70CDCR24R00000013 - RFP - Attachment 7 - Prison Rape Elimination Act Regulations.pdf

Vol. 79 Friday, No. 45 March 7, 2014

Part II

Department of Homeland Security 6 CFR Part 115 Standards To Prevent, Detect, and Respond to Sexual Abuse and Assault in Confinement Facilities; Final Rule

VerDate Mar<15>2010 17:46 Mar 06, 2014 Jkt 232001 PO 00000 Frm 00001 Fmt 4717 Sfmt 4717 E:\FR\FM\07MRR2.SGM 07MRR2m st oc ks til l o n D

S K

4V P

T V

N 1P

R O

D w ith R

U

LE

S

13100 Federal Register / Vol. 79, No. 45 / Friday, March 7, 2014 / Rules and Regulations

1 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.

2 National Prison Rape Elimination Commission Report 1 (2009), http://www.ncjrs.gov/pdffiles1/ 226680.pdf.

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

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

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.1 Sexual violence, against any victim, is an assault on human dignity and an affront to American values. Many victims report persistent, even lifelong mental and physical suffering. As the National Prison Rape Elimination Commission (NPREC) explained in its 2009 report:

Until recently . . . the public viewed sexual abuse as an inevitable feature of confinement. Even as courts and human rights standards increasingly confirmed that prisoners have the same fundamental rights to safety, dignity, and justice as individuals living at liberty in the community, vulnerable men, women, and children continued to be sexually victimized by other prisoners and corrections staff. Tolerance of sexual abuse of prisoners in the government’s custody is totally incompatible with American values.2

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 3 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

VerDate Mar<15>2010 17:46 Mar 06, 2014 Jkt 232001 PO 00000 Frm 00002 Fmt 4701 Sfmt 4700 E:\FR\FM\07MRR2.SGM 07MRR2m st oc ks til l o n D

S K

4V P

T V

N 1P

R O

D w ith R

U

LE

S http://www.ncjrs.gov/pdffiles1/226680.pdf

13101 Federal Register / Vol. 79, No. 45 / Friday, March 7, 2014 / Rules and Regulations and requirements DHS faces in fulfilling its missions.

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

VerDate Mar<15>2010 17:46 Mar 06, 2014 Jkt 232001 PO 00000 Frm 00003 Fmt 4701 Sfmt 4700 E:\FR\FM\07MRR2.SGM 07MRR2m st oc ks til l o n D

S K

4V P

T V

N 1P

R O

D w ith R

U

LE

13102 Federal Register / Vol. 79, No. 45 / Friday, March 7, 2014 / Rules and Regulations

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.

5 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.

rape in the community.4 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.5

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.

VerDate Mar<15>2010 17:46 Mar 06, 2014 Jkt 232001 PO 00000 Frm 00004 Fmt 4701 Sfmt 4700 E:\FR\FM\07MRR2.SGM 07MRR2m st oc ks til l o n D

S K

4V P

T V

N 1P

R O

D w ith R

U

LE

S http://www.ncjrs.gov/pdffiles1/226680.pdf http://www.regulations.gov

13103 Federal Register / Vol. 79, No. 45 / Friday, March 7, 2014 / Rules and Regulations

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

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

VerDate Mar<15>2010 17:46 Mar 06, 2014 Jkt 232001 PO 00000 Frm 00005 Fmt 4701 Sfmt 4700 E:\FR\FM\07MRR2.SGM 07MRR2m st oc ks til l o n D

S K

4V P

T V

N 1P

R O

D w ith R

U

LE

13104 Federal Register / Vol. 79, No. 45 / Friday, March 7, 2014 / Rules and Regulations

6 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.

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.6 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.

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.

VerDate Mar<15>2010 17:46 Mar 06, 2014 Jkt 232001 PO 00000 Frm 00006 Fmt 4701 Sfmt 4700 E:\FR\FM\07MRR2.SGM 07MRR2m st oc ks til l o n D

S K

4V P

T V

N 1P

R O

D w ith R

U

LE

13105 Federal Register / Vol. 79, No. 45 / Friday, March 7, 2014 / Rules and Regulations

7 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.

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.

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.

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.7

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

ICE’s PBNDS 2011 standard on ‘‘Sexual Abuse and Assault Prevention and Intervention’’ was developed in order to enhance protections for immigration detainees as well as ensure a swift and effective response to allegations of sexual abuse. This standard derived in significant part from earlier policies contained in 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

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

VerDate Mar<15>2010 17:46 Mar 06, 2014 Jkt 232001 PO 00000 Frm 00007 Fmt 4701 Sfmt 4700 E:\FR\FM\07MRR2.SGM 07MRR2m st oc ks til l o n D

S K

4V P

T V

N 1P

R O

D w ith R

U

LE

S http://www.ice.gov/doclib/foia/dro_policy_memos/sexual-abuse-assault-prevention-intervention-policy.pdf http://www.ice.gov/doclib/foia/dro_policy_memos/sexual-abuse-assault-prevention-intervention-policy.pdf http://www.ice.gov/doclib/foia/dro_policy_memos/sexual-abuse-assault-prevention-intervention-policy.pdf http://www.ice.gov/doclib/detention-standards/2011/pbnds2011.pdf http://www.ice.gov/doclib/detention-standards/2011/pbnds2011.pdf

13106 Federal Register / Vol. 79, No. 45 / Friday, March 7, 2014 / Rules and Regulations 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,…