Standards To Prevent, Detect, and Respond to Sexual Abuse and Assault in Confinement Facilities

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

http://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: http://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 http://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

http://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

http://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

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.

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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:

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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),

http://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

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.

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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

detention

facilities

Holding

facilities

Total DHS

PREA

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 Costs

N/A

N/A

* 79%

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

http://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

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.

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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For simplicity, all persons confined in DHS immigration detention facilities and holding facilities are referred to as “detainees” in this rulemaking.

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

safeguards against all sexual abuse of individuals within its custody, consistent with the goals of the PREA.

5

ICE,

Performance-Based National Detention Standards

(2011),

http://www.ice.gov/doclib/detention-standards/2011/pbnds2011.pdf

; ICE,

Directive No. 11062.1: Sexual Abuse and Assault Prevention and Intervention

(2012),

http://www.ice.gov/detention-standards

. These documents are available, redacted as appropriate, in the docket for this rule where indicated under

ADDRESSES.

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,

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

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.

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.

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

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

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.

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

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

§ 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)).

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

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,

http://www.ncchc.org/resources/statements/adolescents.html.

11

See ABA Criminal Justice Standards on the Treatment of Prisoners, at 23-3.2(b),

http://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

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

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.

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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

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

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

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

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

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

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

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

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

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

Facility

Over 72 hours

Under 72 hours

Family

Residential

Non-Dedicated IGSA

74

36

0

SPC

6

0

0

CDF

7

0

0

Dedicated IGSA

7

0

2

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

Year

Immigration

detention

facilities

ICE

Holding facilities

ICE

CBP

Total

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]

Year

Immigration detention facilities

subpart A

Over 72 hours

Under 72 hours

Holding facilities

subpart B

ICE

CBP

Total

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

6

3.7

1.1

0.0

2.3

7.2

7

3.7

1

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