Indian Country Detention Facilities and Programs

DEPARTMENT OF THE INTERIOR

Bureau of Indian Affairs

25 CFR Part 10

RIN 1076-AD77

Indian Country Detention Facilities and Programs

AGENCY: Bureau of Indian Affairs, Interior.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: The Bureau of Indian Affairs (Bureau) is establishing

regulations to ensure that all Bureau and tribal entities that receive

Federal funding for the operation, maintenance, design and

construction, or renovation of detention facilities are operated and

maintained in a constitutionally sound manner and comply with the

Indian Law Enforcement Reform Act of 1990, Public Law 101-379 (25

U.S.C. 2801 et seq.). These regulations define the policies, standards

and guidelines for detention and rehabilitation programs within Indian

country.

EFFECTIVE DATE: These regulations take effect on August 1, 1996.

FOR FURTHER INFORMATION CONTACT: Theodore R. Quasula, 202-208-5786.

SUPPLEMENTARY INFORMATION:

Background

The authority to issue rules and regulations is vested in the

Secretary of the Interior by 5 U.S.C. 301 and sections 463 and 465 of

the Revised Statutes, 25 U.S.C. 2 and 9. The proposed rule was

published August 5, 1994, (59 FR 40086). Comments received during the

comment period ending November 3, 1994, were considered in the drafting

this final rule.

What is the purpose of this rule? The purpose of this rule is to

provide standards and procedures for the operation of detention

facilities funded under the Indian Alcohol and Substance Abuse

Prevention and Treatment Act, Pub. L. 99-570, (25 U.S.C. Sec. 2453).

Who must follow these regulations? Every BIA and tribal law

enforcement program receiving Federal funding or performing duties

during the operation of detention or rehabilitation facilities or

functions must follow these minimum standards. These programs and

functions are high risk activities that subject the Federal Government

to the risk of liability for tort claims. Self-governance tribes and

tribes with limited jurisdiction are encouraged to use this rule,

Chapter 69 Bureau of Indian Affairs Manual (BIAM), and handbooks for

detention and rehabilitation programs under their administration.

How will these regulations be enforced? All programs will be

subject to periodic inspections or evaluations during which the BIA

will provide technical assistance, will ensure compliance with the

standards and procedures contained in this rule, and will identify

necessary corrective actions or improvements to policies and

procedures. The Bureau adopted a voluntary accreditation process with

an audit and evaluation system.

Why were regulations rewritten and moved? Detention standards were

published in 25 CFR Sec. 11.305 and later moved to Section 12.104. The

regulations had not been modified for sixteen years. They did not

address current detention problems and were inconsistent with current

acceptable detention practices and procedures. The regulations also

failed to address code compliance and related physical plant issues,

and lacked options to allow for alternative types of detention

programs. The need for more detailed and contemporary standards was

intensified by the provision of funding for detention programs under

Indian Alcohol and Substance Abuse Prevention and Treatment Act.

Are all the standards and procedures applicable to adult and

juvenile detention facilities, Inmate Handbook

[[Page 34372]]

facilities, and holding facilities and programs published in this rule?

No. Although Part 10 is reserved entirely for Indian country detention

and rehabilitation programs, Chapter 69 BIAM, and handbooks for

detention and rehabilitation programs detail the standards and

procedures.

How were the rules or regulations revised and updated? A multi-

agency task force was assembled to develop the first draft of these

standards. The task force included representatives from the Office of

Law Enforcement Services, Area Office Supervisory Criminal

Investigators, Agency Criminal Investigators, detention staff, and

Indian Health Service program specialists. The task force also included

individuals with experience working in tribal detention programs.

Additional internal reviews were conducted at the Bureau area and

agency level. Interested parties and professionals submitted written

comments, suggestions or objections to the proposed rules.

Review of Public Comments

Building and Safety Code Compliance.

The Bureau of Indian Affairs, Facilities Management & Construction

Center recommended the standards relating to building and safety code

compliance be revised to reflect current requirements. If the facility

is owned by the BIA, it must comply with the codes and standards

adopted by the BIA in the Chapter 25 Bureau of Indian Affairs Manual

(BIAM) Supplements 18 and 19. If the facility is owned by a tribe, it

must comply with either tribally adopted building codes, tribally

adopted state or municipal building codes, or the Chapter 25 BIAM

Supplements 18 and 19. This change has been incorporated into each

applicable standard.

Mississippi Band of Choctaw Indians

The Mississippi Band of Choctaw Indians expressed numerous concerns

and recommendations. Each of the Tribe's concerns has been addressed:

(1) Development of requirements that are applicable to all facility

types. As directed of the Department of the Interior, Office of

Regulatory Affairs, the format for the rule must be general in nature.

Specific requirements are published in the policy and standards

manuals, rather than as rules. The recommendation will not be

incorporated in this rule.

(2) Publication of an accreditation process prior to the approval

of the final rule. An accreditation process has been drafted. A

standards compliance information packet, corrective action plan

workbook, self-audit workbook, and standard accreditation workbook have

been developed. This process will be field tested and adopted by the

BIA.

(3) Reduction of the levels of Bureau approval required for

standard compliance--operational descriptions. Standards have been

developed for Bureau operated detention/correctional facilities and

programs. Through the contracting programs of the Indian Self-

Determination and Education Assistance Act, The tribe can develop a

facility specific line of authority and approval process of their own

when contracting detention/correction programs under the Indian Self-

Determination and Education Assistance Act.

(4) Involvement of the Indian Health Service and tribes in the

drafting of these standards. The Bureau established a task force to

draft these standards. The task force was comprised of representatives

from the Office of Law Enforcement Services, Area Office Supervisory

Criminal Investigators, Agency Criminal Investigators, detention staff,

and Indian Health Service program specialists and tribes. They provided

Indian Health Services and the tribes many opportunities to review the

standards, including the publication of the proposed rule in the

Federal Register on August 5, 1994.

(5) Incorporation of the numbering changes for various tables and

charts for Mandatory Standards, Separation of Adults and Juveniles, and

Suicide Screening. This has been done.

(6) Modification of accreditation requirements and the minimum

qualifications for new recruits. The minimum standards are critical to

a quantified accreditation process in order to evaluate compliance and

performance. The recommendation will not be incorporated in this rule.

(7) Addition of Detention Officer to the definitions section. The

definition section for this rule and the definition has been added.

(8) Provision of funds to train detention staff in the operation of

new generation jails. The BIA Indian Police Academy offers detention

officer training and is revamping its detention officers' curriculum to

incorporate direct supervision methodologies and philosophies.

(9) Incorporation of the rate of facility capacity as a mandatory

standard. During drafting of the rule, BIA agreed that mandatory

standards would be limited to those areas that create a potential

danger to the life, health, and safety of inmates, staff, and/or the

community, and those areas in which there are other statutes,

regulations, or directives that mandate compliance. The recommendation

will not be incorporated in this rule.

(10) Inclusion and/or clarification of the following definitions:

(a) Protective Holding Cell--a specialized cell or room that is

utilized to detain or isolate an incapacitated or combative

individual(s) for a short period of time, in the standards. The

protective holding cell may be equipped with specialized security and/

or medical equipment to control and manage individuals detained in

these areas in a safe, secure, and humane environment. (b) Special

Management--confinement of a detainee in an individual cell that is

separated from the remainder of the population for the purpose of

disciplinary, administrative segregation, protective custody, or

medical segregation, in standards. The exceptions to house an inmate in

special management must coincide with this criteria. (c) Multiple

Occupancy Cells or Rooms--an area, room or cell housing more than two

and less than fifty persons. These recommendations were incorporated in

the standards or rule.

(11) Addition of Designated Security Post to clarify staffing

requirements.

(12) Addition of Adult Holding Facility and Mass Arrest to the

definitions for this rule. The Department of the Interior, Office of

Regulatory Affairs established the definitions section for this rule.

The recommendation will not be incorporated in this rule.

(13) Inclusion of square footage requirements as a mandatory

standard. During drafting of the rule, BIA agreed that mandatory

standards would be limited to those areas that create a potential

danger to the life, health, and safety of inmates, staff, and/or the

community, and those areas in which there are other statutes,

regulations, or directives that mandate compliance. The recommendation

will not be incorporated in this rule.

(14) Addition of a transition program for accepting, moving into,

and operating a new facility beginning one year prior to the completion

of a facility. The Planning of New Institutions (PONI) is the Bureau's

process for constructing and operating new facilities in Indian

country. The Bureau has determined that this transition must begin when

the construction phase starts. The recommendation will not be

incorporated in this rule.

(15) Consolidation of limitations on inmate correspondence and

inspection of letters and packages. Upon review, it was decided that no

change would be made. The limitations on inmate correspondence

addresses the volume of lawful correspondence an inmate may

[[Page 34373]]

send or receive. The standard dealing with the inspection of letters

and packages addresses the search of inmate mail for contraband. The

recommendation will not be incorporated in this rule.

(16) Removal of the requirement that a governing board or advisory

committee oversee the operation of a residential facility. The

structure of these programs will be the responsibility of the tribe.

Oversight of these facilities should include representation from the

community and the overall Tribal government. The recommendation will

not be incorporated in this rule.

(17) Removal of the designated staff position for recreational and

leisure activities, would not be realistic due to the limited staff

resources. A position must be specified for accountability purposes,

however, the administrator will have the latitude to designate

collateral duties where staff is limited. The recommendation will not

be incorporated in this rule.

(18) Amendment of Staffing Requirements to Administrative Review of

Staff Requirement to include institutional operations dealing with

staff requirements. The staffing requirement in the Administration and

Management section is an institutional requirement that staff be on

board at all times to operate the facility, rather than the

administrative process to review staffing patterns within the

institution. The recommendation will not be incorporated in this rule.

(19) Inclusion of comparable tribal regulations in the standards.

The standards indicate that non-regulatory documents will not be

incorporated into the rule. The standards were developed for BIA

operated detention/correctional facilities and programs, but permit

tribes to operate under comparable tribal regulations when the program

is contracted under the Indian Self-Determination and Education

Assistance Act. The recommendation will not be incorporated in this

rule.

National Commission on Correctional Health Care and the American

Psychiatric Association

The recommendation by the National Commission on Correctional

Health Care (NCOCHC) and American Psychiatric Association suggested

replacing the drafted health care standards developed in association

with the Indian Health Service with the NCOCHC's standards for health

services in jails. Indian country detention and holding facilities, in

general, are smaller than the facilities referenced in NCOCHC

standards. The NCOCHC standards are unrealistic for reservation

facilities. The Indian Health Service has a legal obligation to provide

health services to Indian people and to mandate NCOCHC's standards is

duplicative. The Bureau standards are equal to or exceed the American

Correctional Association standards. These standards are consistent with

national professional standards. The recommendation will not be

incorporated in this rule.

Changes Reflecting Department of the Interior Policy

The Office of Regulatory Affairs and the Office of the Solicitor,

Department of the Interior, indicated that the proposed rule was

predominately standards and procedures for the operation of detention

or holding facilities in Indian country; as such they should not be

published in the Code of Federal Regulations. This is consistent with

Executive Order 12866 that mandates that agencies streamline the

regulatory process and enhance the planning and coordination of new and

existing regulations.

The Bureau has separated the operational standards and day-to-day

guidance from the rulemaking process. The operational standards are now

included in easy-to-read reference handbooks and guides. These

handbooks and guides are specific to Indian country detention and

holding facilities. They are now part of the Bureau's operations

management handbook and are available to the public, tribal programs,

and BIA employees upon request. Inmates will receive written guidelines

at the time of booking into a facility detailing what behavior will be

expected of them, their rights and privileges, and the nutritional/

medical/emergency treatment to be provided.

Public comments have been incorporated in the ``Indian Country

Detention Facilities and Programs 69'' (Chapter 69 Bureau of Indian

Affairs Manual) and accompanying handbooks. The Inmate Handbook ensures

that all persons incarcerated in Indian country detention or holding

facilities understand their rights, privileges, safety procedures,

detainee treatment during incarceration, and the behavior expected of

detainees.

Evaluation and Certification

Executive Order 12988

The Department has determined that these regulations meet the

applicable standards provided in sections 3(a) and 3(b)(2) of Executive

Order 12988.

Executive Order 12866

This rule is not a significant regulatory action under Executive

Order 12866.

Regulatory Flexibility Act

This rule will not have a significant economic impact on a

substantial number of small entities under the Regulatory Flexibility

Act (5 U.S.C. Sec. 601 et seq.)

Executive Order 12630

The Department has determined that this rule does not have

``significant'' takings implications. The rule does not pertain to

``taking'' of private property interests, nor does it impact private

property.

Executive Order 12612

The Department has determined that this rule does not have

significant federalism effects because it pertains solely to Federal-

tribal relations and will not interfere with the roles, rights and

responsibilities of states.

NEPA Statement

The Department has determined that this rule does not constitute a

major Federal action significantly affecting the quality of the human

environment and that no detailed statement is required pursuant to the

National Environmental Policy Act of 1969.

Unfunded Mandates Act of 1995

This proposed rule imposes no unfunded mandates on any governmental

or private entity and is in compliance with the provisions of the

Unfunded Mandates Act of 1995.

Paperwork Reduction Act of 1995

This rule has been examined under the Paperwork Reduction Act of

1995 and has been found to contain no information collection

requirements.

Drafting Information

The primary author of this document is Warren LeBeau, Detention

Specialist, Bureau of Indian Affairs, Office of Law Enforcement

Services.

List of Subjects in 25 CFR Part 10

Buildings, Indians, Law enforcement, Prisoners, Youth.

For the reasons given in the preamble, a new part 10 is added to

Chapter I of title 25 of the Code of Federal Regulations as set forth

below.

[[Page 34374]]

PART 10--INDIAN COUNTRY DETENTION FACILITIES AND PROGRAMS

Sec.

10.1 Why are policies and standards needed for Indian country

detention programs?

10.2 Who is responsible for developing and maintaining the policies

and standards for detention and holding facilities in Indian

country?

10.3 Who must follow these policies and standards?

10.4 What happens if the policies and standards are not followed?

10.5 Where can I find the policies and standards for the

administration, operation, services, and physical plant/construction

of Indian country detention, Inmate Handbook, and holding

facilities?

10.6 How is the BIA assured that the policies and standards are

being applied uniformly and facilities are properly accredited?

10.7 Where do I find help or receive technical assistance in

complying with the policies and standards?

10.8 What minimum records must be kept and reports made at each

detention, Inmate Handbook, or holding facility in Indian country?

10.9 If a person is detained or incarcerated in an Indian country

detention, Inmate Handbook, or holding facility, how would they know

what their rights, privileges, safety, protection and expected

behavior would be?

10.10 What happens if I believe my civil rights have been violated

while incarcerated in an Indian country detention or holding

facility?

10.11 How would someone detained or incarcerated, or their

representative, get the BIA policies and standards?

Authority: 5 U.S.C. 301; 25 U.S.C. 2, 9, 13, 2417, 2453, and

2802.

Sec. 10.1 Why are policies and standards needed for Indian country

detention programs?

Policies and standards are required to ensure that all Bureau of

Indian Affairs (BIA) and tribal entities that receive Federal funding

for the operation, maintenance, design and construction or renovation

of detention facilities, Inmate Handbook, or holding facilities are

supporting constitutional rights and are complying with the Indian Law

Enforcement Reform Act of 1990. Self-governance tribes and tribes with

limited jurisdiction are encouraged to follow the regulations in this

part, and other BIA manuals and handbooks. The provision for funding

tribes for detention programs under the Indian Alcohol and Substance

Abuse Prevention and Treatment Act, Public Law 99-570, (25 U.S.C. 2453)

requires standards and procedures for such facilities.

Sec. 10.2 Who is responsible for developing and maintaining the

policies and standards for detention and holding facilities in Indian

country?

The Director, Office of Law Enforcement Services who reports to the

Deputy Commissioner of Indian Affairs, BIA, establishes policies,

procedures, and standards for the operations, design, planning,

maintenance, renovation, and construction of detention programs in the

BIA and by tribal contract under Indian Self-Determination and

Education Assistance Act, Public Law 93-638, as amended, 25 U.S.C. 450.

Sec. 10.3 Who must follow these policies and standards?

You must follow these minimum policies, standards, and guides if

you are part of the BIA or tribal detention or rehabilitation program

receiving Federal funding. Self-governance tribes and tribes with

limited jurisdiction are encouraged to follow the regulations in this

part, and other BIA manuals and handbooks. Detention officers, guards,

cooks and other staff conducting business in the facilities must meet

minimum standards of law enforcement personnel as prescribed in 25 CFR

part 12, subpart D, ``Qualifications and Training Requirements.'' Those

tribal programs not receiving Federal funding under the Indian Self-

Determination and Education Assistance Act (Public Law 93-638, as

amended) who wish to be accredited are encouraged to use the policies

and standards in that part since they have been modified and approved

for Indian country.

Sec. 10.4 What happens if the policies and standards are not

followed?

The risk for human and civil rights violations due to lack of

common standards will subject the operation and/or facility to

unnecessary exposure to liability. Lack of employee standards,

particularly for training and background checks, will increase the risk

of misconduct and vicarious liability of the tribes and the Federal

government through tort claims. Funding sources for detention programs

may become scarce to nonexistent because of contract noncompliance. The

tribes' opportunity to receive funding from potential resource sharing

agreements with other law enforcement agencies may be damaged because

the facility may have to be closed for cause due to violation of the

life safety codes.

Sec. 10.5 Where can I find the policies and standards for the

administration, operation, services, and physical plant/construction of

Indian country detention, Inmate Handbook, and holding facilities?

The Bureau of Indian Affairs, Department of the Interior, maintains

a manual of policies and procedures called the Bureau of Indian Affairs

Manual (BIAM). The Chapter 69 BIAM titled ``Indian Country Detention

Facilities and Programs,'' contains the BIA's policies, procedures, and

standards for detention and holding programs in Indian country. The

standards for the programs within the BIAM are in handbook format for

easy field reference and use. Copies of the Chapter 69 BIAM and

handbooks may be obtained from the Director, Office of Law Enforcement

Services.

Sec. 10.6 How is the BIA assured that the policies and standards are

being applied uniformly and facilities are properly accredited?

The tribes and BIA programs will use a phased approach to meeting

all non-mandatory detention standards and will document progress on

uniform reporting. The BIA Office of Law Enforcement Services will

conduct periodic operational evaluations for oversight.

Sec. 10.7 Where do I find help or receive technical assistance in

complying with the policies and standards?

The BIA has a trained Detention Specialist on the staff of the

Office of Law Enforcement Services, Albuquerque, New Mexico, who is

available to conduct evaluations and provide technical assistance or

guidance in all facets of Indian country detention programs.

Sec. 10.8 What minimum records must be kept and reports made at each

detention, Inmate Handbook, or holding facility in Indian country?

The Director, Office of Law Enforcement Services, BIA, will develop

all necessary requirements for maintaining records, reporting data, and

archiving information. These requirements will be published in 69 BIAM,

``Indian Country Detention Facilities and Programs.''

Sec. 10.9 If a person is detained or incarcerated in an Indian country

detention, Inmate Handbook, or holding facility, how would they know

what their rights, privileges, safety, protection and expected behavior

would be?

When an individual is incarcerated in an Indian country detention,

Inmate Handbook, or holding facility, he/she will be given, or in some

cases notified of the availability of, an Inmate

[[Page 34375]]

Handbook. This book of guidelines describes in detail the inmate's

rights, privileges, protection and safety, cleanliness and sanitation,

and general health and nutritional standards. The Inmate Handbook

describes the emergency evacuation procedures, medical, counseling,

rehabilitation services, visitation procedures, and other appropriate

information. The Inmate Handbook is published by the Director, Office

of Law Enforcement Services and maintained by the detention facility

administrator at each facility location.

Sec. 10.10 What happens if I believe my civil rights have been

violated while incarcerated in an Indian country detention or holding

facility?

All allegations of civil rights violations must be reported

immediately to the Internal Affairs Branch of the Office of Law

Enforcement Services. This office will ensure that such allegations are

immediately reported to the Civil Rights Division of the U.S.

Department of Justice through established procedures. The BIA Internal

Affairs Branch may also investigate alleged violations and make

recommendations for additional action as necessary. Detailed

instructions on the procedure to report violations can be found in the

Inmate Handbook.

Sec. 10.11 How would someone detained or incarcerated, or their

representative, get the BIA policies and standards?

At each detention, Inmate Handbook, or holding facility located in

a tribal jurisdiction where federal funds are used for operations or

maintenance programs, the BIA's policies, standards, and procedures

will be made available upon request. The Inmate Handbook will be made

available to all persons at the time they are incarcerated or detained

in a facility. There may be times when this may be delayed due to the

physical or mental condition of the person at time of incarceration. In

these cases, the Inmate Handbook will be made available when the person

is deemed receptive and cognizant by the detention officer in charge.

All policies, standards, procedures, and guidelines are available at

each facility to the public or by writing to the Director, Office of

Law Enforcement Services.

Dated: May 28, 1996.

Ada E. Deer,

Assistant Secretary--Indian Affairs.

[FR Doc. 96-16042 Filed 7-1-96; 8:45 am]

BILLING CODE 4310-02-P