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:

Final rule.

SUMMARY:

The Department of Homeland Security (DHS) is issuing regulations setting standards to prevent, detect, and respond to sexual abuse and assault in DHS confinement facilities.

DATES:

This rule is effective May 6, 2014.

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. Abbreviations

ANPRM Advance Notice of Proposed Rulemaking

ASR Administrative Stay of Removal

BJS Bureau of Justice Statistics

BOP Bureau of Prisons

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

DSM Detention Service Manager

ERO ICE Enforcement and Removal Operations

FOD ICE Field Office Director

FR Federal Register

FOJC ICE Field Office Juvenile Coordinator

FSA

Flores

v.

Reno

Settlement Agreement

HHS Department of Health and Human Services

HSI ICE Homeland Security Investigations

ICE U.S. Immigration and Customs Enforcement

IGA Intergovernmental Agreement

IGSA Intergovernmental Service Agreement

INA Immigration and Nationality Act

IRFA Initial Regulatory Flexibility Analysis

IRIA Initial Regulatory Impact Analysis

JIC Joint Intake Center

LEP Limited English Proficient/Proficiency

LGBTI Lesbian, Gay, Bisexual, Transgender, Intersex

LGBTIGNC Lesbian, Gay, Bisexual, Transgender, Intersex, Gender Non-conforming

MOU Memorandum of Understanding

NAICS North American Industry Classification System

NDS National Detention Standards

NPREC National Prison Rape Elimination Commission

NPRM Notice of Proposed Rulemaking

ODO ICE Office of Detention Oversight

OIG DHS Office of the Inspector General

OMB Office of Management and Budget

OPR ICE Office of Professional Responsibility

ORR HHS Office of Refugee Resettlement

PBNDS Performance Based National Detention Standards

PRA Paperwork Reduction Act of 1995

PREA Prison Rape Elimination Act of 2003

PSA Prevention of Sexual Assault

QAT Quality Assurance Team

RCA Risk Classification Assessment

RFA Regulatory Flexibility Act

RIA Regulatory Impact Analysis

SAAPID Sexual Abuse and Assault Prevention and Intervention Directive

SAFE Sexual Assault Forensic Examiner

SANE Sexual Assault Nurse Examiner

SBA Small Business Administration

SIJ Special Immigrant Juvenile

SPC Service Processing Center

TVPRA Trafficking Victims Protection Reauthorization Act

UMRA Unfunded Mandate Reform Act of 1995

U.S.C. United States Code

USCIS U.S. Citizenship and Immigration Services

USMS U.S. Marshals Service

VAWA Reauthorization Violence Against Women Reauthorization Act of 2013

II. Executive Summary

A. Purpose of the Regulatory Action

The purpose of this regulatory action is to set 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 (NPREC) explained in its 2009 report:

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As discussed in greater detail below, in this final rule, “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.

DHS is committed to preventing, detecting, and responding to sexual abuse in facilities used to 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 have a culture that promotes safety and refuses to tolerate abuse. DHS is fully committed to its zero-tolerance policy against sexual abuse in its confinement facilities, and these standards will strengthen that policy across DHS confinement facilities. DHS is also fully committed to the full implementation of the standards in DHS confinement facilities, and to robust oversight of these facilities to ensure this implementation.

The standards build on current U.S. Immigration and Customs Enforcement (ICE) Performance Based National Detention Standards (PBNDS) and other DHS detention policies. The standards also 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 create rules or procedures setting standards to prevent, detect, and respond to sexual abuse in confinement facilities, and to the Violence Against Women Reauthorization Act of 2013 (VAWA Reauthorization), which directs DHS to publish a final rule adopting national standards for the detection, prevention, reduction, and punishment of rape and sexual assault in facilities that maintain custody of aliens detained for a violation of U.S. immigrations laws.

See

Public Law 113-4 (Mar. 7, 2013).

B. Summary of the Provisions of the Regulatory Action

The DHS provisions span eleven categories that were originally used by the 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

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report, investigations, discipline, medical and mental care, data collection and review, and audits and compliance. Each provision under these categories reflects the context of DHS confinement of individuals and draws upon the particular experiences

and requirements DHS faces in fulfilling its missions.

3

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

For example, DHS has broken down the standards to cover two distinct types of facilities: (1) Immigration detention facilities, which are overseen by ICE and used for longer-term detention of aliens in immigration proceedings or awaiting removal from the United States; and (2) holding facilities, which are used by ICE and U.S. Customs and Border Protection (CBP) for temporary administrative detention of individuals pending release from custody or 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, language assistance services for limited English proficient (LEP) detainees, safe detention of family units, and other provisions specific to DHS's needs. A more detailed discussion of all of the provisions in the rulemaking is included below in Section V of this preamble, “Discussion of PREA Standards,” including a section-by-section analysis of the DHS rule.

In this final rule, DHS has modified the proposed regulatory text in multiple areas, including the following:

• In addition to implementing these standards at both DHS facilities and at non-DHS facilities whenever there is a new contract or contract renewal, DHS will also implement the standards at non-DHS facilities whenever there is a substantive contract modification.

• In addition to requiring that assessments for risk of victimization or abusiveness include an evaluation of whether the detainee has been incarcerated previously, DHS is now also requiring consideration of whether the detainee has been detained previously.

• DHS now requires immigration detention facilities to notify a regional ICE supervisor no later than 72 hours after the initial placement into segregation whenever a detainee has been held in administrative segregation on the basis of a vulnerability to sexual abuse or assault. Upon receipt of such notification, the official must conduct a review of the placement to consider whether continued segregation is warranted, whether any less restrictive housing or custodial alternatives may exist (such as placing the detainee in a less restrictive housing option at another facility or other appropriate custodial options), and whether the placement is only as a last resort and when no other viable housing options exist.

• DHS now requires immigration detention facilities to notify a regional ICE supervisor whenever a detainee victim has been held in administrative segregation for longer than 72 hours. Upon receipt of such notification, the official must conduct a review of the placement to consider whether placement is only as a last resort and when no other viable housing options exist, and, in cases where the detainee victim has been held in segregation for longer than five days, whether the placement is justified by extraordinary circumstances or is at the request of the detainee.

• DHS is now requiring immigration detention facilities to complete sexual abuse incident reviews within 30 days of the completion of the investigation, and is requiring that the review include consideration of whether the incident or allegation was motivated by, among other things, sexual orientation or gender identity.

• DHS is now requiring explicitly that facilities keep data collected on sexual abuse and assault incidents in a secure location.

• DHS is now requiring that the agency maintain sexual abuse data for at least 10 years after the date of the initial collection unless Federal, State, or local law requires otherwise.

DHS has also modified the regulatory text and clarified its interpretation of the rule in a number of ways, as explained more fully below.

C. Costs and Benefits

The anticipated costs of full nationwide compliance with the rule 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 Regulatory Impact Analysis (RIA), which is found in the docket for this rulemaking.

As shown in the Summary Table below, DHS estimates that the full cost of compliance with these standards at all covered DHS confinement facilities would be approximately $57.4 million over the period 2013-2022, discounted at 7 percent, or $8.2 million per year when annualized at a 7 percent discount rate. This is the estimated cost of compliance if all facilities adopt and implement the standards within the first year after the rule is finalized. This is an accurate reflection of implementation of these standards in holding facilities, which are fully owned and operated by DHS agencies. However, the annual cost for implementation at immigration detention facilities, most of which are governed by a contract with another entity, will likely be less, because it depends on the pace of contract renewals and substantive modifications which are unlikely to be universally completed in the first year after the rule is finalized. DHS has not endeavored in the RIA to project the actual pace of implementation.

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 (incidents involving violence, inappropriate touching, or a range of other behaviors) 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 recent levels of sexual abuse in covered facilities using data from 2010, 2011, and 2012. In 2010, ICE had four substantiated sexual abuse allegations in immigration detention facilities, two in 2011, and one in 2012. There were no substantiated allegations by individuals detained in a DHS holding facility. (This does not include allegations involved in still-open investigations or allegations outside the scope of these regulations.) In the RIA, DHS extrapolates the number of substantiated and unsubstantiated 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 recognizes that some benefits and costs are difficult to quantify, and directs agencies to use the best available techniques to quantify benefits and costs. Executive Order 13563 also 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 Department of Justice (DOJ) estimates of unit avoidance values for sexual abuse, which DOJ extrapolated 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 122 from the estimated benchmark levels, which is 147 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.

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4

Department of Justice, National Standards to Prevent, Detect, and Respond to Prison Rape, Final Rule, Final Regulatory Impact Analysis, Docket No. DOJ-OAG-2011-0002,

available at www.regulations.gov.

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As discussed in Chapter 1, and shown in Table 17 of the RIA, the benchmark level of sexual abuse includes all types of sexual abuse, including offensive touching (for instance, during a pat-down search), voyeurism, harassment, and verbal abuse.

There are additional benefits of the rule that DHS is unable to monetize or quantify. Not only will victims benefit from a potential reduction in sexual abuse in facilities, so too will DHS agencies and staff, other detainees, and society as a whole. As noted by Congress, sexual abuse increases the levels of violence within facilities. Both staff and other detainees will benefit from a potential reduction in levels of violence and other negative factors. 42 U.S.C. 15601(14). This will improve the safety of the environment for other detainees and workplace for facility staff. In addition, long-term trauma from sexual abuse in confinement may diminish a victim's ability to reenter society resulting in unstable employment. Preventing these incidents will decrease the cost of health care, spread of disease, and the amount of public assistance benefits required for victims upon reentry into society, whether such reentry is in the United States or a detainee's home country.

Chapter 3 of the RIA 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 final rule. The costs are discounted at seven percent.

Summary Table—Estimated Costs and Benefits of Final Rule

[$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

*147%

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

As explained above, we did not estimate the number of incidents or victims of sexual abuse this rule would prevent. Instead, we conducted a breakeven analysis. Therefore, we did not estimate the net benefits of this rule.

* For ICE confinement facilities.

III. 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, the Prison Rape Elimination Act (PREA) was enacted 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).

To accomplish these ends, PREA established the National Prison Rape Elimination Commission (NPREC) to conduct a “comprehensive legal and factual study of the penalogical, 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(d). 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 confinement settings: (1) Adult prisons and jails; (2) lockups; (3) juvenile facilities; and (4) community corrections facilities. NPREC report at 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 asserted that standards for facilities with immigrant detainees must be enforced in any facility that is run by ICE or through an ICE contract.

A. Department of Justice Rulemaking

In response to the NPREC report, a DOJ PREA Working Group reviewed the NPREC's proposed standards to assist in the rulemaking process. DOJ published an advance notice of proposed rulemaking (ANPRM) on March 10, 2010 (75 FR 11077). Commenters on the ANPRM generally supported the broad goals of PREA and the overall intent of the NPREC's recommendations, with some division over the merits of a number of the NPREC's recommended national standards.

DOJ then issued a notice of proposed rulemaking (NPRM) on February 3, 2011, setting forth proposed national PREA standards. 76 FR 6248 (Feb. 3, 2011). In response to the NPRM, DOJ received over 1,300 comments that 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 DOJ 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 DOJ 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 DOJ 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 its NPRM, DOJ issued a final rule setting 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. 77 FR 37106 (June 20, 2012).

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 (BOP), 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, would work with the Attorney General to issue rules or procedures consistent with PREA.

C. The Presidential Memorandum on Implementing the Prison Rape Elimination Act and the Violence Against Women Reauthorization Act of 2013

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.

Additionally, on March 7, 2013, the VAWA Reauthorization was enacted, which included a section addressing sexual abuse in custodial settings.

See

Public Law 113-4 (Mar. 7, 2013). Among requirements addressing certain Federal agencies, the law directs DHS to publish a final rule adopting national standards for the detection, prevention, reduction, and punishment of rape and sexual assault in facilities that maintain custody of aliens detained for a violation of U.S. immigrations laws.

Id.

The standards are to apply to DHS-operated detention facilities and to detention facilities operated under contract with DHS, including contract detention facilities (CDFs) and detention facilities operated through an intergovernmental service agreement (IGSA) with DHS.

Id.

The statute requires that the DHS standards give due consideration to the recommended national standards provided by NPREC.

Id.

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 and the requirements of the VAWA Reauthorization by creating comprehensive, national regulations for the detection, prevention, and reduction of sexual abuse at DHS immigration detention facilities and at DHS holding facilities that maintain custody of aliens detained for violating U.S. immigration laws.

D. DHS Proposed Rule and Public Comments

On December 19, 2012, DHS published an NPRM entitled

Standards To Prevent, Detect, and Respond to Sexual Abuse and Assault in Confinement Facilities; Proposed Rule.

77 FR 75300. On January 2, 2013 DHS published an Initial Regulatory Impact Analysis (IRIA), which presented a comprehensive assessment of the benefits and costs of DHS's proposed standards in both quantitative and qualitative terms. The IRIA was summarized in the proposed rule and was published in full in the docket (ICEB-2012-003) on the regulations.gov Web site. The public comment period on the NPRM originally was scheduled to end on February 19, 2013. Due to scheduled maintenance to the Federal

eRulemaking Portal, DHS extended the comment period by one week until February 26, 2013. 78 FR 8987. DHS received a total of 1,724 comments on the proposed rule. No public meeting was requested, and none was held.

Commenters included private citizens, professional organizations, social service providers, and advocacy organizations concerned with issues involving detainee safety and rights, sexual violence, discrimination, and the mental health of both the detainees and the facility employees. In general, commenters supported the goals of PREA and DHS's proposed rule. However, some commenters, particularly advocacy groups concerned with protecting the health and safety of the detainees, expressed concern that the proposed rule did not go far enough towards achieving the goals that PREA set forth. Some comments were outside the scope of the proposed rule, and therefore have not been included in the DHS responses and changes in the final rule below. DHS thanks the public for its interest and participation.

Members of Congress and others have also expressed interest in this rulemaking. In describing the potential positive impacts of the VAWA Reauthorization, Senator Richard Durbin—both a PREA and VAWA Reauthorization legislative co-sponsor—referred to the importance of the bill's provision regarding implementation of PREA standards by DHS. Specifically, Senator Durbin applauded DHS's efforts, through its proposed rule, to implement rules consistent with PREA's goals. 159 Cong. Rec. S503 (daily ed. Feb. 7, 2013) (statement of Sen. Durbin). Senator Durbin noted that, “It was critical . . . to have a provision in this VAWA Reauthorization that clarifies that standards to prevent custodial rape must apply to immigration detainees—all immigration detainees—a provision that codifies the good work DHS is now doing and ensures strong regulations pertaining to immigration will remain in place in the future.”

Id.

DHS appreciates this strong statement of confidence in DHS's proposed rule, by a legislator who advocated for the original PREA legislation.

When the public comment period closed, DHS carefully reviewed each comment and deliberated internally on the revisions that the commenters proposed.

E. Types of DHS Confinement Facilities

This rule applies to just two types of confinement facilities: (1) Immigration detention facilities and (2) holding facilities.

Section 115.5 defines an immigration detention facility as a “confinement facility operated by or pursuant to contract 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 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; CDFs are owned by private companies and contracted directly with ICE; and detention services at 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.

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There are two types of IGSA facilities: Dedicated IGSA facilities, which house detained aliens only, and non-dedicated (i.e., shared) IGSA facilities, which may house a variety of detainees and inmates.

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In the preamble of the proposed rule, DHS listed Intergovernmental Agreement (IGA) facilities among the types of immigration detention facilities. Upon further review, DHS has determined that ICE does not contract with state or local governments using IGAs, and therefore has no immigration detention facilities that qualify as IGAs (as opposed to IGSAs). As discussed in greater detail below, although ICE is an authorized user of USMS IGA facilities, the facilities and their immigration detainees would be covered by the DOJ PREA standards and not the provisions within Subpart A of these proposed rules.

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 facilities authorized for use by ICE pursuant to agreements with BOP or pursuant to agreements between DOJ and state or local governments or private entities (e.g., USMS IGA facilities). Those facilities and their immigration detainees are covered by the DOJ PREA standards and not the provisions within Subpart A of these proposed rules.

These regulations do not apply to CDF and IGSA facilities directly; rather, standards for these facilities will be phased in through new contracts, contract renewals, or substantive contract modifications. Specifically, the regulations require that when contracting for the confinement of detainees in immigration detention facilities operated by non-DHS private or public agencies or other entities, DHS component agencies include in any new contracts, contract renewals, or substantive contract modifications the obligation to adopt and comply with these standards. (Covered substantive contract modifications would include, for example, changes to the bed/day rate or the implementation of stricter standards, but not the designation of a new Contracting Officer.) In other words, DHS intends to enforce the standards though terms in its contracts with facilities.

Section 115.5 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 pending release or transfer 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 rule.

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. ICE Enforcement and Removal Operations (ERO) is the program 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, a highly transient population and one of the most diverse 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.

As of spring 2012, ERO was 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 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.

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Facilities ICE used as of spring 2012, and the sexual abuse and assault standards to which facilities were held accountable or planned to be held accountable at that time, serve as the baseline for the cost estimates for this rulemaking.

2. ICE Sexual Abuse and Assault Policies

These regulations for immigration detention facilities and holding facilities support existing sexual abuse policies promulgated by ICE, including ICE's PBNDS 2011 and its 2012 Sexual Abuse and Assault Prevention and Intervention Directive (SAAPID),

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

8

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/doclib/foia/dro_policy_memos/sexual-abuse-assault-prevention-intervention-policy.pdf

. 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 ICE'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 ANPRM 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 BOP) 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 Bureau of Justice Statistics (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 PBNDS 2008 standard on Sexual Abuse and Assault Prevention and Intervention and the Family Residential Standards also contain robust safeguards against sexual abuse of ICE detainees, establishing similar requirements with respect to each of the issues covered by the PBNDS 2011 Sexual Abuse standard. In addition, ICE has made great strides in incorporating standards specific to sexual abuse and assault in NDS facilities. In fact, since the publication of the NPRM a substantial number of NDS facilities with which ICE maintains IGSAs have agreed to implement the PBNDS 2011's Sexual Abuse and Assault Prevention and Intervention standard. Excluding those detainees who are held in DOJ-contracted facilities (and are therefore covered by the DOJ rule), as of July 2013 approximately 94% of ICE detainees, on average, are housed in facilities that have adopted a sexual abuse and assault standard under PBNDS 2011, PBNDS 2008, or Family Residential Standards.

9

9

Less than one-third of ICE's average detainee population is currently housed in facilities governed by the agency's 2000 National Detention Standards (NDS), which does not contain a standard specific to sexual abuse prevention and intervention—and nearly half of those detainees are in USMS IGA facilities. A substantial number of NDS facilities with which ICE maintains an IGSA have agreed to implement the PBNDS 2011's Sexual Abuse and Assault Prevention and Intervention standard. Again excluding detainees who are held in DOJ-contracted facilities (and are therefore covered by the DOJ PREA rule), as of July 2013, nearly three quarters of ICE detainees housed in NDS IGSA facilities are covered by the PBNDS 2011 sexual abuse and assault standard. For more information on the standards applicable to DOJ facilities, see the discussion

infra.

The 2012 ICE SAAPID complements the requirements established by the detention standards by delineating ICE-wide policy and procedures and corresponding duties of employees for reporting, responding to, investigating, and monitoring incidents of sexual abuse. Regardless of the standards applicable to a particular facility, ICE personnel are required under this Directive to ensure that the substantive response requirements of PBNDS 2011 are met, and that incidents receive timely and coordinated agency follow-up. In conjunction with the PBNDS, the SAAPID ensures an integrated and comprehensive system of preventing and responding to all incidents or allegations of sexual abuse of individuals in ICE custody.

On September 4, 2013, ICE issued a directive entitled “Review of the Use of Segregation for ICE Detainees.” The directive establishes policy and procedures for ICE review of detainees placed into segregated housing. It is intended to complement the requirements of the 2011 PBNDS, the 2008 PBNDS, NDS and other applicable policies. The directive states that placement in segregation should occur only when necessary and in compliance with applicable detention standards, and includes a notification requirement whenever a detainee has been held continuously in segregation for 14 days out of any 21 day period and a 72-hour notification requirement for detainees placed in segregation due to a special vulnerability, including for detainees susceptible to harm due to sexual orientation or gender identity, and detainees who have been victims—in or

out of ICE custody—of sexual assault, torture, trafficking, or abuse.

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 component sexual assault 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 particular operational and logistical circumstances encountered in the DHS confinement system in order to maximize the effective achievement of the goals of 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 DHS has deemed them appropriate and efficacious, to meet the President's goal of setting high standards, government-wide, consistent with the goals of PREA and Congress's expressed intent that DHS adopt national standards for the detection, prevention, reduction, and punishment of rape and sexual assault in immigration confinement settings. Where appropriate, DHS also has used the results of DOJ research and considered public comments submitted in response to the DOJ ANPRM and NPRM in formulating the DHS standards.

3. U.S. Customs and Border Protection Holding Facilities

CBP has a priority mission of keeping terrorists and their weapons out of the United States. CBP also is 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 for a 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 law enforcement staff within its holding facilities; CBP employees oversee detainees directly.

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 a 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 § 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 (ORR); and (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 regulations include, but are not limited to:

Personal Search Handbook,

Office of Field Operations, CIS HB 3300-04B, July 2004—describes in detail the procedures for personal searches. The handbook further explains the procedures for transportation and 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

—establishes CBP's policy for the temporary detention, transport, and escort of persons by the Office of Field Operations. The policy also provides guidance on issues regarding the detention 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 at

www.regulations.gov

.

IV. Discussion of PREA Standards

A. DHS's PREA Standards

With this final rule, DHS reiterates that 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 viewed by some as an inevitable aspect of detention within the United States. This view is not only incorrect but incompatible with American values.

As noted in the NPRM, DHS keeps records of any known or alleged sexual abuse incidents in its facilities. DHS reiterates that the allegations that have been tracked are unacceptable, both to DHS and the Administration, which has articulated a “zero-tolerance” standard for sexual abuse in confinement facilities. Accordingly, DHS continues to work to achieve its mandate to eliminate all such incidents.

With respect to this rule, 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 confinement facilities, including DHS confinement facilities. DHS applauds these efforts, and views them as an excellent first step. However, as noted in the NPRM, DHS has decided to promulgate regulations 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 the NPRM and this final rule, but has tailored individual provisions to maximize their efficacy in DHS confinement facilities.

DHS also reemphasizes that these 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 due to the need to adopt standards applicable to a wide range of facilities while accounting for costs of implementation, the standards do not incorporate every promising avenue of combating sexual abuse. The 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 rule follows the DOJ rule in devising separate sets of standards tailored to different types of confinement facilities utilized by 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.

General Definitions (§ 115.5)

Sections 115.5 and 115.6 provide definitions for key terms used in the 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 standards or whose meaning is sufficiently clear so as not to need defining.

Facility, holding facility—transportation.

Numerous commenters, including advocacy groups and former Commissioners of NPREC, questioned this definition of facility, noting that it did not extend to custodial transport, when detainees are in transit between facilities. An advocacy group stated that the transfer of detainees, either between facilities or to facilitate removal, is a common aspect of immigration detention, necessitating clear inclusion of PREA protections during these situations. Another advocacy group stated that detainees are vulnerable when being transported and that, unlike within the DOJ system, facility staff regularly transport immigration detainees. One organization stated that definitions for both facility and holding facility should explicitly include transportation settings to provide for zero tolerance of abuse in such situations, with some groups stating that such definitions should include the language in PBNDS § 1.3 that addresses transportation.

DHS has considered these comments and decided to adopt the scope of the proposed rule—immigration detention facilities and holding facilities. DHS notes that some standards indirectly cover custodial transport. For example, the DHS standards cover all staff conduct, including staff and employee conduct while transporting detainees.

In addition, DHS has addressed custodial transport in numerous other contexts. The written zero tolerance policy applies to all forms of sexual abuse and assault by agency employees and contractors. This policy applies to transport of detainees in DHS custody to and from holding facilities and immigration detention facilities, between a holding facility and a detention facility, and to custodial transport for the purposes of removal. Moreover, the ICE SAAPID provides protection for all detainees when they are in ICE custody, including custodial transport. And whenever DHS is alerted to an alleged incident of sexual abuse and assault during DHS transport to or from a holding facility or immigration detention facility or during DHS custodial transport for the purposes of removal, such allegations are required to be documented and promptly reported to the Joint Intake Center (JIC) and the PSA Coordinator, and will promptly receive appropriate follow-up, including a sexual abuse incident review at the conclusion of the investigation by the appropriate investigative authorities. In situations involving transportation between a holding facility maintained by one DHS component and an immigration detention facility maintained by another component, the Prevention of Sexual Assault (PSA) Coordinators at each component will be responsible for addressing the allegation in their respective annual reports.

By including explicit references to such custodial transportation in its policies, DHS reaffirms its commitment to preventing, detecting, and responding to sexual abuse and assault against individuals detained in DHS custody. Consistent with DOJ's approach, however, DHS declines to include additional separate standards on transportation.

One advocacy group, basing its comment on ICE standards under PBNDS, suggested a separate section in the final rule addressing transportation that would require that two transportation staff members be assigned to transport a single detainee, including at least one staff member of the same gender as the detainee, except in exigent circumstances. The suggested standards would specify similar requirements for multiple-detainee transit, provide detailed timekeeping accountability guidelines for exigent circumstances situations, provide documentation requirements when aberrations from the above suggestions occur, and provide separate rules for conduct and documentation requirements of pat-downs during transportation. The group also suggested the standards require minors to be separated from unrelated adults at all times during transport, seated in an area of the vehicle near officers, and remain under their close supervision. Additionally, the commenter suggested detainees of different genders be transported separately—or, if in one vehicle, in separately partitioned areas—with transgender detainees being transported in a manner corresponding to their gender identity.

As noted above, DHS recognizes the importance of protecting detainees in all custodial settings, including during transport. For this reason, and as noted by the commenters, ICE has promulgated, and is currently in the process of implementing, 2011 PBNDS, which provides greater protection for

detainees being transported while in ICE custody. These detention standards include a number of the protections recommended by the commenter, as do—to a lesser extent—the PBNDS 2008 and NDS. As noted above, detainees in ICE custody are also protected by DHS's zero-tolerance policy, ICE's zero-tolerance policy and ICE's SAAPID which prohibits sexual abuse and assault by any ICE employee in any custodial setting. CBP detainees are protected under DHS's zero-tolerance policy and other policies, including CBP Directive No. 3340-030B, Secure Detention, Transport and Escort Procedures at Ports of Entry.

Following careful review, DHS determined that the combination of generally applicable provisions of this final rule and other existing policies address the commenters' concerns in an effective and operationally practicable way. Therefore, DHS has decided not to add specific transportation standards to the regulation and instead, relies on existing policies and guidelines which provide for detainee protection.

Facility, holding facility—temporary-use holding rooms.

Former Commissioners of NPREC and some advocacy groups recommended that DHS extend the definition of holding facility to include temporary-use holding rooms not in immigration detention facilities or holding facilities, but in locations sporadically used to detain for short periods of time during other DHS operations, such as U.S. Coast Guard vessels, conference rooms, and hotel rooms. Groups urged DHS to include additional regulatory protections for this temporary type of confinement. Although such temporary-use facilities are covered by existing policy, the former Commissioners recommended that DHS memorialize such guidance in binding Federal standards.

DHS reiterates that its zero-tolerance policy applies to all of its detention settings, and additional existing policies also cover temporary-use holding rooms. Moreover, any allegation of sexual abuse and assault will be reported to the JIC promptly and will promptly receive appropriate follow-up, regardless of the particular setting within DHS control in which the allegation arises. As DHS noted in the proposed rule, this rulemaking defines facility and holding facility broadly, including a number of settings that, while built for the purpose of detaining individuals, are used infrequently. DHS declines to further extend the requirements of the rule to settings that are not built for the purposes of detaining individuals, as many of the provisions, including those pertaining to supervision and monitoring and upgrades to facilities and technologies, would be impracticable, inefficient, and at times impossible to apply outside of the contexts contemplated in the rule as drafted.

Former NPREC Commissioners commented that based on the proposed rule's definition of facility, it is unclear whether external audit standards apply to contract facilities. To clarify, DHS notes that the external audit standards do apply to all facilities, including contract facilities, in which the standards have been adopted.

Exigent circumstances.

Multiple commenters objected to the definition of “exigent circumstances” as too broad. The rule allows detainee pat-down and strip search searches to be conducted by staff of the opposite sex in exigent circumstances. The former NPREC Commissioners commented that the definition might weaken the effect of the proposed standards by too readily allowing cross-gender searches. The Commissioners recommended that DHS replace “exigent circumstances” with a more restrictive exception, such as “in case of emergency circumstances.” Another group stated that many standards would not apply because exigent circumstances exceptions could be continuously invoked and swallow the rule, suggesting instead that the definition specify that a threat must be of serious nature. One organization suggested replacing the word “unforeseen” in the definition with “unforeseeable.”

After considering these comments, DHS has determined to retain the definition in the final rule. The definition in § 115.5 is properly tailored to ensure that standards are followed except in “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.” It is necessary for operational purposes to carve out a limited exception to certain standards. For example, threats to the safety of a detainee or officer must be considered. In addition, a facility might have to adjust to the unforeseen absence of a staff member whose presence is typically necessary to carry out a specific standard.

Contractor.

Multiple commenters suggested that DHS clarify the definition of contractor to include all employees and subcontractors of the person or entity referred to in the relevant provision. In response to these comments, DHS notes that it considers all facility employees and sub-contractors to be covered under the final rule's definition of staff in § 115.5, which “means employees or contractors of the agency or facility, including any entity that operates within the facility.”

Family unit.

Multiple commenters recommended changing the requirement in the proposed rule that provided that to qualify as a family unit under Subpart A, none of the juvenile(s) or his/her/their parent(s) or legal guardian(s) may have a known history of criminal or delinquent activity. The commenters expressed concern that this could lead to the separation of a detained family where a member had a non-violent adjudication or committed a non-violent offense years ago, where a member committed an immigration-related crime, or where a juvenile was engaged in a delinquent activity. Some groups suggested that the qualifier “violent” be used to describe disqualifying criminal or delinquent activity and that only “violent criminal or delinquent activity, or . . . sexual abuse, violence or substance abuse that could reasonably put the safety or well-being of other family members at risk” should prevent an otherwise qualifying group from falling into the family unit definition. One group recommended that protection of the family unit be paramount, with exceptions being narrower than in the proposed rule. The former Commissioners also seemed to assert that the definition could exclude situations where juveniles are accompanied by non-parental family members or family friends, and further expressed concern that the definition was too narrow and could jeopardize keeping family units intact. Advocacy groups stated the definition should better reflect “the child's lived reality” and more closely comply with existing Federal standards.

While DHS must take steps to ensure the safety of minors in its custody, the agency also recognizes the important goal of keeping families intact. DHS has revised the “family unit” definition in the final rule to provide a more straightforward regulatory description in a manner that accords with current ICE policy and that recognizes the need for flexibility due to the operational realities of ensuring a safe detention environment. DHS's revised definition states that 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), whom the agency will evaluate for safety purposes to protect juveniles from sexual abuse and violence. This modified definition ensures the necessary language to qualify as a “family unit” under the

Family Detention and Intake Guidance remains in the regulatory text. The revised definition also permits the agency to maintain needed flexibility to ensure the safety of juveniles in DHS custody.

Revising the “family unit” definition as applied in Subpart A to allow all individuals with a non-violent criminal history to stay with minors, and to expand the definition of family to include non-parental family members or family friends, as recommended by commenters, potentially could conflict with the intent behind ICE's Family Detention and Intake Guidance, which seeks to protect children from abuse and human trafficking. DHS therefore declines to incorporate that specific recommendation into the revised definition.

One commenter suggested revising the definition of family unit to include not only non-U.S. citizen juvenile(s) accompanied by their parents or legal guardians, but also non-U.S. citizen juveniles accompanied by “a sponsor approved by” HHS/ORR. The commenter stated that “[i]n the context of apprehension and enforcement, a family unit should be broadened to include ORR-approved sponsors because they have the authority to release unaccompanied children to a `suitable family member' per 8 U.S.C. 1232(c).”

The definition of “family unit” relates to placement in the ICE Family Residential Program. An unaccompanied alien child without a parent or legal guardian would not meet the criteria set forth in the definition of a “family unit” for these purposes. An unaccompanied alien child would not be accompanied by a sponsor approved by HHS/ORR until after they are transferred from DHS to HHS/ORR. Once an unaccompanied alien child is transferred to HHS/ORR, they are no longer within DHS's jurisdiction. Furthermore, because the purpose of this final rule is to prevent, detect, and respond to sexual abuse and assault in confinement facilities, addressing the treatment of a family unit during apprehension and enforcement is outside the scope of this rule.

Gay, lesbian, bisexual.

One immigration advocacy group requested that the final rule define these terms, in addition to already included definitions of transgender, intersex, and gender nonconforming. The group suggested first looking to the U.S. Citizenship and Immigration Services (USCIS) Lesbian, Gay, Bisexual, Transgender, Intersex (LGBTI) Asylum Module's definitions regarding sexual orientation, gay, lesbian, heterosexual/straight, and bisexual.

After considering the comment to include these terms in the final rule, DHS decided not to add them to the definitions section for several reasons. First, DHS used the DOJ PREA final rule—which does not define gay, lesbian, and bisexual—as a general guide when determining which definitions should be included. Second, as a general matter, the regulation currently relies on self-identification for classification and protective purposes.

Security staff, law enforcement staff.

A collection of advocacy groups suggested that the proposed definitions' distinction between security staff who operate at immigration detention facilities, and law enforcement staff who operate in a holding facility, should be eliminated and consolidated under one “security staff” definition so that security personnel at each type of facility are labeled in the same way. The groups contended that DHS does not need to differentiate like the DOJ standards, and suggests consolidating by adding “or holding facility” to the conclusion of the “security staff” definition.

DHS notes that under the final rule, there is a meaningful difference between security staff and law enforcement staff. Unlike holding facilities, which are staffed by law enforcement officers from either ICE or CBP, immigration detention facilities use a wide range of staffing, including personnel from private companies who are not law enforcement officers. The general definitions of “law enforcement staff” and “security staff” recognize this distinction and allow DHS to tailor its rule to the specific contexts at issue.

Definitions Related to Sexual Abuse and Assault (§ 115.6)

Sexual abuse.

One commenter stated that the current definition should include language from the definition implemented by DOJ, including unwelcome sexual advances, requests for sexual favors, or verbal comments, gestures or actions of a derogatory or offensive sexual nature. The commenter encouraged DHS to add this language because the actions that are described in DOJ's definition seem more likely to occur than the proposed rule's description of sexual abuse. A number of advocacy groups commented that the part of the proposed sexual abuse definition addressing threats, intimidation, harassment, profane or abusive language, or other actions or communications coercing or pressuring into a sexual act, should include “requests” and should also encompass “encouraging” detainees to engage in such an act.

It appears that the commenters are comparing the DHS definition of sexual abuse to the definition of sexual harassment in DOJ's standards. DHS has not added this language because the DHS standards already include a similar definition of sexual harassment within the current DHS definition of sexual abuse. Specifically, the DHS definition of sexual abuse in § 115.6 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.” DHS believes that this coverage under the definition of sexual abuse is sufficient and accomplishes the objective sought by the commenter. DHS also notes that the standards include sexual harassment in the definition of staff on detainee sexual abuse.

Regarding the proposed rule's provision on inappropriate visual surveillance, certain advocacy groups requested that the standards specifically include within the definition of sexual abuse acts of voyeurism by staff members, contractors, or volunteers. The commenters suggested that explicitly incorporating voyeurism into the definition was necessary in order to capture the complete scope of prohibited behavior. The suggested more expansive definition would include unnecessary or inappropriate visual surveillance of a detainee, including requiring a detainee to expose his or her buttocks, genitals, or breasts, or unnecessarily viewing or taking images of all or part of a detainee's naked body or of a detainee performing bodily functions.

DHS has considered this suggested addition to the standards and the DHS final rule now expressly includes voyeurism by a staff member, contractor, or volunteer as a type of sexual abuse. Voyeurism is defined as “inappropriate visual surveillance of a detainee for reasons unrelated to official duties. Where not conducted for reasons relating to official duties, the following are examples of voyeurism: Staring at a detainee who is using a toilet in his or her cell to perform bodily functions; requiring an inmate detainee to expose his or her buttocks, genitals, or breasts; or taking images of all or part of a detainee's naked body or of a detainee performing bodily functions.”

One commenter suggested that the sexual abuse definition account for a detained child's legal inability to consent to sex with an adult. DHS recognizes the extreme importance of protecting minors while in custody and remains fully committed to that end.

DHS notes that existing Federal and State laws legally preclude the possibility of consent by a detainee to sexual relations with a staff member while in custody, and moreover provide that any such sexual acts be criminalized, regardless of the age of the detainee. DHS considers the existence of these legal prohibitions outside the context of the regulation to authoritatively establish the legal inability of a child to consent to sex with an adult while in detention. For this reason, DHS declines to incorporate additional language to the regulation in response to the comment.

Coverage of DHS Immigration Detention Facilities (§ 115.10); Coverage of DHS Holding Facilities (§ 115.110)

Summary of Proposed Rule

The standards contained in the proposed rule clarified that ICE immigration detention facilities are governed by Subpart A of the rule. DHS holding facilities are governed by Subpart B. DHS recognizes that to effectively prevent, detect, and respond to sexual abuse in its facilities, DHS must have strong standards appropriate to each unique context. 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.

Changes in Final Rule

DHS is adopting the regulation as proposed.

Comments and Responses

Comment.

Regarding coverage, one organization expressed concern that agency policies should include zero tolerance of sexual abuse during transportation of detainees in DHS custody, as well as in detention facilities. The group suggested stating in Subpart B's coverage standard that the standard covers transportation to or from DHS holding facilities in addition to holding facilities themselves.

Response.

Please see DHS's response in the discussion of § 115.5 above.

Zero Tolerance; PSA Coordinator (§§ 115.11, 15.111)

Summary of Proposed Rule

The standards in the proposed rule required that each covered agency have a written zero-tolerance policy toward sexual abuse, outlining the agency's approach to preventing, detecting, and responding to such conduct. DHS also proposed that each covered agency appoint an upper-level, agency-wide PSA Coordinator to oversee agency efforts to comply with the DHS standards and that each immigration detention facility covered by Subpart A have its own written zero-tolerance policy and appoint a Prevention of Sexual Assault (PSA) Compliance Manager to oversee facility efforts in this regard.

Changes in Final Rule

DHS is adopting the regulation as proposed, with one technical revision to the PSA Coordinator's title.

Comments and Responses

Comment.

The organization that suggested changes regarding covering transportation in § 115.110 also recommended revising paragraph (b) to include in the PSA Coordinator's responsibilities for protecting detainees in the agency's custody, including detainees being transported to or from its holding facilities while in DHS custody, in addition to those held in all of its holding facilities.

Response.

As previously stated, DHS has zero tolerance for all forms of sexual abuse and assault of individuals in custody. This applies to DHS custodial transport to and from holding facilities and immigration detention facilities, between a holding facility and a detention facility, and for the purposes of removal. The PSA Coordinators will oversee all component efforts to comply with the standards, including zero tolerance. It is not necessary to revise the rule to include a reference to transportation.

Comment.

Former NPREC Commissioners noted that under the proposed standards, facilities have considerable discretion to determine their sexual abuse policies; therefore, prior to permitting detainees to be confined in a facility, DHS should ensure its policies are consistent with PREA standards.

Response.

DHS concurs that it is important to ensure that facility policies are consistent with PREA standards. Section 115.11(c) already requires DHS to review each facility's sexual abuse and assault policy, as required by subsection (c). Therefore, no additional changes are required.

Comment.

An advocacy group commented generally that DHS should allocate sufficient staff and provide them with the authority and time to continually monitor the policies enacted by the facilities to reflect the zero-tolerance goal.

Response.

DHS recognizes the importance of dedicating personnel to implement, monitor, and oversee these efforts and has employed a full-time PSA Coordinator. Section 115.11(b) already provides that the PSA Coordinator shall have sufficient time and authority to monitor implementation.

Contracting With Non-DHS Entities for Confinement of Detainees (§§ 115.12, 115.112)

Summary of Proposed Rule

The standards contained in the proposed rule required that covered agencies that contract for the confinement of detainees include in new contracts or contract renewals the other party's obligation to comply with the DHS sexual abuse standards.

Changes in Final Rule

DHS revised §§ 115.12 and 115.112 to require the agency to include the entity's obligation to adopt and comply with these standards in all substantive contract modifications.

Comments and Responses

Comment.

Multiple commenters suggested that contract facilities or IGSA facilities housing detainees should be required to adopt DHS sexual abuse standards within a specified timeframe, with some urging no delay in application and others urging compliance within 90 days or a year after the standards' effective date. The commenters believe that without a specific timeframe, or compliance schedule similar to that applicable to DHS's own facilities, contract facilities could delay implementing these standards. Commenters expressed concern over the potential lag between the standards' effective date and their implementation at non-DHS facilities.

Among the commenters that recommended requiring adoption of the standards during any contract modification, some commenters suggested a set timeline of 90 days after the standards' effective date for DHS to proactively initiate contract modification or modification-related negotiations with any existing non-DHS facility. One such commenter suggested eliminating “contact renewals” as a scenario for when compliance with the standards would be triggered. The commenters also proposed that any such negotiations conclude within 270 days of the standards' effective date. Additionally the commenters, in paragraph (b), would also include “contract modifications” in the monitoring process, to allow DHS to monitor compliance for modified contracts. Commenters also recommended that DHS create a new requirement that any failure to adopt the changes via contract in the specified

timeframe would disqualify the facility from continuing to detain individuals until remedied. One group suggested that compliance with the proposed 90-day timeline be verified by an independent auditing process.

Response.

Based on ICE's past experience with the contract negotiation process, it can take one year or more to complete a contract renegotiation for a single detention facility. ICE cannot reasonably conduct such large numbers of contract negotiations simultaneously in such a short period of time. Given that there are 132 covered immigration detention facilities that would need to adopt the standards, without some additional appropriation to address these staffing and logistical challenges, bringing contract negotiations to conclusion within one year is not operationally feasible.

DHS remains committed to protecting its immigration detainees from incidents of sexual abuse and assault. With that goal in mind, DHS, through ICE, will endeavor to ensure that SPCs, CDFs, and dedicated IGSAs adopt the standards set forth in this regulation within 18 months of the effective date. These facilities currently hold more than half of the immigration detainees in ICE custody and therefore should be DHS's highest priority.

DHS, through ICE, will also make serious efforts to initiate the renegotiation process with the remaining covered facilities as quickly as operational and budgetary constraints will allow. As a matter of policy, DHS will seek to prioritize implementation to reduce the most risk as early as possible, taking into consideration all relevant factors, including the resources necessary to reopen and negotiate contracts, the size and composition of each facility's detainee population, the marginal cost of implementing the standards of each facility, the detention standards currently in effect at each facility, the prevalence of substantiated incidents of sexual abuse at each facility, and other available information related to the adequacy of each facility's existing safeguards against sexual abuse and assault.

In further recognition of DHS's pledge to abide by the principles set forth in this regulation, DHS has revised §§ 115.12 and 115.112 to require components to include these standards in contracts for facilities that undergo any substantive contract modification after the effective date. Under this provision, DHS would include the PREA standards in any contract modification that affects the substantive responsibilities of either party. (Covered substantive contract modifications would include, for example, changes to the bed/day rate or the implementation of stricter standards, but not the designation of a new Contracting Officer.) This change endeavors to ensure that facilities come into compliance with the regulation at a faster rate, but not in a manner that is operationally impossible for DHS.

Comment.

Former Commissioners of NPREC raised an issue regarding applicability of DOJ and DHS standards. The former Commissioners recommended that DHS clarify which of the two sets of standards applies to immigration detainees held in state prisons or jails, lock-ups, or community residential settings. According to the comment, DOJ's standards are “facility driven” as opposed to driven by sub-population of inmates. “If a facility meets one of the definitions for covered facility types under DOJ's Standards, then the Standards apply to the entire facility.” The former Commissioners therefore urged that DHS clarify the application of DHS standards in facilities also covered by the DOJ standards.

The former Commissioners also recommended that DHS ensure that its detainees benefit from the most protective standards possible, regardless of whether their detainees happened to be placed in a DOJ-covered facility. To that end, the former Commissioners recommended that DHS avoid comingling DHS detainees with other populations. This would ease application of immigration standards to immigration detainees and provide them the special protections they need, so—for facilities housing inmates and detainees—housing detainees separately throughout their time in custody is necessary.

Response.

As noted above, DHS, through ICE, will endeavor to ensure that SPCs, CDFs, and dedicated IGSAs adopt the standards set forth in this regulation within 18 months of the effective date. These facilities currently hold more than half of the immigration detainees in ICE custody and therefore are appropriately DHS's highest priority. When DHS and a facility agree to incorporate these standards into a contract, such standards are binding on the facility with respect to DHS detainees, notwithstanding any separate obligations the facility might have under the DOJ rule. DHS's standards, though not identical with DOJ's standards, are not inconsistent with them either.

While some immigration detention facilities only house immigration detainees, for operational and financial reasons, ICE cannot rely solely on such facilities to meet the agency's detention needs. As a result, some detainees are held in non-dedicated IGSAs and a significant number (approximately 20 percent of the average daily population of ICE detainees) are also held in BOP facilities or state, local, and private facilities operated under agreement between the servicing facility and a component of DOJ. Such agreements are often negotiated and executed by USMS. DHS components can benefit from such agreements as authorized users and via other indirect arrangements, which often do not afford DHS an opportunity to negotiate specific terms and conditions at length. For these facilities, DHS relies on DOJ's national standards to provide a baseline of PREA protections.

In part because DHS does not currently maintain privity of contract with these facilities, however, DHS does not consider them to fall within the ambit of §§ 115.12 and 115.112. The standards set forth in Subpart A do not apply to facilities used by ICE pursuant to an agreement with a DOJ entity (e.g., BOP facilities) or between a DOJ entity (e.g., USMS) and a state or local government or private entity. These facilities are not immigration detention facilities as the term is defined in the regulation because they are not “operated by or pursuant to contract with U.S. Immigration and Customs Enforcement.” Instead, the servicing facility, including its immigration detainees, is covered by the DOJ PREA standards.

Similarly, holding facilities that are authorized for use by ICE and CBP pursuant to an agreement between a DOJ entity and a state or local government or a private entity are not included in the definition of holding facility in § 115.5 or the scope provision in § 115.112 because DHS is not a party to the agreement with the servicing facility and these facilities are not under the control of the agency.

DHS recognizes that facilities might find it easier to comply with a single set of standards, rather than multiple standards simultaneously. DHS has attempted to strike a balance that covers as many detainees as possible, without imposing unnecessary burdens on facilities. DHS's approach in this area is consistent with the Presidential Memorandum, which specifically directed Federal agencies with confinement facilities that are not already subject to the DOJ final rule to establish standards necessary to satisfy the requirements of PREA. The Memorandum stated clearly that each agency is responsible for, and must be accountable for, the operations of its own confinement facilities. VAWA 2013

confirmed this view, by requiring that DHS finalize standards for “detention facilities operated by the Department of Homeland Security and . . . detention facilities operated under contract with the Department.” The latter category “includes, but is not limited to contract detention facilities and detention facilities operated through an intergovernmental service agreement with the Department of Homeland Security.” 42 U.S.C. 15607.

In short, DHS believes that facilities will know which standards to apply based on their relationship with DHS and the agreements they have executed. DHS and DOJ are committed to ensuring smooth implementation of their respective standards. If implementation reveals that facilities would benefit from further guidance regarding the applicability of each agency's standards, DHS and DOJ will work to provide such guidance. DHS makes no changes to the regulatory text as a result of this comment.

Comment.

One commenter suggested that DHS further clarify more directly how the standards apply to private parties contracting with the government, noting concern about a possibility that contractual remedies will serve as insufficient deterrents against such private contractors who may potentially violate the standards.

Response.

DHS recognizes the concern of commenters that private entities running detention facilities adequately comply with these standards. DHS currently enforces detention standards through contracts with facilities and believes that PREA will be effectively implemented through new contracts, contract renewals, and substantive contract modifications. DHS, through ICE, can transfer detainees from facilities that do not uphold PREA standards after adoption and it can terminate a facility's contract, which ICE has done in the past and will continue to do if a facility is unable to provide adequate care for detainees.

Comment.

A range of advocacy groups suggested adding a paragraph to § 115.12 that would mirror the provision in Subpart B's similar proposed standard at § 115.112. The change would require all standards in Subpart A that apply to the government also apply to the contractor and all rules that apply to staff or employees also apply to contractor staff; the groups expressed concern that without this language, poorly performing contractors could attempt to excuse themselves when failing to fully comply with the standards.

Response.

DHS declines to add paragraph (c) from § 115.112 to § 115.12 based on the inherent differences between the facilities covered by Subpart A and Subpart B, respectively. To the extent appropriate, Subpart A applies to DHS employees and contractors alike; as § 115.5 states, the term “staff” includes “employees or contractors of the agency or facility, including any entity that operates within the facility.”

DHS included § 115.112(c) in Subpart B because DHS rarely uses contractors to run holding facilities and would only need to use contractors on a short-term basis. In rare instances where DHS contracts for holding facility space, paragraph (c) provides an additional layer of protection; despite the short-term nature of the detention, contractors must be fully aware of the obligation to abide by the standards set forth in this rule.

Comment.

Former NPREC Commissioners suggested that the standard include a requirement that all contracts entered into between DHS and contracting facilities directly, through IGSAs, or through other arrangements include contract language requiring that the facilities abide by the applicable PREA standards. Some commenters suggested provisions regarding consequences for failure of contract facilities to comply with PREA, including taking away funding from noncompliant facilities, removing detainees, and closer monitoring or even criminal or civil sanctions for facilities that fail to comply repeatedly. Relatedly, some members of Congress have suggested strict and tangible sanctions for noncompliance, include termination of contracts, to ensure that individuals will not be housed in facilities that cannot protect them.

Response.

As noted above, the final rule requires that the DHS include in new contracts, contract renewals, and substantive contract modifications the entity's obligation to adopt and comply with the standards set forth in this regulation. DHS disagrees about the need to articulate punitive measures for noncompliant facilities in the regulation. DHS, through ICE, has longstanding and well-established procedures for sanctioning under-performing facilities that violate its detention standards, including by putting any detainee in danger. For example, if ICE determines that a facility is not compliant with relevant detention standards, it can reduce the number of detainees held by the facility or impose a corrective action plan on the facility. If ICE determines that detainees remain at risk, ICE will terminate the facility's contract and remove all detainees from the facility.

Comment.

One advocacy group suggested requiring robust oversight of the standards' implementation in contract facilities, including descriptions of the manner in which contract monitoring will be conducted, the frequency of monitoring, and the party or parties responsible for monitoring.

Response.

Once the standards set forth in this regulation are adopted by a facility, the facility will be expected to comply with them and will be subjected to DHS and ICE's multi-layered inspection and oversight process which will include an evaluation of compliance with these standards.

Currently at ICE, ERO contracts for independent inspectors to review conditions of confinement at ICE facilities on an annual or biennial basis, with follow-up inspections scheduled as required. All ICE facilities with an average daily population of 50 or more detainees are inspected on an annual basis. In addition, ERO employs 40 on-site Federal Detention Service Managers (DSMs) at key ICE detention facilities to monitor and inspect components of facility operations for compliance with ICE detention standards. Currently, DSMs are assigned to 52 detention facilities, covering approximately 83 percent of ICE's detained population. ERO also contracts for a Quality Assurance Team (QAT) comprised of three subject matter experts in the fields of corrections and detention. The QAT performs quality assurance reviews at the facilities that have assigned DSMs. The purpose of the QAT reviews is to ensure that DSMs are effectively monitoring the operations of the facility and addressing concerns.

The ICE Office of Detention Oversight (ODO), within the Office of Professional Responsibility (OPR), conducts compliance inspections at selected detention facilities where detainees are housed for periods in excess of 72 hours. ODO selects facilities to inspect based on a variety of considerations, including significant compliance issues or deficiencies identified during ERO inspections, concerns identified or raised by the DSMs, detainee complaints, and allegations reported or referred by the DHS Office of Inspector General (OIG) or the ICE JIC. ODO provides its compliance inspection reports, recommendations and identified best practices to ERO and ICE leadership who ensure appropriate corrective action plans are developed and put in place at detention facilities.

At the Department level, CRCL reviews allegations related to civil rights and civil liberties issues in immigration detention facilities. The OIG also may

respond to certain complaints by conducting investigations. The OIG will refer certain complaints to ERO.

Detainee Supervision and Monitoring (§§ 115.13, 115.113)

Summary of Proposed Rule

The standards contained in the proposed rule required the agency or the facility to make its own comprehensive assessment of adequate supervision levels, taking into account its use, if any, of video monitoring or other technology. The agency or facility must reassess such adequate supervision and monitoring at least annually and the assessment will include an examination of the adequacy of resources it has available to ensure adequate levels of detainee supervision and monitoring. Each immigration detention facility must also conduct frequent unannounced security inspections to identify and deter sexual abuse of detainees.

Changes in Final Rule

DHS added two factors for the facility to consider when determining adequate levels of detainee supervision and determining the need for video monitoring. These factors are (1) generally accepted detention and correctional practices and (2) any judicial findings of inadequacy.

DHS also made a minor change to § 115.13(d). Instead of prohibiting staff from alerting others that “supervisory rounds” are occurring, DHS prohibits staff from alerting others about the “security inspections.” The purpose of this change is to make the provision more consistent with the rest of the paragraph, which refers to such checks as security inspections rather than supervisory rounds.

Comments and Responses

Comment.

A number of commenters requested generally that this section more closely resemble DOJ's standards regarding supervision and monitoring. A human rights advocacy group requested that DOJ's more specific list of factors in paragraph (a) be included. Under this approach, the rule would explicitly require facilities to consider, when determining adequate staffing levels, past findings of supervision inadequacies by courts or internal or external oversight bodies. These considerations would be in addition to the considerations set forth in the proposed section's paragraph (c), which provides that “the facility shall take into consideration the physical layout of each facility, the composition of the detainee population, the prevalence of substantiated and unsubstantiated incidents of sexual abuse, the findings and recommendations of sexual abuse incident review reports, and any other relevant factors, including but not limited to the length of time detainees spend in agency custody.”

Response.

DHS respectfully disagrees with the notion that its supervision and monitoring provision must include the same enumerated factors included in DOJ's regulation regarding facilities. DOJ's rule is intended to cover a broad range of Federal and State facilities managed and overseen by a variety of different government organizations. By contrast, ICE oversees detainee supervision and monitoring at all immigration detention facilities. ICE uses its well-established detention standards to ensure that facilities are properly and effectively supervising detainees. DHS agrees, however, that a number of factors from DOJ's regulation have application in the DHS context. DHS has therefore incorporated into its regulation the following two additional factors: (1) Generally accepted detention and correctional practices and (2) any judicial findings of inadequacy.

Comment.

A number of comments addressed the requirements for security inspections. Regarding the standard in § 115.113 for holding facilities specifically, one organization suggested that DHS add a requirement that such facilities conduct periodic unannounced security inspections just as in Subpart A, stating that video monitoring is not a substitute for adequate staffing and also suggesting that the clauses in both proposed sections allowing video monitoring where applicable be struck from paragraph (a) and instead included in paragraph (b) as a part of the requirement to develop and document supervision guidelines.

Response.

DHS defines a holding facility similarly to DOJ's definition of “lockup.” The DOJ rule requires unannounced security inspections of adult prisons and jails, but not of lockups. Similarly, DHS provides for such inspections in its immigration detention facilities, but not in its holding facilities. This is because holding facilities, like lockups, generally provide detention for much shorter periods of time.

Comment.

Commenters suggested adding another requirement for intermediate-level or higher-level supervisors to conduct more inspections.

Response.

DHS notes that by focusing on having only mid- to high-level supervisors conduct inspections, the facilities would not be effectively accomplishing the main purpose of the provision, which is to deter sexual assault and abuse. DHS believes that facility staff are trained and qualified to conduct security inspections and that these inspections are an effective and efficient deterrent to sexual abuse and assault. Because deterrence is the primary purpose of this requirement, and because, in its experience, non-supervisory inspections are an effective deterrent, DHS declines to make the suggested revisions.

Comment.

Another comment criticized § 115.13 generally for not articulating the frequency (e.g., regular inspections) or location of the inspections (e.g., throughout the facility). The commenter believed this would result in minimal deterrent effect and low likelihood of identifying misconduct as it occurs.

Response.

DHS notes that paragraph (d) provides for unannounced security inspections, which may occur with varying frequency and in any part of a facility. These unannounced inspections are meant to act as a deterrent, and are not meant to catch detainees and/or staff in acts of sexual assault or abuse. Unannounced security inspections are an effective tool used by facilities to deter a wide range of detainee and employee misconduct.

Comment.

Multiple commenters suggested additional requirements for the proposed standards on developing and documenting comprehensive detainee supervision guidelines. One comment recommended that DHS require facility-specific development and implementation of a concrete staffing and monitoring plan, with a specific provision for adequate numbers of supervisors. Another comment recommended that DHS adopt an analogue to paragraph (b) of the DOJ standard, which requires that “the facility shall document and justify all deviations from the [staffing] plan.” Comments also suggested that the agency also document any needed adjustments identified in the annual review, and that—when not in compliance with the staffing plan—a facility should be required to document and justify all deviations, for measuring and compliance during auditing and oversight.

Response.

These standards require that each immigration detention facility develop and document comprehensive detainee supervision guidelines, to ensure that the facility maintains sufficient supervision of detainees to protect detainees against sexual abuse. As explained above, the sufficiency of supervision depends on a variety of factors, including, but not limited to, the physical layout of each facility, the

composition of the detainee population, and each facility's track record in detainee protection.

Currently, NDS relies on performance-based inspections to determine whether a facility has adequate supervision and monitoring. ICE's 2008 PBNDS and 2011 PBNDS require that facility administrators determine the security needs based on a comprehensive staffing analysis and staffing plan that is reviewed and updated at least annually. Section 115.13 enhances ICE's detention standards by requiring that facilities develop and document comprehensive detainee supervision guidelines which will be reviewed annually. Unlike the facilities that fall under DOJ's final rule, ICE has direct oversight over immigration detention facilities and can, through its well-established inspection process, effectively determine whether a facility's detainee supervision guidelines are inadequate and whether a facility is not providing adequate supervision and monitoring.

Furthermore, requiring every facility to adopt specific staffing ratios under this regulation could significantly increase contract costs without commensurate benefits. In short, DHS has determined that it can make more effective use of limited resources by mandating comprehensive guidelines that each facility will review annually and auditors will examine on a regular basis.

DHS declines to require facilities to document deviations from supervision guidelines because we do not believe this additional documentation would materially assist ICE monitoring of conditions generally and compliance with the supervision guidelines in particular. Through its comprehensive facility oversight and inspection programs, ICE has sufficient tools to ensure that facilities effectively supervise detainees and comply with these regulations. And if ICE determines after an inspection that a facility has failed to meet the standards set forth in § 115.13 or failed adequately justify deviations from supervision guidelines, ICE has direct authority to remove detainees from the facility. DHS has therefore elected to proceed with the proposed rule's approach.

Comment.

One group suggested that, in regard to the standard on determining adequate levels of detainee supervision and video monitoring in paragraph (c), an annual review should assess effectiveness and identify changes that may be necessary to improve effectiveness and allow implementation.

Response.

As discussed above, staffing levels, detainee supervision, and video monitoring are inspected on a regular basis. Once a facility adopts these standards, it also will be subject to regular auditing by an outside entity pursuant to the audit requirement in this regulation. Under section 115.203, such audits must include an evaluation of (1) whether facility policies and procedures comply with relevant detainee supervision and monitoring standards and (2) whether the facility's implementation of such policies and procedures does not meet, meets, or exceeds the relevant standards. 6 CFR 115.203(b)-(c).

Juvenile and Family Detainees (§§ 115.14, 115.114)

Summary of Proposed Rule

The standards contained in the proposed rule required juveniles to be detained in the least restrictive setting appropriate to the juvenile. The Subpart A standard required immigration detention facilities to hold juveniles apart from adult detainees, minimizing sight, sound, and physical contact, unless the juvenile is in the presence of an adult member of the family unit, and provided there are no safety or security concerns with the arrangement. That standard further required that facilities provide priority attention to unaccompanied alien children, as defined by 6 U.S.C. 279, who would be transferred to an HHS/ORR facility.

Changes in Final Rule

DHS made minor changes to § 115.14(a), (d), and (e) of the final rule. The “in general” and “should” language that was suggested in the NPRM was removed in paragraph (a) to ensure a clear requirement that juveniles shall be detained in the least restrictive setting appropriate to the juvenile's age and special needs, provided that such setting is consistent with the need to protect the juvenile's well-being and that of others, as well as with any other laws, regulations, or legal requirements.

DHS made a technical change to paragraph (d) to maintain consistency between this regulation and the statutory provision at 8 U.S.C. 1232(b)(3). DHS clarified that paragraph (e) does not apply if the juvenile described in the paragraph is not also an unaccompanied alien child.

Regarding the Subpart B standard at § 115.114, DHS added the same change in paragraph (a) as in § 115.14(a) for consistency. DHS also added more specific language in paragraph (b) to require that unaccompanied juveniles generally be held separately from adult detainees. The final standard also clarifies that a juvenile may temporarily remain with a non-parental adult family member if the family relationship has been vetted to the extent feasible, and the agency determines that remaining with the non-parental adult family member is appropriate, under the totality of the circumstances.

Comments and Responses

Comment.

Commenters expressed concern that the standards should not allow for housing of juveniles in adult facilities, particularly if not held with adult family members. One human rights advocacy group stated that as proposed, the standard on separating juveniles does not set forth specific steps to prevent unsupervised contact with adults.

Response.

It is DHS policy to keep children separate from unrelated adults whenever possible. To take into account, in part, the resulting settlement agreement between the legacy INS and plaintiffs from class action litigation, known as the

Flores

v.

Reno

Settlement Agreement (FSA), INS—and subsequently DHS—have put in place policies covering detention, release, and treatment of minors in the immigration system nationwide. Both the FSA and the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 (TVPRA) inform DHS policies regarding juveniles. There are sometimes instances in which ICE personnel reasonably believe the juvenile to be an adult because the juvenile has falsely represented himself or herself as an adult and there is no available contrary information or reason to question the representation. Under existing policy, ICE officers must base age determinations upon all available evidence regarding an alien's age, including the statement of the alien.

In promulgating these PREA standards, DHS attempted to codify the fundamental features of its policy in regulation, while maintaining a certain amount of flexibility for situations such as brief confinement in temporary holding facilities. Additionally, DHS, through ICE, must and does enforce the Juvenile Justice and Delinquency Prevention Act, which requires that alien juveniles not charged with any offense not be placed in secure detention facilities or secure correctional facilities and not be detained or confined in any institution in which they have contact with adult inmates.

See

42 U.S.C. 5633.

Comment.

Former Commissioners of NPREC and other groups recommended that both the Subpart A and B standards require all sight and sound separation from non-familial adults, as DOJ's standard does. Some members of Congress commented generally that the

standards on housing of juveniles should be revisited to be in line with DOJ's standard. For the Subpart A standard, comments suggested more explicit language requiring facilities to separate juveniles by sight, sound, and physical contact to clarify the degree of separation required; they recommended that DHS eliminate the language of “minimizing” such situations.

Regarding the Subpart B standard, a commenter suggested physical contact, sight, and sound restrictions be in place particularly for shared dayrooms, common spaces, shower areas, and sleeping quarters. Similarly, one group comment suggested adding language to define the meaning of “separately” in Subpart B's unaccompanied alien children provision to ensure placement outside of the sight and sound of, and to prevent physical contact with, adult detainees to the greatest degree possible.

Response.

Regarding Subpart A, DHS does not believe the suggested changes are appropriate, as the DHS standard is tailored to the unique characteristics of immigration detention and the variances among confinement facilities for DHS detainees. With respect to the Subpart A standard for immigration detention facilities, juveniles are primarily held in such facilities under the family residential program. (Rarely, DHS must detain a minor who is not unaccompanied but who is, for example, a lawful permanent resident who has committed a serious crime. In this rare circumstance, DHS uses an appropriate juvenile detention facility which is subject to regular inspection by ICE.) Under the family residential program, juveniles are held with adult family members—not solely with other juveniles as would be the case in the context of DOJ's traditional juvenile settings. Juveniles in the family residential setting for immigration detention may have some contact with adults; however, an adult family member will be present. Given the unique nature of the family detention setting, maintaining the standard's language as proposed is the best and most straightforward way to meet PREA's goals.

The burden of inserting additional specific restrictions would be particularly high because unaccompanied alien children are generally transferred to an HHS/ORR facility within a short period of time—72 hours at most—after determining that he or she is an unaccompanied alien child, except in exceptional circumstances.

10

DHS does not believe the best approach is to wholly transfer DOJ's standard, which fits the correctional system rather than immigration juvenile detention system, to the DHS context in the manner described by the commenters.

10

ICE will occasionally and for short periods of time house unaccompanied alien children whose transfer to HHS/ORR is pending in IGSA juvenile detention facilities. These facilities are subject to inspection and oversight by ICE.

Regarding the Subpart B standard, DHS notes that its standard is consistent with, and in some ways more detailed than, the analogous DOJ standard. Finally, DHS intends that the word “separately” be understood according to the plain meaning of the word. To keep the standards straightforward and easily administrable, DHS declines to create a separate definition of the term for purposes of these standards.

Comment.

One commenter suggested adding requirements for separation outside of housing units to mirror the DOJ standard's requirement of sight and sound separation. The commenter also recommended adding requirements for direct staff supervision when not separated.

Response.

Consistent with the reasoning above, DHS does not believe changes to conform with the DOJ standard in this manner are appropriate, as the DHS standard is tailored to the unique characteristics of immigration detention and the variances among confinement facilities for DHS detainees.

Comment.

An immigration advocacy group commented that it had received preliminary data as a result of a request under the Freedom of Information Act, and that data show thousands of children, including many under the age of 14, have been housed in adult facilities. The commenter wrote that such a practice would violate the terms and conditions of the FSA, which sets forth a policy for the detention, release, and treatment of minors in the custody of then-INS and requires that unaccompanied minors be generally separated from unrelated adults. The commenter also wrote that PREA regulations that discourage but do not prohibit this practice are insufficient to protect this exceptionally vulnerable population from potential sexual abuse.

Response.

DHS has examined available data on this subject, and determined that the commenter's conclusions do not reflect ICE practices. DHS assures the commenter as follows:

• Any individual who claims to be a juvenile during processing or while in detention is immediately separated from the general adult population pending the results of an investigation into the claim;

• All unaccompanied alien children are required to be transferred to an HHS/ORR facility within 72 hours after determining that the child is an unaccompanied alien child, except in exceptional circumstances;

• As stated in § 115.14(b), juveniles will be held with adult members of the family unit only when there are no safety or security concerns with the arrangement; and

• As indicated in § 115.114, if juveniles are detained in holding facilities, they shall generally be held separately from adult detainees. Where, after vetting the familial relationship to the extent feasible, the agency determines it is appropriate, under the totality of the circumstances, the juvenile may temporarily remain with a non-parental family member.

Comment.

Some commenters suggested that more explicit language be incorporated in the standards to prevent abusive use of restrictive confinement in all types of facilities. Multiple groups expressed concern that administrative segregation for juveniles must be limited. One group stated that any separation of juveniles from adult facilities, which it supported, should not subject them to harmful segregation or solitary confinement. Others suggested strict limits, including for all forms of protective custody, with a collection of groups suggesting an explicit prohibition on administrative segregation and solitary confinement if needed to comply with the juvenile and family detainee requirements. The groups suggested removing the phrase “[in] general” in paragraph (a) of the Subpart A and B standards regarding making juvenile detention as least restrictive as possible. One organization suggested requirements for when isolation is necessary to protect a juvenile, including documenting the reason therefor, reviewing the need daily, and ensuring daily monitoring by a medical or mental health professional.

Response.

Upon reconsideration based upon these comments, DHS has concluded that in the interest of clarity removing the introductory words “[in] general” from paragraph (a) is appropriate. However, DHS does not see a need for an explicit regulatory prohibition on administrative segregation, solitary confinement, and the like in this context; concerns about overly restrictive confinement for juveniles should be alleviated by the strong standards in both subparts—further strengthened in this final rule—requiring juveniles to be detained in the least restrictive setting appropriate to the juvenile's age and special needs, taking into account safety concerns,

laws, regulations, and legal requirements. Administrative segregation and solitary confinement clearly do not comply with the requirement that juveniles be detained in the “least restrictive setting appropriate.”

Additionally, the TVPRA mandates that, except in exceptional circumstances, DHS turn over any unaccompanied child to HHS/ORR within 72 hours of determining that the child is an unaccompanied alien child and that ORR promptly place the child in the least restrictive setting that is in the child's best interest.

See

8 U.S.C. 1232(b)(3), (c)(2)(A).

11

Therefore, the types of segregation described by the commenters are generally neither feasible nor permissible for such children.

11

In addition, under 8 U.S.C. 1232(c)(2)(B), if an unaccompanied alien child reaches 18 years of age and is transferred to DHS custody, DHS must consider placement in the least restrictive setting available after taking into account the alien's danger to self, danger to the community, and risk of flight. Such aliens are eligible to participate in alternative to detention programs, utilizing a continuum of alternatives based on the alien's need for supervision, which may include placement of the alien with an individual or an organizational sponsor, or in a supervised group home.

These concerns appear even further diminished when taking into account that under ICE policy juveniles are to be supervised in an alternate setting which would generally not include administrative segregation. Because Subpart A of these standards implements safeguards that will allow a juvenile to be in the presence of an adult member of the family unit when no safety or security concerns exist, accompanied children remaining in immigration detention will not present situations of serious concern either. For these same reasons, DHS declines to adopt the additional suggested requirements regarding isolation.

Comment.

Multiple commenters recommended that when possible and in the best interest of the juvenile, family units should remain intact during detention. Some commenters suggested that DHS include this principle in the regulation. Some commenters also recommended expanding the definition of family unit to account for more expansive understandings of parentage and guardianship in many countries of origin. They suggested that if there are concerns about a child's safety with a family member, other than a parent or legal guardian, DHS assess the relationship and safety and make appropriate placements, including admitting such a family unit while providing separate housing for the child in the same facility.

Response.

For immigration detention facilities, DHS has set a regulatory “floor” in § 115.14 and in the regulatory definition of family unit. This suite of requirements provide that facilities do not hold juveniles apart from adults if the adult is a member of the family unit, provided there are no safety or security concerns with the arrangement. DHS holds immigration detention facilities and holding facilities accountable for complying with a range of policy, and now regulatory, requirements.

With respect to the suggestion that DHS add regulatory language addressing intact family unit detention, DHS declines to adopt such a standard. ICE has found that the PREA standards' definition of family unit and current ICE policy, specifically ICE's Family Detention and Intake Guidance, has worked well, and to the extent that deficiencies might exist, DHS does not believe that addressing them in regulation would be beneficial to the affected population.

With respect to expanding the regulation's treatment of the family unit beyond the parent or legal guardian, DHS declines to expand the “family unit” definition, given the legal requirement for DHS to transfer unaccompanied alien children to HHS, generally within 72 hours of determining that the child is an unaccompanied alien child.

See

8 U.S.C. 1232(b)(3). Under the Homeland Security Act of 2002, adopted by the TVPRA, an “unaccompanied alien child” is defined, in part, as a child for whom “there is no parent or legal guardian” either in the United States or available in the United States to provide care and custody. 6 U.S.C. 279(g)(2);

see also

8 U.S.C. 1232(g). DHS's definition of “family unit” takes these provisions on unaccompanied alien children into account.

However, for Subpart B, as indicated above, DHS has revised § 115.114 to provide that where the agency determines that it is appropriate, under the totality of the circumstances and after vetting the familial relationship to the extent feasible, the juvenile may temporarily remain with a non-parental adult family member.

Comment.

One organization suggested a more bright line mandate regarding the proposed standard's paragraph (d) by requiring the transfer of unaccompanied alien children to HHS/ORR within the timeframe proposed. Another advocacy group emphasized the importance of adequate training and procedures for meeting the timeframe for transfer.

Response.

DHS has considered these comments; however, the standard as proposed, which mandates the transfer of unaccompanied alien children within the 72-hour timeframe except in exceptional circumstances, is consistent with the TVPRA requirements. DHS is confident that the transfer of unaccompanied alien children to ORR will continue to be carried forth expeditiously. DHS will strictly enforce this regulatory provision, as it will all PREA standards. With respect to the observation on the importance of adequate training and internal procedures to support timely transfer to ORR, DHS takes the comments under advisement for purposes of developing its training curriculum.

Comment.

An advocacy group recommended ensuring adequate training regarding the enforcement of the standards in general and procedures to avoid sexual abuse or assault of minors in DHS custody. The group suggested that DHS regularly update and implement field guidance regarding age determinations and related custody decisions, consistent with HHS/ORR program instructions.

Response.

DHS makes changes to existing guidance on issues such as age determinations and custody to reflect new laws, policies, or practices, or as otherwise needed.

Comment.

A number of comments recommended additional protection for unaccompanied children and families in family facilities specifically. The former NPREC Commissioners recommended that DHS separate provisions dealing with unaccompanied minors from provisions dealing with families. Similarly, one advocacy group stated that, because in its view detaining juveniles in family facilities does not eliminate sexual assault risk and may create a greater risk, DHS should include additional standards specific to the family unit setting.

The former NPREC Commissioners specifically suggested DHS adopt additional standards that would apply to the family facility setting specifically. Proposed provisions included screening/vetting of immigration detainees in family facilities, reporting of sexual abuse in family facilities, investigations in family facilities, and access to medical and mental health care in family facilities. The former Commissioners believe that these additional measures would improve protections in family settings.

Response.

DHS has considered these comments and declines to make the suggested changes to the proposed standard. DHS grouped the provisions specific to all juvenile detention and

family detention in one section in order to account for current immigration detention and holding facility practice and policy. Under current practice and policy, a single facility might detain individuals as well as families. (In other words, families detained while travelling or living together may be detained together, even if the facility usually holds detainees as individuals only.) Given this context, DHS believes that streamlining juvenile-specific regulatory standards in a single location strengthens protections, as responsible officials are able to refer to a “one-stop shop” in §§ 115.14 and 115.114. DHS believes that its decision to streamline the standards will not decrease the level of protection to young detainees. DHS will carefully monitor policies and the implementation of this approach and make future policy or regulatory changes if necessary.

With respect to the former NPREC Commissioners' specific proposals for family unit detention and/or family facilities, ICE already has strong policies in place regarding these matters. These standards and ICE policies include detailed provisions on screening/vetting of immigration detainees, reporting of sexual abuse, investigations, and access to medical and mental health care. Again, in addition to the PREA regulatory standards that address these topics generally for all detainees, the 2007 Residential Standard addressing Sexual Abuse and Assault Prevention and Intervention ensures that individuals in family and residential settings are protected by measures relating to these precise topics.

Comment.

One commenter recommended that DHS promulgate a separate set of standards to prevent abuse in facilities that detain children. The group expressed that a significantly improved accounting for the needs of and special risks faced by such youth is necessary.

Response.

DHS has considered this comment and, as a policy matter, declines to set forth differing abuse-prevention standards depending on whether a specific detainee population happens to be present at a specific point in time. Because DOJ's standards address juvenile-only facilities through either the juvenile justice system or the criminal justice system, DOJ's standards specifically included a definition of a juvenile facility.

See

77 FR 37105, at 37115. But immigration detention facilities and temporary holding facilities are not so easily characterized. For example, family unit detention includes juveniles as well as adults. PREA protections apply to a family unit detention facility in the same manner that they apply to other immigration detention facilities. The potential benefits of creating a separate set of standards for this context are not apparent, especially in light of the fact that the applicable standards in Part A are robust.

With respect to juveniles detained outside of family units, as noted above, unaccompanied alien children are generally placed with ORR almost immediately; ORR is responsible for making decisions related to the care and custody of such children in their charge. For the 72-hour intervening period up to which DHS may generally maintain custody, concerns about abuse should be alleviated by the strong requirements in both subparts that generally prohibit juveniles from being held with adult detainees in non-familial situations. DHS believes that the final standards on juvenile and family detainees, with the revisions noted above, sufficiently protect juveniles in immigration detention and holding facilities. Due to these factors, DHS has declined to promulgate a wholly separate set of standards for facilities that house juveniles.

Comment.

One comment suggested explicit requirements that, absent exigent circumstances, juveniles have access to daily outdoor recreation; a number of groups suggested the same standard for large muscle exercise, legally required special education services, and—to the extent possible—other programs.

Response.

Except to the extent affected by standards designed to prevent, detect, and respond to sexual abuse and assault in detention facilities, access to activities and other services is outside the scope of this rulemaking. Therefore, it is not necessary to include a list of specific kinds of juvenile detainee activities and access in these standards.

Comment.

One advocacy group suggested a requirement that children have meaningful access to their attorneys during interactions with DHS officials, including such interactions after transfer to HHS/ORR.

Response.

This comment is outside the scope of this rulemaking. DHS therefore declines to address it here.

Limits to Cross-Gender Viewing and Searches (§§ 115.15, 115.115)

Summary of Proposed Rule

The standards contained in the proposed rule required 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 standards also required 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 proposed rule prohibited 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.

In Subpart A, the proposed rule generally prohibited cross-gender pat-down searches of female detainees, unless in exigent circumstances. The proposed rule permitted cross-gender male detainee pat-down searches when, after reasonable diligence, staff of the same gender was not available at the time the search or in exigent circumstances. The proposed rule required that any cross-gender pat-down search conducted pursuant to these exceptions be documented. The proposed rule required these policies and procedures to be implemented at the same time as all other requirements placed on facilities resulting from this rulemaking. The proposed rule did not prohibit cross-gender pat-down searches in § 115.115 of Subpart B because of the exigencies encountered in the holding facility environment and the staffing and timing constraints in those small and short-term facilities.

In both immigration detention facilities and holding facilities the proposed rule prohibited examinations of detainees for the sole purpose of determining the detainee's gender. The proposed rule further required that all security and law enforcement staff be trained in proper procedures for conducting all pat-down searches.

Changes in Final Rule

In paragraph (i) of § 115.15, DHS changed the text to prohibit a facility from searching or physically examining a detainee for the sole purpose of determining the detainee's genital characteristics. The previous language used the phrase “gender” instead of “genital characteristics.” The final rule also revises paragraph (i) to allow a detainee's gender to be determined as part of a standard medical examination that is routine for all detainees during intake or other processing procedures. The final rule also revises §§ 115.15(j)

and 115.115(f) to clarify that pat-down searches must be conducted consistent with all agency policy.

Comments and Responses

Comment.

A number of commenters believed the same prohibition on cross-gender pat-down searches should apply to all detainees. Two sets of advocacy groups and another organization suggested eliminating paragraph (b), which allows cross-gender searches of males in limited circumstances. A number of these and other groups suggested changing paragraph (c) to prohibit all cross-gender pat-down searches, not just for female detainees, except in exigent circumstances; some members of Congress commented in favor of doing so in order to meet “civil confinement standards.”

Multiple commenters, including the NPREC Commissioners, criticized the inclusion of “exigent circumstances” as an exception to cross-gender searches. These commenters perceived the exception to be overly broad. One commenter expressed dissatisfaction with the term “reasonable diligence” for similar reasons. The commenter suggested a standard that would require facilities to have sufficient male and female staff to sharply limit cross-gender pat-down searching of men. Another commenter recommended narrowing the circumstances under which cross-gender pat downs of males are permitted.

A number of advocacy groups suggested explicitly requiring that facilities cannot restrict a detainee's access to regularly available programming or other opportunities in order to comply with the restrictions on cross-gender viewing and searches.

Response.

DHS adopted a standard that generally prohibits, with limited exceptions, cross-gender pat-down searches of female and male detainees in order to further PREA's mandate of preventing sexual abuse without compromising security in detention, or infringing impermissibly on the employment rights of officers.

DHS declines to incorporate the commenters' suggestion to extend the same coverage for both male and female pat-down searches. Female detainees are especially vulnerable to sexual abuse during a pat-down search because of their disproportionate likelihood of having previously suffered abuse. According to studies, women with sexual abuse histories are particularly traumatized by subsequent abuse.

12

For detainees who have experienced past sexual abuse, even professionally conducted cross-gender pat-down searches may be traumatic and perceived as abusive.

See Jordan

v.

Gardner,

986 F.2d 1521, 1526 (9th Cir. 1993) (

en banc

) (striking down cross-gender pat downs of female inmates as unconstitutional “infliction of pain” when there was evidence that a high percentage of female inmates had a history of traumatic sexual abuse by men and were being traumatized by the cross-gender pat-down searches).

12

See

Barbara Bloom, Barbara Owen, and Stephanie Covington,

Gender-Responsive Strategies: Research, Practice, and Guiding Principles for Women Offenders,

at 37, NIC (2003) (“In addition, standard policies and procedures in correctional settings can have profound effects on women with histories of trauma and abuse, and often act as triggers to retraumatize women who have post-traumatic stress disorder (PTSD).”); Danielle Dirks,

Sexual Revictimization and Retraumatization of Women in Prison,

32 Women's Stud. Q. 102, 102 (2004) (“For women with previous histories of abuse, prison life is apt to simulate the abuse dynamics already established in these women's lives, thus perpetuating women's further revictimization and retraumatization while serving time.”).

Because females are disproportionately vulnerable to sexual abuse and trauma in the cross-gender pat down context, the prohibition of such pat downs unless there are exigent circumstances is a crucial protection in furtherance of PREA. DHS goes a step further than DOJ by also prohibiting cross-gender pat downs of male detainees, but allows for two exceptions—exigent circumstances, and circumstances where staff of the same gender are not available. The slightly different standard reflects the fact that men are less likely to be abused by cross-gender pat-down searches.

A categorical prohibition on cross-gender pat-down searches of male detainees except in exigent circumstances may not be operationally possible at facilities that detain males but have higher proportions of female staff. Such facilities could not guarantee the availability of adequate numbers of male staff without engaging in potential employment discrimination as a result of attempts to inflate staffing of one gender. Likewise, DHS declines to require facilities to maintain male and female staff sufficient to avoid cross-gender pat-down searches in all cases. Such a mandate could result in the unintended consequence of employment discrimination in facilities.

In response to commenters concerned that prohibiting cross-gender pat downs will lead to a restriction of detainees' access to programming, DHS notes that any restriction based on a lack of appropriate staffing for pat downs is unacceptable and is not standard practice. DHS will ensure that immigration detention facilities are allowing detainees equal access to programming without regard to detainee gender or staffing limitations.

Comment.

Multiple commenters and other groups expressed concerns with the phrase “incidental to routine cell checks” and suggested it be removed as an exception allowing cross-gender viewing, a sentiment with which former NPREC Commissioners commented they agreed. One commenter suggested the phrase could allow a facility to not take needed steps and then simply claim staff viewing is exempted as incidental.

Response.

DHS respectfully disagrees with the commenters that viewing incidental to routine cell checks is a gateway for abuse in detention. The final rule provides adequate protection by requiring each facility to have policies and procedures that oblige staff of the opposite gender to announce their presence when entering an area where detainees are likely to be showering, performing bodily functions, or changing clothing.

Comment.

Two comments suggested removing the provisions that allow cross-gender searches when safety, security, and related interests are at stake, out of apparent concern that the provision's breadth would allow facilities to “mask abusive use of searches.”

Response.

Maintaining safety, security and other related interests in detention in order to protect detainees, staff, contractors, volunteers, and visitors is the highest priority for DHS. Searches are an effective and proven tool to ensure the safety of every person in the detention environment. As such, the final standard maintains paragraph (a), which explains why searches are a necessary part of detention.

Comment.

Two comments suggested that the provision in paragraph (i) regarding preventing searches for the sole purpose of determining “gender” be revised to instead prevent searching solely for determining “genital characteristics.” In the following sentence of the provision, the groups also suggest that “genital status” replace “gender” for when employees can take other steps to determine. Another advocacy group suggested clear standards for classifying as male or female based on a range of issues including self-identification and a medical assessment, and not based solely on external genitalia or identity documents.

Regarding the same provision, another commenter suggested removing “as part of a broader medical examination conducted in private, by a medical practitioner” as a means for making the

determination, and instead replacing it with “through a routine medical examination that all detainees must undergo as part of intake or other processing procedure.”

Response.

After considering the comments regarding paragraph (i), DHS has revised the language to prevent searches for the sole purpose of determining “a detainee's genital characteristics” instead of “a detainee's gender.” DHS also clarifies that while medical examinations may be done to determine gender, they must be part of a standard medical exam that is routine for all detainees during intake or other processing procedures. DHS believes that the final rule allows a range of issues to be considered for gender determination. In addition to medical examinations, the determination may be made during conversation and by reviewing medical records.

Comment.

One advocacy group suggested that searches of transgender and intersex detainees should have clear standards and by default be conducted by female personnel, as the group contends risk of sexual abuse is generally lower when the search is conducted by females.

Two comments suggested adding a provision in paragraphs (j) and (f), for Subparts A and B, respectively, to require that same-gender searches for transgender and intersex detainees be conducted based on a detainee's gender identity absent a safety-based objection by the detainee. One commenter also suggested that we replace the phrase “existing agency policy” with “these regulations, and compatible agency policy” for clarity.

Response.

DHS respectfully disagrees with the commenters about including specific provisions within this section describing how pat-down searches should be conducted for transgender and intersex detainees. While a facility can, on a case-by-case basis, adopt its own policies for pat-down searches of transgender or intersex detainees, the agency does not believe that an additional mandatory rule is necessary in this context. DHS believes pat-down searches must be conducted in a professional manner for all detainees and is reluctant to carve out unique pat-down search standards for transgender and intersex detainees. Additional standards may make the regulation more cumbersome to implement on a day-to-day basis.

DHS declines to change the wording of §§ 115.15(j) and 115.115(f) to “compatible agency policy,” because once a facility adopts the standards set forth in this regulation, the facility is expected to abide by the standards in cross-gender viewing and searches. Existing agency policy will not conflict with these standards. In consideration of the commenter's concern, however, DHS has revised the final rule for clarity. The final rule now requires pat-down searches to be conducted “consistent with security needs and agency policy, including consideration of officer safety.”

Comment.

Multiple comments dealt with juvenile pat-down searches. One group suggested that training for employees, contractors, and volunteers having contact with juveniles must include child-specific modules. Another commenter suggested a requirement that male juveniles only be subjected to cross-gender pat-down searches in exigent circumstances.

Response.

In addition to the “floor” set by this regulation, DHS has established procedures for the custody and processing of juveniles for intake or transfer to ORR. DHS also provides training related to the treatment of juveniles in basic training and in follow-up training courses on a periodic basis. For example, ICE's Family Residential Standards, applicable to juveniles in the immigration detention facility context, provide that a pat-down search shall only occur when reasonable and articulable suspicion can be documented. The standard on searches also provides a requirement for explicit authorization by the facility administrator or assistant administrator in order for a child resident fourteen years old or younger to be subject to a pat-down, requires facilities to have further written policy and procedures for such searches, and provides that such searches should be conducted by a staff member of the same gender as the detainee. The stated goal of the standard is to ensure that residential searches are conducted without unnecessary force and in ways that preserve the dignity of the individual being searched. All staff must receive initial and annual training on effective search techniques. Standards applicable to all minors held by ICE ensure that the least intrusive practical search method is employed and include similar pat-down parameters to those described above. These policies are the best practices for the agency and subsequent revisions to the final rule are unnecessary.

Comment.

Regarding the Subpart B-specific paragraph (d), one collective group comment suggested provisions be added requiring agency policies addressing health, hygiene, and dignity in facilities, requiring replacement garments and access to showers when necessary, and allowing separate showering for transgender and intersex detainees.

Response.

These issues are of great importance to DHS, but requiring such separate policies would be outside the scope of this rulemaking. Section 115.115(d) requires policies and procedures that enable detainees to shower, perform bodily functions, and change clothing without being viewed by staff of the opposite gender, with limited exceptions.

Given the limited infrastructure of holding facilities (most do not include showers), DHS does not believe that requiring separate showering for transgender and intersex detainees is an efficient use of limited resources.

Comment.

One commenter suggested the standards should embody American Bar Association Standards on the Treatment of Prisoners. Those standards may provide strategies and devices to allow personnel of the opposite gender of a prisoner to supervise the prisoner without viewing the prisoner's private bodily areas.

Response.

DHS believes that the requirements set forth in §§ 115.15 and 115.115 establish sufficient safeguards to limit the cross-gender viewing of detainees by staff, and are fully consistent with the above-referenced standards.

Accommodating Detainees With Disabilities and Detainees With Limited English Proficiency (§§ 115.16, 115.116)

Summary of Proposed Rule

The standards in the proposed rule required each agency and immigration detention facility to develop methods to ensure that inmates who are LEP or disabled are able to report sexual abuse and assault to staff directly, and that facilities make accommodations to convey sexual abuse policies orally to inmates with limited reading skills or who are visually impaired. The proposed standards required each agency and immigration detention facility to provide in-person or telephonic interpretation services in matters relating to allegations of sexual abuse, unless the detainee expresses a preference for a detainee interpreter and the agency determines that is appropriate.

Changes in Final Rule

In response to a comment received regarding another section of the standards, DHS is modifying this language by clarifying that a detainee may use another detainee to provide interpretation where the agency determines that it is both appropriate and consistent with DHS policy.

Comments and Responses

Comment.

One commenter expressed concern that further explanation, outside of “literature describing the protection” for detainees, is necessary.

Response.

DHS recognizes the importance of ensuring that all detainees, regardless of disability or LEP status, can communicate effectively with staff without having to rely on detainee interpreters, in order to facilitate reporting of sexual abuse as accurately and discreetly as possible and to provide meaningful access to the agency's sexual abuse and assault prevention efforts. As a result, this standard includes other methods of communication aside from written materials to ensure that every detainee is educated on all aspects of the agency's efforts to prevent, detect, and respond to sexual abuse. Such methods include in-person, telephonic, or video interpretive services, as well as written materials that are provided in formats or through methods that ensure effective communication with detainees who may have disabilities that result in limited literate and vision abilities.

The final standard, in conjunction with Federal statutes and regulations protecting the rights of individuals with disabilities and LEP individuals, protects all inmates while providing agencies with discretion in how to provide requisite information and interpretation services. The final standard does not go beyond that which is required by statute, but clarifies the agencies' specific responsibilities with regard to PREA related matters and individuals who are LEP or who have disabilities.

Hiring and Promotion Decisions (§§ 115.17, 115.117)

Summary of Proposed Rule

The standards in the proposed rule prohibited the hiring of an individual that may have contact with detainees and who previously engaged in sexual abuse in an institutional setting; who has been convicted of engaging in sexual activity in the community facilitated by force, the threat of force, or coercion; or who has been civilly or administratively adjudicated to have engaged in such activity. The standards also required that any substantiated allegation of sexual abuse made against staff be taken into consideration when making promotion decisions. The standards in the proposed rule also required a background investigation before the agency or facility hires employees, contractors, or staff who may have contact with detainees. The standards further required updated background investigations every five years for agency employees and for facility staff who may have contact with detainees and who work in immigration-only facilities.

Changes in Final Rule

DHS is adopting the regulation as proposed.

Comments and Responses

Comment.

Commenters suggested changing the background investigation standard's language to include making the investigation a requirement for staff that work in facilities that house a mix of residents, including non-immigration inmates, but may have contact with detainees. The commenters suggest separating this requirement out from the investigation requirement for all facility staff who work in immigration-only detention facilities for purposes of clarity.

Response.

DHS recognizes the critical importance of performing thorough background investigations as part of the hiring and promotion process. DHS remains committed to ensuring such background investigations are conducted prior to hiring new staff that may have contact with detainees, or before enlisting the services of any contractor who may have contact with detainees. However, DHS declines to expand the requirement for background investigations to include staff that work in facilities with non-immigration inmates and do not have contact with detainees due to the lack of DHS authority.

Comment.

Commenters suggested requiring that background investigations for all employees who may have contact with juveniles must include records related to child abuse, domestic violence registries and civil protection orders. One commenter also suggested these background requirements be explicit for all new staff that may have contact with female detainees.

Response.

DHS agrees that criminal records related to allegations that a potential employee has engaged in child abuse, domestic violence registries and civil protection orders are an important component of the background investigation. The standard background investigation process for employees and staff already includes the search of such records. Therefore, no additional changes are required.

Comment.

A commenter recommended that DHS investigate to discover if border officers themselves have been hurt as children or adults because of the commenter's belief that if it is in their history, they will be more apt to abuse others.

Response.

DHS declines to implement a per se rule that a past history as a victim of abuse will serve as an automatic disqualifier for employment. Past victimization is not necessarily a useful indicator of future likelihood to engage in abuse. Moreover, DHS believes that any blanket rule disqualifying past victims of abuse from employment would be discriminatory and cannot be accepted.

Comment.

Regarding the Subpart A standard on hiring and promotion, a commenter stated that it is unclear why paragraph (g)—applying the requirements of the section otherwise applicable to the agency also to contract facilities and staff—only appears in this section on hiring and promotion issues, rather than in all standards.

Response.

DHS included § 115.17(g) to clarify that any standards applicable to the agency also extend to any contracted facilities and staff, as well. By its terms, much of the rest of the regulation also applies to non-DHS facilities, to the extent that they meet the definition of immigration detention facility under Subpart A. Although paragraph (g) may be redundant, DHS is retaining it for clarity nonetheless.

Upgrades to Facilities and Technologies (§§ 115.18, 115.118)

Summary of Proposed Rule

The standards in the proposed rule required agencies and facilities to take into account how best to combat sexual abuse when designing or expanding facilities and when installing or updating video monitoring systems or other technology.

Changes in Final Rule

DHS is adopting the regulation as proposed.

Comments and Responses

DHS did not receive any public comments on this provision during the public comment period.

Evidence Protocols and Forensic Medical Examinations (§§ 115.21, 115.121)

Summary of Proposed Rule

The standards contained in the proposed rule required agencies and facilities responsible for investigating allegations of sexual abuse to adopt a protocol for the preservation of usable physical evidence as well as to provide detainee victims access to a forensic medical examination at no cost to the detainee. The standard further required that such developed protocols be appropriate for juveniles, where applicable, and that outside victim

services be available after incidents of sexual abuse to the extent possible.

In situations when the component agency or facility is not responsible for investigating alleged sexual abuse within their facilities, the proposed standards required them to request that the investigating entity follow the relevant investigatory requirements set out in the standard.

Changes in Final Rule

DHS made one change to this provision, providing that a Sexual Assault Forensic Examiner (SAFE) or a Sexual Assault Nurse Examiner (SANE) should be used where practicable.

Comments and Responses

Comment.

With respect to forensic medical examinations, some advocacy groups commented that before a child undergoes such an examination or interview, facility officials should contact and provide advance notice to the juvenile's legal guardian or other appropriate person or entity. For unaccompanied alien children, the groups suggest requiring the agency to immediately notify and consult with HHS/ORR regarding the forensic examination and facilitate the immediate transfer upon request of ORR and the juvenile. One commenter suggested adding a provision in case a legal guardian is an alleged perpetrator, in which case the agency should be required to notify a designated state or local services agency under applicable mandatory reporting laws.

Response.

DHS declines to make the suggested revisions because they would have no practical application in this context. First, it would not be appropriate to immediately transfer a juvenile who was sexually assaulted, even if requested by ORR and the juvenile, as the juvenile should first be referred to an appropriate medical care professional and local law enforcement agency, potentially in conjunction with the appropriate child welfare authority. Responsibility for determining who has legal authority to make decisions on behalf of the juvenile would lie with the investigating law enforcement agency and the medical provider because the juvenile would be a victim involved in a criminal investigation.

Second, juveniles in the family residential program would be present as a member of a family unit and therefore would be with an individual who possesses authority for making legal determinations for the juvenile present at the facility.

With respect to the comment about reporting abuse by a parent or guardian, DHS notes that agencies are already required by applicable state laws to report all incidents of child sexual abuse or assault, including incidents where the parent or legal guardian is the perpetrator, to designated law enforcement agencies. The law enforcement official is then responsible for ensuring that child welfare services are notified where appropriate. Therefore, the inclusion of this provision in these standards is not necessary.

Comment.

A commenter recommended that DHS provide a means for protection from removal—including withholding of removal, prosecutorial discretion, or deferred action—while an investigation into a report of abuse is ongoing, and also require facilities to provide application information to detainee victims and, if applicable, parents, guardians, or legal representatives.

Response.

DHS recognizes that in some cases, it may be appropriate for ICE not to remove certain detainee victims.

13

However, DHS does not believe that every detainee who reports an allegation should necessarily receive some type of relief or stay of removal. OPR has the authority to approve deferred action for victimized detainees when it is legally appropriate.

13

See

U.S. Immigration and Customs Enforcement, Policy No. 10076.1, Prosecutorial Discretion: Certain Victims, Witnesses, and Plaintiffs (2011),

available at http://www.ice.gov/doclib/secure-communities/pdf/domestic-violence.pdf

and U.S. Immigration and Customs Enforcement, Policy No. 10075.1, Exercising Prosecutorial Discretion Consistent with Civil Immigration Enforcement Priorities of the Agency for the Apprehension, Detention, and Removal of Aliens (2011),

available at http://www.ice.gov/doclib/secure-communities/pdf/prosecutorial-discretion-memo.pdf.

As mandated in §§ 115.22(h) and 115.122(e), all alleged detainee victims of sexual abuse that is criminal in nature will be provided U nonimmigrant status (also known as “U visa”) information. OPR and Homeland Security Investigations (HSI) have the delegated authority for ICE to certify USCIS Form I-918, Supplement B for victims of qualifying criminal activity that ICE is investigating where the victim seeks to petition for U nonimmigrant status.

Because these are routine agency practices and subject to agency discretion, DHS has declined to make changes in the final rule to specifically address the various prosecutorial discretion methods that may be used. ICE can and will use these prosecutorial discretion methods for detainees with substantiated sexual abuse and assault claims.

Comment.

One commenter recommended that facilities make updated lists of resources and referrals to appropriate professionals available if and when assault happens.

Response.

DHS declines to make this recommended edit to the current provision because it is outside the scope of the provision. Section 115.53 currently requires facilities to have access for detainees to current community resources and services and should satisfy the commenter's request.

Comment.

One collective comment from advocacy groups suggested a number of added provisions for proposed paragraph (c)'s forensic medical examination requirement. The groups suggested that the facility arrange for the examination “when developmentally appropriate” and that another requirement be added that the exami

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