Criminal and administrative investigations.
(a) If the facility has responsibility for investigating
allegations of sexual abuse, all investigations into alleged sexual
abuse must be prompt, thorough, objective, and conducted by specially
trained, qualified investigators.
(b) Upon conclusion of a criminal investigation where the
allegation was substantiated, an administrative investigation shall be
conducted. Upon conclusion of a criminal investigation where the
allegation was unsubstantiated, the facility shall review any available
completed criminal investigation reports to determine whether an
administrative investigation is necessary or appropriate.
Administrative investigations shall be conducted after consultation
with the appropriate investigative office within DHS, and the assigned
criminal investigative entity.
(c)(1) The facility shall develop written procedures for
administrative investigations, including provisions requiring:
(i) Preservation of direct and circumstantial evidence, including
any available physical and DNA evidence and any available electronic
monitoring data;
(ii) Interviewing alleged victims, suspected perpetrators, and
witnesses;
(iii) Reviewing prior complaints and reports of sexual abuse
involving the suspected perpetrator;
(iv) Assessment of the credibility of an alleged victim, suspect,
or witness, without regard to the individual's status as detainee,
staff, or employee, and without requiring any detainee who alleges
sexual abuse to submit to a polygraph;
(v) An effort to determine whether actions or failures to act at
the facility contributed to the abuse; and
(vi) Documentation of each investigation by written report, which
shall include a description of the physical and testimonial evidence,
the reasoning behind credibility assessments, and investigative facts
and findings; and
(vii) Retention of such reports for as long as the alleged abuser
is detained or employed by the agency or facility, plus five years.
(2) Such procedures shall govern the coordination and sequencing of
the two types of investigations, in accordance with paragraph (b) of
this section, to ensure that the criminal investigation is not
compromised by an internal administrative investigation.
(d) The agency shall review and approve the facility policy and
procedures for coordination and conduct of internal administrative
investigations with the assigned criminal investigative entity to
ensure non-interference with criminal investigations.
(e) The departure of the alleged abuser or victim from the
employment or control of the facility or agency shall not provide a
basis for terminating an investigation.
(f) When outside agencies investigate sexual abuse, the facility
shall cooperate with outside investigators and shall endeavor to remain
informed about the progress of the investigation.
Sec. 115.72 Evidentiary standard for administrative investigations.
When an administrative investigation is undertaken, the agency
shall impose no standard higher than a preponderance of the evidence in
determining whether allegations of sexual abuse are substantiated.
Sec. 115.73 Reporting to detainees.
The agency shall, when the detainee is still in immigration
detention, or where otherwise feasible, following an investigation into
a detainee's allegation of sexual abuse, notify the detainee as to the
result of the investigation and any responsive action taken.
Discipline
Sec. 115.76 Disciplinary sanctions for staff.
(a) Staff shall be subject to disciplinary or adverse action up to
and including removal from their position and the Federal service for
substantiated allegations of sexual abuse or for violating agency or
facility sexual abuse policies.
(b) The agency shall review and approve facility policies and
procedures regarding disciplinary or adverse actions for staff and
shall ensure that the facility policy and procedures specify
disciplinary or adverse actions for staff, up to and including removal
from their position and from the Federal service, when there is a
substantiated allegation of sexual abuse, or when there has been a
violation of agency sexual abuse rules, policies, or standards. Removal
from their position and from the Federal service is the presumptive
disciplinary sanction for staff who have engaged in or attempted or
threatened to engage in sexual abuse, as defined under paragraphs (1)
through (4), (7), and (8) of the definition of sexual abuse of a
detained by a staff member, contractor, or volunteer in Sec. 115.6 of
this part.
(c) Each facility shall report all removals or resignations in lieu
of removal for violations of agency or facility sexual abuse policies
to appropriate law enforcement agencies, unless the activity was
clearly not criminal.
(d) Each facility shall make reasonable efforts to report removals
or resignations in lieu of removal for violations of agency or facility
sexual abuse policies to any relevant licensing bodies, to the extent
known.
Sec. 115.77 Corrective action for contractors and volunteers.
(a) Any contractor or volunteer who has engaged in sexual abuse
shall be prohibited from contact with detainees. Each facility shall
make reasonable efforts to report to any relevant licensing body, to
the extent known, incidents of substantiated sexual abuse by a
contractor or volunteer. Such incidents shall also be reported to law
enforcement agencies, unless the activity was clearly not criminal.
(b) Contractors and volunteers suspected of perpetrating sexual
abuse shall be removed from all duties requiring detainee contact
pending the outcome of an investigation.
(c) The facility shall take appropriate remedial measures, and
shall consider whether to prohibit further contact with detainees by
contractors or volunteers who have not engaged in sexual abuse, but
have violated other provisions within these standards.
Sec. 115.78 Disciplinary sanctions for detainees.
(a) Each facility shall subject a detainee to disciplinary
sanctions pursuant to a formal disciplinary process following an
administrative or criminal finding that the detainee engaged in sexual
abuse.
(b) At all steps in the disciplinary process provided in paragraph
(a), any sanctions imposed shall be commensurate with the severity of
the committed prohibited act and intended to encourage the detainee to
conform with rules and regulations in the future.
(c) Each facility holding detainees in custody shall have a
detainee disciplinary system with progressive levels of reviews,
appeals, procedures, and documentation procedure.
(d) The disciplinary process shall consider whether a detainee's
mental disabilities or mental illness contributed to his or her
behavior when determining what type of sanction, if any, should be
imposed.
(e) The facility shall not discipline a detainee for sexual contact
with staff
[[Page 75340]]
unless there is a finding that the staff member did not consent to such
contact.
(f) For the purpose of disciplinary action, a report of sexual
abuse made in good faith based upon a reasonable belief that the
alleged conduct occurred shall not constitute falsely reporting an
incident or lying, even if an investigation does not establish evidence
sufficient to substantiate the allegation.
Medical and Mental Care
Sec. 115.81 Medical and mental health assessments; history of sexual
abuse.
(a) If the assessment pursuant to Sec. 115.41 of this part
indicates that a detainee has experienced prior sexual victimization or
perpetrated sexual abuse, staff shall ensure, subject to the
circumstances surrounding the indication, that the detainee is
immediately referred to a qualified medical or mental health
practitioner for medical and/or mental health follow-up as appropriate.
(b) When a referral for medical follow-up is initiated, the
detainee shall receive a health evaluation no later than two working
days from the date of assessment.
(c) When a referral for mental health follow-up is initiated, the
detainee shall receive a mental health evaluation no later than 72
hours after the referral.
Sec. 115.82 Access to emergency medical and mental health services.
(a) Detainee victims of sexual abuse in immigration detention
facilities shall have timely, unimpeded access to emergency medical
treatment and crisis intervention services, including emergency
contraception and sexually transmitted infections prophylaxis, in
accordance with professionally accepted standards of care, where
appropriate under medical or mental health professional standards.
(b) Emergency medical treatment services provided to the victim
shall be without financial cost and regardless of whether the victim
names the abuser or cooperates with any investigation arising out of
the incident.
Sec. 115.83 Ongoing medical and mental health care for sexual abuse
victims and abusers.
(a) Each facility shall offer medical and mental health evaluation
and, as appropriate, treatment to all detainees who have been
victimized by sexual abuse while in immigration detention.
(b) The evaluation and treatment of such victims shall include, as
appropriate, follow-up services, treatment plans, and, when necessary,
referrals for continued care following their transfer to, or placement
in, other facilities, or their release from custody.
(c) The facility shall provide such victims with medical and mental
health services consistent with the community level of care.
(d) Detainee victims of sexually abusive vaginal penetration by a
male abuser while incarcerated shall be offered pregnancy tests. If
pregnancy results from an instance of sexual abuse, the victim shall
receive timely and comprehensive information about lawful pregnancy-
related medical services and timely access to all lawful pregnancy-
related medical services.
(e) Detainee victims of sexual abuse while detained shall be
offered tests for sexually transmitted infections as medically
appropriate.
(f) Treatment services shall be provided to the victim without
financial cost and regardless of whether the victim names the abuser or
cooperates with any investigation arising out of the incident.
(g) The facility shall attempt to conduct a mental health
evaluation of all known detainee-on-detainee abusers within 60 days of
learning of such abuse history and offer treatment when deemed
appropriate by mental health practitioners.
Data Collection and Review
Sec. 115.86 Sexual abuse incident reviews.
(a) Each facility shall conduct a sexual abuse incident review at
the conclusion of every investigation of sexual abuse and, where the
allegation was not determined to be unfounded, prepare a written report
recommending whether the allegation or investigation indicates that a
change in policy or practice could better prevent, detect, or respond
to sexual abuse. The facility shall implement the recommendations for
improvement, or shall document its reasons for not doing so in a
written response. Both the report and response shall be forwarded to
the agency PSA Coordinator.
(b) Each facility shall conduct an annual review of all sexual
abuse investigations and resulting incident reviews to assess and
improve sexual abuse intervention, prevention and response efforts. The
results and findings of the annual review shall be provided to the
agency PSA Coordinator.
Sec. 115.87 Data collection.
(a) Each facility shall maintain all case records associated with
claims of sexual abuse, including incident reports, investigative
reports, offender information, case disposition, medical and counseling
evaluation findings, and recommendations for post-release treatment, if
necessary, and/or counseling in accordance with these standards and
applicable agency policies, and in accordance with established
schedules. The DHS Office of Inspector General shall maintain the
official investigative file related to claims of sexual abuse
investigated by the DHS Office of Inspector General.
(b) On an ongoing basis, the PSA Coordinator shall work with
relevant facility PSA Compliance Managers and DHS entities to share
data regarding effective agency response methods to sexual abuse.
(c) On a regular basis, the PSA Coordinator shall prepare a report
for ICE leadership compiling information received about all incidents
or allegations of sexual abuse of detainees in immigration detention
during the period covered by the report, as well as ongoing
investigations and other pending cases.
(d) On an annual basis, the PSA Coordinator shall aggregate, in a
manner that will facilitate the agency's ability to detect possible
patterns and help prevent future incidents, the incident-based sexual
abuse data, including the number of reported sexual abuse allegations
determined to be substantiated, unsubstantiated, or unfounded, or for
which investigation is ongoing, and for each incident found to be
substantiated, information concerning:
(1) The date, time, location, and nature of the incident;
(2) The demographic background of the victim and perpetrator
(including citizenship, age, and gender);
(3) The reporting timeline for the incident (including the name of
individual who reported the incident, and the date and time the report
was received);
(4) Any injuries sustained by the victim;
(5) Post-report follow up responses and action taken by the
facility (e.g., housing placement/custody classification, medical
examination, mental health counseling, etc.); and
(6) Any sanctions imposed on the perpetrator.
(e) Upon request, the agency shall provide all data described in
this section from the previous calendar year to the Office for Civil
Rights and Civil Liberties no later than June 30.
Sec. 115.88 Data review for corrective action.
(a) The agency shall review data collected and aggregated pursuant
to Sec. 115.87 of this part in order to assess and improve the
effectiveness of its sexual abuse prevention, detection, and
[[Page 75341]]
response policies, practices, and training, including by:
(1) Identifying problem areas;
(2) Taking corrective action on an ongoing basis; and
(3) Preparing an annual report of its findings and corrective
actions for each immigration detention facility, as well as the agency
as a whole.
(b) Such report shall include a comparison of the current year's
data and corrective actions with those from prior years and shall
provide an assessment of the agency's progress in preventing,
detecting, and responding to sexual abuse.
(c) The agency's report shall be approved by the agency head and
made readily available to the public through its Web site.
(d) The agency may redact specific material from the reports, when
appropriate for safety or security, but must indicate the nature of the
material redacted.
Sec. 115.89 Data storage, publication, and destruction.
(a) The agency shall ensure that data collected pursuant to Sec.
115.87 of this part are securely retained in accordance with agency
record retention policies and the agency protocol regarding
investigation of allegations.
(b) The agency shall make all aggregated sexual abuse data from
immigration detention facilities under its direct control and from any
private agencies with which it contracts available to the public at
least annually on its Web site consistent with existing agency
information disclosure policies and processes.
(c) Before making aggregated sexual abuse data publicly available,
the agency shall remove all personal identifiers.
Audits and Compliance
Sec. 115.93 Audits of standards.
(a) During the three-year period starting on [DATE ONE YEAR PLUS 60
DAYS AFTER EFFECTIVE DATE OF FINAL RULE], and during each three-year
period thereafter, the agency shall ensure that each of its immigration
detention facilities is audited at least once.
(b) The agency may request an expedited audit if the agency has
reason to believe that a particular facility may be experiencing
problems relating to sexual abuse. The recommendation may also include
referrals to resources that may assist the agency with PREA-related
issues.
(c) Audits under this section shall be conducted pursuant to
Sec. Sec. 115.201 through 115.205 of Subpart C.
(d) Audits under this section shall be coordinated by the agency
with the DHS Office for Civil Rights and Civil Liberties.
Additional Provisions in Agency Policies
Sec. 115.95 Additional provisions in agency policies.
The regulations in Subpart A establish minimum requirements for
agencies and facilities. Agency and facility policies may include
additional requirements.
Subpart B--Standards for DHS Holding Facilities
Coverage
Sec. 115.110 Coverage of DHS holding facilities.
Subpart B covers all DHS holding facilities. Standards found in
Subpart A of this Part are not applicable to DHS facilities except ICE
immigration detention facilities.
Prevention Planning
Sec. 115.111 Zero tolerance of sexual abuse; Prevention of Sexual
Abuse Coordinator.
(a) The agency shall have a written policy mandating zero tolerance
toward all forms of sexual abuse and outlining the agency's approach to
preventing, detecting, and responding to such conduct.
(b) The agency shall employ or designate an upper-level, agency-
wide PSA Coordinator with sufficient time and authority to develop,
implement, and oversee agency efforts to comply with these standards in
all of its holding facilities.
Sec. 115.112 Contracting with non-DHS entities for the confinement of
detainees.
(a) An agency that contracts for the confinement of detainees in
holding facilities operated by non-DHS private or public agencies or
other entities, including other government agencies, shall include in
any new contracts or contract renewals the entity's obligation to adopt
and comply with these standards.
(b) Any new contracts or contract renewals shall provide for agency
contract monitoring to ensure that the contractor is complying with
these standards.
(c) To the extent an agency contracts for confinement of holding
facility detainees, all rules in this subpart that apply to the agency
shall apply to the contractor, and all rules that apply to staff or
employees shall apply to contractor staff.
Sec. 115.113 Detainee supervision and monitoring.
(a) The agency shall ensure that each facility maintains sufficient
supervision of detainees, including through appropriate staffing levels
and, where applicable, video monitoring, to protect detainees against
sexual abuse.
(b) The agency shall develop and document comprehensive detainee
supervision guidelines to determine and meet each facility's detainee
supervision needs, and shall review those supervision guidelines and
their application at each facility at least annually.
(c) In determining adequate levels of detainee supervision and
determining the need for video monitoring, agencies shall take into
consideration the physical layout of each holding facility, the
composition of the detainee population, the prevalence of substantiated
and unsubstantiated incidents of sexual abuse, the findings and
recommendations of sexual abuse incident review reports, and any other
relevant factors, including but not limited to the length of time
detainees spend in agency custody.
Sec. 115.114 Juvenile and family detainees.
(a) In general, juveniles shall be detained in the least
restrictive setting appropriate to the juvenile's age and special
needs, provided that such setting is consistent with the need to
protect the juvenile's well-being and that of others, as well as with
any other laws, regulations, or legal requirements.
(b) Unaccompanied juveniles shall be held separately from adult
detainees.
Sec. 115.115 Limits to cross-gender viewing and searches.
(a) Searches may be necessary to ensure the safety of officers,
civilians and detainees; to detect and secure evidence of criminal
activity; and to promote security, safety, and related interests at DHS
holding facilities.
(b) Cross-gender strip searches or cross-gender visual body cavity
searches shall not be conducted except in exigent circumstances,
including consideration of officer safety, or when performed by medical
practitioners. An agency shall not conduct visual body cavity searches
of juveniles and, instead, shall refer all such body cavity searches of
juveniles to a medical practitioner.
(c) All strip searches and visual body cavity searches shall be
documented.
(d) The agency shall implement policies and procedures that enable
detainees to shower (where showers are available), perform bodily
functions, and change clothing without being viewed by staff of the
opposite gender,
[[Page 75342]]
except in exigent circumstances or when such viewing is incidental to
routine cell checks or is otherwise appropriate in connection with a
medical examination or monitored bowel movement under medical
supervision. Such policies and procedures shall require staff of the
opposite gender to announce their presence when entering an area where
detainees are likely to be showering, performing bodily functions, or
changing clothing.
(e) The agency and facility shall not search or physically examine
a detainee for the sole purpose of determining the detainee's gender.
If the detainee's gender is unknown, it may be determined during
conversations with the detainee, by reviewing medical records (if
available), or, if necessary, learning that information as part of a
broader medical examination conducted in private, by a medical
practitioner.
(f) The agency shall train law enforcement staff in proper
procedures for conducting pat-down searches, including cross-gender
pat-down searches and searches of transgender and intersex detainees.
All pat-down searches shall be conducted in a professional and
respectful manner, and in the least intrusive manner possible,
consistent with security needs and existing agency policy, including
consideration of officer safety.
Sec. 115.116 Accommodating detainees with disabilities and detainees
who are limited English proficient.
(a) The agency shall take appropriate steps to ensure that
detainees with disabilities (including, for example, detainees who are
deaf or hard of hearing, those who are blind or have low vision, or
those who have intellectual, psychiatric, or speech disabilities), have
an equal opportunity to participate in or benefit from all aspects of
the agency's efforts to prevent, detect, and respond to sexual abuse.
Such steps shall include, when necessary to ensure effective
communication with detainees who are deaf or hard of hearing, providing
access to in-person, telephonic, or video interpretive services that
enable effective, accurate, and impartial interpretation, both
receptively and expressively, using any necessary specialized
vocabulary. In addition, the agency shall ensure that any written
materials related to sexual abuse are provided in formats or through
methods that ensure effective communication with detainees with
disabilities, including detainees who have intellectual disabilities,
limited reading skills, or who are blind or have low vision. An agency
is not required to take actions that it can demonstrate would result in
a fundamental alteration in the nature of a service, program, or
activity, or in undue financial and administrative burdens, as those
terms are used in regulations promulgated under title II of the
Americans with Disabilities Act, 28 CFR 35.164.
(b) The agency shall take reasonable steps to ensure meaningful
access to all aspects of the agency's efforts to prevent, detect, and
respond to sexual abuse to detainees who are limited English
proficient, including steps to provide in-person or telephonic
interpretive services that enable effective, accurate, and impartial
interpretation, both receptively and expressively, using any necessary
specialized vocabulary.
(c) In matters relating to allegations of sexual abuse, the agency
shall provide in-person or telephonic interpretation services that
enable effective, accurate, and impartial interpretation, by someone
other than another detainee, unless the detainee expresses a preference
for a detainee interpreter, and the agency determines that such
interpretation is appropriate. The provision of interpreter services by
minors, alleged abusers, detainees who witnessed the alleged abuse, and
detainees who have a significant relationship with the alleged abuser
is not appropriate in matters relating to allegations of sexual abuse
is not appropriate in matters relating to allegations of sexual abuse.
Sec. 115.117 Hiring and promotion decisions.
(a) The agency shall not hire or promote anyone who may have
contact with detainees, and shall not enlist the services of any
contractor or volunteer who may have contact with detainees, who has
engaged in sexual abuse in a prison, jail, holding facility, community
confinement facility, juvenile facility, or other institution (as
defined in 42 U.S.C. 1997); who has been convicted of engaging or
attempting to engage in sexual activity facilitated by force, overt or
implied threats of force, or coercion, or if the victim did not consent
or was unable to consent or refuse; or who has been civilly or
administratively adjudicated to have engaged in such activity.
(b) When the agency is considering hiring or promoting staff, it
shall ask all applicants who may have contact with detainees directly
about previous misconduct described in paragraph (a) of this section,
in written applications or interviews for hiring or promotions and in
any interviews or written self-evaluations conducted as part of reviews
of current employees. The agency shall also impose upon employees a
continuing affirmative duty to disclose any such misconduct.
(c) Before hiring new employees who may have contact with
detainees, the agency shall require a background investigation to
determine whether the candidate for hire is suitable for employment
with the agency. The agency shall conduct an updated background
investigation for agency employees every five years.
(d) The agency shall also perform a background investigation before
enlisting the services of any contractor who may have contact with
detainees.
(e) Material omissions regarding such misconduct, or the provision
of materially false information, shall be grounds for termination or
withdrawal of an offer of employment, as appropriate.
(f) Unless prohibited by law, the agency shall provide information
on substantiated allegations of sexual abuse involving a former
employee upon receiving a request from an institutional employer for
whom such employee has applied to work.
(g) In the event the agency contracts with a facility for the
confinement of detainees, the requirements of this section otherwise
applicable to the agency also apply to the facility.
Sec. 115.118 Upgrades to facilities and technologies.
(a) When designing or acquiring any new holding facility and in
planning any substantial expansion or modification of existing holding
facilities, the agency shall consider the effect of the design,
acquisition, expansion, or modification upon the agency's ability to
protect detainees from sexual abuse.
(b) When installing or updating a video monitoring system,
electronic surveillance system, or other monitoring technology in a
holding facility, the agency shall consider how such technology may
enhance the agency's ability to protect detainees from sexual abuse.
Responsive Planning
Sec. 115.121 Evidence protocols and forensic medical examinations.
(a) To the extent that the agency is responsible for investigating
allegations of sexual abuse in its holding facilities, the agency shall
follow a uniform evidence protocol that maximizes the potential for
obtaining usable physical evidence for administrative proceedings and
criminal prosecutions. The protocol shall be developed in coordination
with DHS and shall be developmentally
[[Page 75343]]
appropriate for juveniles, where applicable.
(b) In developing the protocol referred to in paragraph (a) of this
section, the agency shall consider how best to utilize available
community resources and services to provide valuable expertise and
support in the areas of crisis intervention and counseling to most
appropriately address victims' needs.
(c) Where evidentiarily or medically appropriate, at no cost to the
detainee, and only with the detainee's consent, the agency shall
arrange for or refer the alleged victim detainee to a medical facility
to undergo a forensic medical examination.
(d) If, in connection with an allegation of sexual abuse, the
detainee is transported for a forensic examination to an outside
hospital that offers victim advocacy services, the detainee shall be
permitted to use such services to the extent available, consistent with
security needs. (e) To the extent that the agency is not responsible
for investigating allegations of sexual abuse, the agency shall request
that the investigating agency follow the requirements of paragraphs (a)
through (d) of this section.
Sec. 115.122 Policies to ensure investigation of allegations and
appropriate agency oversight.
(a) The agency shall establish a protocol to ensure that each
allegation of sexual abuse is investigated by the agency, or referred
to an appropriate investigative authority.
(b) The agency protocol shall be developed in coordination with DHS
investigative entities; shall include a description of the
responsibilities of both the agency and the investigative entities; and
shall require the documentation and maintenance, for at least five
years, of all reports and referrals of allegations of sexual abuse. The
agency shall post its protocol on its Web site, redacted if
appropriate.
(c) The agency protocol shall ensure that each allegation is
promptly reported to the Joint Intake Center and, unless the allegation
does not involve potentially criminal behavior, promptly referred for
investigation to an appropriate law enforcement agency with the legal
authority to conduct criminal investigations. The agency may
separately, and in addition to the above reports and referrals, conduct
its own investigation.
(d) The agency shall ensure that all allegations of detainee sexual
abuse are promptly reported to the PSA Coordinator, and to the
appropriate offices within the agency and within DHS to ensure
appropriate oversight of the investigation.
(e) The agency shall ensure that any alleged detainee victim of
sexual abuse that is criminal in nature is provided access to U
nonimmigrant visa information.
Training and Education
Sec. 115.131 Employee, contractor, and volunteer training.
(a) The agency shall train, or require the training of all
employees, contractors, and volunteers who may have contact with
holding facility detainees, to be able to fulfill their
responsibilities under these standards, including training on:
(1) The agency's zero-tolerance policies for all forms of sexual
abuse;
(2) The right of detainees and employees to be free from sexual
abuse, and from retaliation for reporting sexual abuse;
(3) Definitions and examples of prohibited and illegal sexual
behavior;
(4) Recognition of situations where sexual abuse may occur;
(5) Recognition of physical, behavioral, and emotional signs of
sexual abuse, and methods of preventing such occurrences;
(6) Procedures for reporting knowledge or suspicion of sexual
abuse;
(7) How to communicate effectively and professionally with
detainees, including lesbian, gay, bisexual, transgender, intersex, or
gender nonconforming detainees; and
(8) The requirement to limit reporting of sexual abuse to personnel
with a need-to-know in order to make decisions concerning the victim's
welfare and for law enforcement or investigative purposes.
(b) All current employees, contractors and volunteers who may have
contact with holding facility detainees shall be trained within two
years of the effective date of these standards, and the agency shall
provide refresher information, as appropriate.
(c) The agency shall document those employees who may have contact
with detainees have completed the training and receive and maintain for
at least five years confirmation that contractors and volunteers have
completed the training.
Sec. 115.132 Notification to detainees of the agency's zero-tolerance
policy.
The agency shall make public its zero-tolerance policy regarding
sexual abuse and ensure that key information regarding the agency's
zero-tolerance policy is visible or continuously and readily available
to detainees, for example, through posters, detainee handbooks, or
other written formats.
Sec. 115.133 [Reserved]
Sec. 115.134 Specialized training: Investigations.
(a) In addition to the training provided to employees, DHS agencies
with responsibility for holding facilities shall provide specialized
training on sexual abuse and effective cross-agency coordination to
agency investigators who conduct investigations into allegations of
sexual abuse at holding facilities. All investigations into alleged
sexual abuse must be conducted by qualified investigators.
(b) The agency must maintain written documentation verifying
specialized training provided to agency investigators pursuant to this
subsection.
Assessment for Risk of Sexual Victimization and Abusiveness
Sec. 115.141 Assessment for risk of victimization and abusiveness.
(a) Before placing any detainees together in a holding facility,
agency staff shall consider whether, based on the information before
them, a detainee may be at a high risk of being sexually abused and,
when appropriate, shall take necessary steps to mitigate any such
danger to the detainee.
(b) All detainees who may be held overnight with other detainees
shall be assessed to determine their risk of being sexually abused by
other detainees or sexually abusive toward other detainees; staff shall
ask each such detainee about his or her own concerns about his or her
physical safety.
(c) The agency shall also consider, to the extent that the
information is available, the following criteria to assess detainees
for risk of sexual victimization:
(1) Whether the detainee has a mental, physical, or developmental
disability;
(2) The age of the detainee;
(3) The physical build and appearance of the detainee;
(4) Whether the detainee has previously been incarcerated;
(5) The nature of the detainee's criminal history; and
(6) Whether the detainee has any convictions for sex offenses
against an adult or child;
(7) Whether the detainee has self-identified as gay, lesbian,
bisexual, transgender, intersex, or gender nonconforming;
(8) Whether the detainee has self-identified as having previously
experienced sexual victimization; and
(9) The detainee's own concerns about his or her physical safety.
[[Page 75344]]
(d) If detainees are identified pursuant to the assessment under
this section to be at high risk of victimization, staff shall provide
such detainees with heightened protection, to include continuous direct
sight and sound supervision, single-cell housing, or placement in a
cell actively monitored on video by a staff member sufficiently
proximate to intervene, unless no such option is determined to be
feasible.
(e) The facility shall implement appropriate controls on the
dissemination of sensitive information provided by detainees under this
section.
Reporting
Sec. 115.151 Detainee reporting.
(a) The agency shall develop policies and procedures to ensure that
the detainees have multiple ways to privately report sexual abuse,
retaliation for reporting sexual abuse, or staff neglect or violations
of responsibilities that may have contributed to such incidents, and
shall provide instructions on how detainees may contact the DHS Office
of the Inspector General or, as appropriate, another designated office,
to confidentially and, if desired, anonymously, report these incidents.
(b) The agency shall also provide, and shall inform the detainees
of, at least one way for detainees to report sexual abuse to a public
or private entity or office that is not part of the agency, and that is
able to receive and immediately forward detainee reports of sexual
abuse to agency officials, allowing the detainee to remain anonymous
upon request.
(c) Agency policies and procedures shall include provisions for
staff to accept reports made verbally, in writing, anonymously, and
from third parties and to promptly document any verbal reports.
Sec. 115.152 [Reserved]
Sec. 115.153 [Reserved]
Sec. 115.154 Third-party reporting.
The agency shall establish a method to receive third-party reports
of sexual abuse in its holding facilities. The agency shall make
available to the public information on how to report sexual abuse on
behalf of a detainee.
Official Response Following a Detainee Report
Sec. 115.161 Staff reporting duties.
(a) The agency shall require all staff to report immediately and
according to agency policy any knowledge, suspicion, or information
regarding an incident of sexual abuse that occurred to any detainee;
retaliation against detainees or staff who reported such an incident;
and any staff neglect or violation of responsibilities that may have
contributed to an incident or retaliation. Agency policy shall include
methods by which staff can report misconduct outside of their chain of
command.
(b) Staff members who become aware of alleged sexual abuse shall
immediately follow the reporting requirements set forth in the agency's
written policies and procedures.
(c) Apart from such reporting, the agency and staff shall not
reveal any information related to a sexual abuse report to anyone other
than to the extent necessary to make medical treatment, investigation,
law enforcement, or other security and management decisions.
(d) If the alleged victim is under the age of 18 or considered a
vulnerable adult under a State or local vulnerable persons statute, the
agency shall report the allegation to the designated State or local
services agency under applicable mandatory reporting laws.
Sec. 115.162 Agency protection duties.
When an agency employee has a reasonable belief that a detainee is
subject to a substantial risk of imminent sexual abuse, he or she shall
take immediate action to protect the detainee.
Sec. 115.163 Reporting to other confinement facilities.
(a) Upon receiving an allegation that a detainee was sexually
abused while confined at another facility, the agency that received the
allegation shall notify the appropriate office or the agency where the
alleged abuse occurred.
(b) The notification provided in paragraph (a) shall be provided as
soon as possible, but no later than 72 hours after receiving the
allegation.
(c) The agency shall document that it has provided such
notification.
(d) The agency office that receives such notification, to the
extent the facility is covered by this subpart, shall ensure that the
allegation is referred for investigation in accordance with these
standards.
Sec. 115.164 Responder duties.
(a) Upon learning of an allegation that a detainee was sexually
abused, the first law enforcement staff member to respond to the
report, or his or her supervisor, shall be required to:
(1) Separate the alleged victim and abuser;
(2) Preserve and protect, to the greatest extent possible, any
crime scene until appropriate steps can be taken to collect any
evidence;
(3) If the sexual abuse occurred within a time period that still
allows for the collection of physical evidence, request the alleged
victim not to take any actions that could destroy physical evidence,
including, as appropriate, washing, brushing teeth, changing clothes,
urinating, defecating, smoking, drinking, or eating; and
(4) If the abuse occurred within a time period that still allows
for the collection of physical evidence, ensure that the alleged abuser
does not take any actions that could destroy physical evidence,
including, as appropriate, washing, brushing teeth, changing clothes,
urinating, defecating, smoking, drinking, or eating.
(b) If the first staff responder is not a law enforcement staff
member, the responder shall be required to request that the alleged
victim not take any actions that could destroy physical evidence and
then notify law enforcement staff.
Sec. 115.165 Coordinated response.
(a) The agency shall develop a written institutional plan and use a
coordinated, multidisciplinary team approach to responding to sexual
abuse.
(b) If a victim of sexual abuse is transferred between DHS holding
facilities, the agency shall, as permitted by law, inform the receiving
facility of the incident and the victim's potential need for medical or
social services.
(c) If a victim is transferred from a DHS holding facility to a
non-DHS facility, the agency shall, as permitted by law, inform the
receiving facility of the incident and the victim's potential need for
medical or social services, unless the victim requests otherwise.
Sec. 115.166 Protection of detainees from contact with alleged
abusers.
Agency management shall consider whether any staff, contractor, or
volunteer alleged to have perpetrated sexual abuse should be removed
from duties requiring detainee contact pending the outcome of an
investigation, and shall do so if the seriousness and plausibility of
the allegation make removal appropriate.
Sec. 115.167 Agency protection against retaliation.
Agency employees shall not retaliate against any person, including
a detainee, who reports, complains about, or participates in an
investigation into an allegation of sexual abuse, or for participating
in sexual activity as a result of force, coercion, threats, or fear of
force.
[[Page 75345]]
Investigations
Sec. 115.171 Criminal and administrative investigations.
(a) If the agency has responsibility for investigating allegations
of sexual abuse, all investigations into alleged sexual abuse must be
prompt, thorough, objective, and conducted by specially trained,
qualified investigators.
(b) Upon conclusion of a criminal investigation where the
allegation was substantiated, an administrative investigation shall be
conducted. Upon conclusion of a criminal investigation where the
allegation was unsubstantiated, the facility shall review any available
completed criminal investigation reports to determine whether an
administrative investigation is necessary or appropriate.
Administrative investigations shall be conducted after consultation
with the appropriate investigative office within DHS and the assigned
criminal investigative entity.
(c) The facility shall develop written procedures for
administrative investigations, including provisions requiring:
(1) Preservation of direct and circumstantial evidence, including
any available physical and DNA evidence and any available electronic
monitoring data;
(2) Interviewing alleged victims, suspected perpetrators, and
witnesses;
(3) Reviewing prior complaints and reports of sexual abuse
involving the suspected perpetrator;
(4) Assessment of the credibility of an alleged victim, suspect, or
witness, without regard to the individual's status as detainee, staff,
or employee, and without requiring any detainee who alleges sexual
abuse to submit to a polygraph;
(5) Documentation of each investigation by written report, which
shall include a description of the physical and testimonial evidence,
the reasoning behind credibility assessments, and investigative facts
and findings; and
(6) Retention of such reports for as long as the alleged abuser is
detained or employed by the agency or facility, plus five years. Such
procedures shall establish the coordination and sequencing of the two
types of investigations, in accordance with paragraph (b) of this
section, to ensure that the criminal investigation is not compromised
by an internal administrative investigation.
(d) The departure of the alleged abuser or victim from the
employment or control of the agency shall not provide a basis for
terminating an investigation.
(e) When outside agencies investigate sexual abuse, the agency
shall cooperate with outside investigators and shall endeavor to remain
informed about the progress of the investigation.
Sec. 115.172 Evidentiary standard for administrative investigations.
When an administrative investigation is undertaken, the agency
shall impose no standard higher than a preponderance of the evidence in
determining whether allegations of sexual abuse are substantiated.
Discipline
Sec. 115.176 Disciplinary sanctions for staff.
(a) Staff shall be subject to disciplinary or adverse action up to
and including removal from their position and the Federal service for
substantiated allegations of sexual abuse or violating agency sexual
abuse policies.
(b) The agency shall review and approve policy and procedures
regarding disciplinary or adverse action for staff and shall ensure
that the policy and procedures specify disciplinary or adverse actions
for staff, up to and including removal from their position and from the
Federal service, when there is a substantiated allegation of sexual
abuse, or when there has been a violation of agency sexual abuse rules,
policies, or standards. Removal from their position and from the
Federal service is the presumptive disciplinary sanction for staff who
have engaged in or attempted or threatened to engage in sexual abuse,
as defined under paragraphs (1) through (4), (7), and (8) of the
definition of sexual abuse of a detained by a staff member, contractor,
or volunteer in Sec. 115.6 of this part.
(c) Each facility shall report all removals or resignations in lieu
of removal for violations of agency or facility sexual abuse policies
to appropriate law enforcement agencies, unless the activity was
clearly not criminal.
(d) Each agency shall make reasonable efforts to report removals or
resignations in lieu of removal for violations of agency or facility
sexual abuse policies to any relevant licensing bodies, to the extent
known.
Sec. 115.177 Corrective action for contractors and volunteers.
(a) Any contractor or volunteer suspected of perpetrating sexual
abuse shall be prohibited from contact with detainees. The agency shall
also consider whether to prohibit further contact with detainees by
contractors or volunteers who have not engaged in sexual abuse, but
have violated other provisions within these standards. The agency shall
be responsible for promptly reporting sexual abuse allegations and
incidents involving alleged contractor or volunteer perpetrators to an
appropriate law enforcement agency as well as to the Joint Intake
Center or another appropriate DHS investigative office in accordance
with DHS policies and procedures. The agency shall make reasonable
efforts to report to any relevant licensing body, to the extent known,
incidents of substantiated sexual abuse by a contractor or volunteer.
(b) Contractors and volunteers suspected of perpetrating sexual
abuse may be removed from all duties requiring detainee contact pending
the outcome of an investigation, as appropriate.
Medical and Mental Care
Sec. 115.181 [Reserved]
Sec. 115.182 Access to emergency medical services.
(a) Detainee victims of sexual abuse in holding facilities shall
have timely, unimpeded access to emergency medical treatment.
(b) Emergency medical treatment services provided to the victim
shall be without financial cost and regardless of whether the victim
names the abuser or cooperates with any investigation arising out of
the incident.
Data Collection and Review
Sec. 115.186 Sexual abuse incident reviews.
(a) The agency shall conduct a sexual abuse incident review at the
conclusion of every investigation of sexual abuse and, where the
allegation was not determined to be unfounded, prepare a written report
recommending whether the allegation or investigation indicates that a
change in policy or practice could better prevent, detect, or respond
to sexual abuse. The agency shall implement the recommendations for
improvement, or shall document its reasons for not doing so in a
written response. Both the report and response shall be forwarded to
the agency PSA Coordinator.
(b) The agency shall conduct an annual review of all sexual abuse
investigations and resulting incident reviews to assess and improve
sexual abuse intervention, prevention and response efforts.
Sec. 115.187 Data collection.
(a) The agency shall maintain all agency case records associated
with claims of sexual abuse, in accordance with these standards and
applicable
[[Page 75346]]
agency policies, and in accordance with established schedules. The DHS
Office of Inspector General shall maintain the official investigative
file related to claims of sexual abuse investigated by the DHS Office
of Inspector General.
(b) On an annual basis, the PSA Coordinator shall aggregate, in a
manner that will facilitate the agency's ability to detect possible
patterns and help prevent future incidents, the incident-based sexual
abuse data available, including the number of reported sexual abuse
allegations determined to be substantiated, unsubstantiated, or
unfounded, or for which investigation is ongoing, and for each incident
found to be substantiated, such information as is available to the PSA
Coordinator concerning:
(1) The date, time, location, and nature of the incident;
(2) The demographic background of the victim and perpetrator
(including citizenship, age, and gender);
(3) The reporting timeline for the incident (including the name of
individual who reported the incident, and the date and time the report
was received);
(4) Any injuries sustained by the victim;
(5) Post-report follow up responses and action taken by the agency
(e.g., supervision, referral for medical or mental health services,
etc.); and
(6) Any sanctions imposed on the perpetrator.
(c) The agency shall maintain, review, and collect data as needed
from all available agency records.
(d) Upon request, the agency shall provide all such data from the
previous calendar year to the PSA Coordinator and to the Office for
Civil Rights and Civil Liberties no later than June 30.
Sec. 115.188 Data review for corrective action.
(a) The agency shall review data collected and aggregated pursuant
to Sec. 115.187 of this part in order to assess and improve the
effectiveness of its sexual abuse prevention, detection, and response
policies, practices, and training, including by:
(1) Identifying problem areas;
(2) Taking corrective action on an ongoing basis; and
(3) Preparing an annual report of its findings and corrective
actions for the agency as a whole.
(b) Such report shall include a comparison of the current year's
data and corrective actions with those from prior years and shall
provide an assessment of the agency's progress in preventing,
detecting, and responding to sexual abuse.
(c) The agency's report shall be approved by the agency head and
made readily available to the public through its Web site.
(d) The agency may redact specific material from the reports, when
appropriate for safety or security, but must indicate the nature of the
material redacted.
Sec. 115.189 Data storage, publication, and destruction.
(a) The agency shall ensure that data collected pursuant to Sec.
115.187 of this part are securely retained in accordance with agency
record retention policies and the agency protocol regarding
investigation of allegations.
(b) The agency shall make all aggregated sexual abuse data from
holding facilities under its direct control and from any private
agencies with which it contracts available to the public at least
annually on its Web site consistent with agency information disclosure
policies and processes.
(c) Before making aggregated sexual abuse data publicly available,
the agency shall remove all personal identifiers.
Audits and Compliance
Sec. 115.193 Audits of standards.
(a) Within three years of [DATE ONE YEAR PLUS 60 DAYS AFTER
EFFECTIVE DATE OF FINAL RULE], the agency shall ensure that each of its
immigration holding facilities that houses detainees overnight is
audited. For any such holding facility established after [DATE ONE YEAR
PLUS 60 DAYS AFTER EFFECTIVE DATE OF FINAL RULE], the agency shall
ensure that the facility is audited within three years . Audits of new
holding facilities as well as holding facilities that have previously
failed to meet the standards shall occur as soon as practicable within
the three-year cycle; however, where it is necessary to prioritize,
priority shall be given to facilities that have previously failed to
meet the standards.
(1) Audits required under this paragraph (a) shall:
(i) Include a determination whether the holding facility is low-
risk based on its physical characteristics and whether it passes the
audit conducted pursuant to paragraph (a)(1)(ii) of this section,
(ii) Be conducted pursuant to Sec. Sec. 115.201 through 115.205 of
Subpart C, and
(iii) Be coordinated by the agency with the DHS Office for Civil
Rights and Civil Liberties.
(b) Following an audit, the agency shall ensure that any
immigration holding facility that houses detainees overnight and is
determined to be low-risk, based on its physical characteristics and
passing its most recent audit, is audited at least once every five
years.
(1) Audits required under this paragraph (b) shall:
(i) Include a determination whether the holding facility is low-
risk based on its physical characteristics and whether it passes the
audit conducted pursuant to paragraph (b)(1)(ii) of this section,
(ii) Be conducted pursuant to Sec. Sec. 115.201 through 115.205 of
Subpart C, and
(iii) Be coordinated by the agency with the DHS Office for Civil
Rights and Civil Liberties.
(c) Following an audit, the agency shall ensure that any
immigration holding facility that houses detainees overnight and is
determined to not be low-risk, based on its physical characteristics or
not passing its most recent audit, is audited at least once every three
years.
(1) Audits required under this paragraph (c) shall:
(i) Include a determination whether the holding facility is low-
risk based on its physical characteristics and whether it passes the
audit conducted by paragraph (c)(1)(ii) of this section,
(ii) Be conducted pursuant to Sec. Sec. 115.201 through 115.205 of
Subpart C, and
(iii) Be coordinated by the agency with the DHS Office for Civil
Rights and Civil Liberties.
Additional Provisions in Agency Policies
Sec. 115.195 Additional provisions in agency policies.
The regulations in Subpart B establish minimum requirements for
agencies. Agency policies may include additional requirements.
Subpart C--External Auditing and Corrective Action
Sec. 115.201 Scope of audits.
(a) The agency shall develop and issue an instrument that is
coordinated with the DHS Office for Civil Rights and Civil Liberties,
which will provide guidance on the conduct of and contents of the
audit;
(b) The auditor shall review all relevant agency-wide policies,
procedures, reports, internal and external audits, and accreditations
for each facility type.
(c) The audits shall review, at a minimum, a sampling of relevant
documents and other records and information for the most recent one-
year period.
[[Page 75347]]
(d) The auditor shall have access to, and shall observe, all areas
of the audited facilities.
(e) The agency shall provide the auditor with relevant
documentation to complete a thorough audit of the facility.
(f) The auditor shall retain and preserve all documentation
(including, e.g., videotapes and interview notes) relied upon in making
audit determinations. Such documentation shall be provided to the
agency upon request.
(g) The auditor shall interview a representative sample of
detainees and of staff, and the facility shall make space available
suitable for such interviews.
(h) The auditor shall review a sampling of any available videotapes
and other electronically available data that may be relevant to the
provisions being audited.
(i) The auditor shall be permitted to conduct private interviews
with detainees.
(j) Detainees shall be permitted to send confidential information
or correspondence to the auditor.
(k) Auditors shall attempt to solicit input from community-based or
victim advocates who may have insight into relevant conditions in the
facility.
(l) All sensitive but unclassified information provided to auditors
will include appropriate designations and limitations on further
dissemination. Auditors will be required to follow all appropriate
procedures for handling and safeguarding such information.
Sec. 115.202 Auditor qualifications.
(a) An audit shall be conducted by entities or individuals outside
of the agency that have relevant audit experience.
(b) All auditors shall be certified by the agency and the agency
shall develop and issue procedures regarding the certification process,
which shall include training requirements.
(c) No audit may be conducted by an auditor who has received
financial compensation from the agency being audited (except for
compensation received for conducting other audits, or other consulting
related to detention reform) within the three years prior to the
agency's retention of the auditor.
(d) The agency shall not employ, contract with, or otherwise
financially compensate the auditor for three years subsequent to the
agency's retention of the auditor, with the exception of contracting
for subsequent audits or other consulting related to detention reform.
Sec. 115.203 Audit contents and findings.
(a) Each audit shall include a certification by the auditor that no
conflict of interest exists with respect to his or her ability to
conduct an audit of the facility under review.
(b) Audit reports shall state whether facility policies and
procedures comply with relevant standards.
(c) For each of these standards, the auditor shall determine
whether the audited facility reaches one of the following findings:
Exceeds Standard (substantially exceeds requirement of standard); Meets
Standard (substantial compliance; complies in all material ways with
the standard for the relevant review period); Does Not Meet Standard
(requires corrective action). The audit summary shall indicate, among
other things, the number of provisions the facility has achieved at
each grade level.
(d) Audit reports shall describe the methodology, sampling sizes,
and basis for the auditor's conclusions with regard to each standard
provision for each audited facility, and shall include recommendations
for any required corrective action.
(e) Auditors shall redact any personally identifiable detainee or
staff information from their reports, but shall provide such
information to the agency upon request.
(f) The agency shall ensure that the auditor's final report is
published on the agency's Web site if it has one, or is otherwise made
readily available to the public. The agency shall redact any sensitive
but unclassified information (including law enforcement sensitive
information) prior to providing such reports publicly.
Sec. 115.204 Audit corrective action plan.
(a) A finding of ``Does Not Meet Standard'' with one or more
standards shall trigger a 180-day corrective action period.
(b) The auditor and the agency, with the facility if practicable,
shall jointly develop a corrective action plan to achieve compliance.
(c) The auditor shall take necessary and appropriate steps to
verify implementation of the corrective action plan, such as reviewing
updated policies and procedures or re-inspecting portions of a
facility.
(d) After the 180-day corrective action period ends, the auditor
shall issue a final determination as to whether the facility has
achieved compliance with those standards requiring corrective action.
(e) If the facility does not achieve compliance with each standard,
it may (at its discretion and cost) request a subsequent audit once it
believes that is has achieved compliance.
Sec. 115.205 Audit appeals.
(a) A facility may lodge an appeal with the agency regarding any
specific audit finding that it believes to be incorrect. Such appeal
must be lodged within 90 days of the auditor's final determination.
(b) If the agency determines that the facility has stated good
cause for a re-evaluation, the facility may commission a re-audit by an
auditor mutually agreed upon by the agency and the facility. The
facility shall bear the costs of this re-audit.
(c) The findings of the re-audit shall be considered final.
Janet Napolitano,
Secretary of Homeland Security.
[FR Doc. 2012-29916 Filed 12-18-12; 8:45 am]
BILLING CODE 9110-9B-P
