Department of Homeland Security

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

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DEPARTMENT OF HOMELAND NAICS North American Industry DHS is committed to preventing, SECURITY Classification System detecting, and responding to sexual NDS National Detention Standards abuse in facilities used to detain 6 CFR Part 115 NPREC National Prison Rape Elimination individuals for civil immigration Commission [ICEB–2012–0003] NPRM Notice of Proposed Rulemaking purposes. Sexual abuse is not an ODO ICE Office of Detention Oversight inevitable feature of detention, and with RIN 1653–AA65 OIG DHS Office of the Inspector General DHS’s strong commitment, DHS OMB Office of Management and Budget immigration detention and holding Standards To Prevent, Detect, and OPR ICE Office of Professional facilities have a culture that promotes Respond to Sexual Abuse and Assault Responsibility safety and refuses to tolerate abuse. DHS in Confinement Facilities ORR HHS Office of Refugee Resettlement is fully committed to its zero-tolerance PBNDS Performance Based National AGENCY: Department of Homeland Detention Standards policy against sexual abuse in its Security. PRA Paperwork Reduction Act of 1995 confinement facilities, and these ACTION: Final rule. PREA Prison Rape Elimination Act of 2003 standards will strengthen that policy PSA Prevention of Sexual Assault across DHS confinement facilities. DHS SUMMARY: The Department of Homeland QAT Quality Assurance Team is also fully committed to the full Security (DHS) is issuing regulations RCA Risk Classification Assessment implementation of the standards in DHS setting standards to prevent, detect, and RFA Regulatory Flexibility Act confinement facilities, and to robust RIA Regulatory Impact Analysis respond to sexual abuse and assault in oversight of these facilities to ensure SAAPID Sexual Abuse and Assault this implementation. DHS confinement facilities. Prevention and Intervention Directive DATES: This rule is effective May 6, SAFE Sexual Assault Forensic Examiner The standards build on current U.S. 2014. SANE Sexual Assault Nurse Examiner Immigration and Customs Enforcement SBA Small Business Administration FOR FURTHER INFORMATION CONTACT: (ICE) Performance Based National SIJ Special Immigrant Juvenile Detention Standards (PBNDS) and other Alexander Y. Hartman, Office of Policy; SPC Service Processing Center U.S. Immigration and Customs DHS detention policies. The standards TVPRA Trafficking Victims Protection also respond to the President’s May 17, Enforcement, Department of Homeland Reauthorization Act Security; Potomac Center North, 500 UMRA Unfunded Mandate Reform Act of 2012 Memorandum, ‘‘Implementing the 12th Street SW., Washington, DC 20536; 1995 Prison Rape Elimination Act,’’ which Telephone: (202) 732–4292 (not a toll- U.S.C. United States Code directs all agencies with Federal free number). USCIS U.S. Citizenship and Immigration confinement facilities to work with the Services Attorney General to create rules or SUPPLEMENTARY INFORMATION: USMS U.S. Marshals Service procedures setting standards to prevent, I. Abbreviations VAWA Reauthorization Violence Against detect, and respond to sexual abuse in Women Reauthorization Act of 2013 confinement facilities, and to the ANPRM Advance Notice of Proposed Rulemaking II. Executive Summary Violence Against Women Reauthorization Act of 2013 (VAWA ASR Administrative Stay of Removal A. Purpose of the Regulatory Action BJS Bureau of Justice Statistics Reauthorization), which directs DHS to BOP Bureau of Prisons The purpose of this regulatory action publish a final rule adopting national CBP U.S. Customs and Border Protection is to set standards to prevent, detect, standards for the detection, prevention, CDF Contract Detention Facility and respond to sexual abuse in reduction, and punishment of rape and CFR Code of Federal Regulations Department of Homeland Security sexual assault in facilities that maintain CMD Custody Management Division (DHS) confinement facilities.1 Sexual custody of aliens detained for a CRCL DHS Office for Civil Rights and Civil violence, against any victim, is an violation of U.S. immigrations laws. See Liberties assault on human dignity and an affront DHS Department of Homeland Security Public Law 113–4 (Mar. 7, 2013). DOJ Department of Justice to American values. Many victims report persistent, even lifelong mental B. Summary of the Provisions of the DSM Detention Service Manager Regulatory Action ERO ICE Enforcement and Removal and physical suffering. As the National Operations Prison Rape Elimination Commission The DHS provisions span eleven FOD ICE Field Office Director (NPREC) explained in its 2009 report: categories that were originally used by FR Federal Register Until recently . . . the public viewed FOJC ICE Field Office Juvenile Coordinator the NPREC to discuss and evaluate sexual abuse as an inevitable feature of FSA Flores v. Reno Settlement Agreement prison rape elimination standards: confinement. Even as courts and human HHS Department of Health and Human Prevention planning, responsive rights standards increasingly confirmed that Services planning, training and education, prisoners have the same fundamental rights HSI ICE Homeland Security Investigations assessment for risk of sexual to safety, dignity, and justice as individuals ICE U.S. Immigration and Customs living at liberty in the community, vulnerable victimization and abusiveness, Enforcement men, women, and children continued to be reporting, official response following a IGA Intergovernmental Agreement sexually victimized by other prisoners and detainee 3 report, investigations, IGSA Intergovernmental Service Agreement corrections staff. Tolerance of sexual abuse of discipline, medical and mental care, INA Immigration and Nationality Act prisoners in the government’s custody is IRFA Initial Regulatory Flexibility Analysis data collection and review, and audits totally incompatible with American values.2 IRIA Initial Regulatory Impact Analysis and compliance. Each provision under JIC Joint Intake Center these categories reflects the context of 1 LEP Limited English Proficient/Proficiency As discussed in greater detail below, in this final DHS confinement of individuals and LGBTI Lesbian, Gay, Bisexual, Transgender, rule, ‘‘sexual abuse’’ includes sexual abuse and assault of a detainee by another detainee, as well draws upon the particular experiences Intersex as sexual abuse and assault of a detainee by a staff LGBTIGNC Lesbian, Gay, Bisexual, member, contractor, or volunteer. 3 For simplicity, all persons confined in DHS Transgender, Intersex, Gender Non- 2 National Prison Rape Elimination Commission immigration detention facilities and holding conforming Report 1 (2009), http://www.ncjrs.gov/pdffiles1/ facilities are referred to as ‘‘detainees’’ in this MOU Memorandum of Understanding 226680.pdf. rulemaking.

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and requirements DHS faces in fulfilling • DHS now requires immigration detention facilities, most of which are its missions. detention facilities to notify a regional governed by a contract with another For example, DHS has broken down ICE supervisor whenever a detainee entity, will likely be less, because it the standards to cover two distinct types victim has been held in administrative depends on the pace of contract of facilities: (1) Immigration detention segregation for longer than 72 hours. renewals and substantive modifications facilities, which are overseen by ICE and Upon receipt of such notification, the which are unlikely to be universally used for longer-term detention of aliens official must conduct a review of the completed in the first year after the rule in immigration proceedings or awaiting placement to consider whether is finalized. DHS has not endeavored in removal from the United States; and (2) placement is only as a last resort and the RIA to project the actual pace of holding facilities, which are used by ICE when no other viable housing options implementation. and U.S. Customs and Border Protection exist, and, in cases where the detainee With respect to benefits, DHS (CBP) for temporary administrative victim has been held in segregation for conducts what is known as a ‘‘break detention of individuals pending release longer than five days, whether the even analysis,’’ by first estimating the from custody or transfer to a court, jail, placement is justified by extraordinary monetary value of preventing various prison, other agency or other unit of the circumstances or is at the request of the types of sexual abuse (incidents facility or agency. detainee. In addition, the standards reflect the • DHS is now requiring immigration involving violence, inappropriate characteristics of the population detention facilities to complete sexual touching, or a range of other behaviors) encountered by DHS in carrying out its abuse incident reviews within 30 days and then, using those values, calculating border security and immigration of the completion of the investigation, the reduction in the annual number of enforcement missions by providing, for and is requiring that the review include victims that would need to occur for the example, language assistance services consideration of whether the incident or benefits of the rule to equal the cost of for limited English proficient (LEP) allegation was motivated by, among compliance. This analysis begins by detainees, safe detention of family units, other things, sexual orientation or estimating the recent levels of sexual and other provisions specific to DHS’s gender identity. abuse in covered facilities using data needs. A more detailed discussion of all • DHS is now requiring explicitly that from 2010, 2011, and 2012. In 2010, ICE of the provisions in the rulemaking is facilities keep data collected on sexual had four substantiated sexual abuse included below in Section V of this abuse and assault incidents in a secure allegations in immigration detention preamble, ‘‘Discussion of PREA location. facilities, two in 2011, and one in 2012. Standards,’’ including a section-by- • DHS is now requiring that the There were no substantiated allegations section analysis of the DHS rule. agency maintain sexual abuse data for at by individuals detained in a DHS In this final rule, DHS has modified least 10 years after the date of the initial holding facility. (This does not include the proposed regulatory text in multiple collection unless Federal, State, or local allegations involved in still-open areas, including the following: law requires otherwise. investigations or allegations outside the • In addition to implementing these DHS has also modified the regulatory scope of these regulations.) In the RIA, standards at both DHS facilities and at text and clarified its interpretation of DHS extrapolates the number of non-DHS facilities whenever there is a the rule in a number of ways, as substantiated and unsubstantiated new contract or contract renewal, DHS explained more fully below. allegations at immigration detention will also implement the standards at facilities based on the premise that there non-DHS facilities whenever there is a C. Costs and Benefits may be additional detainees who may substantive contract modification. The anticipated costs of full have experienced sexual abuse, but did • In addition to requiring that nationwide compliance with the rule as not report it. assessments for risk of victimization or well as the benefits of reducing the Next, DHS estimates how much abusiveness include an evaluation of prevalence of sexual abuse in DHS monetary benefit (to the victim and to whether the detainee has been immigration detention facilities and society) accrues from reducing the incarcerated previously, DHS is now holding facilities, are discussed at annual number of victims of sexual also requiring consideration of whether length in section VI, entitled ‘‘Statutory abuse. This is, of course, an imperfect the detainee has been detained and Regulatory Requirements— endeavor, given the inherent difficulty previously. Executive Orders 12866 and 13563’’ and in assigning a dollar figure to the cost • DHS now requires immigration in the accompanying Regulatory Impact of such an event. Executive Order 13563 detention facilities to notify a regional Analysis (RIA), which is found in the recognizes that some benefits and costs ICE supervisor no later than 72 hours docket for this rulemaking. are difficult to quantify, and directs after the initial placement into As shown in the Summary Table agencies to use the best available segregation whenever a detainee has below, DHS estimates that the full cost techniques to quantify benefits and been held in administrative segregation of compliance with these standards at costs. Executive Order 13563 also states on the basis of a vulnerability to sexual all covered DHS confinement facilities that agencies ‘‘may consider (and abuse or assault. Upon receipt of such would be approximately $57.4 million discuss qualitatively) values that are notification, the official must conduct a over the period 2013–2022, discounted difficult or impossible to quantify, review of the placement to consider at 7 percent, or $8.2 million per year including equity, human dignity, whether continued segregation is when annualized at a 7 percent discount fairness, and distributive impacts.’’ Each warranted, whether any less restrictive rate. This is the estimated cost of of these values is relevant here, housing or custodial alternatives may compliance if all facilities adopt and including human dignity, which is exist (such as placing the detainee in a implement the standards within the first offended by acts of sexual abuse. less restrictive housing option at year after the rule is finalized. This is an another facility or other appropriate accurate reflection of implementation of DHS uses the Department of Justice custodial options), and whether the these standards in holding facilities, (DOJ) estimates of unit avoidance values placement is only as a last resort and which are fully owned and operated by for sexual abuse, which DOJ when no other viable housing options DHS agencies. However, the annual cost extrapolated from the existing economic exist. for implementation at immigration and criminological literature regarding

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rape in the community.4 The RIA from a potential reduction in sexual society resulting in unstable concludes that when all facilities and abuse in facilities, so too will DHS employment. Preventing these incidents costs are phased into the rulemaking, agencies and staff, other detainees, and will decrease the cost of health care, the breakeven point would be reached if society as a whole. As noted by spread of disease, and the amount of the standards reduced the annual Congress, sexual abuse increases the public assistance benefits required for number of incidents of sexual abuse by levels of violence within facilities. Both victims upon reentry into society, 122 from the estimated benchmark staff and other detainees will benefit whether such reentry is in the United levels, which is 147 percent of the total from a potential reduction in levels of States or a detainee’s home country. number of assumed incidents in ICE violence and other negative factors. 42 confinement facilities, including an U.S.C. 15601(14). This will improve the Chapter 3 of the RIA presents detailed estimated number of those who may not safety of the environment for other descriptions of the monetized benefits have reported an incident.5 detainees and workplace for facility and break-even results. The Summary There are additional benefits of the staff. In addition, long-term trauma from Table, below, presents a summary of the rule that DHS is unable to monetize or sexual abuse in confinement may benefits and costs of the final rule. The quantify. Not only will victims benefit diminish a victim’s ability to reenter costs are discounted at seven percent.

SUMMARY TABLE—ESTIMATED COSTS AND BENEFITS OF FINAL RULE [$Millions]

Immigration detention Holding facilities Total DHS PREA facilities rulemaking

10-Year Cost Annualized at 7% Discount Rate ...... $4.9 $3.3 $8.2 % Reduction of Sexual Abuse Victims to Break Even With Monetized 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 charged the Attorney General, within recommends supplemental standards one year of NPREC issuing its report, to for facilities with immigration Rape is violent, destructive, and a ‘‘publish a final rule adopting national detainees. Id. at 219–220. Specifically, crime, no matter where it takes place. In standards for the detection, prevention, and of particular interest to DHS, the response to concerns related to incidents of rape of prisoners in Federal, reduction, and punishment of prison NPREC made eleven recommendations State, and local prisons and jails, as well rape . . . based upon the independent for supplemental standards for facilities as the lack of data available about such judgment of the Attorney General, after with immigration detainees and four incidents, the Prison Rape Elimination giving due consideration to the recommendations for supplemental Act (PREA) was enacted in September recommended national standards standards for family facilities. NPREC 2003. See Public Law 108–79 (Sept. 4, provided by [NPREC] . . . and being asserted that standards for facilities with 2003). Some of the key purposes of the informed by such data, opinions, and immigrant detainees must be enforced statute were to ‘‘develop and implement proposals that the Attorney General in any facility that is run by ICE or national standards for the detection, determines to be appropriate to through an ICE contract. consider.’’ 42 U.S.C. 15607(a)(1)–(2). prevention, reduction, and punishment A. Department of Justice Rulemaking of prison rape,’’ and to ‘‘increase the The NPREC released its findings and available data and information on the recommended national standards in a In response to the NPREC report, a incidence of prison rape.’’ 42 U.S.C. report (the NPREC report) dated June 23, DOJ PREA Working Group reviewed the 15602(3), (4). 2009. The report is available at http:// NPREC’s proposed standards to assist in To accomplish these ends, PREA www.ncjrs.gov/pdffiles1/226680.pdf. In the rulemaking process. DOJ published established the National Prison Rape that report, NPREC set forth four sets of an advance notice of proposed Elimination Commission (NPREC) to recommended national standards for rulemaking (ANPRM) on March 10, conduct a ‘‘comprehensive legal and eliminating prison rape and other forms 2010 (75 FR 11077). Commenters on the factual study of the penalogical, of sexual abuse. Each set was applicable ANPRM generally supported the broad physical, mental, medical, social, and to one of four confinement settings: (1) goals of PREA and the overall intent of economic impacts of prison rape in the Adult prisons and jails; (2) lockups; (3) the NPREC’s recommendations, with United States,’’ and to recommend juvenile facilities; and (4) community some division over the merits of a national standards for the reduction of corrections facilities. NPREC report at number of the NPREC’s recommended prison rape. 42 U.S.C. 15606(d). PREA 215–235. The NPREC report national standards.

4 Department of Justice, National Standards to DOJ–OAG–2011–0002, available at includes all types of sexual abuse, including Prevent, Detect, and Respond to Prison Rape, Final www.regulations.gov. offensive touching (for instance, during a pat-down Rule, Final Regulatory Impact Analysis, Docket No. 5 As discussed in Chapter 1, and shown in Table search), voyeurism, harassment, and verbal abuse. 17 of the RIA, the benchmark level of sexual abuse

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DOJ then issued a notice of proposed department is accountable for, and has agencies with Federal confinement rulemaking (NPRM) on February 3, statutory authority to regulate, the facilities that are not already subject to 2011, setting forth proposed national operations of its own facilities and, the DOJ final rule, such as DHS, to work PREA standards. 76 FR 6248 (Feb. 3, therefore, is best positioned to with the Attorney General to propose 2011). In response to the NPRM, DOJ determine how to implement the rules or procedures that will satisfy the received over 1,300 comments that Federal laws and rules that govern its requirements of PREA. provided general assessments of DOJ’s own operations, the conduct of its own Additionally, on March 7, 2013, the efforts as well as specific and detailed employees, and the safety of persons in VAWA Reauthorization was enacted, recommendations regarding each its custody. 77 FR 37106, 37113. In which included a section addressing standard. Pertinent to DHS, there was particular, DOJ noted that DHS sexual abuse in custodial settings. See specific concern expressed by the possesses great knowledge and Public Law 113–4 (Mar. 7, 2013). commenters with respect to NPREC’s experience regarding the specific Among requirements addressing certain recommended supplemental standards characteristics of its immigration Federal agencies, the law directs DHS to for immigration detention number six, facilities, which differ in certain publish a final rule adopting national which proposed to mandate that respects from DOJ, State, and local standards for the detection, prevention, immigration detainees be housed facilities with regard to the manner in reduction, and punishment of rape and separately from criminal detainees. The which they are operated and the sexual assault in facilities that maintain DOJ NPRM noted that several comments composition of their populations. Thus, custody of aliens detained for a to the DOJ ANPRM raised a concern that and given each department’s various violation of U.S. immigrations laws. Id. this requirement would impose a statutory authorities to regulate The standards are to apply to DHS- significant burden on jails and prisons, conditions of detention, DOJ stated that operated detention facilities and to which often do not have the capacity to Federal departments with confinement detention facilities operated under house immigration detainees and facilities, like DHS, would work with contract with DHS, including contract criminal detainees separately. Id. The the Attorney General to issue rules or detention facilities (CDFs) and detention DOJ NPRM also noted DOJ’s concern procedures consistent with PREA. facilities operated through an about other proposed supplemental intergovernmental service agreement C. The Presidential Memorandum on standards, such as imposing separate (IGSA) with DHS. Id. The statute Implementing the Prison Rape training requirements and requiring requires that the DHS standards give Elimination Act and the Violence agencies to attempt to enter into due consideration to the recommended Against Women Reauthorization Act of separate memoranda of understanding national standards provided by NPREC. 2013 with immigration-specific community Id. service providers. Id. Furthermore, On May 17, 2012, the same day DOJ Sexual abuse in custodial comments to the DOJ NPRM addressed released its final rule, President Obama environments is a serious concern with whether the proposed standards should issued a Presidential Memorandum dire consequences for victims. DHS is cover immigration detention facilities, reiterating the goals of PREA and firmly committed to protecting prompting DOJ to examine the directing Federal agencies with detainees from all forms of sexual abuse. application of PREA to other Federal confinement facilities that are not By this regulation, DHS responds to and confinement facilities, which is already subject to the DOJ final rule to fulfills the President’s directive and the discussed further below. propose rules or procedures necessary requirements of the VAWA Following the public comment period to satisfy the requirements of PREA Reauthorization by creating for its NPRM, DOJ issued a final rule within 120 days of the Memorandum. In comprehensive, national regulations for setting a national framework of the Memorandum, the President firmly the detection, prevention, and reduction standards to prevent, detect, and establishes that sexual violence, against of sexual abuse at DHS immigration respond to prison rape at DOJ any victim, is an assault on human detention facilities and at DHS holding confinement facilities, as well as State dignity and an affront to American facilities that maintain custody of aliens prisons and local jails. 77 FR 37106 values, and that PREA established a detained for violating U.S. immigration (June 20, 2012). ‘‘zero-tolerance standard’’ for rape in laws. prisons in the United States. The D. DHS Proposed Rule and Public B. Application of PREA Standards to Memorandum further expresses the Comments Other Federal Confinement Facilities Administration’s conclusion that PREA DOJ’s NPRM interpreted PREA to encompasses all Federal confinement On December 19, 2012, DHS bind only facilities operated by the facilities, including those operated by published an NPRM entitled Standards Bureau of Prisons (BOP), and extended executive departments and agencies To Prevent, Detect, and Respond to the standards to U.S. Marshals Service other than DOJ, whether administered Sexual Abuse and Assault in (USMS) facilities under other by the Federal Government or by an Confinement Facilities; Proposed Rule. authorities of the Attorney General. 76 organization on behalf of the Federal 77 FR 75300. On January 2, 2013 DHS FR 6248, 6265. Numerous commenters Government, and that each agency is published an Initial Regulatory Impact criticized this interpretation of the responsible for, and must be Analysis (IRIA), which presented a statute. In light of those comments, DOJ accountable for, the operations of its comprehensive assessment of the re-examined whether PREA extends to own confinement facilities. The benefits and costs of DHS’s proposed Federal facilities beyond those operated President charged each agency, within standards in both quantitative and by DOJ and concluded that PREA does, the agency’s own expertise, to qualitative terms. The IRIA was in fact, encompass any Federal determine how to implement the summarized in the proposed rule and confinement facility ‘‘whether Federal laws and rules that govern its was published in full in the docket administered by [the] government or by own operations, but to ensure that all (ICEB–2012–003) on the regulations.gov a private organization on behalf of such agencies that operate confinement Web site. The public comment period government.’’ 42 U.S.C. 15609(7). facilities adopt high standards to on the NPRM originally was scheduled In its final rule, DOJ further prevent, detect, and respond to sexual to end on February 19, 2013. Due to concluded that, in general, each Federal abuse. The President directed all scheduled maintenance to the Federal

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eRulemaking Portal, DHS extended the Section 115.5 defines an immigration detainees in immigration detention comment period by one week until detention facility as a ‘‘confinement facilities operated by non-DHS private February 26, 2013. 78 FR 8987. DHS facility operated by or pursuant to or public agencies or other entities, DHS received a total of 1,724 comments on contract with [ICE] that routinely holds component agencies include in any new the proposed rule. No public meeting persons for over 24 hours pending contracts, contract renewals, or was requested, and none was held. resolution or completion of immigration substantive contract modifications the Commenters included private removal operations or processes, obligation to adopt and comply with citizens, professional organizations, including facilities that are operated by these standards. (Covered substantive social service providers, and advocacy ICE, facilities that provide detention contract modifications would include, organizations concerned with issues services under a contract awarded by for example, changes to the bed/day rate involving detainee safety and rights, ICE, or facilities used by ICE pursuant or the implementation of stricter sexual violence, discrimination, and the to an Intergovernmental Service standards, but not the designation of a mental health of both the detainees and Agreement.’’ These facilities are new Contracting Officer.) In other the facility employees. In general, designed for long-term detention (more words, DHS intends to enforce the commenters supported the goals of than 24 hours) and house the largest standards though terms in its contracts PREA and DHS’s proposed rule. number of DHS detainees. ICE is the with facilities. However, some commenters, only DHS component agency with Section 115.5 defines a holding particularly advocacy groups concerned immigration detention facilities, and it facility similarly to DOJ’s definition of with protecting the health and safety of has several types of such facilities: ‘‘lockup.’’ A ‘‘holding facility’’ is a the detainees, expressed concern that Service processing center (SPC) facility that contains holding cells, cell the proposed rule did not go far enough facilities are ICE-owned facilities staffed blocks, or other secure enclosures that towards achieving the goals that PREA by a combination of Federal employees are: (1) Under the control of the agency; set forth. Some comments were outside and contract staff; CDFs are owned by and (2) primarily used for the short-term the scope of the proposed rule, and private companies and contracted confinement of individuals who have therefore have not been included in the directly with ICE; and detention recently been detained pending release DHS responses and changes in the final services at IGSA facilities are provided or transfer to or from a court, jail, rule below. DHS thanks the public for to ICE by States or local governments prison, or other agency. These facilities, its interest and participation. through agreements and may be owned which are operated by ICE, CBP, or other DHS components, are designed for Members of Congress and others have by the State or local government, or a 6 confinement that is short-term in nature, also expressed interest in this private entity. There are two types of but are permanent structures intended rulemaking. In describing the potential IGSA facilities: Dedicated IGSA primarily for the purpose of such positive impacts of the VAWA facilities, which house detained aliens confinement. Temporary-use hold Reauthorization, Senator Richard only, and non-dedicated (i.e., shared) IGSA facilities, which may house a rooms and other types of short-term Durbin—both a PREA and VAWA confinement areas not primarily used Reauthorization legislative co-sponsor— variety of detainees and inmates. The standards set forth in Subpart A for confinement are not amenable to referred to the importance of the bill’s compliance with these standards, but provision regarding implementation of of these proposed regulations are meant ultimately to apply to all of these are covered by other DHS policies and PREA standards by DHS. Specifically, procedures. We discuss the distinctions Senator Durbin applauded DHS’s various types of immigration detention facilities—but not, notably, to facilities between these facilities in more detail efforts, through its proposed rule, to later in this rule. implement rules consistent with PREA’s authorized for use by ICE pursuant to goals. 159 Cong. Rec. S503 (daily ed. agreements with BOP or pursuant to 1. ICE Detention Facilities Feb. 7, 2013) (statement of Sen. Durbin). agreements between DOJ and state or local governments or private entities As stated above, the NPREC report Senator Durbin noted that, ‘‘It was contained eleven recommended critical . . . to have a provision in this (e.g., USMS IGA facilities). Those facilities and their immigration standards for facilities with immigration VAWA Reauthorization that clarifies detainees and four recommended that standards to prevent custodial rape detainees are covered by the DOJ PREA standards and not the provisions within standards specifically addressing family must apply to immigration detainees— facilities. ICE oversees immigration all immigration detainees—a provision Subpart A of these proposed rules. These regulations do not apply to CDF detention facilities nationwide. The vast that codifies the good work DHS is now and IGSA facilities directly; rather, majority of facilities are operated doing and ensures strong regulations standards for these facilities will be through government contracts, State and pertaining to immigration will remain in phased in through new contracts, local entities, private entities, or other place in the future.’’ Id. DHS appreciates contract renewals, or substantive Federal agencies. ICE Enforcement and this strong statement of confidence in contract modifications. Specifically, the Removal Operations (ERO) is the DHS’s proposed rule, by a legislator regulations require that when program within ICE that manages ICE who advocated for the original PREA contracting for the confinement of operations related to the immigration legislation. detention system. When the public comment period 6 In the preamble of the proposed rule, DHS listed ERO is responsible for providing closed, DHS carefully reviewed each Intergovernmental Agreement (IGA) facilities adequate and appropriate custody comment and deliberated internally on among the types of immigration detention facilities. management to support the immigration the revisions that the commenters Upon further review, DHS has determined that ICE removal process. This includes does not contract with state or local governments proposed. using IGAs, and therefore has no immigration providing traditional and alternative custody arrangements for those in E. Types of DHS Confinement Facilities detention facilities that qualify as IGAs (as opposed to IGSAs). As discussed in greater detail below, removal proceedings, providing aliens This rule applies to just two types of although ICE is an authorized user of USMS IGA access to legal resources and facilities, the facilities and their immigration confinement facilities: (1) Immigration detainees would be covered by the DOJ PREA representatives of advocacy groups, and detention facilities and (2) holding standards and not the provisions within Subpart A facilitating the appearance of detained facilities. of these proposed rules. aliens at immigration court hearings.

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Through various immigration detention strong safeguards against all sexual Sexual Abuse and Assault Prevention reform initiatives, ERO is committed to abuse of individuals within its custody, and Intervention standard. Excluding providing and maintaining appropriate consistent with the goals of PREA. those detainees who are held in DOJ- conditions of confinement, providing ICE’s PBNDS 2011 standard on contracted facilities (and are therefore required medical and mental healthcare, ‘‘Sexual Abuse and Assault Prevention covered by the DOJ rule), as of July 2013 housing detainees in the least restrictive and Intervention’’ was developed in approximately 94% of ICE detainees, on setting commensurate with their order to enhance protections for average, are housed in facilities that criminal background, ensuring immigration detainees as well as ensure have adopted a sexual abuse and assault appropriate conditions for all detainees, a swift and effective response to standard under PBNDS 2011, PBNDS employing fiscal accountability, allegations of sexual abuse. This 2008, or Family Residential Standards.9 increasing transparency, and standard derived in significant part from The 2012 ICE SAAPID complements strengthening critical oversight, earlier policies contained in ICE’s the requirements established by the including efforts to ensure compliance PBNDS 2008, promulgated in response detention standards by delineating ICE- with applicable detention standards to the passage of PREA, and took into wide policy and procedures and through inspection programs. consideration the subsequently released corresponding duties of employees for The ERO Custody Management recommendations of the NPREC reporting, responding to, investigating, Division (CMD) provides policy and (including those for facilities housing and monitoring incidents of sexual oversight for the administrative custody immigration detainees) in June 2009 and abuse. Regardless of the standards of immigration detainees, a highly ensuing draft standards later issued by applicable to a particular facility, ICE transient population and one of the DOJ in its ANPRM in March 2010. In personnel are required under this most diverse of any correctional or drafting the PBNDS 2011, ICE also Directive to ensure that the substantive detention system in the world. CMD’s incorporated the input of the DHS response requirements of PBNDS 2011 mission is to manage ICE detention Office for Civil Rights and Civil are met, and that incidents receive operations efficiently and effectively to Liberties (CRCL), local and national timely and coordinated agency follow- provide for the safety, security and care advocacy organizations, and up. In conjunction with the PBNDS, the of aliens in ERO custody. representatives of DOJ (including SAAPID ensures an integrated and As of spring 2012, ERO was correctional experts from BOP) on comprehensive system of preventing responsible for providing custody methods for accomplishing the and responding to all incidents or management to approximately 158 objectives of PREA in ICE’s operational allegations of sexual abuse of authorized immigration detention context, and closely consulted individuals in ICE custody. facilities, consisting of 6 SPCs, 7 CDFs, information and best practices reflected On September 4, 2013, ICE issued a 9 dedicated IGSA facilities, and 136 in policies of international corrections directive entitled ‘‘Review of the Use of non-dedicated IGSA facilities (of which systems, statistical data on sexual Segregation for ICE Detainees.’’ The 64 are covered by the DOJ PREA rule, violence collected by the DOJ Bureau of directive establishes policy and not this rule, because they are USMS Justice Statistics (BJS), and reports procedures for ICE review of detainees IGA facilities). ERO has 91 other published by the United Nations High placed into segregated housing. It is authorized immigration detention Commissioner for Refugees and the intended to complement the facilities that typically hold detainees Inter-American Commission on Human requirements of the 2011 PBNDS, the for more than 24 hours and less than 72 Rights of the Organization of American 2008 PBNDS, NDS and other applicable hours, including 55 USMS IGA facilities States regarding sexual abuse and other policies. The directive states that and 36 non-dedicated IGSA facilities. In issues affecting vulnerable populations placement in segregation should occur addition, ICE has 149 holding facilities in U.S. correctional systems. The only when necessary and in compliance that hold detainees for less than 24 PBNDS 2011 establish responsibilities with applicable detention standards, hours. These holding facilities are of all immigration detention facility staff and includes a notification requirement nationwide and are located within ICE with respect to preventative measures whenever a detainee has been held ERO Field and Sub-Field Offices.7 such as screening, staff training, and continuously in segregation for 14 days 2. ICE Sexual Abuse and Assault detainee education, as well as effective out of any 21 day period and a 72-hour Policies response to all incidents of sexual notification requirement for detainees abuse, including timely reporting and placed in segregation due to a special These regulations for immigration notification, protection of victims, vulnerability, including for detainees detention facilities and holding facilities provision of medical and mental health susceptible to harm due to sexual support existing sexual abuse policies care, investigation, and monitoring of orientation or gender identity, and promulgated by ICE, including ICE’s incident data. detainees who have been victims—in or PBNDS 2011 and its 2012 Sexual Abuse The PBNDS 2008 standard on Sexual

and Assault Prevention and Intervention Abuse and Assault Prevention and 9 8 Less than one-third of ICE’s average detainee Directive (SAAPID), which provide Intervention and the Family Residential population is currently housed in facilities Standards also contain robust governed by the agency’s 2000 National Detention 7 Facilities ICE used as of spring 2012, and the safeguards against sexual abuse of ICE Standards (NDS), which does not contain a sexual abuse and assault standards to which standard specific to sexual abuse prevention and facilities were held accountable or planned to be detainees, establishing similar intervention—and nearly half of those detainees are held accountable at that time, serve as the baseline requirements with respect to each of the in USMS IGA facilities. A substantial number of for the cost estimates for this rulemaking. issues covered by the PBNDS 2011 NDS facilities with which ICE maintains an IGSA 8 ICE, Performance-Based National Detention Sexual Abuse standard. In addition, ICE have agreed to implement the PBNDS 2011’s Sexual Standards (2011), http://www.ice.gov/doclib/ has made great strides in incorporating Abuse and Assault Prevention and Intervention detention-standards/2011/pbnds2011.pdf; ICE, standard. Again excluding detainees who are held Directive No. 11062.1: Sexual Abuse and Assault standards specific to sexual abuse and in DOJ-contracted facilities (and are therefore Prevention and Intervention (2012), http:// assault in NDS facilities. In fact, since covered by the DOJ PREA rule), as of July 2013, www.ice.gov/doclib/foia/dro_policy_memos/sexual- the publication of the NPRM a nearly three quarters of ICE detainees housed in abuse-assault-prevention-intervention-policy.pdf. substantial number of NDS facilities NDS IGSA facilities are covered by the PBNDS 2011 These documents are available, redacted as sexual abuse and assault standard. For more appropriate, in the docket for this rule where with which ICE maintains IGSAs have information on the standards applicable to DOJ indicated under ADDRESSES. agreed to implement the PBNDS 2011’s facilities, see the discussion infra.

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out of ICE custody—of sexual assault, individuals in secured detention areas, hold room, restraining procedures, torture, trafficking, or abuse. while others are detained in open classification of detainees, ICE’s combined policies prescribe a seating areas where agents or officers transportation, emergency procedures, comprehensive range of protections interact with the detainee. CBP uses escort procedures, transfer procedures, against sexual abuse, addressing ‘‘hold rooms’’ in its facilities for case and property disposition. prevention planning, reporting, processing and to search, detain, or U.S. Border Patrol Policy No. 08– response and intervention, interview persons who are being 11267, Hold Rooms and Short-Term investigation, and oversight, including: processed. CBP does not currently Custody—establishes national policy Articulation of facility zero-tolerance contract for law enforcement staff describing the responsibilities and policies; designation of facility and within its holding facilities; CBP procedures for the short-term custody of component sexual assault coordinators; employees oversee detainees directly. persons in Border Patrol hold rooms screening and classification of CBP generally detains individuals for pending case disposition. The policy detainees; staff training; detainee only the short time necessary for also contains requirements regarding the education; detainee reporting methods; inspection and processing, including handling of juveniles in Border Patrol staff reporting and notification; first pending release or transfer of custody to custody. responder duties following incidents or appropriate agencies. Some examples of DHS referenced all of these policies in allegations of sexual abuse (including to situations in which CBP detains protect victims and preserve evidence); individuals prior to transferring them to its consideration of DHS-wide standards emergency and ongoing medical and other agencies are: (1) Persons processed to prevent, detect, and respond to sexual mental health services; investigation for administrative immigration abuse in DHS confinement facilities. procedures and coordination; discipline violations may, for example, be The policies are available, redacted as of assailants; and sexual abuse incident repatriated to a contiguous territory or appropriate, in the docket for this rule data collection and review. transferred to ICE pending removal from at www.regulations.gov. These policies are tailored to the the United States or removal IV. Discussion of PREA Standards particular operational and logistical proceedings with the Executive Office of circumstances encountered in the DHS Immigration Review; (2) A. DHS’s PREA Standards confinement system in order to unaccompanied alien children placed in With this final rule, DHS reiterates maximize the effective achievement of removal proceedings under § 240 of the that sexual violence against any victim the goals of PREA within the Immigration and Nationality Act (INA), is an assault on human dignity. Such immigration detention context. To 8 U.S.C. 1229a, are transferred, in acts are particularly damaging in the further improve transparency and coordination with ICE, to the detention environment, where the enforcement, DHS has decided to issue Department of Health and Human power dynamic is heavily skewed this regulation and adopt the overall Services (HHS), Office of Refugee against victims and recourse is often structure of the DOJ standards, as well Resettlement (ORR); and (3) persons limited. Until recently, however, this as the wholesale text of various detained for criminal prosecution are has been viewed by some as an individual DOJ standards where DHS temporarily held pending case inevitable aspect of detention within the has deemed them appropriate and processing and transfer to other Federal, United States. This view is not only efficacious, to meet the President’s goal State, local or tribal law enforcement incorrect but incompatible with of setting high standards, government- agencies. CBP policies and directives American values. wide, consistent with the goals of PREA currently cover these and other As noted in the NPRM, DHS keeps and Congress’s expressed intent that detention scenarios. DHS adopt national standards for the records of any known or alleged sexual detection, prevention, reduction, and 4. CBP Detention Directives and abuse incidents in its facilities. DHS punishment of rape and sexual assault Guidance reiterates that the allegations that have in immigration confinement settings. The various CBP policies and been tracked are unacceptable, both to Where appropriate, DHS also has used directives containing guidance on the DHS and the Administration, which has the results of DOJ research and topics addressed in these regulations articulated a ‘‘zero-tolerance’’ standard considered public comments submitted include, but are not limited to: for sexual abuse in confinement in response to the DOJ ANPRM and Personal Search Handbook, Office of facilities. Accordingly, DHS continues NPRM in formulating the DHS Field Operations, CIS HB 3300–04B, to work to achieve its mandate to standards. July 2004—describes in detail the eliminate all such incidents. procedures for personal searches. The With respect to this rule, DHS did not 3. U.S. Customs and Border Protection handbook further explains the begin its work from a blank slate. Many Holding Facilities procedures for transportation and correctional administrators have CBP has a priority mission of keeping detention of, and reporting procedures developed and implemented policies terrorists and their weapons out of the for, persons detained for prolonged and practices to more effectively United States. CBP also is responsible medical examinations as well as prevent and respond to sexual abuse in for securing and facilitating trade and detentions lasting more than two hours. confinement facilities, including DHS travel while enforcing hundreds of U.S. CBP Directive No. 3340–030B, Secure confinement facilities. DHS applauds statutes and regulations, including Detention, Transport and Escort these efforts, and views them as an immigration and drug laws. All persons, Procedures at Ports of Entry— excellent first step. However, as noted baggage, and other merchandise arriving establishes CBP’s policy for the in the NPRM, DHS has decided to in or leaving the United States are temporary detention, transport, and promulgate regulations to meet PREA’s subject to inspection and search by CBP escort of persons by the Office of Field goals and comply with the President’s officials for a number of reasons relating Operations. The policy also provides directive that can be applied effectively to its immigration, customs, and other guidance on issues regarding the to all covered facilities in light of their law enforcement activities. detention of juveniles, medical particular physical characteristics, the CBP detains individuals in a wide situations, meals, water, restrooms, nature of their diverse populations, and range of facilities. CBP detains some phone notifications, sanitation of the resource constraints.

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DHS appreciates the considerable to sexual abuse. The definitions in this custodial transport for the purposes of work DOJ has done in this area, and also section largely mirror those used in the removal, such allegations are required to recognizes that each DHS component DOJ rule, with adjustments as necessary be documented and promptly reported has extensive expertise regarding its for DHS operational contexts. DHS has to the Joint Intake Center (JIC) and the own facilities, particularly those also largely relied on the NPREC’s PSA Coordinator, and will promptly housing unique populations, and that definitions in the Glossary sections that receive appropriate follow-up, including each DHS component is best positioned accompanied the NPREC’s four sets of a sexual abuse incident review at the to determine how to implement the standards, but has made a variety of conclusion of the investigation by the Federal laws and rules that govern its adjustments and has eliminated appropriate investigative authorities. In own operations, the conduct of its own definitions for various terms that either situations involving transportation employees, and the safety of persons in do not appear in the DHS standards or between a holding facility maintained its custody. Thus DHS, because of its whose meaning is sufficiently clear so by one DHS component and an own unique circumstances, has adopted as not to need defining. immigration detention facility the overall structure of DOJ’s regulations Facility, holding facility— maintained by another component, the and has used its content to inform the transportation. Numerous commenters, Prevention of Sexual Assault (PSA) provisions of the NPRM and this final including advocacy groups and former Coordinators at each component will be rule, but has tailored individual Commissioners of NPREC, questioned responsible for addressing the allegation provisions to maximize their efficacy in this definition of facility, noting that it in their respective annual reports. DHS confinement facilities. did not extend to custodial transport, By including explicit references to DHS also reemphasizes that these when detainees are in transit between such custodial transportation in its standards are not intended to establish facilities. An advocacy group stated that policies, DHS reaffirms its commitment a safe harbor for otherwise the transfer of detainees, either between to preventing, detecting, and responding constitutionally-deficient conditions facilities or to facilitate removal, is a to sexual abuse and assault against regarding detainee sexual abuse. common aspect of immigration individuals detained in DHS custody. Likewise, while the DHS standards aim detention, necessitating clear inclusion Consistent with DOJ’s approach, to include a variety of best practices due of PREA protections during these however, DHS declines to include to the need to adopt standards situations. Another advocacy group additional separate standards on applicable to a wide range of facilities stated that detainees are vulnerable transportation. while accounting for costs of when being transported and that, unlike One advocacy group, basing its implementation, the standards do not within the DOJ system, facility staff comment on ICE standards under incorporate every promising avenue of regularly transport immigration PBNDS, suggested a separate section in combating sexual abuse. The standards detainees. One organization stated that the final rule addressing transportation represent policies and practices that are definitions for both facility and holding that would require that two attainable by DHS components and their facility should explicitly include transportation staff members be contractors, while recognizing that other transportation settings to provide for assigned to transport a single detainee, DHS policies and procedures can, and zero tolerance of abuse in such including at least one staff member of in some cases currently do, exceed these situations, with some groups stating that the same gender as the detainee, except standards in a variety of ways. DHS such definitions should include the in exigent circumstances. The suggested applauds such efforts, and encourages language in PBNDS § 1.3 that addresses standards would specify similar its components and contractors to transportation. requirements for multiple-detainee further support the identification and DHS has considered these comments transit, provide detailed timekeeping adoption of additional innovative and decided to adopt the scope of the accountability guidelines for exigent methods to protect detainees from proposed rule—immigration detention circumstances situations, provide sexual abuse. facilities and holding facilities. DHS documentation requirements when notes that some standards indirectly aberrations from the above suggestions B. Section by Section Analysis cover custodial transport. For example, occur, and provide separate rules for The DHS rule follows the DOJ rule in the DHS standards cover all staff conduct and documentation devising separate sets of standards conduct, including staff and employee requirements of pat-downs during tailored to different types of conduct while transporting detainees. transportation. The group also suggested confinement facilities utilized by DHS: In addition, DHS has addressed the standards require minors to be Immigration detention facilities and custodial transport in numerous other separated from unrelated adults at all holding facilities. Each set of standards contexts. The written zero tolerance times during transport, seated in an area consists of the same eleven categories policy applies to all forms of sexual of the vehicle near officers, and remain used by the DOJ rule: Prevention abuse and assault by agency employees under their close supervision. planning, responsive planning, training and contractors. This policy applies to Additionally, the commenter suggested and education, assessment for risk of transport of detainees in DHS custody to detainees of different genders be sexual victimization and abusiveness, and from holding facilities and transported separately—or, if in one reporting, official response following a immigration detention facilities, vehicle, in separately partitioned detainee report, investigations, between a holding facility and a areas—with transgender detainees being discipline, medical and mental care, detention facility, and to custodial transported in a manner corresponding data collection and review, and audits transport for the purposes of removal. to their gender identity. and compliance. As in the DOJ rule, a Moreover, the ICE SAAPID provides As noted above, DHS recognizes the General Definitions section applicable protection for all detainees when they importance of protecting detainees in all to both sets of standards is provided. are in ICE custody, including custodial custodial settings, including during transport. And whenever DHS is alerted transport. For this reason, and as noted General Definitions (§ 115.5) to an alleged incident of sexual abuse by the commenters, ICE has Sections 115.5 and 115.6 provide and assault during DHS transport to or promulgated, and is currently in the definitions for key terms used in the from a holding facility or immigration process of implementing, 2011 PBNDS, standards, including definitions related detention facility or during DHS which provides greater protection for

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detainees being transported while in ICE provisions, including those pertaining contractors to be covered under the final custody. These detention standards to supervision and monitoring and rule’s definition of staff in § 115.5, include a number of the protections upgrades to facilities and technologies, which ‘‘means employees or contractors recommended by the commenter, as would be impracticable, inefficient, and of the agency or facility, including any do—to a lesser extent—the PBNDS 2008 at times impossible to apply outside of entity that operates within the facility.’’ and NDS. As noted above, detainees in the contexts contemplated in the rule as Family unit. Multiple commenters ICE custody are also protected by DHS’s drafted. recommended changing the requirement zero-tolerance policy, ICE’s zero- Former NPREC Commissioners in the proposed rule that provided that tolerance policy and ICE’s SAAPID commented that based on the proposed to qualify as a family unit under Subpart which prohibits sexual abuse and rule’s definition of facility, it is unclear A, none of the juvenile(s) or his/her/ assault by any ICE employee in any whether external audit standards apply their parent(s) or legal guardian(s) may custodial setting. CBP detainees are to contract facilities. To clarify, DHS have a known history of criminal or protected under DHS’s zero-tolerance notes that the external audit standards delinquent activity. The commenters policy and other policies, including CBP do apply to all facilities, including expressed concern that this could lead Directive No. 3340–030B, Secure contract facilities, in which the to the separation of a detained family Detention, Transport and Escort standards have been adopted. where a member had a non-violent Procedures at Ports of Entry. Exigent circumstances. Multiple adjudication or committed a non-violent Following careful review, DHS commenters objected to the definition of offense years ago, where a member determined that the combination of ‘‘exigent circumstances’’ as too broad. committed an immigration-related generally applicable provisions of this The rule allows detainee pat-down and crime, or where a juvenile was engaged final rule and other existing policies strip search searches to be conducted by in a delinquent activity. Some groups address the commenters’ concerns in an staff of the opposite sex in exigent suggested that the qualifier ‘‘violent’’ be effective and operationally practicable circumstances. The former NPREC used to describe disqualifying criminal way. Therefore, DHS has decided not to Commissioners commented that the or delinquent activity and that only add specific transportation standards to definition might weaken the effect of the ‘‘violent criminal or delinquent activity, the regulation and instead, relies on proposed standards by too readily or . . . sexual abuse, violence or existing policies and guidelines which allowing cross-gender searches. The substance abuse that could reasonably provide for detainee protection. Commissioners recommended that DHS put the safety or well-being of other Facility, holding facility—temporary- replace ‘‘exigent circumstances’’ with a family members at risk’’ should prevent use holding rooms. Former more restrictive exception, such as ‘‘in an otherwise qualifying group from Commissioners of NPREC and some case of emergency circumstances.’’ falling into the family unit definition. advocacy groups recommended that Another group stated that many One group recommended that DHS extend the definition of holding standards would not apply because protection of the family unit be facility to include temporary-use exigent circumstances exceptions could paramount, with exceptions being holding rooms not in immigration be continuously invoked and swallow narrower than in the proposed rule. The detention facilities or holding facilities, the rule, suggesting instead that the former Commissioners also seemed to but in locations sporadically used to definition specify that a threat must be assert that the definition could exclude detain for short periods of time during of serious nature. One organization situations where juveniles are other DHS operations, such as U.S. suggested replacing the word accompanied by non-parental family Coast Guard vessels, conference rooms, ‘‘unforeseen’’ in the definition with members or family friends, and further and hotel rooms. Groups urged DHS to ‘‘unforeseeable.’’ expressed concern that the definition include additional regulatory After considering these comments, was too narrow and could jeopardize protections for this temporary type of DHS has determined to retain the keeping family units intact. Advocacy confinement. Although such temporary- definition in the final rule. The groups stated the definition should use facilities are covered by existing definition in § 115.5 is properly tailored better reflect ‘‘the child’s lived reality’’ policy, the former Commissioners to ensure that standards are followed and more closely comply with existing recommended that DHS memorialize except in ‘‘temporary and unforeseen Federal standards. such guidance in binding Federal circumstances that require immediate While DHS must take steps to ensure standards. action in order to combat a threat to the the safety of minors in its custody, the DHS reiterates that its zero-tolerance security or institutional order of a agency also recognizes the important policy applies to all of its detention facility or a threat to the safety or goal of keeping families intact. DHS has settings, and additional existing policies security of any person.’’ It is necessary revised the ‘‘family unit’’ definition in also cover temporary-use holding for operational purposes to carve out a the final rule to provide a more rooms. Moreover, any allegation of limited exception to certain standards. straightforward regulatory description sexual abuse and assault will be For example, threats to the safety of a in a manner that accords with current reported to the JIC promptly and will detainee or officer must be considered. ICE policy and that recognizes the need promptly receive appropriate follow-up, In addition, a facility might have to for flexibility due to the operational regardless of the particular setting adjust to the unforeseen absence of a realities of ensuring a safe detention within DHS control in which the staff member whose presence is environment. DHS’s revised definition allegation arises. As DHS noted in the typically necessary to carry out a states that family unit means a group of proposed rule, this rulemaking defines specific standard. detainees that includes one or more facility and holding facility broadly, Contractor. Multiple commenters non-United States citizen juvenile(s) including a number of settings that, suggested that DHS clarify the definition accompanied by his/her/their parent(s) while built for the purpose of detaining of contractor to include all employees or legal guardian(s), whom the agency individuals, are used infrequently. DHS and subcontractors of the person or will evaluate for safety purposes to declines to further extend the entity referred to in the relevant protect juveniles from sexual abuse and requirements of the rule to settings that provision. In response to these violence. This modified definition are not built for the purposes of comments, DHS notes that it considers ensures the necessary language to detaining individuals, as many of the all facility employees and sub- qualify as a ‘‘family unit’’ under the

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Family Detention and Intake Guidance lesbian, heterosexual/straight, and ‘‘encouraging’’ detainees to engage in remains in the regulatory text. The bisexual. such an act. revised definition also permits the After considering the comment to It appears that the commenters are agency to maintain needed flexibility to include these terms in the final rule, comparing the DHS definition of sexual ensure the safety of juveniles in DHS DHS decided not to add them to the abuse to the definition of sexual custody. definitions section for several reasons. harassment in DOJ’s standards. DHS has Revising the ‘‘family unit’’ definition First, DHS used the DOJ PREA final not added this language because the as applied in Subpart A to allow all rule—which does not define gay, DHS standards already include a similar individuals with a non-violent criminal lesbian, and bisexual—as a general definition of sexual harassment within history to stay with minors, and to guide when determining which the current DHS definition of sexual expand the definition of family to definitions should be included. Second, abuse. Specifically, the DHS definition include non-parental family members or as a general matter, the regulation of sexual abuse in § 115.6 forbids family friends, as recommended by currently relies on self-identification for ‘‘threats, intimidation, or other actions commenters, potentially could conflict classification and protective purposes. or communications by one or more with the intent behind ICE’s Family Security staff, law enforcement staff. detainees aimed at coercing or Detention and Intake Guidance, which A collection of advocacy groups pressuring another detainee to engage in seeks to protect children from abuse and suggested that the proposed definitions’ a sexual act.’’ DHS believes that this human trafficking. DHS therefore distinction between security staff who coverage under the definition of sexual declines to incorporate that specific operate at immigration detention abuse is sufficient and accomplishes the recommendation into the revised facilities, and law enforcement staff who objective sought by the commenter. DHS definition. operate in a holding facility, should be also notes that the standards include eliminated and consolidated under one One commenter suggested revising sexual harassment in the definition of ‘‘security staff’’ definition so that the definition of family unit to include staff on detainee sexual abuse. security personnel at each type of Regarding the proposed rule’s not only non-U.S. citizen juvenile(s) facility are labeled in the same way. The provision on inappropriate visual accompanied by their parents or legal groups contended that DHS does not surveillance, certain advocacy groups guardians, but also non-U.S. citizen need to differentiate like the DOJ requested that the standards specifically juveniles accompanied by ‘‘a sponsor standards, and suggests consolidating by include within the definition of sexual approved by’’ HHS/ORR. The adding ‘‘or holding facility’’ to the abuse acts of voyeurism by staff commenter stated that ‘‘[i]n the context conclusion of the ‘‘security staff’’ members, contractors, or volunteers. of apprehension and enforcement, a definition. The commenters suggested that family unit should be broadened to DHS notes that under the final rule, explicitly incorporating voyeurism into include ORR-approved sponsors there is a meaningful difference between the definition was necessary in order to because they have the authority to security staff and law enforcement staff. capture the complete scope of release unaccompanied children to a Unlike holding facilities, which are prohibited behavior. The suggested ‘suitable family member’ per 8 U.S.C. staffed by law enforcement officers from more expansive definition would 1232(c).’’ either ICE or CBP, immigration include unnecessary or inappropriate The definition of ‘‘family unit’’ relates detention facilities use a wide range of visual surveillance of a detainee, to placement in the ICE Family staffing, including personnel from including requiring a detainee to expose Residential Program. An private companies who are not law his or her buttocks, genitals, or breasts, unaccompanied alien child without a enforcement officers. The general or unnecessarily viewing or taking parent or legal guardian would not meet definitions of ‘‘law enforcement staff’’ images of all or part of a detainee’s the criteria set forth in the definition of and ‘‘security staff’’ recognize this naked body or of a detainee performing a ‘‘family unit’’ for these purposes. An distinction and allow DHS to tailor its bodily functions. unaccompanied alien child would not rule to the specific contexts at issue. DHS has considered this suggested be accompanied by a sponsor approved addition to the standards and the DHS by HHS/ORR until after they are Definitions Related to Sexual Abuse final rule now expressly includes transferred from DHS to HHS/ORR. and Assault (§ 115.6) voyeurism by a staff member, Once an unaccompanied alien child is Sexual abuse. One commenter stated contractor, or volunteer as a type of transferred to HHS/ORR, they are no that the current definition should sexual abuse. Voyeurism is defined as longer within DHS’s jurisdiction. include language from the definition ‘‘inappropriate visual surveillance of a Furthermore, because the purpose of implemented by DOJ, including detainee for reasons unrelated to official this final rule is to prevent, detect, and unwelcome sexual advances, requests duties. Where not conducted for reasons respond to sexual abuse and assault in for sexual favors, or verbal comments, relating to official duties, the following confinement facilities, addressing the gestures or actions of a derogatory or are examples of voyeurism: Staring at a treatment of a family unit during offensive sexual nature. The commenter detainee who is using a toilet in his or apprehension and enforcement is encouraged DHS to add this language her cell to perform bodily functions; outside the scope of this rule. because the actions that are described in requiring an inmate detainee to expose Gay, lesbian, bisexual. One DOJ’s definition seem more likely to his or her buttocks, genitals, or breasts; immigration advocacy group requested occur than the proposed rule’s or taking images of all or part of a that the final rule define these terms, in description of sexual abuse. A number detainee’s naked body or of a detainee addition to already included definitions of advocacy groups commented that the performing bodily functions.’’ of transgender, intersex, and gender part of the proposed sexual abuse One commenter suggested that the nonconforming. The group suggested definition addressing threats, sexual abuse definition account for a first looking to the U.S. Citizenship and intimidation, harassment, profane or detained child’s legal inability to Immigration Services (USCIS) Lesbian, abusive language, or other actions or consent to sex with an adult. DHS Gay, Bisexual, Transgender, Intersex communications coercing or pressuring recognizes the extreme importance of (LGBTI) Asylum Module’s definitions into a sexual act, should include protecting minors while in custody and regarding sexual orientation, gay, ‘‘requests’’ and should also encompass remains fully committed to that end.

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DHS notes that existing Federal and efforts to comply with the DHS already provides that the PSA State laws legally preclude the standards and that each immigration Coordinator shall have sufficient time possibility of consent by a detainee to detention facility covered by Subpart A and authority to monitor sexual relations with a staff member have its own written zero-tolerance implementation. while in custody, and moreover provide policy and appoint a Prevention of Contracting With Non-DHS Entities for that any such sexual acts be Sexual Assault (PSA) Compliance Confinement of Detainees (§§ 115.12, criminalized, regardless of the age of the Manager to oversee facility efforts in 115.112) detainee. DHS considers the existence of this regard. these legal prohibitions outside the Summary of Proposed Rule Changes in Final Rule context of the regulation to DHS is adopting the regulation as The standards contained in the authoritatively establish the legal proposed rule required that covered inability of a child to consent to sex proposed, with one technical revision to the PSA Coordinator’s title. agencies that contract for the with an adult while in detention. For confinement of detainees include in this reason, DHS declines to incorporate Comments and Responses new contracts or contract renewals the additional language to the regulation in other party’s obligation to comply with response to the comment. Comment. The organization that suggested changes regarding covering the DHS sexual abuse standards. Coverage of DHS Immigration transportation in § 115.110 also Changes in Final Rule Detention Facilities (§ 115.10); Coverage recommended revising paragraph (b) to of DHS Holding Facilities (§ 115.110) include in the PSA Coordinator’s DHS revised §§ 115.12 and 115.112 to require the agency to include the Summary of Proposed Rule responsibilities for protecting detainees in the agency’s custody, including entity’s obligation to adopt and comply The standards contained in the detainees being transported to or from with these standards in all substantive proposed rule clarified that ICE its holding facilities while in DHS contract modifications. immigration detention facilities are custody, in addition to those held in all Comments and Responses governed by Subpart A of the rule. DHS of its holding facilities. holding facilities are governed by Response. As previously stated, DHS Comment. Multiple commenters Subpart B. DHS recognizes that to has zero tolerance for all forms of sexual suggested that contract facilities or IGSA effectively prevent, detect, and respond abuse and assault of individuals in facilities housing detainees should be to sexual abuse in its facilities, DHS custody. This applies to DHS custodial required to adopt DHS sexual abuse must have strong standards appropriate transport to and from holding facilities standards within a specified timeframe, to each unique context. Immigration and immigration detention facilities, with some urging no delay in detention facilities and holding facilities between a holding facility and a application and others urging are different by nature and need to have detention facility, and for the purposes compliance within 90 days or a year a respectively different set of standards of removal. The PSA Coordinators will after the standards’ effective date. The tailored to each of them for an effective oversee all component efforts to comply commenters believe that without a outcome. with the standards, including zero specific timeframe, or compliance schedule similar to that applicable to Changes in Final Rule tolerance. It is not necessary to revise the rule to include a reference to DHS’s own facilities, contract facilities DHS is adopting the regulation as transportation. could delay implementing these proposed. Comment. Former NPREC standards. Commenters expressed Comments and Responses Commissioners noted that under the concern over the potential lag between proposed standards, facilities have the standards’ effective date and their Comment. Regarding coverage, one considerable discretion to determine implementation at non-DHS facilities. organization expressed concern that their sexual abuse policies; therefore, Among the commenters that agency policies should include zero prior to permitting detainees to be recommended requiring adoption of the tolerance of sexual abuse during confined in a facility, DHS should standards during any contract transportation of detainees in DHS ensure its policies are consistent with modification, some commenters custody, as well as in detention PREA standards. suggested a set timeline of 90 days after facilities. The group suggested stating in Response. DHS concurs that it is the standards’ effective date for DHS to Subpart B’s coverage standard that the important to ensure that facility policies proactively initiate contract standard covers transportation to or are consistent with PREA standards. modification or modification-related from DHS holding facilities in addition Section 115.11(c) already requires DHS negotiations with any existing non-DHS to holding facilities themselves. to review each facility’s sexual abuse facility. One such commenter suggested Response. Please see DHS’s response and assault policy, as required by eliminating ‘‘contact renewals’’ as a in the discussion of § 115.5 above. subsection (c). Therefore, no additional scenario for when compliance with the Zero Tolerance; PSA Coordinator changes are required. standards would be triggered. The (§§ 115.11, 15.111) Comment. An advocacy group commenters also proposed that any commented generally that DHS should such negotiations conclude within 270 Summary of Proposed Rule allocate sufficient staff and provide days of the standards’ effective date. The standards in the proposed rule them with the authority and time to Additionally the commenters, in required that each covered agency have continually monitor the policies enacted paragraph (b), would also include a written zero-tolerance policy toward by the facilities to reflect the zero- ‘‘contract modifications’’ in the sexual abuse, outlining the agency’s tolerance goal. monitoring process, to allow DHS to approach to preventing, detecting, and Response. DHS recognizes the monitor compliance for modified responding to such conduct. DHS also importance of dedicating personnel to contracts. Commenters also proposed that each covered agency implement, monitor, and oversee these recommended that DHS create a new appoint an upper-level, agency-wide efforts and has employed a full-time requirement that any failure to adopt the PSA Coordinator to oversee agency PSA Coordinator. Section 115.11(b) changes via contract in the specified

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timeframe would disqualify the facility would include, for example, changes to needs. As a result, some detainees are from continuing to detain individuals the bed/day rate or the implementation held in non-dedicated IGSAs and a until remedied. One group suggested of stricter standards, but not the significant number (approximately 20 that compliance with the proposed 90- designation of a new Contracting percent of the average daily population day timeline be verified by an Officer.) This change endeavors to of ICE detainees) are also held in BOP independent auditing process. ensure that facilities come into facilities or state, local, and private Response. Based on ICE’s past compliance with the regulation at a facilities operated under agreement experience with the contract negotiation faster rate, but not in a manner that is between the servicing facility and a process, it can take one year or more to operationally impossible for DHS. component of DOJ. Such agreements are complete a contract renegotiation for a Comment. Former Commissioners of often negotiated and executed by USMS. single detention facility. ICE cannot NPREC raised an issue regarding DHS components can benefit from such reasonably conduct such large numbers applicability of DOJ and DHS standards. agreements as authorized users and via of contract negotiations simultaneously The former Commissioners other indirect arrangements, which in such a short period of time. Given recommended that DHS clarify which of often do not afford DHS an opportunity that there are 132 covered immigration the two sets of standards applies to to negotiate specific terms and detention facilities that would need to immigration detainees held in state conditions at length. For these facilities, adopt the standards, without some prisons or jails, lock-ups, or community DHS relies on DOJ’s national standards additional appropriation to address residential settings. According to the to provide a baseline of PREA these staffing and logistical challenges, comment, DOJ’s standards are ‘‘facility protections. bringing contract negotiations to driven’’ as opposed to driven by sub- In part because DHS does not conclusion within one year is not population of inmates. ‘‘If a facility currently maintain privity of contract operationally feasible. meets one of the definitions for covered with these facilities, however, DHS does DHS remains committed to protecting facility types under DOJ’s Standards, not consider them to fall within the its immigration detainees from incidents then the Standards apply to the entire ambit of §§ 115.12 and 115.112. The of sexual abuse and assault. With that facility.’’ The former Commissioners standards set forth in Subpart A do not goal in mind, DHS, through ICE, will therefore urged that DHS clarify the apply to facilities used by ICE pursuant endeavor to ensure that SPCs, CDFs, and application of DHS standards in to an agreement with a DOJ entity (e.g., dedicated IGSAs adopt the standards set facilities also covered by the DOJ BOP facilities) or between a DOJ entity forth in this regulation within 18 standards. (e.g., USMS) and a state or local months of the effective date. These The former Commissioners also government or private entity. These facilities currently hold more than half recommended that DHS ensure that its facilities are not immigration detention of the immigration detainees in ICE detainees benefit from the most facilities as the term is defined in the custody and therefore should be DHS’s protective standards possible, regardless regulation because they are not highest priority. of whether their detainees happened to ‘‘operated by or pursuant to contract DHS, through ICE, will also make be placed in a DOJ-covered facility. To with U.S. Immigration and Customs serious efforts to initiate the that end, the former Commissioners Enforcement.’’ Instead, the servicing renegotiation process with the recommended that DHS avoid facility, including its immigration remaining covered facilities as quickly comingling DHS detainees with other detainees, is covered by the DOJ PREA as operational and budgetary constraints populations. This would ease standards. will allow. As a matter of policy, DHS application of immigration standards to Similarly, holding facilities that are will seek to prioritize implementation to immigration detainees and provide authorized for use by ICE and CBP reduce the most risk as early as possible, them the special protections they need, pursuant to an agreement between a DOJ taking into consideration all relevant so—for facilities housing inmates and entity and a state or local government or factors, including the resources detainees—housing detainees separately a private entity are not included in the necessary to reopen and negotiate throughout their time in custody is definition of holding facility in § 115.5 contracts, the size and composition of necessary. or the scope provision in § 115.112 each facility’s detainee population, the Response. As noted above, DHS, because DHS is not a party to the marginal cost of implementing the through ICE, will endeavor to ensure agreement with the servicing facility standards of each facility, the detention that SPCs, CDFs, and dedicated IGSAs and these facilities are not under the standards currently in effect at each adopt the standards set forth in this control of the agency. facility, the prevalence of substantiated regulation within 18 months of the DHS recognizes that facilities might incidents of sexual abuse at each effective date. These facilities currently find it easier to comply with a single set facility, and other available information hold more than half of the immigration of standards, rather than multiple related to the adequacy of each facility’s detainees in ICE custody and therefore standards simultaneously. DHS has existing safeguards against sexual abuse are appropriately DHS’s highest priority. attempted to strike a balance that covers and assault. When DHS and a facility agree to as many detainees as possible, without In further recognition of DHS’s pledge incorporate these standards into a imposing unnecessary burdens on to abide by the principles set forth in contract, such standards are binding on facilities. DHS’s approach in this area is this regulation, DHS has revised the facility with respect to DHS consistent with the Presidential §§ 115.12 and 115.112 to require detainees, notwithstanding any separate Memorandum, which specifically components to include these standards obligations the facility might have under directed Federal agencies with in contracts for facilities that undergo the DOJ rule. DHS’s standards, though confinement facilities that are not any substantive contract modification not identical with DOJ’s standards, are already subject to the DOJ final rule to after the effective date. Under this not inconsistent with them either. establish standards necessary to satisfy provision, DHS would include the While some immigration detention the requirements of PREA. The PREA standards in any contract facilities only house immigration Memorandum stated clearly that each modification that affects the substantive detainees, for operational and financial agency is responsible for, and must be responsibilities of either party. (Covered reasons, ICE cannot rely solely on such accountable for, the operations of its substantive contract modifications facilities to meet the agency’s detention own confinement facilities. VAWA 2013

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confirmed this view, by requiring that based on the inherent differences Comment. One advocacy group DHS finalize standards for ‘‘detention between the facilities covered by suggested requiring robust oversight of facilities operated by the Department of Subpart A and Subpart B, respectively. the standards’ implementation in Homeland Security and . . . detention To the extent appropriate, Subpart A contract facilities, including facilities operated under contract with applies to DHS employees and descriptions of the manner in which the Department.’’ The latter category contractors alike; as § 115.5 states, the contract monitoring will be conducted, ‘‘includes, but is not limited to contract term ‘‘staff’’ includes ‘‘employees or the frequency of monitoring, and the detention facilities and detention contractors of the agency or facility, party or parties responsible for facilities operated through an including any entity that operates monitoring. intergovernmental service agreement within the facility.’’ Response. Once the standards set with the Department of Homeland DHS included § 115.112(c) in Subpart forth in this regulation are adopted by Security.’’ 42 U.S.C. 15607. B because DHS rarely uses contractors a facility, the facility will be expected to In short, DHS believes that facilities to run holding facilities and would only comply with them and will be subjected will know which standards to apply need to use contractors on a short-term to DHS and ICE’s multi-layered based on their relationship with DHS basis. In rare instances where DHS inspection and oversight process which and the agreements they have executed. contracts for holding facility space, will include an evaluation of DHS and DOJ are committed to ensuring paragraph (c) provides an additional compliance with these standards. smooth implementation of their layer of protection; despite the short- Currently at ICE, ERO contracts for respective standards. If implementation term nature of the detention, contractors independent inspectors to review reveals that facilities would benefit from must be fully aware of the obligation to conditions of confinement at ICE further guidance regarding the abide by the standards set forth in this facilities on an annual or biennial basis, applicability of each agency’s standards, rule. with follow-up inspections scheduled as DHS and DOJ will work to provide such Comment. Former NPREC required. All ICE facilities with an guidance. DHS makes no changes to the Commissioners suggested that the average daily population of 50 or more regulatory text as a result of this standard include a requirement that all detainees are inspected on an annual comment. contracts entered into between DHS and basis. In addition, ERO employs 40 on- Comment. One commenter suggested contracting facilities directly, through site Federal Detention Service Managers that DHS further clarify more directly IGSAs, or through other arrangements (DSMs) at key ICE detention facilities to how the standards apply to private include contract language requiring that monitor and inspect components of parties contracting with the government, the facilities abide by the applicable facility operations for compliance with noting concern about a possibility that PREA standards. Some commenters ICE detention standards. Currently, contractual remedies will serve as suggested provisions regarding DSMs are assigned to 52 detention insufficient deterrents against such consequences for failure of contract facilities, covering approximately 83 private contractors who may potentially facilities to comply with PREA, percent of ICE’s detained population. violate the standards. including taking away funding from ERO also contracts for a Quality Response. DHS recognizes the noncompliant facilities, removing Assurance Team (QAT) comprised of concern of commenters that private detainees, and closer monitoring or even three subject matter experts in the fields entities running detention facilities criminal or civil sanctions for facilities of corrections and detention. The QAT adequately comply with these that fail to comply repeatedly. performs quality assurance reviews at standards. DHS currently enforces Relatedly, some members of Congress the facilities that have assigned DSMs. detention standards through contracts have suggested strict and tangible The purpose of the QAT reviews is to with facilities and believes that PREA sanctions for noncompliance, include ensure that DSMs are effectively will be effectively implemented through termination of contracts, to ensure that monitoring the operations of the facility new contracts, contract renewals, and individuals will not be housed in and addressing concerns. substantive contract modifications. facilities that cannot protect them. The ICE Office of Detention Oversight DHS, through ICE, can transfer Response. As noted above, the final (ODO), within the Office of Professional detainees from facilities that do not rule requires that the DHS include in Responsibility (OPR), conducts uphold PREA standards after adoption new contracts, contract renewals, and compliance inspections at selected and it can terminate a facility’s contract, substantive contract modifications the detention facilities where detainees are which ICE has done in the past and will entity’s obligation to adopt and comply housed for periods in excess of 72 continue to do if a facility is unable to with the standards set forth in this hours. ODO selects facilities to inspect provide adequate care for detainees. regulation. DHS disagrees about the based on a variety of considerations, Comment. A range of advocacy groups need to articulate punitive measures for including significant compliance issues suggested adding a paragraph to noncompliant facilities in the or deficiencies identified during ERO § 115.12 that would mirror the provision regulation. DHS, through ICE, has inspections, concerns identified or in Subpart B’s similar proposed longstanding and well-established raised by the DSMs, detainee standard at § 115.112. The change procedures for sanctioning under- complaints, and allegations reported or would require all standards in Subpart performing facilities that violate its referred by the DHS Office of Inspector A that apply to the government also detention standards, including by General (OIG) or the ICE JIC. ODO apply to the contractor and all rules that putting any detainee in danger. For provides its compliance inspection apply to staff or employees also apply example, if ICE determines that a reports, recommendations and to contractor staff; the groups expressed facility is not compliant with relevant identified best practices to ERO and ICE concern that without this language, detention standards, it can reduce the leadership who ensure appropriate poorly performing contractors could number of detainees held by the facility corrective action plans are developed attempt to excuse themselves when or impose a corrective action plan on and put in place at detention facilities. failing to fully comply with the the facility. If ICE determines that At the Department level, CRCL standards. detainees remain at risk, ICE will reviews allegations related to civil rights Response. DHS declines to add terminate the facility’s contract and and civil liberties issues in immigration paragraph (c) from § 115.112 to § 115.12 remove all detainees from the facility. detention facilities. The OIG also may

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respond to certain complaints by substantiated and unsubstantiated provision, which is to deter sexual conducting investigations. The OIG will incidents of sexual abuse, the findings assault and abuse. DHS believes that refer certain complaints to ERO. and recommendations of sexual abuse facility staff are trained and qualified to incident review reports, and any other conduct security inspections and that Detainee Supervision and Monitoring relevant factors, including but not these inspections are an effective and (§§ 115.13, 115.113) limited to the length of time detainees efficient deterrent to sexual abuse and Summary of Proposed Rule spend in agency custody.’’ assault. Because deterrence is the Response. DHS respectfully disagrees primary purpose of this requirement, The standards contained in the with the notion that its supervision and and because, in its experience, non- proposed rule required the agency or the monitoring provision must include the supervisory inspections are an effective facility to make its own comprehensive same enumerated factors included in deterrent, DHS declines to make the assessment of adequate supervision DOJ’s regulation regarding facilities. suggested revisions. levels, taking into account its use, if DOJ’s rule is intended to cover a broad Comment. Another comment any, of video monitoring or other range of Federal and State facilities criticized § 115.13 generally for not technology. The agency or facility must managed and overseen by a variety of articulating the frequency (e.g., regular reassess such adequate supervision and different government organizations. By inspections) or location of the monitoring at least annually and the contrast, ICE oversees detainee inspections (e.g., throughout the assessment will include an examination supervision and monitoring at all facility). The commenter believed this of the adequacy of resources it has immigration detention facilities. ICE would result in minimal deterrent effect available to ensure adequate levels of uses its well-established detention and low likelihood of identifying detainee supervision and monitoring. standards to ensure that facilities are misconduct as it occurs. Each immigration detention facility properly and effectively supervising Response. DHS notes that paragraph must also conduct frequent detainees. DHS agrees, however, that a (d) provides for unannounced security unannounced security inspections to number of factors from DOJ’s regulation inspections, which may occur with identify and deter sexual abuse of have application in the DHS context. varying frequency and in any part of a detainees. DHS has therefore incorporated into its facility. These unannounced inspections Changes in Final Rule regulation the following two additional are meant to act as a deterrent, and are factors: (1) Generally accepted detention not meant to catch detainees and/or staff DHS added two factors for the facility and correctional practices and (2) any in acts of sexual assault or abuse. to consider when determining adequate judicial findings of inadequacy. Unannounced security inspections are levels of detainee supervision and Comment. A number of comments an effective tool used by facilities to determining the need for video addressed the requirements for security deter a wide range of detainee and monitoring. These factors are (1) inspections. Regarding the standard in employee misconduct. generally accepted detention and § 115.113 for holding facilities Comment. Multiple commenters correctional practices and (2) any specifically, one organization suggested suggested additional requirements for judicial findings of inadequacy. that DHS add a requirement that such the proposed standards on developing DHS also made a minor change to facilities conduct periodic unannounced and documenting comprehensive § 115.13(d). Instead of prohibiting staff security inspections just as in Subpart detainee supervision guidelines. One from alerting others that ‘‘supervisory A, stating that video monitoring is not comment recommended that DHS rounds’’ are occurring, DHS prohibits a substitute for adequate staffing and require facility-specific development staff from alerting others about the also suggesting that the clauses in both and implementation of a concrete ‘‘security inspections.’’ The purpose of proposed sections allowing video staffing and monitoring plan, with a this change is to make the provision monitoring where applicable be struck specific provision for adequate numbers more consistent with the rest of the from paragraph (a) and instead included of supervisors. Another comment paragraph, which refers to such checks in paragraph (b) as a part of the recommended that DHS adopt an as security inspections rather than requirement to develop and document analogue to paragraph (b) of the DOJ supervisory rounds. supervision guidelines. standard, which requires that ‘‘the facility shall document and justify all Comments and Responses Response. DHS defines a holding facility similarly to DOJ’s definition of deviations from the [staffing] plan.’’ Comment. A number of commenters ‘‘lockup.’’ The DOJ rule requires Comments also suggested that the requested generally that this section unannounced security inspections of agency also document any needed more closely resemble DOJ’s standards adult prisons and jails, but not of adjustments identified in the annual regarding supervision and monitoring. lockups. Similarly, DHS provides for review, and that—when not in A human rights advocacy group such inspections in its immigration compliance with the staffing plan—a requested that DOJ’s more specific list of detention facilities, but not in its facility should be required to document factors in paragraph (a) be included. holding facilities. This is because and justify all deviations, for measuring Under this approach, the rule would holding facilities, like lockups, and compliance during auditing and explicitly require facilities to consider, generally provide detention for much oversight. when determining adequate staffing shorter periods of time. Response. These standards require levels, past findings of supervision Comment. Commenters suggested that each immigration detention facility inadequacies by courts or internal or adding another requirement for develop and document comprehensive external oversight bodies. These intermediate-level or higher-level detainee supervision guidelines, to considerations would be in addition to supervisors to conduct more ensure that the facility maintains the considerations set forth in the inspections. sufficient supervision of detainees to proposed section’s paragraph (c), which Response. DHS notes that by focusing protect detainees against sexual abuse. provides that ‘‘the facility shall take into on having only mid- to high-level As explained above, the sufficiency of consideration the physical layout of supervisors conduct inspections, the supervision depends on a variety of each facility, the composition of the facilities would not be effectively factors, including, but not limited to, the detainee population, the prevalence of accomplishing the main purpose of the physical layout of each facility, the

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composition of the detainee population, a regular basis. Once a facility adopts member if the family relationship has and each facility’s track record in these standards, it also will be subject been vetted to the extent feasible, and detainee protection. to regular auditing by an outside entity the agency determines that remaining Currently, NDS relies on performance- pursuant to the audit requirement in with the non-parental adult family based inspections to determine whether this regulation. Under section 115.203, member is appropriate, under the a facility has adequate supervision and such audits must include an evaluation totality of the circumstances. monitoring. ICE’s 2008 PBNDS and 2011 of (1) whether facility policies and Comments and Responses PBNDS require that facility procedures comply with relevant administrators determine the security detainee supervision and monitoring Comment. Commenters expressed needs based on a comprehensive standards and (2) whether the facility’s concern that the standards should not staffing analysis and staffing plan that is implementation of such policies and allow for housing of juveniles in adult reviewed and updated at least annually. procedures does not meet, meets, or facilities, particularly if not held with Section 115.13 enhances ICE’s detention exceeds the relevant standards. 6 CFR adult family members. One human standards by requiring that facilities 115.203(b)–(c). rights advocacy group stated that as develop and document comprehensive proposed, the standard on separating detainee supervision guidelines which Juvenile and Family Detainees juveniles does not set forth specific will be reviewed annually. Unlike the (§§ 115.14, 115.114) steps to prevent unsupervised contact facilities that fall under DOJ’s final rule, Summary of Proposed Rule with adults. ICE has direct oversight over Response. It is DHS policy to keep immigration detention facilities and The standards contained in the children separate from unrelated adults can, through its well-established proposed rule required juveniles to be whenever possible. To take into inspection process, effectively detained in the least restrictive setting account, in part, the resulting settlement determine whether a facility’s detainee appropriate to the juvenile. The Subpart agreement between the legacy INS and supervision guidelines are inadequate A standard required immigration plaintiffs from class action litigation, and whether a facility is not providing detention facilities to hold juveniles known as the Flores v. Reno Settlement adequate supervision and monitoring. apart from adult detainees, minimizing Agreement (FSA), INS—and Furthermore, requiring every facility sight, sound, and physical contact, subsequently DHS—have put in place to adopt specific staffing ratios under unless the juvenile is in the presence of policies covering detention, release, and this regulation could significantly an adult member of the family unit, and treatment of minors in the immigration increase contract costs without provided there are no safety or security system nationwide. Both the FSA and commensurate benefits. In short, DHS concerns with the arrangement. That the William Wilberforce Trafficking has determined that it can make more standard further required that facilities Victims Protection Reauthorization Act effective use of limited resources by provide priority attention to of 2008 (TVPRA) inform DHS policies mandating comprehensive guidelines unaccompanied alien children, as regarding juveniles. There are that each facility will review annually defined by 6 U.S.C. 279, who would be sometimes instances in which ICE and auditors will examine on a regular transferred to an HHS/ORR facility. personnel reasonably believe the juvenile to be an adult because the basis. Changes in Final Rule DHS declines to require facilities to juvenile has falsely represented himself document deviations from supervision DHS made minor changes to or herself as an adult and there is no guidelines because we do not believe § 115.14(a), (d), and (e) of the final rule. available contrary information or reason this additional documentation would The ‘‘in general’’ and ‘‘should’’ language to question the representation. Under materially assist ICE monitoring of that was suggested in the NPRM was existing policy, ICE officers must base conditions generally and compliance removed in paragraph (a) to ensure a age determinations upon all available with the supervision guidelines in clear requirement that juveniles shall be evidence regarding an alien’s age, particular. Through its comprehensive detained in the least restrictive setting including the statement of the alien. facility oversight and inspection appropriate to the juvenile’s age and In promulgating these PREA programs, ICE has sufficient tools to special needs, provided that such standards, DHS attempted to codify the ensure that facilities effectively setting is consistent with the need to fundamental features of its policy in supervise detainees and comply with protect the juvenile’s well-being and regulation, while maintaining a certain these regulations. And if ICE determines that of others, as well as with any other amount of flexibility for situations such after an inspection that a facility has laws, regulations, or legal requirements. as brief confinement in temporary failed to meet the standards set forth in DHS made a technical change to holding facilities. Additionally, DHS, § 115.13 or failed adequately justify paragraph (d) to maintain consistency through ICE, must and does enforce the deviations from supervision guidelines, between this regulation and the Juvenile Justice and Delinquency ICE has direct authority to remove statutory provision at 8 U.S.C. Prevention Act, which requires that detainees from the facility. DHS has 1232(b)(3). DHS clarified that paragraph alien juveniles not charged with any therefore elected to proceed with the (e) does not apply if the juvenile offense not be placed in secure proposed rule’s approach. described in the paragraph is not also an detention facilities or secure Comment. One group suggested that, unaccompanied alien child. correctional facilities and not be in regard to the standard on determining Regarding the Subpart B standard at detained or confined in any institution adequate levels of detainee supervision § 115.114, DHS added the same change in which they have contact with adult and video monitoring in paragraph (c), in paragraph (a) as in § 115.14(a) for inmates. See 42 U.S.C. 5633. an annual review should assess consistency. DHS also added more Comment. Former Commissioners of effectiveness and identify changes that specific language in paragraph (b) to NPREC and other groups recommended may be necessary to improve require that unaccompanied juveniles that both the Subpart A and B standards effectiveness and allow implementation. generally be held separately from adult require all sight and sound separation Response. As discussed above, detainees. The final standard also from non-familial adults, as DOJ’s staffing levels, detainee supervision, clarifies that a juvenile may temporarily standard does. Some members of and video monitoring are inspected on remain with a non-parental adult family Congress commented generally that the

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standards on housing of juveniles the best approach is to wholly transfer • All unaccompanied alien children should be revisited to be in line with DOJ’s standard, which fits the are required to be transferred to an DOJ’s standard. For the Subpart A correctional system rather than HHS/ORR facility within 72 hours after standard, comments suggested more immigration juvenile detention system, determining that the child is an explicit language requiring facilities to to the DHS context in the manner unaccompanied alien child, except in separate juveniles by sight, sound, and described by the commenters. exceptional circumstances; physical contact to clarify the degree of Regarding the Subpart B standard, • As stated in § 115.14(b), juveniles separation required; they recommended DHS notes that its standard is consistent will be held with adult members of the that DHS eliminate the language of with, and in some ways more detailed family unit only when there are no ‘‘minimizing’’ such situations. than, the analogous DOJ standard. safety or security concerns with the Regarding the Subpart B standard, a Finally, DHS intends that the word arrangement; and commenter suggested physical contact, ‘‘separately’’ be understood according to • As indicated in § 115.114, if sight, and sound restrictions be in place the plain meaning of the word. To keep juveniles are detained in holding particularly for shared dayrooms, the standards straightforward and easily facilities, they shall generally be held common spaces, shower areas, and administrable, DHS declines to create a separately from adult detainees. Where, sleeping quarters. Similarly, one group separate definition of the term for after vetting the familial relationship to comment suggested adding language to purposes of these standards. the extent feasible, the agency define the meaning of ‘‘separately’’ in Comment. One commenter suggested determines it is appropriate, under the Subpart B’s unaccompanied alien adding requirements for separation totality of the circumstances, the children provision to ensure placement outside of housing units to mirror the juvenile may temporarily remain with a outside of the sight and sound of, and DOJ standard’s requirement of sight and non-parental family member. to prevent physical contact with, adult sound separation. The commenter also Comment. Some commenters detainees to the greatest degree possible. recommended adding requirements for suggested that more explicit language be Response. Regarding Subpart A, DHS direct staff supervision when not incorporated in the standards to prevent does not believe the suggested changes separated. abusive use of restrictive confinement in are appropriate, as the DHS standard is Response. Consistent with the all types of facilities. Multiple groups tailored to the unique characteristics of reasoning above, DHS does not believe expressed concern that administrative immigration detention and the variances changes to conform with the DOJ segregation for juveniles must be among confinement facilities for DHS standard in this manner are appropriate, limited. One group stated that any detainees. With respect to the Subpart A as the DHS standard is tailored to the separation of juveniles from adult standard for immigration detention unique characteristics of immigration facilities, which it supported, should facilities, juveniles are primarily held in detention and the variances among not subject them to harmful segregation such facilities under the family confinement facilities for DHS or solitary confinement. Others residential program. (Rarely, DHS must detainees. suggested strict limits, including for all detain a minor who is not Comment. An immigration advocacy forms of protective custody, with a unaccompanied but who is, for group commented that it had received collection of groups suggesting an example, a lawful permanent resident preliminary data as a result of a request explicit prohibition on administrative who has committed a serious crime. In under the Freedom of Information Act, segregation and solitary confinement if this rare circumstance, DHS uses an and that data show thousands of needed to comply with the juvenile and appropriate juvenile detention facility children, including many under the age family detainee requirements. The which is subject to regular inspection by of 14, have been housed in adult groups suggested removing the phrase ICE.) Under the family residential facilities. The commenter wrote that ‘‘[in] general’’ in paragraph (a) of the program, juveniles are held with adult such a practice would violate the terms Subpart A and B standards regarding family members—not solely with other and conditions of the FSA, which sets making juvenile detention as least juveniles as would be the case in the forth a policy for the detention, release, restrictive as possible. One organization context of DOJ’s traditional juvenile and treatment of minors in the custody suggested requirements for when settings. Juveniles in the family of then-INS and requires that isolation is necessary to protect a residential setting for immigration unaccompanied minors be generally juvenile, including documenting the reason therefor, reviewing the need detention may have some contact with separated from unrelated adults. The daily, and ensuring daily monitoring by adults; however, an adult family commenter also wrote that PREA a medical or mental health professional. member will be present. Given the regulations that discourage but do not unique nature of the family detention Response. Upon reconsideration prohibit this practice are insufficient to based upon these comments, DHS has setting, maintaining the standard’s protect this exceptionally vulnerable language as proposed is the best and concluded that in the interest of clarity population from potential sexual abuse. removing the introductory words ‘‘[in] most straightforward way to meet Response. DHS has examined general’’ from paragraph (a) is PREA’s goals. available data on this subject, and appropriate. However, DHS does not see The burden of inserting additional determined that the commenter’s a need for an explicit regulatory specific restrictions would be conclusions do not reflect ICE practices. prohibition on administrative particularly high because DHS assures the commenter as follows: segregation, solitary confinement, and unaccompanied alien children are • Any individual who claims to be a the like in this context; concerns about generally transferred to an HHS/ORR juvenile during processing or while in overly restrictive confinement for facility within a short period of time— detention is immediately separated from juveniles should be alleviated by the 72 hours at most—after determining that the general adult population pending strong standards in both subparts— he or she is an unaccompanied alien the results of an investigation into the further strengthened in this final rule— child, except in exceptional claim; circumstances.10 DHS does not believe requiring juveniles to be detained in the transfer to HHS/ORR is pending in IGSA juvenile least restrictive setting appropriate to 10 ICE will occasionally and for short periods of detention facilities. These facilities are subject to the juvenile’s age and special needs, time house unaccompanied alien children whose inspection and oversight by ICE. taking into account safety concerns,

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laws, regulations, and legal providing separate housing for the child Response. DHS has considered these requirements. Administrative in the same facility. comments; however, the standard as segregation and solitary confinement Response. For immigration detention proposed, which mandates the transfer clearly do not comply with the facilities, DHS has set a regulatory of unaccompanied alien children within requirement that juveniles be detained ‘‘floor’’ in § 115.14 and in the regulatory the 72-hour timeframe except in in the ‘‘least restrictive setting definition of family unit. This suite of exceptional circumstances, is consistent appropriate.’’ requirements provide that facilities do with the TVPRA requirements. DHS is Additionally, the TVPRA mandates not hold juveniles apart from adults if confident that the transfer of that, except in exceptional the adult is a member of the family unit, unaccompanied alien children to ORR circumstances, DHS turn over any provided there are no safety or security will continue to be carried forth unaccompanied child to HHS/ORR concerns with the arrangement. DHS expeditiously. DHS will strictly enforce within 72 hours of determining that the holds immigration detention facilities this regulatory provision, as it will all child is an unaccompanied alien child and holding facilities accountable for PREA standards. With respect to the and that ORR promptly place the child complying with a range of policy, and observation on the importance of in the least restrictive setting that is in now regulatory, requirements. adequate training and internal the child’s best interest. See 8 U.S.C. With respect to the suggestion that procedures to support timely transfer to 1232(b)(3), (c)(2)(A).11 Therefore, the DHS add regulatory language addressing ORR, DHS takes the comments under types of segregation described by the intact family unit detention, DHS advisement for purposes of developing commenters are generally neither declines to adopt such a standard. ICE its training curriculum. feasible nor permissible for such has found that the PREA standards’ Comment. An advocacy group children. definition of family unit and current ICE recommended ensuring adequate policy, specifically ICE’s Family training regarding the enforcement of These concerns appear even further Detention and Intake Guidance, has the standards in general and procedures diminished when taking into account worked well, and to the extent that to avoid sexual abuse or assault of that under ICE policy juveniles are to be deficiencies might exist, DHS does not minors in DHS custody. The group supervised in an alternate setting which believe that addressing them in suggested that DHS regularly update would generally not include regulation would be beneficial to the and implement field guidance regarding administrative segregation. Because affected population. age determinations and related custody Subpart A of these standards With respect to expanding the decisions, consistent with HHS/ORR implements safeguards that will allow a regulation’s treatment of the family unit program instructions. juvenile to be in the presence of an beyond the parent or legal guardian, Response. DHS makes changes to adult member of the family unit when DHS declines to expand the ‘‘family existing guidance on issues such as age no safety or security concerns exist, unit’’ definition, given the legal determinations and custody to reflect accompanied children remaining in requirement for DHS to transfer new laws, policies, or practices, or as immigration detention will not present unaccompanied alien children to HHS, otherwise needed. situations of serious concern either. For generally within 72 hours of Comment. A number of comments these same reasons, DHS declines to determining that the child is an recommended additional protection for adopt the additional suggested unaccompanied alien child. See 8 unaccompanied children and families in requirements regarding isolation. U.S.C. 1232(b)(3). Under the Homeland family facilities specifically. The former Comment. Multiple commenters Security Act of 2002, adopted by the NPREC Commissioners recommended recommended that when possible and TVPRA, an ‘‘unaccompanied alien that DHS separate provisions dealing in the best interest of the juvenile, child’’ is defined, in part, as a child for with unaccompanied minors from family units should remain intact whom ‘‘there is no parent or legal provisions dealing with families. during detention. Some commenters guardian’’ either in the United States or Similarly, one advocacy group stated suggested that DHS include this available in the United States to provide that, because in its view detaining principle in the regulation. Some care and custody. 6 U.S.C. 279(g)(2); see juveniles in family facilities does not commenters also recommended also 8 U.S.C. 1232(g). DHS’s definition eliminate sexual assault risk and may expanding the definition of family unit of ‘‘family unit’’ takes these provisions create a greater risk, DHS should to account for more expansive on unaccompanied alien children into include additional standards specific to understandings of parentage and account. the family unit setting. guardianship in many countries of However, for Subpart B, as indicated The former NPREC Commissioners origin. They suggested that if there are above, DHS has revised § 115.114 to specifically suggested DHS adopt concerns about a child’s safety with a provide that where the agency additional standards that would apply family member, other than a parent or determines that it is appropriate, under to the family facility setting specifically. legal guardian, DHS assess the the totality of the circumstances and Proposed provisions included relationship and safety and make after vetting the familial relationship to screening/vetting of immigration appropriate placements, including the extent feasible, the juvenile may detainees in family facilities, reporting admitting such a family unit while temporarily remain with a non-parental of sexual abuse in family facilities, adult family member. investigations in family facilities, and 11 In addition, under 8 U.S.C. 1232(c)(2)(B), if an Comment. One organization suggested access to medical and mental health unaccompanied alien child reaches 18 years of age a more bright line mandate regarding care in family facilities. The former and is transferred to DHS custody, DHS must the proposed standard’s paragraph (d) Commissioners believe that these consider placement in the least restrictive setting available after taking into account the alien’s danger by requiring the transfer of additional measures would improve to self, danger to the community, and risk of flight. unaccompanied alien children to HHS/ protections in family settings. Such aliens are eligible to participate in alternative ORR within the timeframe proposed. Response. DHS has considered these to detention programs, utilizing a continuum of Another advocacy group emphasized comments and declines to make the alternatives based on the alien’s need for suggested changes to the proposed supervision, which may include placement of the the importance of adequate training and alien with an individual or an organizational procedures for meeting the timeframe standard. DHS grouped the provisions sponsor, or in a supervised group home. for transfer. specific to all juvenile detention and

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family detention in one section in order that they apply to other immigration of the opposite gender, except in exigent to account for current immigration detention facilities. The potential circumstances or when such viewing is detention and holding facility practice benefits of creating a separate set of incidental to routine cell checks or is and policy. Under current practice and standards for this context are not otherwise appropriate in connection policy, a single facility might detain apparent, especially in light of the fact with a medical examination or bowel individuals as well as families. (In other that the applicable standards in Part A movement under medical supervision. words, families detained while are robust. The standards also required that staff of travelling or living together may be With respect to juveniles detained the opposite gender announce their detained together, even if the facility outside of family units, as noted above, presence when entering an area where usually holds detainees as individuals unaccompanied alien children are detainees are likely to be showering, only.) Given this context, DHS believes generally placed with ORR almost performing bodily functions, or that streamlining juvenile-specific immediately; ORR is responsible for changing clothing. The proposed rule regulatory standards in a single location making decisions related to the care and prohibited cross-gender strip searches strengthens protections, as responsible custody of such children in their charge. except in exigent circumstances, or officials are able to refer to a ‘‘one-stop For the 72-hour intervening period up to when performed by medical shop’’ in §§ 115.14 and 115.114. DHS which DHS may generally maintain practitioners and prohibits facility staff believes that its decision to streamline custody, concerns about abuse should from conducting body cavity searches of the standards will not decrease the level be alleviated by the strong requirements juveniles, requiring instead that all body of protection to young detainees. DHS in both subparts that generally prohibit cavity searches of juveniles be referred will carefully monitor policies and the juveniles from being held with adult to a medical practitioner. implementation of this approach and detainees in non-familial situations. In Subpart A, the proposed rule make future policy or regulatory DHS believes that the final standards on generally prohibited cross-gender pat- changes if necessary. juvenile and family detainees, with the down searches of female detainees, With respect to the former NPREC revisions noted above, sufficiently unless in exigent circumstances. The Commissioners’ specific proposals for protect juveniles in immigration proposed rule permitted cross-gender family unit detention and/or family detention and holding facilities. Due to male detainee pat-down searches when, facilities, ICE already has strong policies these factors, DHS has declined to after reasonable diligence, staff of the in place regarding these matters. These promulgate a wholly separate set of same gender was not available at the standards and ICE policies include standards for facilities that house time the search or in exigent detailed provisions on screening/vetting juveniles. circumstances. The proposed rule of immigration detainees, reporting of Comment. One comment suggested required that any cross-gender pat-down sexual abuse, investigations, and access explicit requirements that, absent search conducted pursuant to these to medical and mental health care. exigent circumstances, juveniles have exceptions be documented. The Again, in addition to the PREA access to daily outdoor recreation; a proposed rule required these policies regulatory standards that address these number of groups suggested the same and procedures to be implemented at topics generally for all detainees, the standard for large muscle exercise, the same time as all other requirements 2007 Residential Standard addressing legally required special education placed on facilities resulting from this Sexual Abuse and Assault Prevention services, and—to the extent possible— rulemaking. The proposed rule did not and Intervention ensures that other programs. prohibit cross-gender pat-down searches individuals in family and residential Response. Except to the extent in § 115.115 of Subpart B because of the settings are protected by measures affected by standards designed to exigencies encountered in the holding relating to these precise topics. prevent, detect, and respond to sexual facility environment and the staffing Comment. One commenter abuse and assault in detention facilities, and timing constraints in those small recommended that DHS promulgate a access to activities and other services is and short-term facilities. separate set of standards to prevent In both immigration detention outside the scope of this rulemaking. abuse in facilities that detain children. facilities and holding facilities the Therefore, it is not necessary to include The group expressed that a significantly proposed rule prohibited examinations a list of specific kinds of juvenile improved accounting for the needs of of detainees for the sole purpose of detainee activities and access in these and special risks faced by such youth is determining the detainee’s gender. The standards. necessary. proposed rule further required that all Comment. One advocacy group Response. DHS has considered this security and law enforcement staff be suggested a requirement that children comment and, as a policy matter, trained in proper procedures for have meaningful access to their declines to set forth differing abuse- conducting all pat-down searches. prevention standards depending on attorneys during interactions with DHS whether a specific detainee population officials, including such interactions Changes in Final Rule happens to be present at a specific point after transfer to HHS/ORR. In paragraph (i) of § 115.15, DHS in time. Because DOJ’s standards Response. This comment is outside changed the text to prohibit a facility address juvenile-only facilities through the scope of this rulemaking. DHS from searching or physically examining either the juvenile justice system or the therefore declines to address it here. a detainee for the sole purpose of criminal justice system, DOJ’s standards Limits to Cross-Gender Viewing and determining the detainee’s genital specifically included a definition of a Searches (§§ 115.15, 115.115) characteristics. The previous language juvenile facility. See 77 FR 37105, at used the phrase ‘‘gender’’ instead of 37115. But immigration detention Summary of Proposed Rule ‘‘genital characteristics.’’ The final rule facilities and temporary holding The standards contained in the also revises paragraph (i) to allow a facilities are not so easily characterized. proposed rule required policies and detainee’s gender to be determined as For example, family unit detention procedures that enable detainees to part of a standard medical examination includes juveniles as well as adults. shower (where showers are available), that is routine for all detainees during PREA protections apply to a family unit perform bodily functions, and change intake or other processing procedures. detention facility in the same manner clothing without being viewed by staff The final rule also revises §§ 115.15(j)

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and 115.115(f) to clarify that pat-down detainees who have experienced past immigration detention facilities are searches must be conducted consistent sexual abuse, even professionally allowing detainees equal access to with all agency policy. conducted cross-gender pat-down programming without regard to detainee searches may be traumatic and gender or staffing limitations. Comments and Responses perceived as abusive. See Jordan v. Comment. Multiple commenters and Comment. A number of commenters Gardner, 986 F.2d 1521, 1526 (9th Cir. other groups expressed concerns with believed the same prohibition on cross- 1993) (en banc) (striking down cross- the phrase ‘‘incidental to routine cell gender pat-down searches should apply gender pat downs of female inmates as checks’’ and suggested it be removed as to all detainees. Two sets of advocacy unconstitutional ‘‘infliction of pain’’ an exception allowing cross-gender groups and another organization when there was evidence that a high viewing, a sentiment with which former suggested eliminating paragraph (b), percentage of female inmates had a NPREC Commissioners commented they which allows cross-gender searches of history of traumatic sexual abuse by agreed. One commenter suggested the males in limited circumstances. A men and were being traumatized by the phrase could allow a facility to not take number of these and other groups cross-gender pat-down searches). needed steps and then simply claim suggested changing paragraph (c) to Because females are staff viewing is exempted as incidental. prohibit all cross-gender pat-down disproportionately vulnerable to sexual Response. DHS respectfully disagrees searches, not just for female detainees, abuse and trauma in the cross-gender with the commenters that viewing except in exigent circumstances; some pat down context, the prohibition of incidental to routine cell checks is a members of Congress commented in such pat downs unless there are exigent gateway for abuse in detention. The favor of doing so in order to meet ‘‘civil circumstances is a crucial protection in final rule provides adequate protection confinement standards.’’ furtherance of PREA. DHS goes a step by requiring each facility to have Multiple commenters, including the further than DOJ by also prohibiting policies and procedures that oblige staff NPREC Commissioners, criticized the cross-gender pat downs of male of the opposite gender to announce their inclusion of ‘‘exigent circumstances’’ as detainees, but allows for two presence when entering an area where an exception to cross-gender searches. exceptions—exigent circumstances, and detainees are likely to be showering, These commenters perceived the circumstances where staff of the same performing bodily functions, or exception to be overly broad. One gender are not available. The slightly changing clothing. commenter expressed dissatisfaction different standard reflects the fact that Comment. Two comments suggested with the term ‘‘reasonable diligence’’ for men are less likely to be abused by removing the provisions that allow cross-gender searches when safety, similar reasons. The commenter cross-gender pat-down searches. suggested a standard that would require A categorical prohibition on cross- security, and related interests are at facilities to have sufficient male and gender pat-down searches of male stake, out of apparent concern that the female staff to sharply limit cross- detainees except in exigent provision’s breadth would allow gender pat-down searching of men. circumstances may not be operationally facilities to ‘‘mask abusive use of searches.’’ Another commenter recommended possible at facilities that detain males Response. Maintaining safety, security narrowing the circumstances under but have higher proportions of female and other related interests in detention which cross-gender pat downs of males staff. Such facilities could not guarantee in order to protect detainees, staff, are permitted. the availability of adequate numbers of contractors, volunteers, and visitors is A number of advocacy groups male staff without engaging in potential the highest priority for DHS. Searches suggested explicitly requiring that employment discrimination as a result are an effective and proven tool to facilities cannot restrict a detainee’s of attempts to inflate staffing of one ensure the safety of every person in the access to regularly available gender. Likewise, DHS declines to detention environment. As such, the programming or other opportunities in require facilities to maintain male and final standard maintains paragraph (a), order to comply with the restrictions on female staff sufficient to avoid cross- which explains why searches are a cross-gender viewing and searches. gender pat-down searches in all cases. Response. DHS adopted a standard necessary part of detention. Such a mandate could result in the Comment. Two comments suggested that generally prohibits, with limited unintended consequence of that the provision in paragraph (i) exceptions, cross-gender pat-down employment discrimination in facilities. regarding preventing searches for the searches of female and male detainees In response to commenters concerned sole purpose of determining ‘‘gender’’ in order to further PREA’s mandate of that prohibiting cross-gender pat downs be revised to instead prevent searching preventing sexual abuse without will lead to a restriction of detainees’ solely for determining ‘‘genital compromising security in detention, or access to programming, DHS notes that characteristics.’’ In the following infringing impermissibly on the any restriction based on a lack of sentence of the provision, the groups employment rights of officers. appropriate staffing for pat downs is DHS declines to incorporate the also suggest that ‘‘genital status’’ replace unacceptable and is not standard ‘‘gender’’ for when employees can take commenters’ suggestion to extend the practice. DHS will ensure that same coverage for both male and female other steps to determine. Another advocacy group suggested clear pat-down searches. Female detainees Principles for Women Offenders, at 37, NIC (2003) are especially vulnerable to sexual (‘‘In addition, standard policies and procedures in standards for classifying as male or abuse during a pat-down search because correctional settings can have profound effects on female based on a range of issues women with histories of trauma and abuse, and of their disproportionate likelihood of including self-identification and a often act as triggers to retraumatize women who medical assessment, and not based having previously suffered abuse. have post-traumatic stress disorder (PTSD).’’); According to studies, women with Danielle Dirks, Sexual Revictimization and solely on external genitalia or identity sexual abuse histories are particularly Retraumatization of Women in Prison, 32 Women’s documents. Stud. Q. 102, 102 (2004) (‘‘For women with Regarding the same provision, another traumatized by subsequent abuse.12 For previous histories of abuse, prison life is apt to commenter suggested removing ‘‘as part simulate the abuse dynamics already established in 12 See Barbara Bloom, Barbara Owen, and these women’s lives, thus perpetuating women’s of a broader medical examination Stephanie Covington, Gender-Responsive further revictimization and retraumatization while conducted in private, by a medical Strategies: Research, Practice, and Guiding serving time.’’). practitioner’’ as a means for making the

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determination, and instead replacing it cross-gender viewing and searches. showering for transgender and intersex with ‘‘through a routine medical Existing agency policy will not conflict detainees. examination that all detainees must with these standards. In consideration Response. These issues are of great undergo as part of intake or other of the commenter’s concern, however, importance to DHS, but requiring such processing procedure.’’ DHS has revised the final rule for separate policies would be outside the Response. After considering the clarity. The final rule now requires pat- scope of this rulemaking. Section comments regarding paragraph (i), DHS down searches to be conducted 115.115(d) requires policies and has revised the language to prevent ‘‘consistent with security needs and procedures that enable detainees to searches for the sole purpose of agency policy, including consideration shower, perform bodily functions, and determining ‘‘a detainee’s genital of officer safety.’’ change clothing without being viewed characteristics’’ instead of ‘‘a detainee’s Comment. Multiple comments dealt by staff of the opposite gender, with gender.’’ DHS also clarifies that while with juvenile pat-down searches. One limited exceptions. medical examinations may be done to group suggested that training for Given the limited infrastructure of determine gender, they must be part of employees, contractors, and volunteers holding facilities (most do not include a standard medical exam that is routine having contact with juveniles must showers), DHS does not believe that for all detainees during intake or other include child-specific modules. Another requiring separate showering for processing procedures. DHS believes commenter suggested a requirement that transgender and intersex detainees is an that the final rule allows a range of male juveniles only be subjected to efficient use of limited resources. issues to be considered for gender cross-gender pat-down searches in Comment. One commenter suggested determination. In addition to medical exigent circumstances. the standards should embody American examinations, the determination may be Response. In addition to the ‘‘floor’’ Bar Association Standards on the made during conversation and by set by this regulation, DHS has Treatment of Prisoners. Those standards reviewing medical records. established procedures for the custody may provide strategies and devices to Comment. One advocacy group and processing of juveniles for intake or allow personnel of the opposite gender suggested that searches of transgender transfer to ORR. DHS also provides of a prisoner to supervise the prisoner and intersex detainees should have clear training related to the treatment of without viewing the prisoner’s private standards and by default be conducted juveniles in basic training and in follow- bodily areas. by female personnel, as the group Response. DHS believes that the contends risk of sexual abuse is up training courses on a periodic basis. For example, ICE’s Family Residential requirements set forth in §§ 115.15 and generally lower when the search is 115.115 establish sufficient safeguards conducted by females. Standards, applicable to juveniles in the immigration detention facility context, to limit the cross-gender viewing of Two comments suggested adding a detainees by staff, and are fully provision in paragraphs (j) and (f), for provide that a pat-down search shall only occur when reasonable and consistent with the above-referenced Subparts A and B, respectively, to standards. require that same-gender searches for articulable suspicion can be transgender and intersex detainees be documented. The standard on searches Accommodating Detainees With conducted based on a detainee’s gender also provides a requirement for explicit Disabilities and Detainees With Limited identity absent a safety-based objection authorization by the facility English Proficiency (§§ 115.16, 115.116) by the detainee. One commenter also administrator or assistant administrator Summary of Proposed Rule suggested that we replace the phrase in order for a child resident fourteen ‘‘existing agency policy’’ with ‘‘these years old or younger to be subject to a The standards in the proposed rule regulations, and compatible agency pat-down, requires facilities to have required each agency and immigration policy’’ for clarity. further written policy and procedures detention facility to develop methods to Response. DHS respectfully disagrees for such searches, and provides that ensure that inmates who are LEP or with the commenters about including such searches should be conducted by disabled are able to report sexual abuse specific provisions within this section a staff member of the same gender as the and assault to staff directly, and that describing how pat-down searches detainee. The stated goal of the standard facilities make accommodations to should be conducted for transgender is to ensure that residential searches are convey sexual abuse policies orally to and intersex detainees. While a facility conducted without unnecessary force inmates with limited reading skills or can, on a case-by-case basis, adopt its and in ways that preserve the dignity of who are visually impaired. The own policies for pat-down searches of the individual being searched. All staff proposed standards required each transgender or intersex detainees, the must receive initial and annual training agency and immigration detention agency does not believe that an on effective search techniques. facility to provide in-person or additional mandatory rule is necessary Standards applicable to all minors held telephonic interpretation services in in this context. DHS believes pat-down by ICE ensure that the least intrusive matters relating to allegations of sexual searches must be conducted in a practical search method is employed abuse, unless the detainee expresses a professional manner for all detainees and include similar pat-down preference for a detainee interpreter and and is reluctant to carve out unique pat- parameters to those described above. the agency determines that is down search standards for transgender These policies are the best practices for appropriate. and intersex detainees. Additional the agency and subsequent revisions to Changes in Final Rule standards may make the regulation more the final rule are unnecessary. cumbersome to implement on a day-to- Comment. Regarding the Subpart B- In response to a comment received day basis. specific paragraph (d), one collective regarding another section of the DHS declines to change the wording group comment suggested provisions be standards, DHS is modifying this of §§ 115.15(j) and 115.115(f) to added requiring agency policies language by clarifying that a detainee ‘‘compatible agency policy,’’ because addressing health, hygiene, and dignity may use another detainee to provide once a facility adopts the standards set in facilities, requiring replacement interpretation where the agency forth in this regulation, the facility is garments and access to showers when determines that it is both appropriate expected to abide by the standards in necessary, and allowing separate and consistent with DHS policy.

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Comments and Responses background investigations every five Response. DHS declines to implement Comment. One commenter expressed years for agency employees and for a per se rule that a past history as a concern that further explanation, facility staff who may have contact with victim of abuse will serve as an outside of ‘‘literature describing the detainees and who work in automatic disqualifier for employment. protection’’ for detainees, is necessary. immigration-only facilities. Past victimization is not necessarily a Response. DHS recognizes the Changes in Final Rule useful indicator of future likelihood to importance of ensuring that all engage in abuse. Moreover, DHS detainees, regardless of disability or LEP DHS is adopting the regulation as believes that any blanket rule status, can communicate effectively proposed. disqualifying past victims of abuse from with staff without having to rely on Comments and Responses employment would be discriminatory detainee interpreters, in order to and cannot be accepted. Comment. Commenters suggested Comment. Regarding the Subpart A facilitate reporting of sexual abuse as changing the background investigation accurately and discreetly as possible standard on hiring and promotion, a standard’s language to include making commenter stated that it is unclear why and to provide meaningful access to the the investigation a requirement for staff agency’s sexual abuse and assault paragraph (g)—applying the that work in facilities that house a mix requirements of the section otherwise prevention efforts. As a result, this of residents, including non-immigration standard includes other methods of applicable to the agency also to contract inmates, but may have contact with facilities and staff—only appears in this communication aside from written detainees. The commenters suggest materials to ensure that every detainee section on hiring and promotion issues, separating this requirement out from the rather than in all standards. is educated on all aspects of the investigation requirement for all facility agency’s efforts to prevent, detect, and Response. DHS included § 115.17(g) staff who work in immigration-only respond to sexual abuse. Such methods to clarify that any standards applicable detention facilities for purposes of include in-person, telephonic, or video to the agency also extend to any clarity. interpretive services, as well as written contracted facilities and staff, as well. Response. DHS recognizes the critical By its terms, much of the rest of the materials that are provided in formats or importance of performing thorough through methods that ensure effective regulation also applies to non-DHS background investigations as part of the facilities, to the extent that they meet communication with detainees who hiring and promotion process. DHS may have disabilities that result in the definition of immigration detention remains committed to ensuring such facility under Subpart A. Although limited literate and vision abilities. background investigations are The final standard, in conjunction paragraph (g) may be redundant, DHS is conducted prior to hiring new staff that with Federal statutes and regulations retaining it for clarity nonetheless. may have contact with detainees, or protecting the rights of individuals with before enlisting the services of any Upgrades to Facilities and Technologies disabilities and LEP individuals, contractor who may have contact with (§§ 115.18, 115.118) protects all inmates while providing detainees. However, DHS declines to agencies with discretion in how to Summary of Proposed Rule expand the requirement for background provide requisite information and investigations to include staff that work The standards in the proposed rule interpretation services. The final in facilities with non-immigration required agencies and facilities to take standard does not go beyond that which inmates and do not have contact with into account how best to combat sexual is required by statute, but clarifies the detainees due to the lack of DHS abuse when designing or expanding agencies’ specific responsibilities with authority. facilities and when installing or regard to PREA related matters and Comment. Commenters suggested updating video monitoring systems or individuals who are LEP or who have requiring that background investigations other technology. disabilities. for all employees who may have contact Changes in Final Rule Hiring and Promotion Decisions with juveniles must include records (§§ 115.17, 115.117) related to child abuse, domestic DHS is adopting the regulation as violence registries and civil protection proposed. Summary of Proposed Rule orders. One commenter also suggested Comments and Responses The standards in the proposed rule these background requirements be DHS did not receive any public prohibited the hiring of an individual explicit for all new staff that may have comments on this provision during the that may have contact with detainees contact with female detainees. and who previously engaged in sexual Response. DHS agrees that criminal public comment period. abuse in an institutional setting; who records related to allegations that a Evidence Protocols and Forensic has been convicted of engaging in potential employee has engaged in child Medical Examinations (§§ 115.21, sexual activity in the community abuse, domestic violence registries and 115.121) facilitated by force, the threat of force, civil protection orders are an important or coercion; or who has been civilly or component of the background Summary of Proposed Rule administratively adjudicated to have investigation. The standard background The standards contained in the engaged in such activity. The standards investigation process for employees and proposed rule required agencies and also required that any substantiated staff already includes the search of such facilities responsible for investigating allegation of sexual abuse made against records. Therefore, no additional allegations of sexual abuse to adopt a staff be taken into consideration when changes are required. protocol for the preservation of usable making promotion decisions. The Comment. A commenter physical evidence as well as to provide standards in the proposed rule also recommended that DHS investigate to detainee victims access to a forensic required a background investigation discover if border officers themselves medical examination at no cost to the before the agency or facility hires have been hurt as children or adults detainee. The standard further required employees, contractors, or staff who because of the commenter’s belief that if that such developed protocols be may have contact with detainees. The it is in their history, they will be more appropriate for juveniles, where standards further required updated apt to abuse others. applicable, and that outside victim

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services be available after incidents of required by applicable state laws to Comment. One commenter sexual abuse to the extent possible. report all incidents of child sexual recommended that facilities make In situations when the component abuse or assault, including incidents updated lists of resources and referrals agency or facility is not responsible for where the parent or legal guardian is the to appropriate professionals available if investigating alleged sexual abuse perpetrator, to designated law and when assault happens. within their facilities, the proposed enforcement agencies. The law Response. DHS declines to make this standards required them to request that enforcement official is then responsible recommended edit to the current the investigating entity follow the for ensuring that child welfare services provision because it is outside the scope relevant investigatory requirements set are notified where appropriate. of the provision. Section 115.53 out in the standard. Therefore, the inclusion of this currently requires facilities to have Changes in Final Rule provision in these standards is not access for detainees to current necessary. community resources and services and DHS made one change to this Comment. A commenter should satisfy the commenter’s request. provision, providing that a Sexual recommended that DHS provide a Comment. One collective comment Assault Forensic Examiner (SAFE) or a means for protection from removal— from advocacy groups suggested a Sexual Assault Nurse Examiner (SANE) including withholding of removal, number of added provisions for should be used where practicable. prosecutorial discretion, or deferred proposed paragraph (c)’s forensic Comments and Responses action—while an investigation into a medical examination requirement. The groups suggested that the facility Comment. With respect to forensic report of abuse is ongoing, and also arrange for the examination ‘‘when medical examinations, some advocacy require facilities to provide application developmentally appropriate’’ and that groups commented that before a child information to detainee victims and, if another requirement be added that the undergoes such an examination or applicable, parents, guardians, or legal examination is performed by a SAFE or interview, facility officials should representatives. a SANE, with other qualified medical contact and provide advance notice to Response. DHS recognizes that in practitioners only being allowed to the juvenile’s legal guardian or other some cases, it may be appropriate for examine if a SAFE or SANE cannot be appropriate person or entity. For ICE not to remove certain detainee made available. The agency or facility unaccompanied alien children, the victims.13 However, DHS does not would then have to document efforts to groups suggest requiring the agency to believe that every detainee who reports provide a SAFE or SANE. Regarding immediately notify and consult with an allegation should necessarily receive such examinations for juveniles, the HHS/ORR regarding the forensic some type of relief or stay of removal. groups suggested requiring that, except examination and facilitate the OPR has the authority to approve in exigent circumstances, the immediate transfer upon request of ORR deferred action for victimized detainees evaluations be conducted by a qualified and the juvenile. One commenter when it is legally appropriate. professional with expertise in child suggested adding a provision in case a As mandated in §§ 115.22(h) and forensic interviewing techniques. 115.122(e), all alleged detainee victims legal guardian is an alleged perpetrator, Response. It is not necessary for a of sexual abuse that is criminal in in which case the agency should be medical practitioner to be a SAFE or nature will be provided U required to notify a designated state or SANE to be qualified to perform a nonimmigrant status (also known as ‘‘U local services agency under applicable complete forensic examination. Many visa’’) information. OPR and Homeland mandatory reporting laws. detention facilities are located in rural Response. DHS declines to make the Security Investigations (HSI) have the communities where there are healthcare suggested revisions because they would delegated authority for ICE to certify professionals who are qualified to have no practical application in this USCIS Form I–918, Supplement B for perform forensic exams, but may not context. First, it would not be victims of qualifying criminal activity have a SAFE or SANE designation. appropriate to immediately transfer a that ICE is investigating where the Adding a SAFE or SANE requirement to juvenile who was sexually assaulted, victim seeks to petition for U the provision could in some even if requested by ORR and the nonimmigrant status. circumstances lead to delayed juvenile, as the juvenile should first be Because these are routine agency treatment, as there might not be a SAFE referred to an appropriate medical care practices and subject to agency or SANE nearby to the facility. As a professional and local law enforcement discretion, DHS has declined to make result, DHS declines to absolutely agency, potentially in conjunction with changes in the final rule to specifically require use of a SAFE or SANE. DHS, the appropriate child welfare authority. address the various prosecutorial however, has added to the standard that Responsibility for determining who has discretion methods that may be used. examinations should be performed by a legal authority to make decisions on ICE can and will use these prosecutorial SAFE or SANE where practicable. With behalf of the juvenile would lie with the discretion methods for detainees with respect to the comment about investigating law enforcement agency substantiated sexual abuse and assault developmentally appropriate and the medical provider because the claims. evaluations, DHS notes that under juvenile would be a victim involved in §§ 115.21(a) and 115.121(a), uniform a criminal investigation. 13 See U.S. Immigration and Customs Second, juveniles in the family evidence protocols must be Enforcement, Policy No. 10076.1, Prosecutorial developmentally appropriate. residential program would be present as Discretion: Certain Victims, Witnesses, and a member of a family unit and therefore Plaintiffs (2011), available at http://www.ice.gov/ Policies To Ensure Investigation of doclib/secure-communities/pdf/domestic- would be with an individual who violence.pdf and U.S. Immigration and Customs Allegations and Appropriate Agency possesses authority for making legal Enforcement, Policy No. 10075.1, Exercising Oversight (§§ 115.22, 115.122) determinations for the juvenile present Prosecutorial Discretion Consistent with Civil at the facility. Immigration Enforcement Priorities of the Agency Summary of Proposed Rule for the Apprehension, Detention, and Removal of With respect to the comment about Aliens (2011), available at http://www.ice.gov/ The standards contained in the reporting abuse by a parent or guardian, doclib/secure-communities/pdf/prosecutorial- proposed rule mandated that each DHS notes that agencies are already discretion-memo.pdf. allegation of sexual abuse have a

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completed investigation by the DHS anticipates, however, that covered groups also suggested the standard appropriate investigative authority. agencies and facilities may at times prevent the victim from being Each agency and immigration detention receive complaints that are framed as transferred to another facility in a way facility would establish and publish a sexual abuse allegations, but do not rise that materially interferes with the protocol for investigation for to the level of potentially criminal investigation of the allegation unless investigating or referring allegations of behavior. For consistency with the DOJ essential to the protection of the victim, sexual abuse. All allegations received by standards, and to ensure that mandatory in which case the agency must ensure the facility would be promptly referred referrals do not deplete scarce criminal that the victim continues to be available to the agency and, unless the allegation investigative resources, DHS declines to to cooperate with the investigation. did not involve potential criminal require referral to a criminal Several advocacy groups, including a behavior, promptly referred for investigative entity in all cases. number of collective advocate investigation to an appropriate law Comment. Commenters also comments, suggested a further provision enforcement agency. Finally, when an recommended that DHS insert a be added to require that the agency allegation of detainee abuse that is requirement that the facility head or an ensure the victim is not removed from assignee must request the law criminal in nature is being investigated, the United States if the victim indicates enforcement investigation, and that the each agency would ensure that any a wish to petition for U nonimmigrant facility’s own investigation must not alleged detainee victim of criminal status and moves to file such a petition abuse is provided access to relevant supplant or impede a criminal one. Response. DHS declines to require the within a reasonable period, so long as information regarding the U the victim cooperates with the nonimmigrant visa process. facility head to request the law enforcement investigation and declines investigation and the allegations are not Changes in Final Rule to incorporate a requirement that the found to be unfounded. In such a case, DHS made one clarification to both facility’s own investigation must not one group suggested the agency should subparts, in paragraphs (h) and (e), supplant or impede a criminal one. be required to ensure the victim is not respectively, that replaces the term ‘‘U These revisions are not necessary removed before obtaining necessary nonimmigrant visa information’’ with because under this regulation, PBNDS certified documents to apply for such ‘‘U nonimmigrant status information.’’ 2011, and the SAAPID, all status; others suggested a bar on This change is consistent with the term investigations into alleged sexual removal unless the U nonimmigrant used in the Form I–918 (Petition for U assault must be prompt, thorough, petition is denied by USCIS. Nonimmigrant Status). DHS also objective, fair, and conducted by Response. DHS recognizes that in changed both paragraphs to make clear qualified investigators. Furthermore, some cases, it may be appropriate for its intention that the information be facilities are required to coordinate and ICE not to remove certain detainee timely provided. assist outside law enforcement agencies victims.14 However, DHS does not during their investigations and therefore believe that every detainee who reports Comments and Responses not impede those investigations. DHS an allegation should receive some type Comment. In connection with the declines to add the suggested language of stay of removal. OPR has the proposed requirement that each facility because it does not strengthen the authority to approve deferred action for ensure allegations are reported to an investigative mandates that are victimized detainees when it is legally appropriate law enforcement agency for currently in place. appropriate. As mandated in §§ 115.22 criminal investigation, several Comment. A commenter suggested, (h) and 115.122 (e), all alleged detainee commenters recommended that DHS regarding the requirement that the victims of sexual abuse that is criminal remove the exception for allegations facility ensure incidents be promptly in nature will be provided U that do not involve potentially criminal reported to the JIC, ICE’s OPR, or the nonimmigrant status information. OPR behavior. One group stated that any DHS OIG, as well as the appropriate ICE and HSI have the delegated authority for allegation of sexual abuse as defined in Field Office Director (FOD), that the ICE to certify USCIS Form I–918, proposed § 115.6 is potentially criminal. language ‘‘ensure that the incident is Supplement B for victims of qualifying Response. DHS agrees with the promptly reported’’ be replaced with criminal activity that ICE is commenter that both appropriate agency ‘‘report.’’ investigating where the victim seeks to oversight and criminal referrals are Response. In some cases, the incident petition for U nonimmigrant status. essential components of DHS efforts in will be reported by an ERO officer and Because these are routine agency this context. DHS is therefore not an employee of the facility or the practices and subject to agency implementing standards that require facility administrator. In such cases, the discretion, DHS has declined to make strong and transparent agency and facility will have met the standards of changes in the final rule to specifically facility protocols for reporting and the provision by ensuring that the address the various prosecutorial referring allegations of sexual abuse. incident was reported while not doing discretion methods that may be used. Under the regulation, covered agencies the reporting itself. Therefore, DHS ICE can and will use these prosecutorial and facilities must promptly report all declines making this addition as it does discretion methods for detainees with sexual abuse allegations to the not believe this change will make the appropriate administrative offices, provision more effective. 14 See U.S. Immigration and Customs without exception. Also under the Comment. Multiple commenters Enforcement, Policy No. 10076.1, Prosecutorial regulation, covered agencies and suggested a requirement that the Discretion: Certain Victims, Witnesses, and facilities must promptly refer all detainee victim not be removed while Plaintiffs (2011), available at http://www.ice.gov/ doclib/secure-communities/pdf/domestic- potentially criminal sexual abuse an investigation is pending, unless the violence.pdf and U.S. Immigration and Customs allegations to a law enforcement agency detainee victim specifically and Enforcement, Policy No. 10075.1, Exercising with the legal authority to conduct expressly waives this prohibition in Prosecutorial Discretion Consistent with Civil criminal investigations. writing. In the case of a family unit, the Immigration Enforcement Priorities of the Agency for the Apprehension, Detention, and Removal of DHS agrees that acts of sexual abuse, recommendation would require that no Aliens (2011), available at http://www.ice.gov/ as defined in this regulation, most often non-abuser family members be removed doclib/secure-communities/pdf/prosecutorial- involve ‘‘potentially criminal behavior.’’ during the pending investigation. The discretion-memo.pdf.

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substantiated sexual abuse and assault concerns highlighted by the Comment. One group recommended claims. commenters, and reserves appropriate that access to U nonimmigrant status Furthermore, when a victimized flexibility for the agency to tailor its information be provided not later than detainee is petitioning for U practice to specific circumstances. DHS two weeks following an incident. nonimmigrant status, appears to have notes that ICE already provides access to Response. ICE’s SAAPID, section 5.7, been a victim of qualifying criminal approved informational materials or sets forth the agency’s responsibilities activity, and appears to meet the appropriate national hotlines. for providing U nonimmigrant status helpfulness requirement for the Given the potentially broad scope of information to sexual assault victims. investigation or prosecution, this provision (which applies to all The Directive states that OPR, in prosecutorial discretion should be allegations of sexual assault), DHS coordination with the FOD and/or HSI utilized by ICE. To prevent unintended believes that additional changes would SAC, will ensure alleged victims of removals, OPR must sign off on any be unnecessary and potentially sexual abuse or assault who have made ERO request to remove a victimized counterproductive to the goal of allegations involving criminal behavior detainee when an investigation has been providing timely, accurate, and useful will be provided access to U filed and is pending. DHS does not access to information. For instance, with nonimmigrant status information. DHS believe that adding the suggested respect to the question of who ought to believes that this policy ensures victims language substantially strengthens the provide U nonimmigrant status will have timely access to the U current provision as it is current information, DHS agrees with the nonimmigrant status information. practice and therefore DHS declines the commenter that a facility’s PSA Accordingly, DHS declines to recommendation. Compliance Manager is one good option implement a two week regulatory Comment. Several commenters for providing such information. requirement. suggested that there be increased access However, ICE OPR would also provide Comment. Collective comments from to existing types of legal status for abuse such information pursuant to the advocates suggested a requirement that survivors. SAAPID, section 5.7, which states that the agency designate various qualified Response. DHS is currently able to ‘‘in cases where the allegation involves staff members or DHS employees to provide detainee victims with behavior that is criminal in nature, OPR, complete USCIS Form I–918, information concerning U Supplement B for any detainee victim of in coordination with the FOD and/or nonimmigrant status when the sexual sexual abuse who meets U HSI SAC, as appropriate, will ensure abuse is criminal in nature. DHS may nonimmigrant status certification any alleged victim of sexual abuse or also effect deferred action or significant requirements. A comment noted that assault who is an alien is provided public benefit parole when appropriate. this ‘‘is meant to prevent qualified access to U non-immigrant visa DHS declines to make additional agency personnel from declining to information. . . .’’ changes in this rulemaking because any assist a detainee with a U visa additional access to existing types of DHS does not believe that including application.’’ The same comment noted legal status for abuse victims other than these detailed requirements in a that in some cases, agencies do not what is currently authorized would be regulatory provision or designating the complete the Supplement B ‘‘because of outside the scope of this rulemaking. PSA Compliance Manager as the a lack of understanding [that] Comment. Several advocacy groups individual responsible for providing the completing Supplement B is not an recommended the standards relating to information to qualifying detainees admission of liability on the part of the access to U nonimmigrant status would strengthen this provision or agency but simply an acknowledgement information contain more detailed provide more support to the detainee. that the detainee was or is likely to be requirements. A number of comments DHS notes that it also already provides helpful in an investigation.’’ suggested expanding the provision to such information to the public on DHS Response. U nonimmigrant status is ensure that the information include Web sites and through DHS’s Blue available to victims of certain qualifying instructions on how to apply and Campaign to end human trafficking. crimes under U.S. laws who assist law contact legal experts for information to Comment. Several advocacy groups enforcement in the investigation or assist with the process. Some of these suggested that the standard require the prosecution of the criminal activity. The comments suggested specifically facility head or his or her assignee to only agencies that have authority to providing that the PSA Compliance make every effort to ensure that the certify the Form I–918, Supplement B Manager (or his or her assignee)—rather victim has legal counsel who can are those Federal, State, or local than the ‘‘agency’’—should ensure the provide advice on petitions for U agencies with responsibility for the alleged detainee victim be provided nonimmigrant status, unless law investigation or prosecution of a access to the information, in order to enforcement investigators were to qualifying crime or criminal activity, clarify who has responsibility for determine the allegation to be including agencies with criminal providing the U nonimmigrant status unfounded. investigative jurisdiction. See 8 CFR information. One group recommended Response. DHS declines to add the 214.14(a)(2). OPR and HSI have been that access to U nonimmigrant status suggested language with respect to legal delegated the authority for ICE to information be provided not later than counsel. Immigration detention facilities complete and certify the USCIS Form I– two weeks following an incident. already provide information about legal 918, Supplement B when they are the Response. DHS agrees that these services to detainees, consistent with investigating authority on a Federal case provisions should be more specific, and existing standards regarding access to for victims of qualifying criminal therefore has clarified the regulatory the law library and other information activity. ERO does not have this text to make clear its intention that about legal services. Facilities also delegated authority because ERO does access to the information should be facilitate access to legal counsel through not have criminal investigative provided in a timely manner—i.e., visitation and communication by jurisdiction. within a reasonable period of time, telephone. DHS notes that § 115.53 In most instances where a detainee under the totality of the circumstances. requires facilities to ensure detainees would seek to petition for U This change is consistent with current have access to current community nonimmigrant status, the appropriate ICE practice and responsive to the resources and services. investigative authority and therefore the

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certifying agency would be local law ‘‘unaccompanied alien child in Changes in Final Rule enforcement. With respect to the removal,’’ the PSA Compliance Manager DHS is adopting the regulation as specific request that DHS prevent or his or her assignee notify ORR proposed. qualified agency personnel from immediately and facilitate the declining to assist a detainee with a U immediate transfer of the juvenile to Comments and Responses nonimmigrant petition, DHS declines to ORR, so long as the detainee victim Comment. A number of advocacy set such policy in this context. DHS has wishes to remain in the United States group commenters objected to the clearly delegated authority to select while the investigation is pending. timeframe for initial training. With officers who may certify a U Additionally, the groups suggest that if respect to Subpart A’s requirement that nonimmigrant petition. These officers the detainee victim is a juvenile in a the agency train, or require the training receive appropriate training with regard family unit and the sole parent or legal of, all facility staff and agency to this process and must use their guardian in that unit has allegedly employees who may have contact with professional judgment when deciding victimized any juvenile, the PSA immigration detention facility detainees whether to certify petitions. DHS does Compliance Manager or its assignee be within one year, one advocacy group not believe it is necessary or appropriate required to consult with the designated suggested that the standard require to require additional involvement in the state or local mandatory reporting training completion within a shorter certification process for U agency regarding the release and time period of six months. With respect nonimmigrant petitions. to Subpart B, commenters suggested that Comment. One commenter suggested placement of all juvenile(s) in the family all training pertaining to holding that DHS extend the visa information unit with a state or local social services facilities be completed within one year provisions to include a requirement that agency. The group suggests that if the of this publication. an alleged detainee victim of sexual state or local social services agency Response. DHS has considered these abuse receive notification and assistance refrains from assuming custody but a comments and determined that the for Special Immigrant Juvenile status criminal or administrative investigation proposed standard still provides the and T nonimmigrant status (commonly results in ‘‘a finding,’’ the juveniles most aggressive timeframe appropriate known as the ‘‘T visa’’). must be deemed unaccompanied and Response. DHS declines to accept the ORR must be notified for the transfer. for training in immigration detention suggested language, as T nonimmigrant facilities. DHS’s timeframe is in line Response. DHS declines to add the with the DOJ standard’s one-year period status and Special Immigrant Juvenile suggested language concerning this (SIJ) status are outside the scope of this for employees who may have contact population. Unaccompanied alien with inmates. DHS declines to shorten rulemaking. Whereas an alleged children are generally transferred to an incident of sexual assault of a detainee the timeframe for training in holding HHS/ORR facility within 72 hours. facilities, in light of the large number of may constitute a qualifying criminal Moreover, taken together, various activity for U nonimmigrant status, this CBP personnel who will receive the provisions in the regulations training. rulemaking is not germane to T appropriately address the concern nonimmigrant status, which is for Comment. Commenters suggested that raised by the comment. Section 115.14 certain victims of a severe form of training be ongoing, with a number of addresses issues relating to juvenile human trafficking. SIJ status is groups suggesting adopting DOJ’s detainees. If an alleged victim is under applicable to an alien child who must language on mandatory refresher meet certain criteria including: (1) the age of 18, §§ 115.61(d) and training every two years and refresher Having been declared dependent on a 115.161(d) require the agency to report information on current sexual abuse and juvenile court, or legally committed to the allegation to the designated state or harassment policies in years when or placed under the custody of a state local services agency under applicable training is not required. According to agency, individual, or entity; (2) that the mandatory reporting laws. Per §§ 115.64 some advocacy groups, the intent of the child cannot be reunified with a parent and 115.116, upon learning of an ongoing training rather than one-time because of abuse, abandonment, neglect, allegation that a detainee was sexually training would be to ensure that staffs or a similar reason under state law; and abused, the first responder must focus on zero tolerance and appreciation (3) that it is not within the best interest separate the alleged victim and abuser. of an abuse-free environment, to allow of the child to return to his/her home DHS believes the requirements in these staff to share experiences about country. See 8 U.S.C. 1101(a)(27)(J). For referenced sections provide sufficient implementation of the standards, and to those unaccompanied alien children protections that adequately meet the increase the likelihood that training who may seek SIJ status, DHS’s custody goals of the comments’ suggested themes are internalized in daily staff- of the unaccompanied alien child would changes. detainee interactions. Response. With respect to Subpart A, generally be limited to 72 hours after Staff Training (§§ 115.31, 115.131) determining that the child is an the proposed rule stated that the agency unaccompanied alien child, after which Summary of Proposed Rule or facility shall provide refresher the child would be transferred from information every two years. With DHS custody to HHS/ORR custody. As The standards in the proposed rule respect to Subpart B, the proposed rule a result, DHS would no longer have required all employees that have contact stated that the agency shall provide jurisdiction over the unaccompanied with detainees as well as all facility staff refresher information, as appropriate. alien child, making notification and receive training concerning sexual DHS proposed these refresher assistance for SIJ status outside the abuse, with refresher training provided requirements to foster a culture of scope of this rule. as appropriate. The standards mandated awareness, without denying its Comment. Two comments suggested that current staff complete the training component agencies the flexibility standards be added—in accordance with within one year of the effective date of necessary to adjust refresher training what a comment described as standard the standard for immigration detention requirements to respond to operational child welfare practices when juveniles facilities and within two years of the realities. Considerations include the are survivors of sexual abuse—to require effective date of the standard for holding time and cost of developing adequate that if the alleged detainee victim is an facilities. training that is sufficiently tailored to

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the unique immigration detention and contract personnel on those diverse detainees, some of which may population and the time and cost for standards’ Sexual Abuse and Assault have different understandings of staff to participate in such training. Prevention and Intervention Program, acceptable and unacceptable sexual With respect to Subpart A with annual refresher training behavior. specifically, DHS, through CRCL and thereafter. Finally, DHS will endeavor to Response. The DHS provision ICE, has developed a training module on ensure that facilities are compliant with regarding staff training provides ‘‘Preventing and Addressing Sexual PREA standards as quickly as detailed and comprehensive Abuse and Assault in ICE Detention’’ operational and budget constraints will expectations for training. DHS rejects which the ICE Director required in ICE’s allow, ensuring that SPCs, CDFs and using the DOJ standard’s exact language 2012 SAAPID to have been already dedicated IGSAs are compliant within because DHS’s standard provides the completed for all ICE personnel who 18 months of the effective date of this agency greater flexibility to ensure that may have contact with individuals in regulation. For these reasons, contractor the provision is consistent with existing ICE custody and which is also required and volunteer personnel will be detention standards. ICE’s current for newly hired officers and agents. This adequately aware of the zero-tolerance training curriculum focuses on module specifically addresses the zero- policy. promoting techniques of effective tolerance policy for sexual abuse and Comment. Two advocacy groups communication with detainees from all assault, among other issues. The suggested language be added to ensure backgrounds and in a variety of settings. training has recently been updated to that staff who may interact with The curriculum is a skills-based incorporate certain terms and language detainees understand the training, either approach that emphasizes the from the proposed rule, and will be through a comprehension examination importance of interacting with all updated again following this final rule. or through some form of verification of detainees in a culturally sensitive ICE believes that this training module training. manner. ICE intends to continue to addresses the substantive concerns Response. The mandatory training provide such training, and to modify it expressed by the commenters. module mentioned above for ICE as necessary in the coming years. ICE Comment. One commenter suggested employees who have contact with does not believe, however, that an that contractors be included in the detainees contains 10 pre-test questions independent regulatory requirement to training requirements along with and 10 post-test questions covering key conduct such training would current facility staff and agency teaching points. The learner must meaningfully enhance the experience of employees, and that it should be receive an 80% passing score on the ICE detainees. specified that the training be by DHS or post-test to receive verification of Comment. Some advocacy groups using DHS-approved materials, and that completing the training. The slides focused on need for specifically the agency documentation requirement include the correct answers and addressing training for juveniles for in Subpart B be applicable to additional explanation following each employees who may be in contact with contractors and volunteers in addition question. DHS is confident this training them. A collection of groups suggested to employees. module serves the purposes of a training requirement in this area that Response. Section 115.31, outlining examination and verification. Once an would include factors making youth training requirements for detention immigration detention facility has vulnerable to sexual abuse and sexual facility staff, embraces contractors who adopted these standards, the agency will harassment; adolescent development for work and provide regularly recurring ensure pursuant to this section that all girls and boys, including normative services in detention facilities. The facility staff, including employees or behavior; the prevalence of trauma and rule’s definition of contractor excludes contractors of the facility, complete abuse histories among youth in individuals, hired on an intermittent similar training. Subsection (c) already confinement facilities; relevant age of basis to provide services for the facility requires that the agency and each consent and mandatory reporting laws; or the agency. These contractors, who facility shall document that staff have and child-sensitive interviewing do not provide services on a recurring completed applicable training. techniques. basis pursuant to a contractual Comment. One commenter stated that Response. DHS appreciates the agreement, are covered under section all components of the DOJ training commenter’s input, and will consider 115.32 of these standards. These PREA standard should be incorporated into including this information in future standards are applicable within one year the DHS standard. Another commenter curricula. For purposes of this to the facilities required to implement recommended generally that the rulemaking, however, DHS is satisfied them; PBNDS 2011 § 2.11, which is in standard on staff training should be that the current list of training the process of being implemented revisited to be in line with DOJ’s requirements in regulation is through modification agreements, which standard. Similarly, the former NPREC sufficiently detailed to accomplish the have already been implemented in a Commissioners suggested adding the core goal, while leaving the agency large number of over-72-hour facilities, following training components from the flexibility to prioritize and develop also requires staff training on a facility’s Commission’s draft standards and DOJ’s training on additional topics over time. sexual abuse or assault prevention and final standards: The right of inmates and As noted above, the current list of topics intervention program for employees, employees to be free from retaliation for is consistent with existing detention volunteers and contract personnel and reporting sexual abuse and sexual standards (PBNDS 2011, PBNDS 2008, in refresher training based on level of harassment; the dynamics of sexual and FRS) covering approximately 94% contact with detainees, among other abuse and sexual harassment in of ICE detainees, on average, excluding criteria, with the zero-tolerance policy confinement; the common reactions of those detainees who are held in DOJ being a requirement for having any sexual abuse and sexual harassment facilities (and are therefore covered by contact with detainees. Additionally, victims; and how to detect and respond the DOJ rule). Additionally, regarding some facilities that have not yet agreed to signs of threatened and actual sexual training geared toward juveniles, all ICE to modification agreements are abuse. The former Commissioners and Field Office Juvenile Coordinators operating under PBNDS 2008, which other groups also expressed concern (FOJCs) are required to attend training contains a substantially similar training that the provision should include to fulfill their responsibilities to find requirement for employees, volunteers, training on sensitivity to culturally suitable placement of juveniles in

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facilities designated for juvenile the same reasons expressed above, DHS who provide services to the facility on occupancy, and all ERO officers declines to incorporate these a recurring basis are covered by undergo basic training that includes a requirements into the regulation. § 115.31. juvenile component. FOJCs are trained Comment. One group suggested DHS also removed the word ‘‘may’’ in the demeanor, tone and simple type replacing the training provision in from paragraph (c) of the same standard, of language to use when speaking to all paragraph (a)(8) regarding procedures for consistency with paragraph (a). Prior minors and on the importance of for reporting knowledge or suspicion of to the change, the substantive training building rapport with them to reinforce sexual abuse with training on ‘‘how to requirement in this section applied to a feeling of safety. Maintaining fulfill their responsibilities under those ‘‘who have contact with flexibility to adapt these training agency sexual abuse and sexual detainees,’’ but the documentation requirements through policy will ensure harassment prevention, detection, requirement applied to those ‘‘who may employees in contact with juveniles are reporting, and response policies and have contact with immigration trained based upon the most current procedures.’’ detention facility detainees.’’ developments relating to juvenile Response. DHS believes it is not Comments and Responses interaction and protection. necessary to broaden proposed Comment. One group suggested paragraph (a)(8) in this way. The intent Comment. One advocacy group was adding a requirement that training be of the enumerated requirements in concerned that the training tailored to the gender of the detainees at paragraph (a) was to designate specific requirements applicable to contractors the employee’s facility, with the elements of sexual abuse training which and volunteers should be the same as employee receiving additional training are mandated for all employees who described in proposed § 115.31(a) for if reassigned from a facility that houses have contact with detainees and for all employees, with additional training detainees of only one sex to a facility facility staff. Additionally, paragraph (a) being provided based on the services the housing only detainees of the opposite of each provision already requires individuals provide and level of contact sex. generally that training for facility staff as they have with detainees. Response. As with the comment well as employees, contractors, and Response. DHS has considered this immediately above, DHS intends that all volunteers, respectively, address suggestion; however, because detainees be protected from sexual fulfilling the responsibilities under each immigration detention facilities host a abuse and assault through Subpart’s standards. The proposed wide range of volunteers and implementation of comparable measures revision would be redundant and specialized contractors who provide across the board for all detainees in potentially confusing. valuable services to facilities and covered facilities. Additionally, DHS Comment. A group suggested adding detainees, requiring the same training has considered general concerns about a training provision on complying with level for these individuals may result in employee transfer and is confident that relevant law related to mandatory a reduction or delay in services. The the training standard’s requirement for reporting of sexual abuse to outside proposed separate unique standard in refresher information, both in Subpart A authorities. Subpart A allowing for areas of and in Subpart B, will address the Response. DHS has considered this flexibility for volunteers and other potential for any changes in training comment and determined that proposed contractors who provide services on a needs over time or between facilities. paragraphs (8) and (9) requiring training non-recurring basis was determined to Comment. An advocacy group on various aspects of reporting sexual be more sufficient to accomplish the expressed concern about the provision abuse or suspicion of abuse are core education goal without unintended in paragraph (a)(7) regarding training on sufficient to cover this and other aspects impact. The standard sets a ‘‘floor’’ for effectively and professionally of reporting. basic training under the regulation, but communicating with detainees, also directs additional training for including lesbian, gay, bisexual, Other Training; Notification to volunteers and other contractors based transgender, intersex, and gender non- Detainees of the Agency’s Zero- on the services they provide and level conforming (LGBTIGNC) detainees, Tolerance Policy (§§ 115.32, 115.132) of contact they have with detainees. stating that the standard should extend Comment. A comment from an Summary of Proposed Rule further to include sensitivity training. advocacy group raised the same Another group suggested this provision The standard in § 115.32 of the concerns with this standard regarding also explicitly include detainees who do proposed rule required all volunteers the timeframe prior to initial training, not speak English, and detainees who and contractors at immigration the lack of mandatory refresher training, may have survived trauma in their detention facilities that have contact and lack of an examination to test each countries of origin. with detainees receive training trainee’s comprehension. Response. DHS has considered these concerning sexual abuse. The standard Response. DHS declines to make any suggestions; however, the 2012 in § 115.132 of the proposed rule changes to § 115.32 for the same reasons SAAPID—which requires training for all required the agency to make public its described regarding these suggested ICE personnel who may have contact zero-tolerance policy regarding sexual changes to §§ 115.31 and 115.131. with individuals in ICE custody— abuse and ensure that key information Comment. Some commenters were provides for training on vulnerable regarding the policy is available for concerned that there should be a populations, including ensuring detainees. requirement that these types of facility professional, effective communication workers receive comprehensive training, Changes in Final Rule with LGBTIGNC detainees and other including LGBTI-related training. An vulnerable individuals. The 2012 DHS clarified that the training advocacy group suggested training for SAAPID also includes training on requirements in the Subpart A standard volunteers and contractors include accommodating LEP individuals. DHS apply to contractors who provide child-specific modules and prevent re- believes these training requirements to services to the facility on a non- victimization of children who are be sufficient to address the concerns recurring basis. DHS also revised the victims of sexual abuse. regarding sensitivity for LGBTIGNC, title of the standard for clarity and Response. DHS appreciates the LEP, and trauma survivor detainees. For consistency. As noted above, contractors commenter’s input, and will consider

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including this information in future Comments and Responses have already gone through intake prior curricula. For purposes of this to the effective date of the final rule. Comment. One commenter stated that rulemaking, however, DHS is satisfied Likewise, there would not be a the standards should contain additional that the current list of training practical need to provide refresher requirements in regulation is explanation to detainees regarding the education after 30 days from intake; this sufficiently detailed to accomplish the PREA standards beyond the negates the need for any opting-out of core goal, while leaving the agency explanations, information, notification, such refresher education. Providing the flexibility to prioritize and develop and orientation descriptions in the information up-front to detainees is not training on additional topics over time. proposed standard. The commenter was only the most practical solution given As noted above, the current list of topics concerned that detainees fear reporting the nature of immigration detention, but is consistent with existing detention seemingly based upon potential also ensures the detainee is informed at standards. retaliation. the earliest point possible to maximize Comment. A group suggested the Response. Paragraph (a) of the prevention of sexual abuse and assault. standard should include a time limit in proposed standard already required After the intake education and in which volunteers or contractors must be that, at a minimum, the intake process cases where intake has taken place prior trained to prevent ambiguity over the at orientation contain instruction on, to the effective date of this final rule, timing for these types of individuals to among other areas, ‘‘Prohibition against detainees can refer back to aids such as come into compliance before contact retaliation, including an explanation the Detainee Handbook and posters with with detainees would be forbidden. that reporting sexual abuse shall not sexual abuse prevention information, as Response. The final rule is effective negatively impact the detainee’s needed. May 6, 2014. Covered facilities must immigration proceedings.’’ DHS Comment. Some commenters meet the requirements of § 115.32 by the believes this explicitly enumerated suggested that additional information date that any new contract, contract content requirement, along with the should be conveyed to detainees, renewal, or substantive contract other five minimum requirements, are including information regarding their modification takes effect. sufficient to address the commenter’s legal rights. One advocacy group Comment. One advocacy group concern. suggested revising the provision on the suggested that DHS develop Comment. One advocacy group Detainee Handbook to require that the comprehensive training materials, expressed concerns that the proposed Handbook contain more comprehensive including information about conducting standard failed to address the education information, including detainees’ rights appropriate, culturally-sensitive of current detainees who will not and responsibilities related to sexual communication with immigration receive the information at the time of abuse, how to contact the DHS OIG and detainees and how staff can fulfill their their intake; the commenting group CRCL, the zero-tolerance policy, and responsibilities under the PREA suggested such detainees be required to other policies related to sexual abuse standards. complete the education within a prevention and response. Response. DHS agrees with this relatively short specified period of the Response. DHS agrees that the suggestion, but does not believe effective date of the DHS standards, information described is important for additional rule revisions are necessary. such as one month. protecting detainees. Accordingly, DHS Paragraph (a) of the Subpart A standard has already required public posting and Some commenters expressed concerns already requires a facility to ensure that distribution of similar information over the potentially overwhelming all volunteers and contractors who have under paragraphs (d) and (e) of the nature of the amount of information contact with detainees have been proposed standard. ICE’s Detainee contained in an up-front education trained on their responsibilities under Handbook contains detailed information requirement and the possibility that the agency’s and the facility’s sexual about sexual abuse and assault, detainees may not fully understand abuse prevention, detection, including definitions for detainee-on- DHS’s multi-faceted initiative upon intervention and response policies and detainee and staff-on-detainee sexual intake, a potentially stressful time. procedures. DHS will take reasonable abuse and assault; information about steps to ensure that staff, contractors, A number of advocacy groups prohibited acts and confidentiality; and volunteers are familiar with and suggested adding a 30-day time period instructions on how to report assaults to comfortable using appropriate terms and following intake for completion of the facility, the FOD, DHS, or ICE; next concepts when discussing sexual abuse instruction on all the areas that were to steps after a sexual assault is reported; with a diverse population, and be addressed upon intake in the what to expect in a medical exam; equipped to interact with immigration proposed standard; within this period, understanding the investigative process; detainees who may have experienced the agency would provide and the emotional consequences of trauma. comprehensive education to detainees sexual assault. DHS believes that in either in person or through video. Detainee Education (§ 115.33) addition to the paragraphs (d) and (e), One group suggested requiring the information provided in the Summary of Proposed Rule facilities to repeat PREA education Detainee Handbook provides sufficient The standard in the proposed rule programs every 30 days, of which the protection to address the commenters’ mandated that upon custody intake, detainee could opt out. concerns. ICE will review and update each facility provide detainees Response. The average length of stay the Detainee Handbook as necessary or information about the agency’s and the in immigration detention facilities is useful. facility’s zero-tolerance policies with approximately 30 days, and the median Comment. One group suggested respect to all forms of sexual abuse, length of stay is shorter still—8 days. requiring that upon a detainee’s transfer including instruction on a number of Thus it is common that a detainee will to another facility, the detainee receive specified topics. be confined in a facility for less than a refresher of the facility’s sexual abuse one month, and it would not be prevention, detection, and response Changes in Final Rule practical or effective to place a one- standards. DHS is adopting the regulation as month-from-effective date requirement Response. A general orientation proposed. for education for those detainees who process that includes the information

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described in this standard is a inappropriate in this context. The major General training on investigation requirement each time a detainee enters difference between the two techniques is included in OPR Special a new facility, including when Departments’ standards is that DOJ is Agent Training and is covered in OPR’s transferred from another facility; responsible for ensuring that current Investigative Guidebook and other therefore, it is not necessary to create a inmates receive the PREA education internal policies and training. In separate standard regarding refresher within one year of the rule’s addition, ICE’s 2012 SAAPID prescribes information upon an immigration implementation. DHS’s detainee more detailed requirements for the detainee’s transfer. population has an average length of stay content of specialized investigator Comment. Regarding the proposed of 30 days, resulting in a much more training, requiring that such training for standard to ensure education materials transient population. To ensure that all agency investigators cover, at a are accessible to all detainees, one current detainees receive the PREA- advocacy group suggests adding a minimum, interviewing sexual abuse related information, DHS relies on and assault victims, sexual abuse and requirement that if a detainee cannot several material sources posted assault evidence collection in read or does not understand the throughout the facilities, such as confinement settings, the criteria and language of the orientation and/or handbooks, pamphlets, notices, local Handbook, the facility administrator organization information, PSA evidence required for administrative would provide the material using audio Compliance Manager information, etc. action or prosecutorial referral, and or video recordings in a language the For those detainees that are LEP, information about effective cross-agency detainee understands, arrange for the visually impaired, or otherwise coordination in the investigation orientation materials to be read to the disabled, DHS provides the necessary process. DHS believes that this standard detainee, or provide a translator or resources, such as interpreters, for those maintains a proper focus on PREA interpreter within seven days. detainees to still obtain the knowledge implementation—training tailored for Response. DHS understands the that is provided by the posted visuals. sexual abuse detection and response concern expressed by this comment; through the investigative process. however, the standards found in Specialized Training: Investigations §§ 115.16 and 115.116 regarding (§§ 115.34, 115.134) DHS declines to require the specialized training provision to state accommodating LEP detainees are Summary of Proposed Rule adequate to address any problems with that such training be provided accessibility with respect to orientation The standards in the proposed rule separately from staff training. The fact materials. Under those provisions, the required that the agency or facility that the PREA standards differentiate agency and each facility must ensure provide specialized training to between staff training and specialized meaningful access to all aspects of the investigators that conduct investigations training and specifically denote the agency’s and facility’s efforts to prevent, into allegations of sexual abuse at types of agency employees and facility detect, and respond to sexual abuse— confinement facilities and that all such staff who must participate demonstrate which would include the education investigations be conducted by qualified DHS’s commitment to ensuring that requirements at orientation. Moreover, investigators. additional higher-level training will be DHS policy addresses DHS-wide efforts Changes in Final Rule provided to those who require it. to provide meaningful access to people Comment. One group requested with limited English proficiency. DHS is adopting the regulation as clarification in the standard as to Information regarding these efforts is proposed, with a minor technical publicly available at the following link: change clarifying the scope of the whether DHS intends the specialized http://www.dhs.gov/department- documentation requirement. training apply to persons responsible for investigations in state, local, or private homeland-security-language-access- Comments and Responses plan. To further strengthen §§ 115.16 facilities, in addition to training for ICE and 115.116, DHS revised the language Comment. Some commenters and CBP personnel. to require the component and each suggested additional details of the Response. To clarify, while the agency facility to provide in-person or specialized investigative training be is responsible for and will be directly telephonic interpretation services that expressly required by the standard, training its own personnel in this including techniques for interviewing enable effective, accurate, and impartial manner, the standard also requires each sexual abuse victims, proper use of interpretation, by someone other than facility to train their own personnel that Miranda and Garrity warnings, sexual another detainee, unless the detainee will be working on the investigations abuse evidence collection in expresses a preference for another addressed in the standard. Any criminal detainee to provide interpretation and confinement settings, and the criteria investigations will continue to be the agency determines that such and evidence required for handled by the relevant outside law interpretation is appropriate and administrative action or prosecution enforcement personnel. consistent with DHS policy. referral. One group suggested the Comment. Some members of Congress standard expressly require this Comment. One group suggested a commented generally that the standard specialized training to be separate from provision be added expressly requiring regarding detainee education should be staff training. that investigators receive the training revised to be in line with DOJ’s Response. DOJ’s final rule regarding mandated for employees and for standard. specialized training standardizes contractors and volunteers under Response. DHS’s detainee education training for a broad spectrum of federal, §§ 115.31 and 115.32, respectively. provision is detailed and state and local investigators. DHS is not Response. Paragraph (a) of this section comprehensive. It is also tailored to the faced with the same challenges and unique characteristics of immigration maintains direct control over makes clear that investigators must detention and the variances among investigators and their training. DHS receive the general training mandated confinement facilities for DHS believes that its current policies and for employees and facility staff under detainees. DHS believes that merely procedures effectively govern § 115.31, in addition to the specialized repeating the DOJ standard would be specialized training for investigators. training outlined by § 115.34.

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Specialized Training: Medical and concerning specialized training to as provisions of the proposed rule. The Mental Health Care (§ 115.35) medical providers would make the 2012 SAAPID—required to have been regulations redundant and cumbersome. already completed for all ICE personnel Summary of Proposed Rule DHS declines to make this revision. who may have contact with individuals The standard in the proposed rule With respect to the second and third in ICE custody and required for newly required that the agency provide recommendations, DHS believes that hired officers and agents—provides specialized training to DHS employees adding standards mandating that training on vulnerable populations, who serve as medical and mental health practitioners receive the training under including ensuring professional, practitioners in immigration detention §§ 115.31 and 115.32, respectively, effective communication with LGBTI facilities where such care is provided. would also be redundant. The medical detainees. Furthermore, under §§ 115.31 and mental health practitioners would and 115.131, practitioners will already Changes in Final Rule already be obligated to receive the be required to receive training relating DHS is adopting the regulation as training required under §§ 115.31 and to this population of detainees. Section proposed. 115.32, as the positions fall under the 115.32 requires practitioner volunteers Comments and Responses definitions of staff, contractor, and and contractors to receive similar volunteer listed in § 115.5 of this final training as well, due to their close level Comment. Commenters suggested that rule. Under §§ 115.31 and 115.32 the of contact to most if not all detainees. the standard be expanded for medical training the practitioners receive would DHS therefore declines to revise the and mental health practitioners. These then be documented; as such DHS proposed rule in response to this commenters made the following declines to make this revision. comment. recommendations: With respect to the fourth Comment. One advocacy group 1. Practitioners who are not DHS or recommendation, DHS believes that suggested that in paragraph (a), the basic agency employees but who work in the adding standards for sensitivity to specialized training provision of the facilities should receive similar culturally diverse populations, standard, the qualifier ‘‘where medical specialized training, and any facility including appropriate terms and and mental health care is provided’’ be that does not use DHS medical concepts to use when discussing sex removed to clarify in the agency’s practitioners should provide training for and sexual abuse, and sensitivity detention standard that all immigration its own medical providers; awareness regarding past trauma that detention facilities should provide 2. Such practitioners should receive may have been experienced by access to medical and mental health the training mandated for employees immigration detainees, would be care. and for contractors and volunteers superfluous and potentially beyond Response. Views on the general under §§ 115.31 and 115.32, DHS’s relative expertise when compared structure of immigration detention respectively, depending upon the to the extensive training on medical and facility medical and mental care are practitioner’s status at the agency; mental health care already received by outside the scope of this rulemaking. 3. The agency should maintain certified medical health care Assessment for Risk of Victimization documentation that medical and mental professionals. Furthermore, any new or and Abusiveness (§§ 115.41, 115.141) health practitioners have received and additional terms or concepts will likely understand the training, either from the be taught during the required training Summary of Proposed Rule agency or elsewhere; described in § 115.35(c). Adding this The standards in the proposed rule 4. The practitioners should receive specific requirement to this standard mandated that the facility assess all special training for sensitivity to would also be redundant and therefore, detainees on intake to identify those culturally diverse populations, not add to the goal or integrity of the likely to be sexual aggressors or sexual including appropriate terms and rule. DHS declines to make this victims and required that the detainees concepts to use when discussing sex revision. be housed to prevent potential sexual and sexual abuse, and sensitivity and With respect to the fifth abuse. The standard for immigration awareness regarding past trauma that recommendation, DHS believes that detention facilities further required that may have been experienced by additional revisions are unnecessary to the facility reassess each detainee’s risk immigration detainees; ensure that training is universally of victimization or abusiveness between 5. The training be universally implemented and ingrained into the 60 and 90 days from the date of initial implemented and ingrained into the work of all employees, contractors, and assessment as well as any other time work of all employees, contractors, and volunteers coming into detainee contact. when warranted to avoid incidents of volunteers coming into detainee contact; The portions of this regulation on abuse or victimization. and training and education are designed to 6. A number of groups suggested that ensure that all employees, contractors, Changes in Final Rule the standard contain training and volunteers are trained and educated Sections 115.41 and 115.141 of the specifically on LGBTI issues, including to prevent, detect and respond to sexual final rule have been revised to require training to ensure competent, abuse of detainees while in DHS that assessments for risk of appropriate communications with custody. Inserting additional explicit victimization or abusiveness include an LGBTIGNC detainees. requirements would be redundant. DHS evaluation of whether the detainee has Response. With respect to the first therefore declines to revise the proposed been previously detained in addition to recommendation, DHS believes that rule in response to this comment. previously incarcerated. A technical adding standards requiring facility With respect to the sixth revision also is incorporated into medical staff to receive training to recommendation, DHS believes that § 115.41(a) to clarify that the victims ensure that victims of sexual abuse are adding a standard requiring training that the provision describes are sexual examined and treated thoroughly and specifically on LGBTI issues, including abuse victims. effectively is redundant. The staff are training to ensure competent, already receiving the necessary training appropriate communications with Comments and Responses provided through § 115.35(c). Adding LGBTI detainees, would be redundant to Comment. A number of advocacy more specific criteria in this section current ICE practice and policy, as well groups suggested that among the risk

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factors listed in the standard, DHS Comment. A collection of advocacy provided with treatment during should also require the facility to groups suggested adding the word confinement. consider whether a detainee is ‘‘abuse’’ to paragraph (a) when Response. The proposed and final ‘‘perceived’’ to be LGBTIGNC. (The describing intake identification of rules clearly require that female proposed rule focused on whether the potential victims, which would detainees and minors be afforded each detainee ‘‘has self-identified’’ as seemingly more fully describe the kind of the protections outlined by the LGBTIGNC.) Commenters argued that of potential sexual victimization. standards, including with regard to the risk of sexual victimization for those Response. DHS agrees with the screening, assessment, and treatment. who are perceived as LGBTIGNC is concern expressed in this comment and Comment. A commenter suggested similar to the risk of sexual has made the recommended change. adding a specific requirement for victimization for those who self-identify Comment. Two collective comments assessment with respect to juvenile as LGBTIGNC. from many groups also suggested detainees (including juvenile overnight Response. DHS disagrees with the explicitly requiring that the detainees in the holding facility addition of ‘‘perceived’’ LGBTIGNC vulnerability assessments be conducted context). The comment suggested that status to the criteria which facilities using an objective screening instrument, qualified professionals conduct such must consider in assessing detainees for to ensure useful assessments and avoid assessments out of sight and sound of risk of sexual victimization would assist any confusion. any adult detainees outside of the in accurate identification of likely Response. DHS believes that §§ 115.41 family unit, and that if a family unit victims. Unlike self-identification as and 115.141 as currently written clearly member is suspected of posing a danger LGBTIGNC (currently included in set forth the factors that a facility must to the health or well-being of the paragraph (c)(7) of the standard), a consider to adequately assess detainees juvenile, qualified professionals detainee’s ‘‘perceived’’ LGBTIGNC for risk of sexual victimization. With conduct such assessments out of sight status cannot be reliably ascertained by respect to Subpart A, ICE’s current and sound of all adult detainees. facility staff as it will vary based on screening methods for assigning Response. Juveniles in custody as part individual perceptions and cannot be detainees to a particular security level of the Family Residential Program standardized. In addition, a requirement employ the standardized RCA pursuant to § 115.14 are accompanied for facility staff to make subjective instrument to guide decision-making by an adult family member who would determinations regarding an using objective criteria and a uniform be present during any questioning, individual’s LGBTIGNC status may lead scoring system; in addition, the specific unless the presence of the adult would to potentially discriminatory decisions criteria in the regulation complement pose a risk to the juvenile. by staff. already existing classification Moreover, DHS believes that Comment. Some commenters and requirements in ICE’s detention §§ 115.14 and 115.114, in conjunction advocacy groups encouraged DHS to standards that are designed for the with §§ 115.41 and 115.141, provide consider options other than detention purpose of assigning detainees to the sufficient, comprehensive protection to for vulnerable populations. For least restrictive housing consistent with juvenile detainees in immigration example, some groups suggested safety and security. If DHS were to detention and holding facility settings. requiring that vulnerable individuals— require the use of an objective screening The §§ 115.14 and 115.114 standards including LGBT and mentally ill instrument in all immigration detention ensure that the need to protect the detainees—should be detained in only facilities, the cost of developing and juvenile’s well-being (and that of others) extraordinary circumstances or be implementing such an instrument in all is observed, while providing that the candidates for alternatives to detention covered facilities would be prohibitive juvenile be detained in the least under the standards, including for ICE. restrictive setting appropriate to the humanitarian parole, bond release, in- Comment. With respect to paragraph juvenile’s age and special needs. They person and telephonic check-ins, or (c), which sets forth additional also reinforce the importance of any electronic monitoring. Others suggested considerations for the assessment for other applicable laws, regulations, or that LGBT individuals or sexual abuse risk of victimization, commenters legal requirements. victims who cannot be safely housed by suggested adding a provision that the Sections 115.41(a) and 115.141(b) are the government be released or granted facility consider information made intended to ensure the safety of all prosecutorial discretion rather than be available by the detainee through the detainees (including juveniles) who may detained. assessment process. Additionally, they be held overnight in holding facilities Response. DHS believes that existing suggest revising the ‘‘previous with other detainees. Paragraph (c) in ICE screening methods and practices incarceration’’ factor to also include both sections also makes certain that the sufficiently address the concern previous detention. agency considers the age of the detainee expressed by these commenters. The Response. The proposed and final as a criterion in assessing the detainee’s agency’s Risk Classification Assessment rule mandate that information made risk for sexual victimization. This (RCA) instrument evaluates the available by the detainee through the standard, as proposed and in final form, potential vulnerability of all individuals assessment process be considered as is consistent with DOJ’s standards and— apprehended by ICE to determine part of the screening, through the in conjunction with §§ 115.14 and whether detention is appropriate, or requirement at paragraph (c)(9) that 115.114—will protect juveniles in whether some form of release under facilities consider ‘‘the detainee’s own holding facilities. supervision or alternatives to detention concerns about his or her physical The DHS standard provides more may be preferable. RCA screenings safety.’’ DHS accepts the proposed detailed protection than the DOJ consider a wide range of factors that revision to paragraph (c)(4) to require standard by stating explicitly that staff may represent a special vulnerability in that previous detention history, as well must ask each detainee about his or her the custody context, including physical as previous incarceration history, be own concerns regarding physical safety. or mental illness or disability, sexual considered. Moreover, DHS notes that it is orientation/gender identity, and prior Comment. One commenter suggested impractical to require, in the context of history of abuse or victimization, among a requirement that female detainees and holding facilities, that all conversations others. minors be screened, assessed, and with juveniles take place ‘‘out of sight

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and sound.’’ Given the many facilities sexual orientation or gender identity, detainee’s self-assessed safety needs, that fall within the definition of holding but requires that the facility consider and the advice of a medical or mental facilities, separate spaces are not always detainees’ gender self-identification and health practitioner. available. Finally, DHS notes that make an individualized assessment of DHS declines to incorporate the unaccompanied alien children, as the effects of placement on detainee additional specific reference to single- defined by 6 U.S.C. 279, are generally mental health and well-being. DHS gender facilities, to maintain flexibility transferred to an HHS/ORR facility believes that retaining some flexibility to address these issues through within 72 hours. will allow facilities to employ a variety guidance, on case-by-case basis, and of options tailored to the needs of consistent with developing case law. Use of Assessment Information detainees with a goal of offering the Comment. One comment suggested (§ 115.42) least restrictive and safest environment applying the rest of the paragraph to the Summary of Proposed Rule for individuals. DHS acknowledges that ‘‘agency’’ as well as facilities. This placement of detainees in special change would require the agency to The standard in the proposed rule housing for any reason is a serious step consider the relevant factors not only required the facilities to use the that requires careful consideration of once the detainee has arrived at a given information obtained in the risk alternatives. In consideration of the facility, but before sending the detainee assessment process to separate detainees risks associated with special housing, to that facility. This could eliminate the who are at risk of abuse from those at DHS takes great care to ensure that need to transfer a transgender or risk of being sexually abusive. The detainees who are placed in any type of intersex detainee from one single-gender proposed standard provided that special housing receive access to the facility to another. facilities shall make individualized same programs and services available to Response. DHS declines to make the determinations about how to ensure the detainees in the general population. additional suggested changes. Although safety of each detainee, and required Comment. One advocacy group the PREA standards do not specifically that, in placing transgender or intersex suggested modifying paragraph (b) to state that the agency consider detainees, the agency consider on a provide that in addition to considering enumerated factors for transgender and case-by-case basis whether a placement gender self-identification in making intersex detainee placement, they do would ensure the detainee’s health and placement decisions, the facility should provide effective guidelines for safety, and whether the placement also consider sexual orientation and assessing risk for all detainees pursuant would present management or security gender identity. to § 115.41. This section mandates that problems. The proposed standard also Response. The protections outlined in the facility use the risk assessment provided that transgender and intersex paragraph (b) of this standard are information to inform assignment of detainee placement be reassessed at intended to address issues and concerns detainees to housing, recreation and least twice each year, and that such unique to transgender and intersex other activities, and volunteer work. detainee’s own views as to their safety detainees, including the use of physical This section also describes additional be given serious consideration. anatomical traits and medical factors for the facility to use in its assessment of transgender and intersex Changes in Final Rule assessments to appropriately classify and house individuals. DHS believes detainees in particular and requires the DHS is adopting the regulation as that safety and welfare concerns related agency to make individualized proposed. to screening of gay, lesbian, bisexual, determinations to ensure the safety of Comments and Responses and other gender non-conforming each detainee. Because DHS, unlike individuals are adequately addressed by DOJ, has more direct oversight regarding Comment. One advocacy group and the requirements of §§ 115.41 and the treatment of all detainees in some commenters suggested that the 115.42. immigration detention facilities, DHS rule allow the agency to place LGBTI Comment. Regarding the same determined that requiring the agency to detainees with other LGBTI detainees paragraph, commenters suggested that also use the risk assessment information on a voluntary basis, for the purpose of the first sentence be clarified to state would not provide additional protecting such detainees. Similarly, more specifically that ‘‘[i]n deciding protections for transgender and intersex commenters suggested provisions— whether to assign a transgender or detainees, and could cause operational described as being partly based on DOJ intersex inmate to a facility for male or confusion about the facility’s standards both regarding adult female detainees, and in making other responsibilities under this section. confinement facilities and civil juvenile housing and programming assignments, Comment. Commenters suggested detention facilities—that would prohibit the agency or facility’’ is to consider the adding a prohibition on any facilities, LGBTI unit assignment solely on the issues included in the proposed for the purpose of preventing sexual basis of identification or status, but provision. The stated purpose of this abuse, adopting restrictions on which would allow for such detainees change is to ‘‘put[] facility staff on clear detainees’ access to medical or mental to agree to be assigned to an LGBTI notice that transgender detainees can be health care, or on manners of dress or housing area, so long as detainees in any housed based on their gender identity.’’ grooming traditionally associated with such facility, unit, or wing have access Response. As recommended by the one gender or another. One comment to programs, privileges, education, and commenters, the proposed and final suggested there could be constitutional work opportunities to the same extent as rules prohibit facilities from making concerns if such access were to be other detainees. Some members of placement decisions for transgender or restricted. Congress commented generally that the intersex detainees solely on the basis of Response. DHS has determined that standard regarding housing of LGBTI identity documents or physical an explicit prohibition against detainees should be revisited to be in anatomy. Covered facilities making restrictions on access to medical or line with DOJ’s standard. assessment and housing decisions for a mental health care is unnecessary. Response. As DHS noted in the transgender or intersex detainee must Access to medical or mental health care proposed rule, the proposal does not consider a variety of factors, including that is medically necessary and include a ban on assigning detainees to the detainee’s gender self-identification appropriate may not be limited under particular units solely on the basis of and health and safety needs, the ICE’s detention standards. In addition,

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grooming and dress requirements are criminal detainees may not yield day limit, instead substituting either generally outside the scope of this rule. sufficient benefits to justify the cost, release and potential alternatives to Neither the NPREC Commission Report because detention facilities generally detention thereafter if the detainee nor the DOJ final rule included use a classification system, like the cannot be safely housed in a detention standards on this issue, and DHS did system employed by ICE, to govern the facility, or more appropriate housing not raise this issue for comment in its housing and programming activities of away from the problematic facility. NPRM. Although DHS declines to its inmates to ensure safety. Another human rights group suggested include in this final rule a provision on requiring any facility housing detainees this issue, we note that as a matter of Protective Custody (§ 115.43) in administrative segregation for more practice, ICE generally does not accept Summary of Proposed Rule than 30 days to notify the appropriate or have dress or appearance restrictions agency supervisor, to conduct a prompt The proposed standard provided that based on gender. NDS and PBNDS 2008 review of the continuing necessity for vulnerable detainees may be placed in and 2011 reaffirm detainees’ right to the segregation—also recommended by involuntary segregated housing only nondiscrimination based on gender and the former Commissioners—and to work after an assessment of all available sexual orientation. with the facility to establish an Comment. In paragraph (c), two alternatives has been made—and only alternative housing situation. Some comments suggested that the qualifying until an alternative housing other groups suggested specific phrase ‘‘[w]hen operationally feasible’’ arrangement can be implemented. The processes regarding notification of the be removed to ensure that facilities standard also provided that segregation FOD after various periods of days of always provide transgender and intersex shall not ordinarily exceed 30 days. In administrative segregation, with one detainees with the ability to shower addition, the proposed standard group suggesting further official privately. provided that, to the extent possible, notification and consideration of Response. DHS declines to make the involuntary protective custody should detainee transfer to general population proposed change, based on not limit access to programming. in an alternate facility or placement in infrastructural limitations of housing Changes in Final Rule an alternative to the detention program. and showering capacities at many Some groups suggested DHS consider facilities. While some immigration The final standard adds a requirement altogether releasing victim-detainees detention facilities may have the for facilities to notify the appropriate anytime a facility cannot safely separate infrastructural capacity to permit ICE FOD no later than 72 hours after the them without resorting to protective transgender and intersex detainees to initial placement into segregation, custody, with such custody being shower privately, this cannot be whenever a detainee has been placed in reserved for only limited, emergency, or guaranteed at all facilities. DHS administrative segregation on the basis exigent situations. therefore requires the flexibility in of a vulnerability to sexual abuse or Response. A categorical 30-day § 115.42 to accommodate facilities assault. limitation on the use of administrative where only open shower areas exist for Upon receiving such notification, the segregation to protect detainees may not detainee use. ICE FOD must review the placement to be possible depending on available Comment. One commenter suggested consider its continued necessity, alternative housing and custodial that detainees with no criminal record whether any less restrictive housing or options for ensuring the safe placement should not be housed alongside custodial alternatives may be of vulnerable detainees. However, DHS criminal detainees. appropriate and available, and whether agrees that agency oversight over cases Response. DHS believes that existing the placement is only as a last resort and of administrative segregation would ICE classification processes and related when no other viable housing options assist in effectuating the spirit of the requirements for detention facilities exist. standard, and has amended the standard sufficiently address this concern, The final standard clarifies that it to require agency review of such cases ensuring that housing decisions are applies to administrative segregation of in order to ensure the continued based on an objective and standardized vulnerable detainees for a reason appropriateness of segregation and to assessment of each detainee’s criminal connected to sexual abuse or assault. As evaluate whether any less restrictive background and likely security risks. noted below, ICE has issued a custodial alternatives may be Comment. A human rights advocacy segregation review policy directive appropriate and available. group and former Commissioners of which establishes policy and Furthermore, ICE has finalized a NPREC recommended that immigration procedures for ICE review and oversight segregation review policy directive detainees be housed separately from of segregated housing decisions. The which establishes policy and inmates; the advocacy group suggested final standard also makes technical procedures for ICE review and oversight that if cohabitation is in fact necessary, changes in paragraphs (a) and (b) for the of segregated housing decisions. The the detainees should be assigned to cells purpose of clarity. ICE segregation review directive is or areas that allow for no unsupervised intended to complement the Comments and Responses contact between detainees and inmates. requirements of PBNDS 2011, PBNDS The former Commissioners stated there Comment. Numerous groups, 2008, NDS, and other applicable ICE should be heightened protection for including a collection of advocacy policies. Proceeding by policy in this those immigration detainees identified groups and former Commissioners of area is consistent with § 115.95 of the as abuse-vulnerable during the NPREC, criticized the language regulation, which authorizes both screening process. regarding the ‘‘ordinarily’’ 30-day limit agencies and facilities to implement Response. ICE contracts with on protective housing as providing too policies that include additional detention facilities generally require much leeway for facilities to maintain requirements. The directive would also that immigration detainees be housed that no better alternatives were be consistent with § 115.43(e) of the separately from any criminal inmates available. The groups suggested final rule, which requires facilities to that may also be present at the facility. restricting more narrowly any notify the appropriate FOD no later than DHS notes that a categorical prohibition extensions, with some groups stating 72 hours after initial placement into on commingling of immigration and there should be no exceptions to the 30- segregation whenever a detainee has

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been placed administrative segregation time they would not be placed in documentation of: the limited on the basis of a vulnerability to sexual protective custody. In addition, DHS opportunities, the duration, and the abuse or assault. notes that access to activities and other reasons therefor. Comment. With respect to supervisory services is outside the scope of this Response. ICE’s existing detention staff review during administrative rulemaking, except to the extent affected standards uniformly require that segregation periods, one commenter by standards designed to prevent, facilities document the precise reasons suggested that the facility detect, and respond to sexual abuse and for placement of an individual in administration be required to notify the assault in detention facilities. administrative segregation, as well as FOD when a detainee has been held in Comment. One advocacy group (under PBNDS 2008 and 2011) any segregation for 20 days. The comment suggested a provision be added to the exceptions to the general requirement also suggested the review occur each standard to require facilities to submit a that detainees in protective custody be week after seven days ‘‘for the quarterly report to ICE ERO containing provided access to programs, visitation, remaining 20 days,’’ rather than every statistics and reasons regarding counsel, and other services available to week for the first 30 days and every 10 protective custody. The provision the general population to the maximum days thereafter. would also require that, as part of the extent practicable, consistent with the Response. The final rule includes a standards’ auditing process, the agency practices advocated by commenters. ICE change that requires facilities to notify review all instances involving the use of has also finalized a segregation review the local ICE FOD no later than 72 hours administrative segregation, and that— policy directive which establishes after initial placement into segregation if where a facility is found to have relied policy and procedures for ICE review a detainee has been held in on segregation for purposes other than and oversight of segregated housing administrative segregation on the basis as the least restrictive means—the decisions. of a vulnerability to sexual abuse or facility be subject to appropriate Comment. Some groups and a assault. The final rule also retains the remedial measures consistent with the collective comment of advocates other extensive review requirements overall audit scheme. suggested including a provision that contained in the proposed rule, because Response. DHS believes that current would make explicit that protective facility staff review of ongoing facility reports to ICE regarding custody always be accomplished in the segregation placement is an effective individual instances of protective least restrictive manner capable of tool. As noted above, ICE has finalized custody, as required by ICE’s detention maintaining the safety of the detainee a directive for ICE to review and provide standards, suffice to facilitate effective and the facility; commenters expressed oversight of a facility’s decision to place agency oversight of these cases. As concern about long-term detrimental detainees in segregated housing. noted above, ICE has finalized a health effects from segregation. One Comment. Former Commissioners of directive for ICE to review and provide commenter stated his belief that NPREC additionally found the term oversight of a facility’s decision to place segregation can be used for punitive ‘‘reasonable efforts’’ problematic for detainees in segregated housing, and purposes rather than to protect imprecision, stating that its this directive includes additional detainees, which should be addressed. interpretation could vary among reporting requirements. Response. DHS believes the concern facilities. Comment. Some advocate comments, is adequately addressed by the revised Response. DHS believes that including one from former rule, which requires that use of ‘‘reasonable efforts’’ to provide Commissioners of NPREC, suggested administrative segregation to protect appropriate housing for vulnerable further oversight or record-keeping vulnerable populations be used only as detainees will necessarily vary across similar to DOJ’s standards for facilities a last resort and when no other viable facilities, depending on available where protective custody or housing option exist. resources and the circumstances of administrative segregation are Comment. One advocacy group individual cases, and cannot be defined implemented. A number of these suggested detailed requirements with precision ex ante. groups, including two collective group describing the minimum privileges of Comment. Regarding protective comments, suggested that proposed detainees in protective custody, custody for juvenile detainees, one paragraph (a) be modified or a new including normal access to educational commenter suggested a maximum limit paragraph be created to ensure ‘‘detailed and programming opportunities; at least of two days. Another suggested language documentation’’ of the reasons for five hours a day of out-of-cell time, that would require facilities to make placing an individual in administrative including at least one hour daily large best efforts to avoid placing juveniles in segregation and also include ‘‘the reason muscle exercise that includes access to isolation, and that would prohibit— why no alternative means of separation outdoor recreation; access to the normal absent exigent circumstances—agencies from likely abusers can be arranged.’’ meals and drinking water, clothing, and from denying juveniles daily large- The same groups also suggested similar medical, mental health and dental muscle exercise and legally required changes—in line with DOJ’s standards— treatment; access to personal property, education services, along with other to proposed paragraph (c), including including televisions and radios; access programs and work opportunities to the documenting duration of protective to books, magazines, and other printed extent possible. This group custody and requiring reasonable steps material; access to daily showers; and recommended that when isolation is to remedy conditions that limit access, access to the normal correspondence necessary to protect a juvenile, the including a prohibition on denial of privileges and number of visits and facility must document the reason it is access to telephones and counsel. In a phone calls, including but not limited to necessary, review the need at least similar vein, one group suggested the comparable level of contact with family, daily, and ensure daily monitoring by a agency be informed each time a friends, legal guardians, and legal medical or mental health professional. suspected victim is placed in custody. assistance. Response. DHS has determined such Former Commissioners suggested that Response. Existing ICE detention a provision to be unnecessary, since any segregated individuals have access standards address in detail the unaccompanied juveniles are generally to programs, privileges, education, and minimum programs, services, and not detained in ICE’s detention system work opportunities to the extent privileges to which detainees in for longer than 72 hours, during which possible, but if restricted, required segregation must be afforded access,

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including recreation, visitation, legal multiple methods of reporting sexual members or employees do not speak the counsel and materials, health services, assault and abuse. This key protection same language as the detainee, they may meals, correspondence, religious requirement is reflected in the standard use a third party translation service that services, and personal hygiene items, and in current agency practices. With is under contract with the agency. The among others. DHS does not believe that regard to immigration detention translation service fees are not charged this level of specificity is necessary to facilities, detainees can report incidents to the detainee and although the fees are additionally include in this regulation. in several ways, including by calling the paid by DHS, the translation companies JIC or the point of contact listed on the are not otherwise affiliated with the Detainee Reporting (§§ 115.51, 115.151) sexual abuse and assault posters. agency. Summary of Proposed Rule Detainees may also call the OIG, the Comment. An organization stated that Community and Detainee Helpline, or Sections 115.51 and 115.151 of the the standard should include a provision report incidents to CRCL. The Detainee proposed rule required agencies to allowing staff to report sexual abuse Handbook and posters provide contact enable detainees to privately report anonymously. information to detainees and also note sexual abuse, prohibit retaliation for Response. Under the final standard that detainee reports are confidential. staff are required to report incidents of reporting the abuse, and related With respect to holding facilities, misconduct. The proposed standards sexual abuse, and may fulfill that detainees are provided with multiple obligation by reporting outside the required DHS to provide instruction to ways to privately report sexual abuse, detainees on how to confidentially chain of command. Separate and apart including reporting to the DHS OIG. from this obligation, staff may call the report such misconduct. The proposed Comment. The former Commissioners standards also required that DHS JIC and OIG with anonymous reports of suggested including volunteers and sexual abuse and assault. Therefore, provide and facilities inform detainees medical and mental health practitioners of at least one way to report sexual DHS declines to add a specific in the standard due to their unique regulatory provision allowing staff to abuse to an outside public or private situation of common contact with entity that is not affiliated with the report abuse anonymously. detainees. Comment. The former Commissioners agency, and that is able to receive and Response. The purpose of this suggested including an explicit immediately forward the detainee’s provision is to ensure that the agency provision in this standard and in reports of sexual abuse to agency and facilities create effective procedures § 115.52 prohibiting any report by a officials, while allowing the detainee to for detainee incident reporting. detainee regarding sexual abuse from remain anonymous, upon request. Although the provision does not being referred to a staff member who is Changes in Final Rule explicitly address reporting to volunteers or healthcare practitioners, the subject of the complaint. DHS is adopting the regulation as nothing in this standard prohibits such Response. DHS recognizes the proposed. reporting. In this connection, DHS notes importance of ensuring that alleged abusers are not involved in any way Comments and Responses that volunteers and healthcare practitioners will receive specialized with a detainee who lodges a complaint, Comment. Commenters expressed training regarding how to recognize and and agrees that referral to the subject of general concern regarding the manner in handle detainees who have been a complaint would be inappropriate. which reporting opportunities may be sexually abused or assaulted and how to Accordingly, multiple provisions of this available. One advocacy group respond to detainee allegations. DHS regulation separate the detainee victim suggested that allowing posting of believes that volunteers and healthcare from the subject of a complaint, information regarding consular practitioners will be a valuable resource including a requirement that the agency notification as a means to satisfy the for detainees, but declines to add review and approve facility policies and requirement that detainees have at least specific regulatory provisions for procedures for staff reporting. Moreover, one way to report sexual abuse outside individual avenues of reporting, beyond the regulation requires such procedures the agency is inadequate because those already identified in the to include a method by which staff can cultural or other concerns may prevent regulation. report outside of the chain of command. victims from being able or willing to Comment. Some members of Congress More comprehensive, appropriately inform an official of their government. commented generally that the standard tailored rules will be contained therein. The group also expressed concern that regarding abuse reports and responses to Similarly, § 115.66 requires that other avenues be available to the reports of abuse should be revisited to volunteers, staff, and contractors who detainee regardless of whether detained be in line with DOJ’s standard. are suspected of perpetrating sexual in a holding facility. Former Response. DHS respectfully notes that abuse be removed from duties requiring Commissioners of NPREC stressed the with regard to detainee reporting, the detainee contact, and § 115.166 requires need for detainees to have the ability to final standards are closely aligned with agency management to take appropriate report sexual abuse to non-staff outside DOJ’s inmate reporting provisions. The action when an allegation has been the agency or facility, while another final standard allows for multiple ways made. Further, §§ 115.64 and 115.164 commenter suggested there be either a to privately report sexual abuse, require covered entities, upon learning separate entity or an assigned retaliation for reporting sexual abuse, or of an allegation that a detainee was trustworthy officer to whom a detainee staff neglect or violations of sexually abused, to separate the alleged could report an incident. One responsibilities. victim and abuser. Current policy would organization stated the standard should Comment. One organization suggested prevent an individual who is the subject require proactive notification to that any translations of a detainee’s of an allegation from being responsible detainees of opportunities to report complaints should be provided by a for investigating the allegation. Taken crimes confidentially, one-on-one, to an ‘‘neutral’’ translation company at no together, these factors sufficiently auditor. cost to the detainee. address the concern that underlines the Response. DHS believes that these Response. DHS routinely uses comment, and DHS declines to amend provisions adequately address the translation services during interviews the regulatory text to further address the important need for detainees to have and when taking complaints. When staff issue.

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Comment. A human rights advocacy With regard to transfers, ICE policy retaliation. Also, the standard as well as group suggested that the standard 11022.11, entitled Detainee Transfers, current practices provide multiple ways specify that detainees are able to make governs the transfer of all aliens in ICE a detainees can report sexual abuse that free, preprogrammed calls to the OIG custody. Pursuant to the policy, do not involve confronting an officer or and CRCL, and that facilities must transfers are discouraged unless a FOD staff member. provide access to telephones, along with or his or her designee deems the transfer Comment. One collective comment contact information to reach consular necessary for the following reasons: (a) from advocacy groups suggested that officials. To provide appropriate medical or DHS make explicit in paragraph (a) that Response. Under current agency mental health care; (b) to fulfill an the policies and procedures to be practice, all calls made by a detainee to approved transfer request by the developed by the agency to ensure the OIG and the JIC are preprogrammed detainee; (c) for the safety and security multiple ways of private detainee and free of charge. CRCL is unable to of the detainee, other detainees, reporting are to be available while in handle a large volume of calls from detention personnel, or any ICE custody and after release or removal. detainees and is not staffed outside of employee; (d) at ICE’s discretion, for the Response. The agency recognizes the business hours, but detainees may send convenience of the agency when the benefit to detainees of reporting written complaints to CRCL, including venue of DOJ Executive Office for incidents of sexual abuse or assault to by email. The standard already requires Immigration Review proceedings is a private entity. Detainees in that facilities provide instructions on different than the venue in which the immigration facilities already have how detainees may contact their alien is detained; (e) to transfer to a access to phone numbers for many consular official. more appropriate facility based on the private organizations that provide Comment. An advocacy group and detainee’s individual circumstances and assistance in response to a wide range former Commissioners of NPREC risk factors; (f) upon termination of of complaints or inquiries. recommended including a provision facility use; or (g) to relieve or prevent Once a detainee has been removed or that DHS will not remove from the facility overcrowding. ICE’s transfer is otherwise no longer in agency country or transfer to another facility policy is designed to limit transfers for custody, the agency is not obligated to detainees who report or make a all aliens and provides adequate provide reporting procedures. However, grievance regarding sexual abuse before protection for aliens who have sexual it is available to former detainees to the investigation of the abuse is abuse complaints or grievances. contact the OIG, the JIC, CRCL or a complete, except at the detainee’s Comment. One group suggested that private entity to report any incidents request. the standard provide for young even after they are no longer in agency Response. DHS routinely considers survivors of sexual abuse to have the custody. whether detainees are suitable option of release on their own candidates for alternatives to detention recognizance and to remain lawfully in Grievances (§ 115.52) or prosecutorial discretion. Certainly, the United States during the Summary of Proposed Rule DHS through ICE evaluates the investigation. Another organization and detention status and removal a collective comment of advocacy The standard contained in the proceedings for any sexual abuse victim groups stated that the standard should proposed rule prohibited the facility to determine whether the detainee provide for an assessment of any alleged from imposing any deadline on the should be placed on an order of victim who has reported abuse to submission of a grievance regarding supervision, released on bond, or determine if he or she would be safer sexual abuse incidents. The standard whether he or she is eligible for a form under alternatives to detention. mandated that facilities allow detainees of prosecutorial discretion such as Response. DHS routinely considers to file a formal grievance at any time deferred action or parole. ICE’s OPR has whether detainees are suitable before, during, after, or in lieu of the authority to approve deferred action candidates for alternatives to detention. lodging an informal complaint related to for victimized detainees on a case-by- Certainly, DHS through ICE evaluates sexual abuse. The standard further case basis where appropriate. As the detention status of any sexual abuse required the facility to issue a decision mandated in §§ 115.22(h) and victim to determine whether the on the grievance within five days of 115.122(e), all alleged detainee victims detainee should be placed on an order receipt. of sexual abuse that is criminal in of supervision, released on bond, or Changes in Final Rule nature will be provided U granted parole or deferred action. nonimmigrant status information. OPR Because these are routine agency DHS is modifying paragraph (e) by and HSI have the delegated authority to practices and subject to agency adding a requirement that the facility certify USCIS Form I–918, Supplement discretion, DHS has declined to make respond to an appeal of the grievance B for victims of qualifying criminal changes in the final rule to specifically decision within 30 days and by activity that ICE is investigating where address the various methods that could requiring facilities to send all grievances the victim seeks to petition for U be used to release a detainee victim related to sexual abuse to the nonimmigrant status. Because these are from detention. appropriate ICE Field Office Director at routine agency practices and subject to Comment. Some commenters the end of the grievance process. agency discretion, DHS has declined to expressed concern in regard to both this Comments and Responses make changes in the final rule to reporting standard and other of the specifically address the various methods proposed standards that detainees may Comment. Some commenters that could be used to release a detainee fear speaking up due to retaliation or are suggested that DHS provide additional victim from detention. The agency, unlikely to report incidences of sexual processes and procedures for emergency through ICE, can and will use these abuse to officers. grievances. One advocacy group methods for detainees with Response. DHS acknowledges that suggested that proposed paragraph (c)’s substantiated sexual abuse and assault some detainees may fear reporting requirement for protocol on time- claims. DHS does not believe that a sexual abuse. As such, the final sensitive, immediate-threat grievances is uniform stay of removal for all aliens standard includes §§ 115.67 and too open-ended, as it should set out who lodge complaints is warranted. 115.167 which protect detainees from criteria or guidance as to what facilities’

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procedures should accomplish and appropriate ICE Field Office Director at information, a qualified staff member require agency approval of the the end of the grievance process. In from a community-based organization, procedures. Another organization stated addition, facilities are required under or a qualified agency staff member. the filing process itself for an emergency §§ 115.89 and 115.189 to keep all Section 115.21 also provides that a at-risk grievance should be explicitly grievances on file. Each facility is forensic medical examination shall be included in the standard, for when a inspected under §§ 115.88 and 115.188 arranged when appropriate for medical detainee alleges he or she is subject to to ensure that it is following the or evidentiary reasons and at no cost to a substantial risk or imminent sexual grievance process and handling each the detainee. abuse. grievance properly. Sections 115.81–115.83 require Response. The final standard is meant referrals for medical follow-up, to enhance existing agency policies and Detainee Access to Outside Confidential unimpeded access to emergency detention standards that seek to prevent, Support Services (§ 115.53) medical treatment and crisis detect, and respond to sexual abuse Summary of Proposed Rule intervention services, medical and incidents by establishing general mental health evaluations, and follow- regulatory requirements for immigration The standard contained in the up services. detention facilities. ICE’s detention proposed rule required agencies to Comment. Commenters expressed standards provide detailed grievance provide detainees with access to outside concerns over confidentiality provisions procedures, including requirements for confidential support services and that in this standard. Regarding the outside individual facility emergency grievance the information about these services support services, an advocacy group processes. Common elements of these will be provided to them. The standard stated that all communications between procedures have been included in the further required that detainees and these detainees—particularly LGBTI regulatory language. However, the confidential support services will have detainees—and such organizations agency believes that its longstanding reasonable communication in as private should remain confidential, with a grievance procedures are a manner as possible. detainee being notified when comprehensive and adequately address Changes in Final Rule confidentiality of a communication is the public’s concerns. Furthermore, not guaranteed. Two collections of each facility’s grievance procedures are DHS is adding paragraph (d) requiring advocacy groups expressed similar inspected to ensure that they are being facilities to inform detainees, prior to concern, calling for replacing ‘‘in as properly executed. giving them access to outside resources, confidential a manner as possible’’ with Comment. An advocacy group of the extent to which such complete confidentiality, and adding suggested that proposed paragraph (e)’s communications will be monitored and requirements for an exception that— grievance-response timeframe should to which reports of abuse will be when such confidentiality is not also include a provision adding a 30-day forwarded to authorities in accordance possible—the facility document the maximum time limit for the agency’s with mandatory reporting laws. reason(s) therefor and inform the response to an appeal of an agency’s Comments and Responses detainee of the extent of monitoring and decision on a grievance. the extent of any forwarding of reports Response. DHS accepts the suggested Comment. One commenter suggested of abuse to authorities under mandatory revision to the grievance appeal process that when an assault occurs, facilities reporting laws. Some members of described in paragraph (e) by including should make available to detainees Congress also stated that full a requirement to respond to an appeal updated lists of resources and referrals confidentiality is necessary in of the grievance decision within 30 to professionals. communications with service providers days. Response. DHS agrees that detainees like rape crisis counselors. Another Comment. Regarding the substance of should have access to resources and advocacy group as well as a collection the grievance itself, a group suggested referrals to professionals when of youth, immigration and disability that the standard should require that no appropriate. The final standards groups and a human rights group sexual abuse-related grievance should adequately address these needs in this focused, respectively, on the specific be denied based upon any detainee section and also in §§ 115.21, 115.81– needs for confidentiality in regard to failure to properly fill out and submit a 83. This section provides that each medical and mental health care records formal grievance; the substance of the facility use available community and also trauma and support services. grievance should be sufficient to trigger resources and services to provide Response. DHS agrees that it is the facility’s response on the merits. support to detainees. In addition, important for all victims, regardless of Response. Any allegation of sexual § 115.53 requires facilities to maintain their sexual orientation, to have access assault is thoroughly investigated by the or attempt to enter into agreements with to confidential services. The standard agency or by local law enforcement, if community service providers or requires agencies to ‘‘enable reasonable appropriate. The fact that a grievance national organizations that provide legal communication between detainees and form was not properly filled out or advocacy and emotional support. these organizations and agencies, in as submitted would never be grounds to Section 115.33 also requires facilities to confidential a manner as possible.’’ not investigate a detainee’s abuse claim. provide detainees with information Unfortunately, DHS cannot guarantee Comment. A commenter expressed about local organizations that can assist complete confidentiality in all concern that the standard should detainees. A detainee does not have to situations, because it may be difficult require facilities to provide DHS with a wait for his or her allegation to be for agencies to ensure complete copy of each grievance and disposition substantiated before being able to use confidentiality with all forms of so DHS can effectively monitor the these services; the facility must make communication due to factors such as facilities. the services available much earlier on. the physical layout of the facility or the Response. DHS has revised the Section 115.21, which covers forensic use of automatic phone monitoring regulatory text to require facilities to medical examinations, requires facilities systems, which may be difficult to send all grievances related to sexual to make use of outside victim services suspend for support calls without abuse and the facility’s decisions with following sexual abuse incidents. These requiring the detainee to make a specific respect to such grievances to the services include rape crisis center request. As a result of confidentiality

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concerns, DHS added paragraph (d), anyone other than to the extent policy and the SAAPID, agency staff is which will require facilities to inform necessary to make medical treatment, required to ensure immediate reporting detainees prior to giving them access to investigation, law enforcement, and of any incident of sexual abuse or outside resources, of the extent to which other security and management assault by the facility to the local ICE such communications will be monitored decisions. personnel, who must then notify the ICE and the extent to which reports of abuse Changes in Final Rule JIC telephonically within two hours and will be forwarded to authorities in in writing within 24 hours. Reporting accordance with mandatory reporting DHS now explicitly requires covered directly to the JIC allows staff to report laws. staff to report retaliation against incidents anonymously without having As ICE’s Detainee Handbook explains, detainees or staff who participated in an to report up through their chain of communications between detainees and investigation of an incident of sexual command. DHS believes that the investigators are private and detainees’ abuse that occurred in a facility. allowance of anonymous reporting is medical and administrative files are Previously, the reporting requirement in adequately addressed between these locked in secure areas to ensure these standards did not explicitly cover policies and paragraph (a) of this confidentiality. such retaliation (although it did cover standard which allows for ‘‘methods by DHS encourages facilities to establish retaliation against detainees or staff who which staff can report outside of the multiple procedures for detainee reported an incident of sexual abuse). chain of command.’’ Because an express victims of sexual abuse to contact Otherwise, DHS is adopting the regulatory provision would be external advocacy and support groups. regulation as proposed. redundant to a number of measures that While not ensuring ideal privacy, Comments and Responses are currently in place, and because DHS phones may provide the best believes that the anonymous reporting Comment. A commenter suggested opportunity for detainees to ask for option must be carefully controlled to expanding paragraph (a) to require staff assistance in a timely manner. Privacy ensure that staff also meet their to report not only ‘‘any knowledge, concerns may be addressed through mandatory reporting duties properly suspicion, or information regarding . . . other means of contacting outside and effectively, DHS does not believe retaliation against detainees or staff who organizations, such as allowing that the recommended added language reported’’ an incident of sexual abuse, confidential correspondence, is necessary. opportunities for phone contact in more but also any knowledge, suspicion, or private settings, or the ability of the information regarding retaliation against Protection Duties (§§ 115.62, 115.162) detainees or staff that provided detainee to make a request to contact an Summary of Proposed Rule outside advocate through a chaplain, information pertaining to such an clinician, or other service provider. incident. The standards contained in the Response. DHS agrees that anti- proposed rule required that when an Third-Party Reporting (§§ 115.54, retaliation measures are of paramount agency employee or facility staff has a 115.154) importance in this context, and has reasonable belief that a detainee is Summary of Proposed Rule therefore included a range of measures, subject to a substantial risk of imminent including §§ 115.67 and 115.167, sexual abuse, he or she must take Standards 115.54 and 115.154 in the intended to deter retaliatory conduct. immediate action to protect the proposed rule required facilities to Under these provisions, agency detainee. establish a method to receive third-party employees (and others) may not retaliate reports of sexual abuse and publicly against any person, including a Changes in Final Rule distribute information on how to report detainee, for, inter alia, reporting, DHS is adopting the regulation as such abuse on behalf of a detainee. complaining about, or participating in proposed. Changes in Final Rule an investigation into an allegation of sexual abuse. Comments and Responses DHS is adopting the regulation as With respect to staff reporting proposed. DHS did not receive any public specifically and in response to the comments on this provision during the Comments and Responses comment, DHS revised §§ 115.61(a) and public comment period. 115.161(a) to require all staff to DHS did not receive any public immediately report retaliation against Reporting to Other Confinement comments on this provision during the detainees or staff who reported or Facilities (§§ 115.63, 115.163) public comment period. participated in an investigation about Summary of Proposed Rule Staff Reporting Duties (§§ 115.61, sexual abuse incidents. Prior to this 115.161) revision, the reporting requirement did The standards contained in the require reporting about retaliation proposed rule mandated that upon Summary of Proposed Rule against detainees or staff who reported receiving an allegation that a detainee The standards in the proposed rule an incident of sexual abuse, but did not was sexually abused while confined at required that staff immediately report: explicitly cover reports of retaliation another facility, the facility receiving (1) Any knowledge, suspicion, or against individuals who participated in the allegation must (1) notify the information regarding an incident of investigations. appropriate office of the facility where sexual abuse that occurred in a facility; Comment. An advocacy group the sexual abuse is alleged to have (2) retaliation against detainees or staff suggested adding language to paragraph occurred as soon as possible, but no who reported such an incident; and (3) (a) that would allow staff to later than 72 hours after receiving the any staff neglect or violation of anonymously report sexual abuse and allegation; and (2) document the efforts responsibilities that may have harassment of detainees. taken under this section. The agency contributed to an incident or retaliation. Response. DHS agrees that it is office that receives such notification, to The proposed standards prohibited the essential for staff to have anonymous the extent covered by the regulation, agency from revealing any information methods of reporting sexual abuse and must ensure the allegation is referred for related to a sexual abuse report to assault incidents. Under 2006 agency investigation.

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Changes in Final Rule which would not be in the best interest required agency management to DHS is modifying the notification of the victim. For this reason, DHS consider such removal for each language in paragraph (a) for both believes that the provision will be most allegation of sexual abuse, and to do so § 116.63 and § 115.163 to require effective as currently written and if the seriousness and plausibility of the agencies and facilities that receive declines to adopt the ‘‘facility head’’ allegation make removal appropriate. allegations of abuse at a different facility language. Changes in Final Rule to notify the appropriate office of the Responder Duties (§§ 115.64, 115.164) DHS is adopting the regulation as agency or the administrator of the proposed. facility where the alleged abuse Summary of Proposed Rule occurred. The standards contained in the Comments and Responses proposed rule required that the first Comments and Responses Comment. Some commenters employee or staff member that responds suggested that as with immigration Comment. The former Commissioners to the sexual abuse report separate the detention facilities, holding facilities of NPREC recommended that DHS alleged victim and abuser and preserve that have staff, contractors, or define who specifically in the agency or and protect the crime scene until volunteers that are suspected of sexual facility is required to notify another evidence can be collected. abuse should remove such persons from facility, upon receiving an allegation of Changes in Final Rule all duties requiring detainee contact detainee sexual abuse in another pending the outcome of an facility. The group suggested following DHS is adopting the regulation as investigation. They believe that the DOJ PREA final rule by using the proposed. requiring removal is important for the term ‘‘facility head.’’ Comments and Responses protection of the victim as well as others Response. DHS understands the in the facilities. An advocacy group DHS did not receive any public concern of confusion as to who is commented that leaving § 115.166(a) comments on this provision during the responsible for reporting allegations to unrevised will leave open the public comment period. other confinement facilities and has possibility for a perpetrator to continue subsequently revised § 115.63. With Coordinated Response (§§ 115.65, to have access to the detainees during regard to Subpart A, the SAAPID 115.165) the reporting and investigating requires that when an alleged assault is processes. reported at another facility, the facility Summary of Proposed Rule Response. DHS believes that the receiving the allegation report it to the Sections 115.65 and 115.165 in the language used in § 115.166 is the administrator of the facility where the proposed rule required a appropriate approach to protect alleged sexual abuse or assault occurred. multidisciplinary team approach in the detainees while an investigation is DHS revised § 115.63, which response to an incident of sexual abuse. pending in a holding facility. DHS complements the SAAPID, and also recognizes the desire for consistency Changes in Final Rule revised § 115.163 to now require between Subpart A and Subpart B of the notification to ‘‘the appropriate office of DHS revised each standard to clarify regulation. However, DHS believes that the agency or the administrator of the that notification requirements related to § 115.166, as proposed and in final facility where the alleged abuse the transfer of detainee victims of sexual form, appropriately addresses the occurred.’’ The provision allows abuse will differ depending on whether unique needs associated with holding notification to the appropriate office of or not the receiving facility is covered facilities, including limited staffing the agency because in some cases the by these standards. As in the proposed resources. Furthermore, § 115.166 allegations may concern ICE or CBP rule, when the receiving facility is not requires supervisors to affirmatively holding facilities for which notification covered by these standards, the sending consider removing staff pending the to the JIC would be more appropriate, facility must inform the receiving completion of an investigation, and to for any of a range of reasons. Under the facility of the incident and the victim’s remove them if the seriousness and DHS standard as well as the DOJ potential need for medical or social plausibility of the allegation make such standard, if a covered facility learns of services, unless the victim requests removal appropriate (as opposed to sexual abuse in another facility, the otherwise. Otherwise, DHS is adopting automatically placing employees on covered facility will notify the other the regulation as proposed. administrative duties even where, for facility, and document such notification Comments and Responses example, the allegations are not in writing. DHS believes that as plausible because the subject of the currently written the provision satisfies DHS did not receive any public allegation was not on duty at the time the concern for facility to facility comments on this provision during the of the alleged incident). reporting and does not believe that public comment period. With respect to ICE holding facilities, adding ‘‘facility head’’ will strengthen Protection of Detainees From Contact the SAAPID reinforces the regulation by the provision as currently written. With Alleged Abusers (§§ 115.66, requiring the removal of an ICE For Subpart B facilities, where 115.166) employee, facility employee, contractor, detention is relatively brief, and in order or volunteer suspected of perpetrating to minimize delay, the agency official Summary of Proposed Rule sexual abuse or assault to be removed responsible for notifying another The standard in the proposed rule from all duties requiring detainee confinement facility of an allegation of with respect to immigration detention contact pending the outcome of an sexual abuse will depend on which facilities required the agency or facility investigation. The term ‘‘suspected of’’ office receives the allegation. DHS to remove from all duties requiring is intended to allow the agency or believes that specifying ‘‘facility head’’ detainee contact, pending the outcome facility a modest exercise of discretion within this section will limit which of an investigation, staff, contractors, with respect to whether any suspicion office can either notify or be notified and volunteers suspected of exists. By requiring that the individual and may therefore postpone the perpetrating sexual abuse. The standard be ‘‘suspected of’’ perpetrating sexual communication between facilities with respect to holding facilities abuse and assault, DHS intends to

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ensure that staff, contractors, and allegation has any reasonable basis in requires the agency to use multiple volunteers are not removed for plainly fact. DHS believes that the use of the measures to protect detainees who fear implausible or plainly erroneous term ‘‘suspected of perpetrating’’ as reporting sexual abuse or fear allegations (e.g., a detainee may claim opposed to ‘‘alleged to have cooperating with investigations. that a specific staff member assault him perpetrated’’ will adequately ensure the DHS did not incorporate the language when, in fact, that staff member was not safety and security of detainees. used in DOJ’s paragraph (a) because at the facility during the alleged DHS’s language provides greater incident). Agency Protection Against Retaliation protection by prohibiting retaliation DHS believes that by assigning staff, (§§ 115.67, 115.167) immediately, instead of relying on a contractors, and volunteers to duties Summary of Proposed Rule policy to be drafted in the future. Given away from detainees when necessary, ICE’s more direct oversight over its DHS will provide sufficient protection The standards contained in the immigration detention facilities, the to detainees. proposed rule required that agency and agency is in a better position to prohibit Comment. Some commenters facility staff and employees not retaliate and take action against acts of suggested adding the same language that against any person, including a retaliation by detainees or staff. DOJ’s is currently in DOJ’s PREA final rule detainee, who reports, complains about, paragraph (d) was not incorporated for concerning collective bargaining or participates in an investigation into the same reason, and because status agreements. The DOJ standard prevents an allegation of sexual abuse, or for checks are redundant—for 90 days an agency or governmental entity participating in sexual activity as a following a report of sexual abuse, the responsible for collective bargaining on result of force, coercion, threats, or fear agency or facility must monitor to see if the agency’s behalf from entering into or of force. there are facts that may suggest possible renewing any collective bargaining Changes in Final Rule retaliation by detainees or staff, and agreement or other agreement that limits shall act promptly to remedy any such the agency’s ability to remove staff DHS added a new paragraph (b) to retaliation. DHS believes that its final suspected of perpetuating sexual abuse Subpart A of the final rule which rule is tailored effectively to from contact with any inmates pending requires the agency or facility to immigration detention and therefore, the outcome of an investigation. The ‘‘employ multiple protection measures, does not need to mirror the DOJ rule to commenters believe that this adjustment such as housing changes, removal of provide adequate protection to will prevent DHS from entering into alleged staff or detainee abusers from detainees. collective bargaining agreements that contact with victims, and emotional DHS chose not to include proposed frustrate the objective of the standard. support services for detainees or staff language about employing multiple Response. DHS respectfully declines that fear retaliation for reporting sexual protection measures in Subpart B. Given to add the language concerning abuse or for cooperating with the relatively short time of detention in collective bargaining agreements. DHS investigations.’’ holding facilities, housing assignments believes adding the language suggested Comments and Responses are not applicable. Section 115.164, by the commenters is unnecessary. The Responder Duties, includes a DHS rule requires affirmative steps in Comment. Many commenters requirement to separate the alleged response to an allegation of sexual suggested adding language that will victim and abuser. With respect to the abuse. Removal from detainee protect from retaliatory deportation any comment regarding providing emotional interaction during the investigation detainees who report, complain about, support services to staff, note that CBP process is required for staff, contractors, or participate in an investigation into an offers a full range of assistance to agency and volunteers suspected of allegation of sexual abuse, or for employees through the WorkLife4You perpetrating sexual abuse in participating in sexual activity as a Program and the Employee Assistance immigration detention facilities. In result of force. Program. response to an allegation of sexual abuse Response. DHS agrees that removal Comment. One commenter suggested in a holding facility, agency should never be used solely to retaliate the addition of a paragraph in § 115.67 management shall remove any staff, against a detainee who reports sexual that would require the facility’s PSA contractor, or volunteer from duties abuse. To address this concern, Compliance Manager, or assignee, to requiring detainee contact pending the §§ 115.67 and 115.167 explicitly make sure the mandates of § 115.22 are outcome of an investigation, where the prohibit any retaliatory behavior, which fulfilled. seriousness and plausibility of the is a broader form of protection and is Response. Sections 115.11(d) and allegation make removal appropriate. therefore adequate to address this risk. 115.111(d) already serve this function This provides a greater level of Comment. Multiple commenters by ensuring the PSA Compliance protection and requires more significant suggested that the standards in Manager has ‘‘sufficient time and affirmative action than a limitation on §§ 115.67 and 115.167 should be authority to oversee facility efforts to collective bargaining agreements. replaced with the corresponding DOJ comply with facility sexual abuse Comment. Some commenters PREA standards. Some members of prevention and intervention policies suggested changing § 115.66 to apply Congress commented generally that the and procedures.’’ not to staff, contractors, or volunteers retaliation standard should be revisited Comment. One commenter suggested that are ‘‘suspected of perpetrating’’ to be in line with DOJ’s standard. One that this standard explicitly address sexual abuse, but to staff, contractors, or commenter notes that the DOJ PREA transferring victims as a form of volunteers that are ‘‘alleged to have standards detail specific protection retaliation or as a means of protection perpetrated’’ sexual abuse. measures that the agency must take to from alleged perpetrators. Response. PBNDS 2011 uses the term, ensure retaliation does not occur. Response. DHS recognizes the need to ‘‘suspected of perpetrating.’’ The use of Response. In response to comments eliminate unnecessary detainee conflicting terms could pose bargaining about aligning DHS’s § 115.67 standards transfers. Eliminating unwarranted issues. ‘‘Suspected of perpetrating’’ with DOJ’s, DHS again reviewed the DOJ transfers of sexual assault victims for allows for a modest exercise of final rule and added a new paragraph to retaliatory reasons are a high priority for discretion to determine whether an Subpart A of the final rule, which the agency. ICE Policy 11022.11,

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entitled Detainee Transfers, was hours. ICE notes that it has also chosen held in administrative segregation for 72 developed and implemented to reduce to proceed by policy in this area, as hours. detainee transfers and specifically notes noted above in the discussion relating to Comment. Multiple commenters that transfers should not be conducted § 115.43. suggested that, for alleged victims who unless certain articulated factors are Comment. Some commenters have been placed in post-allegation considered by the FOD or his or her suggested further defining the term protective custody, DHS should designee. DHS believes that the ‘‘unusual circumstances’’ in paragraph incorporate a strong presumption of full protections afforded by ICE’s transfer (b) to include the actual circumstances release from custody, potentially under policy apply to all detainees, not just in which prolonged protective custody programs that provide alternatives to those who have made sexual assault might be warranted. Commenters wrote detention. allegations or those participating in that vulnerable detainees may request Response. Under the regulation, the investigations. Section 115.67 of these protective custody for a prolonged facility shall place detainee victims of standards also includes an explicit period of time because they are unaware sexual abuse in a supportive prohibition against any form of agency of their rights. environment that is the least restrictive retaliation against victims of sexual An advocacy group suggested that the housing option possible. A detainee abuse or assault, including retaliatory agency supervisor be notified when a who is in post-allegation protective housing changes. detainee is placed in administrative custody shall not be returned to the custody for more than five days. Once general population until completion of Post-Allegation Protective Custody the agency supervisor is notified, this a proper re-assessment, taking into (§ 115.68) person should be tasked with consideration any increased Summary of Proposed Rule conducting a review of the segregation vulnerability of the detainee as a result as well as looking for other placements of the sexual abuse. In light of the strong The standard contained in the for the detainee as long as the detainee protections required under this proposed rule required the facility to is not subject to mandatory detention. standard, and because alternatives to place detainee victims of sexual abuse Response. The final standard includes detention programs continue to be in a supportive environment that is the new requirements for agency available under the regulation, DHS least restrictive housing option possible. notification whenever an individual has declines to incorporate a presumption The standard provided that detainee been held in administrative segregation in favor of release. In addition to the victims shall not be returned to the for 72 hours, and agency review of such detainee’s personal vulnerability, DHS general population until proper re- cases to determine whether the will continue to make release decisions assessment is completed. The standard placement is only as a last resort and based upon other generally applicable further required that detainee victims when no other viable housing options factors, including, inter alia, individual are not to be held for longer than five exist. Where a detainee victim has been security considerations, applicable days in any type of administrative held in administrative segregation for statutory detention mandates, and segregation, except in unusual longer than five days, the agency must available custodial options in each case. circumstances or at the request of the also review whether the placement is Criminal and Administrative detainee. justified by extraordinary Investigations (§§ 115.71, 115.171) Changes in Final Rule circumstances, or is at the detainee’s own request. DHS does not believe that Summary of Proposed Rule The final rule adds a requirement for further definition of the term ‘‘unusual The standards contained in the facilities to notify the appropriate ICE circumstances’’ is necessary based on proposed rule required investigations by FOD whenever a detainee victim has any concern that detainees’ lack of the agency or the facility with the been held in administrative segregation awareness of their rights will lead them responsibility for investigating the for 72 hours. to request prolonged protective custody. allegation(s) of sexual abuse be prompt, Upon receipt of such notification, the In ICE’s experience, detainees are not thorough, objective, and conducted by final rule also requires that the ICE FOD likely to affirmatively request continued specially trained, qualified conduct a review of the placement to protective custody unless they desire to investigators. The proposed standard consider whether the placement is only remain segregated. This final rule also required agencies and facilities to as a last resort and when no other viable includes strong provisions on detainee conduct an administrative investigation housing options exist, and whether—in education in this context. of (1) any substantiated allegation and the case of a detainee victim held in Comment. One commenter stated that (2) any unsubstantiated allegation that, administrative segregation for longer protective custody should only be used upon review, the agency deems than five days—whether the placement as a last resort. appropriate for further administrative is justified by extraordinary Response. Section 115.68 has been investigation. circumstances or is at the detainee’s revised to require the FOD to determine request. whether the placement in segregation is Changes in Final Rule Comments and Responses used only as a last resort and when no DHS made minor revisions to the other viable housing options exist. Subpart B provision, to clarify that Comment. One advocacy group Comment. One commenter responsibility for conducting criminal suggested adding a statement in recommended that paragraph (c) have a and administrative investigations or paragraph (b) requiring the facility to defined timeline for reassessments. referring allegations to the appropriate report to the agency within 24 hours the Response. Paragraph (b) of this investigative authorities ultimately lies placement of suspected sexual abuse standard imposes a 5-day limitation on with the agency, and not the facility. victims in protective custody. the continuous segregation of detainee Otherwise, DHS is adopting the Response. As noted above, the final victims in protective custody, inclusive regulation as proposed. rule adds a requirement for facilities to of any time necessary to complete a re- notify the appropriate ICE FOD assessment. The final rule also requires Comments and Responses whenever a detainee victim has been facilities to notify the ICE FOD Comment. Commenters suggested that held in administrative segregation for 72 whenever a detainee victim has been all allegations of sexual abuse be

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investigated, including third party and completion of removal proceedings up Response. DHS notes that DOJ did not anonymous reports. There was a to the moment of physical removal. apply its standards regarding reporting recommendation that DHS cross- Longer term immigration relief may to inmates in the context of lockups, reference this standard with § 115.34 be available, including in the form of U due to the short-term nature of lockup with regard to the requisite nonimmigrant status. U nonimmigrant detention. Similarly, due to the short- qualifications of the investigator. status protects victims of qualifying term nature of detention in holding Response. Section 115.22 requires crimes (including sexual assault and facilities, DHS declines to accept the that all allegations of sexual abuse be felonious assault) who have suffered suggestion to include a provision on investigated. The purpose of § 115.71(a) substantial mental or physical abuse as detainee notification of investigative is to clarify investigative responsibility a result of the crime and are willing to outcomes for allegations made in (e.g., the division of responsibility assist law enforcement authorities in the holding facilities. between the agency/facility/state/local investigation or prosecution of the Comment. Some commenters law enforcement) and to require that criminal activity. U nonimmigrant suggested that DHS’s proposed standard investigators be properly trained and status is self-petitioning and requires a should follow the DOJ standard. The qualified. Allegations may be made law enforcement certification. DOJ standard describes what type of directly by a detainee or by a third party DHS also routinely considers whether notification will be delivered to the such as an attorney, a family member, detainees may be suitable candidates for inmate concerning their abuser and the another detainee, a staff member, or an release on their own recognizance or on investigation, that such notifications anonymous party. The source of the bond, or participation in an alternative will be documented, and that allegation does not affect the to detention program. notifications will no longer be required when the inmate/victim is released from requirement that all allegations of Evidentiary Standard for sexual abuse be investigated. DHS custody. A commenter wrote that failure Administrative Investigations to provide updates on the agency’s clarifies here that specialized training (§§ 115.72, 115.172) for investigators is addressed in response to an allegation of sexual abuse § 115.34. Summary of Proposed Rule increases the survivor’s anxiety about Comment. There were several future abuse and decreases the The standards contained in the survivor’s belief that his or her report is advocacy groups that suggested that proposed rule required that agencies not prosecutorial discretion be exercised being taken seriously. impose a standard higher than a Response. DHS does not believe it is with regard to victims and witnesses of preponderance of the evidence in necessary to adopt the DOJ standard on sexual abuse and assault, especially determining whether allegations of notifications. ICE already has the young survivors of sexual abuse and sexual abuse are substantiated. responsibility to inform detainees of the assault. Other commenters suggested outcome of any investigation as well as that victims be given the option of Changes in Final Rule any responsive action taken. In release on their own recognizance DHS is adopting the regulation as instances in which the detainee has during the investigation process with proposed. been moved to another facility, the understanding that they would Comments and Responses coordination between facilities is remain in the United States lawfully. A required, in part to ensure that the similar suggestion was made by another DHS did not receive any public investigative outcome can be shared commenter in that victims should be comments on this provision during the with the detainee. given the ability to be released on their public comment period. With regard to notifying the detainee own recognizance, on bond, or through Reporting to Detainees (§ 115.73) of actions taken against an employee, an alternative detention program and DHS agrees that agency follow-up can the ability to stay in the United States Summary of Proposed Rule be of great importance to victims, and while the investigation is carried out. The standard found in § 115.73 in the therefore requires the agency to notify Response. Tools for prosecutorial proposed rule required the agency to the detainee as to the result of the discretion already are available for notify the detainee of the result of the investigation and any responsive action 15 victims of sexual abuse and assault. investigation when the detainee is still taken. In the immigration detention Deferred action refers to the decision- in immigration detention, as well as facility context, DHS has also making authority of ICE, among other where otherwise feasible. undertaken to perform this follow-up entities, to allocate resources in the best whenever feasible, even after the possible manner to focus on high Changes in Final Rule detainee has been released from priority cases, potentially deferring DHS is adopting the regulation as custody. As DHS noted in its proposal, action on cases with a lower priority. proposed. DHS believes that its approach strikes Deferred action can be used by ICE for the proper balance between staff Comments and Responses any alien victim, including a victim in members’ privacy and the detainee’s detention, due to the victim’s status as Comment. One advocacy group right to know the outcome of the an important witness in an ongoing suggested that holding facilities have a investigation. investigation or prosecution. comparable provision with what is In light of the breadth of the DHS Administrative Stay of Removal (ASR) currently proposed for immigration provision, DHS notes that in its is another discretionary tool that detention facilities. They further experience, state privacy laws and permits ICE to temporarily delay the suggested that there be an attempt for union guidelines may prohibit sharing removal of an alien. Any alien, or law DHS to forward the outcome of the certain information about disciplinary enforcement agency on behalf of an investigation to the detainee, especially actions taken against employees. alien, who is the subject of a final order when the detainee is still in detention Releasing details about an employee’s of removal may request ASR from ICE. due to their belief that if there is a lack punishment could be in violation of An ASR may be granted after the of incident follow-up there will be a these privacy laws or policies. DHS lack of accountability within the cannot require that specific information 15 See generally id. holding facility. about sanctions taken against an

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employee be included in post- investigation may or may not Changes in Final Rule investigation follow-up with the substantiate an allegation. In addition, DHS is adopting the regulation as detainee. However, consistent with the detainee population size must be taken proposed. regulatory text, where the information is into account when assessing the number available to the agency and can be of allegations at a given facility over a Comments and Responses provided in accordance with law, it will period of time. However, when Comment. One commenter suggested be provided. investigations or audits reveal a policy, that entities that have repeat offenses be Disciplinary Sanctions for Staff procedural, or systemic issue at the subject to both criminal and civil (§§ 115.76, 115.176) facility that has contributed to sexual sanctions by the agency. The commenter abuse or assault, DHS will use its further suggested that contracted parties Summary of Proposed Rule authority to ensure that corrective be subject to the same standards as non- The standards contained in the actions are promptly taken. DHS contracted parties and should have proposed rule provided that staff shall emphasizes the importance of working further repercussions for their actions be subject to disciplinary actions up to with the facility to take corrective and other than employee dismissal. The and including termination for violating preventive action as the appropriate commenter suggested that a facility agency sexual abuse policies, and that response. found to have repeat incidents should termination shall be the presumptive DHS recognizes that detainees who be subject to harsher penalties and be disciplinary sanction for staff that are minors have special vulnerabilities. monitored more closely. engaged in or threatened to engage in With the exception of juveniles in the Response. Similar to the response sexual abuse, as defined in the Family Residential Program, and rare regarding §§ 115.76 and 115.176, DHS regulation. The proposed standards cases where minors with criminal believes that a change is not warranted further provided that if a staff member records are held in juvenile detention or appropriate to prescribe both is terminated for violating such policies, facilities, most juveniles are in the care criminal and civil sanctions. DHS does or if a staff member resigns in lieu of and custody of HHS/ORR, other than not have criminal prosecution authority termination, a report must be made to the brief period of time that such and the PREA statute similarly does not law enforcement agencies (unless the unaccompanied juveniles are in ICE provide for civil penalties. Nevertheless, activity was not criminal) and to any custody prior to transfer to ORR. The DHS takes extremely seriously any relevant licensing bodies, to the extent monitoring of those facilities is within allegations or substantiated incidents of known. the purview of HHS and outside the sexual abuse. scope of DHS authority. Contract employees are subject to the Changes in Final Rule same standards as agency employees DHS is adopting the regulation as Comment. One commenter and investigations into allegations made proposed. recommended that any person(s) against contractors are no less thorough regardless of whether they are staff, than those made against agency Comments and Responses contractors, or volunteers, and employees. All facilities will be closely Comment. One commenter suggested regardless of whether they work in a monitored for how they respond to that repeat offenders should be DHS facility or contract facility, should sexual abuse and assault reports; subjected to criminal and civil be removed from their position at a address safety, medical, and victim sanctions, and facilities that have detention facility for violating agency services issues; and coordinate criminal recurrences of sexual abuse and assault sexual abuse or sexual harassment and administrative investigative efforts. claims (paying specific attention to policies. DHS believes that the best approach to juvenile facilities) should be penalized Response. DHS agrees that violation remedy a situation of recurring sexual and closely monitored. Another of agency sexual abuse and assault abuse and assault claims varies with the commenter suggested that if multiple policies merits discipline of employees circumstances, and may include substantiated cases of sexual abuse have and contractors, up to and including disciplining or removing individual been found in a facility, the facility removal. However, DHS does not have employees involved in the abuse, should be closed or lose its contract authority to require contract facilities to working with the facility to take with DHS. remove employees from employment corrective and preventive action, regular Response. DHS declines to make the entirely, but only to require facility monitoring, as well as requested revision to the standard. DHS reassignment to a position where there terminating a contract with a facility in does not have criminal prosecution will not be contact with detainees. As its entirety. authority. Furthermore, the PREA such, the comment cannot be Comment. One commenter statute itself does not provide for civil implemented as recommended. recommended that any person(s) penalties, as suggested by the comment. violating agency sexual abuse or sexual DHS takes extremely seriously any Corrective Action for Contractors and harassment policies be removed from allegations or substantiated incidents of Volunteers (§§ 115.77, 115.177) their position at the detention facility sexual abuse. All facilities will be Summary of Proposed Rule regardless of whether the employee is closely monitored for how they respond staff, a contractor, or a volunteer and to sexual abuse and assault reports; The standards contained in the regardless of whether the person works address safety, medical, and victim proposed rule required that any in a DHS facility or contract facility. services issues; and coordinate criminal contractor or volunteer who has engaged Response. As discussed above in and administrative investigative efforts. in sexual abuse be prohibited from response to the comment received on While monitoring is recognized as a contact with detainees. The proposed §§ 115.76 and 115.176, DHS agrees that crucial element, DHS does not concur rule further required that reasonable violation of agency sexual abuse and with the suggestion that facilities with efforts be made to report to any assault policies merits discipline of recurring allegations or a higher number licensing body, to the extent known, employees and contractors, up to and of allegations should always be incidents of substantiated sexual abuse including removal. However, DHS does penalized, as the subsequent by a contractor or volunteer. not have authority to require contract

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facilities to remove employees from comment. Whereas the purpose of imposed on the detainee. DHS believes employment entirely, but only to incarceration by DOJ includes that these protections are sufficient to require reassignment to a position punishment and rehabilitation—thus ensure that disciplinary sanctions are where there will not be contact with making therapy and counseling more fair and appropriate, and therefore DHS detainees. Accordingly, the comment widely appropriate—the purpose of does not adopt the changes requested by cannot be implemented as immigration detention is to facilitate the commenters on this point. recommended. appearance at immigration proceedings Comments. An advocacy group and removal. Accordingly, mandating suggested that there be a new § 115.178 Disciplinary Sanctions for Detainees therapy or counseling as a condition of (§ 115.78) in Subpart B applicable to holding access to programming or other benefits facilities. This recommended standard Summary of Proposed Rule would not be appropriate in this would include a provision in which The standard contained in the context. when there is probable cause that a proposed rule mandated that detainees DHS notes, however, that § 115.83 of detainee has sexually abused another be subject to disciplinary sanctions after the regulation includes provisions for detainee, the issue shall be referred from they have been found to have engaged voluntary access to ongoing medical and the agency to the proper prosecuting in sexual abuse. The standard mandates mental health care for sexual abuse authority. This provision would further that discipline be commensurate with victims and abusers, when deemed require the agency to inform any third- the severity of the committed prohibited appropriate by mental health party investigating entity of this policy. act and pursuant to a formal process practitioners. With regard to the second The advocacy group believed that it was that considers the detainee’s mental proposal, DHS also rejects the an oversight that DHS did not include disabilities or mental illness, if any, recommendation to prohibit a finding of this section in Subpart B of the when subjecting the detainee to sexual abuse when there is no element proposed rule. disciplinary actions. of coercion in sexual activity between Response. DHS appreciates the detainees. This clarification is comment recommending addition of a Changes in Final Rule unnecessary as the standards define new § 115.178 applicable to holding DHS is adopting the regulation as detainee-on-detainee sexual abuse to facilities only. However, DHS declines proposed. exclude incidents of consensual sexual to make this change because DHS does conduct between detainees. A provision Comments and Responses not discipline detainees in holding explicitly authorizing the agency to facilities. Sections 115.21 and 115.121 Comment. One commenter suggested prohibit all sexual activity between set forth requirements to ensure each that paragraph (a) specify that detainees detainees (including consensual sexual agency and facility establishes a will only face disciplinary action for activity) is similarly unnecessary, as protocol for the investigation of detainee-on-detainee sexual abuse ICE’s detention standards already allegations of sexual abuse, or the because the language in paragraph (e). contain such a prohibition. referral of allegations of sexual abuse to Paragraph (e) prohibits the facility from Comments. A few advocacy groups the appropriate investigative authorities. disciplining a detainee for sexual suggested specifying in paragraph (b) In general, the appropriate investigative contact with staff unless there is a that the circumstances of the prohibited authority is responsible for making finding that the staff member did not act, the detainee’s disciplinary history, referrals for prosecution. Accordingly, and the sanctions imposed for consent to such contact. DHS declines to add a new § 115.178 as comparable offenses by other detainees Response. DHS declines to make the suggested. proposed change to paragraph (a) with similar histories should be taken because this modification would into consideration when determining Medical and Mental Health preclude DHS from disciplining a the appropriate disciplinary action. Assessments; History of Sexual Abuse detainee found to have engaged in These advocacy groups stated that it is (§ 115.81) sexual contact with a non-consenting important that the sanctions against Summary of Proposed Rule staff member (pursuant to paragraph (e) detainees be appropriate and fair for the of this standard). DHS believes it is offense. One commenter stated that The standard contained in the important to retain the authority to adding this additional language will proposed rule required that pursuant to discipline a detainee for engaging in help prevent the misuse of the the assessment for risk of victimization sexual abuse of a staff member. regulations to inappropriately punish and abusiveness in § 115.41, facility Comment. One commenter suggested LGBTI detainees. staff will ensure immediate referral to a that two provisions from the DOJ PREA Response. DHS concurs with the qualified medical or mental health standard be adopted by DHS. One commenters that disciplinary sanctions practitioner, as appropriate, for provision in the DOJ rule allows for the must be fair and appropriate. With this detainees found to have experienced facility to require the abuser to very objective in mind, the regulation prior sexual victimization or perpetrated participate in mental health provides that each facility holding sexual abuse. For medical referrals, the interventions as a condition of access to detainees in custody shall have a medical professional was required to programming or other benefits. The detainee disciplinary system with provide a follow-up health evaluation other provision in the DOJ rule allows progressive levels of reviews, appeals, within two working days from the date for an agency to prohibit, in its procedures, and documentation of the initial assessment. For mental discretion, all sexual activity between procedure, which imposes sanctions in health referrals, the mental health inmates and if such activity occurs, the an objective manner commensurate with professional was required to provide a agency may discipline the inmates for the severity of the disciplinary follow-up mental health evaluation this activity. It further specifies that the infraction. In addition, the regulation within 72 hours from the date of the agency is not able to deem such activity requires the disciplinary process to referral. to be sexual abuse if it determines that consider whether a detainee’s mental Changes in Final Rule the activity is not coerced. disabilities or mental illness contributed Response. DHS declines to accept to his or her behavior when determining The final rule includes minor changes either of the proposed changes from this what type of sanction, if any, should be to paragraph (a). The phrase ‘‘subject to

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the circumstances surrounding the Comment. An advocacy group specific provisions concerning the types indication’’ was removed and the term recommended adding a statement that is of treatment available to detainees from ‘‘as appropriate’’ was moved within the in the DOJ final rule concerning emergency medical providers. Under paragraph. detainee consent. The DOJ rule states § 115.82, these treatments include that if a detainee confirms prior sexual emergency contraception and sexually Comments and Responses victimization, unless the detainee is less transmitted infections prophylaxis, Comment. One commenter suggested than 18 years of age, the medical and which are particularly time-sensitive. that there should be specific provisions mental health practitioners must obtain One of the legal associations further within the standard concerning the consent from the detainee before suggested that § 115.182 also contain a follow-up mental health services after reporting the information. provision that would allow for referrals the initial evaluation. Response. Again, § 115.61 of the for follow-up services and continued Response. Section 115.81 requires standards requires that information care by the agency or facility for that detainees who have experienced related to a sexual abuse incident be detainees to continue treatment upon prior sexual victimization or perpetrated limited to the information needed to transfer to another facility or release sexual abuse receive referrals for follow- protect the safety of the victim, provide from custody. up medical and/or mental health care as medical treatment, investigate the Response. DHS has considered the appropriate. In addition, ICE’s detention incident, or make other pertinent comments, and has revised § 115.182 to standards provide comprehensive security and management decisions. mirror § 115.82 by adding that detainee requirements for the mental health care DHS believes that this provision victims of sexual abuse in holding of all detainees, including follow-up adequately addresses the concern facilities shall have timely access not mental health evaluations as expressed by these commenters. only to emergency medical treatment, appropriate, and referral to external Comment. A commenter suggested but also to crisis intervention services, specialized providers as necessary. that a provision be added for women including emergency contraception and Because ICE detention standards outline and girls to be screened, assessed, and sexually transmitted infections these requirements, adding a provision provided with treatment during prophylaxis in accordance with specifically targeted to sexual abuse and confinement. The commenter urged for professionally accepted standards of assault victims is not necessary. this provision to be mandated for care. DHS disagrees that detainee Comment. A human rights group minors. victims in holding facilities should suggested that paragraph (a) be written Response. The proposed and final receive referrals for follow-up care more clearly and specifically about what rules clearly require that female because the short-term nature of the the circumstances might be concerning detainees and minors be afforded each detention makes this impracticable. when a staff member would make a of the protections outlined by the Comment. Multiple commenters referral for a detainee to seek a follow- standards, including with regard to suggested that this section be modified up with a medical or mental health screening, assessment, and treatment. to ensure that victimized detainees practitioner. The commenter suggested Access to Emergency Medical and receive expedited access to emergency that if DHS does not choose to clarify Mental Health Services (§§ 115.82, contraception. This access should be this language, DHS should remove the 115.182) provided as quickly as possible after the language altogether. incident. The commenters believe this is Response. DHS agrees with the Summary of Proposed Rule an appropriate provision to include comment. Upon consideration, DHS The standards in the proposed rule because emergency contraception can decided to strike the phrase ‘‘subject to required detainee victims of sexual prevent pregnancy within five days of the circumstances surrounding the abuse to have timely, unimpeded access intercourse but it is more effective if it indication’’ from § 115.81(a). to emergency medical treatment at no is taken within three days. Comment. Multiple commenters financial cost to them. Response. The final rule clearly states suggested adding the confidentiality that victims of sexual abuse ‘‘shall have provision that is currently in the DOJ Changes in Final Rule timely unimpeded access to emergency PREA rule. The statement would ensure DHS made a minor change to the final medical treatment and crisis that the information relating to a sexual rule by deleting the phrase ‘‘where intervention services, including abuse or assault incident will remain appropriate under medical or mental emergency contraception . . . in limited to medical and mental health health professional standards’’ in accordance with professionally accepted practitioners and other staff, as § 115.82(a) because the phrase was standards of care.’’ The medical necessary. Access to information would superfluous. DHS revised § 115.182 to professionals who provide care to be as necessary to inform treatment clarify that for holding facilities as well detainees are in the best position to plans and security and management as immigration detention facilities, administer emergency contraception. decisions, such as housing, bed emergency medical treatment and crisis Mandating a specific timeline is not placement, work, education, and intervention services will be provided appropriate for this regulation. DHS program assignments, or as otherwise in accordance with professionally believes that the final rule, as written, required by Federal, State, or local law. accepted standards of care. The relevant will ensure that victims have timely Response. Section 115.61 of the portion of § 115.182 now mirrors the access to emergency contraception. standards requires that information language in § 115.82. DHS also deleted Comment. Multiple commenters related to a sexual abuse incident be the phrases ‘‘in immigration detention expressed concern about the lack of limited to those needed to protect the facilities’’ and ‘‘in holding facilities’’ correct information and education about safety of the victim, provide medical from § 115.82(a) and § 115.182(a) transmission of sexually transmitted treatment, investigate the incident, or respectively, to clarify the scope of the diseases and infections. Commenters make other pertinent security and provision. suggested expanding relevant provisions management decisions. DHS believes in this section to explicitly refer to all that this provision adequately addresses Comments and Responses forms of sexual abuse. The language the concern expressed by these Comment. Multiple commenters proposed would specifically include commenters. suggested that DHS include in § 115.182 victims of oral, anal, or vaginal sexual

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abuse due to non-consensual oral, anal, about the different ways sexually implication the additional 2011 PBNDS and vaginal touching or penetration. transmitted diseases can be spread. provisions referenced above. One of these commenters also suggested Therefore, the commenter suggests Comment. Commenters also suggested the removal of the phrase ‘‘where revising the language to specify the that DHS clarify that detention facilities appropriate under medical or mental different types of sexual abuse that must provide detainees medically health professional standards,’’ written detainees may encounter. accurate and unbiased information in paragraph (a) of this section. Response. Sexual abuse and assault is about pregnancy-related services, Response. The final rule contains a thoroughly defined in § 115.6. The including abortion. The commenter thorough definition of sexual abuse and specific types of abuse set forth in the stated that this is particularly relevant assault in § 115.6, which includes the Definitions section apply to the final where the detention facility uses specific areas of abuse as noted by the rule in its entirety. religiously affiliated institutions to commenters. DHS declines to add to the Comment. A commenter suggested provide care to inmates. The commenter definition of sexual abuse in this guaranteeing the confidentiality of stated that a woman should always be provision because it would be medical and mental health records able to have accurate information about redundant and could potentially because confidential trauma counseling all of her options; information should conflict with the final rule’s definition and medical and mental health care are never be provided with the intent to of sexual abuse and assault. essential to recovery. coerce, shame, or judge. After considering the comments to Response. Maintaining the Response. DHS clarifies that the § 115.82(a), DHS decided not to include confidentiality of medical records is a standard requires that covered detainee the phrase ‘‘where appropriate under DHS priority for every detainee. As victims receive medically accurate and medical or mental health standards’’ in such, ICE’s detention standards contain unbiased information, including the final rule. explicit requirements for ensuring this information about abortion. This is part confidentiality in all circumstances. of the requirement that facilities provide Ongoing Medical and Mental Health Given the overarching confidentiality ‘‘comprehensive’’ information about all Care for Sexual Abuse Victims and concern, DHS does not believe that lawful pregnancy-related medical Abusers (§ 115.83) revising this section provides greater services. protection to detainees than that which Summary of Proposed Rule Comment. Commenters also suggested is already contained in the proposed adding language clarifying that The standard in the proposed rule and final rules. transportation services would be given required that victims of sexual abuse in Comment. Commenters suggested the to victims needing medical services detention receive access to ongoing provision be edited to explicitly state when the detention facility is unable to medical and mental health care as the full range of services and provide such services in a timely necessary without financial cost to the information that should be made manner. victim. The standard also requires that available to victims of sexual abuse. One Response. Additional guidance on this care be consistent with the commenter suggested that DHS align the transportation is unnecessary given the community level of care for as long as final rule’s provision on pregnancy- requirement that victims be provided such care is needed. related services with PBNDS. The ‘‘timely access’’ to all lawful pregnancy- commenter noted that under ICE PBNDS Changes in Final Rule related medical services—which, when provide that when a detainee decides to necessary, includes transportation. DHS made one minor change to the terminate her pregnancy, ICE must Comment. Commenters suggested that final rule by replacing the word arrange for transportation at no cost to DHS remove the phrase ‘‘vaginal ‘‘incarcerated’’ with ‘‘detained’’ in the detainee. The commenter also noted penetration’’ in paragraph (d) because § 115.83(d). that ICE PBNDS provide that ICE will pregnancy can occur without assume all costs associated with the Comments and Responses penetration. detainee’s abortion when the pregnancy Response. DHS does not believe that Comments. A commenter had results from rape or incest or when § 115.83(d) should be revised to include concerns about the medical and mental continuing the pregnancy will endanger a broader definition of penetration. health care being age appropriate for all the life of the woman. The commenter Paragraph (d) applies to a limited set of detainees, specifically citing children recommended that DHS include those circumstances in which a female victim and adolescents. The commenter provisions in paragraph (d) to build becomes pregnant after sexual abuse. suggested adding the phrase ‘‘age upon best practices and have consistent Some sort of penetration pursuant to the appropriate’’ when referring to the regulatory and sub-regulatory guidance. definition in § 115.6 must occur in order medical and mental health evaluations Response. DHS agrees that women for the victim to become pregnant. The and treatments discussed in paragraph who become pregnant after being phrase ‘‘vaginal penetration’’ provides a (a). sexually abused in detention must clear guideline to the agency or facility Response. DHS recognizes the receive comprehensive information about when it is appropriate to importance of detainees received ‘‘age about and meaningful access to all administer pregnancy tests. appropriate’’ care. However, because lawful pregnancy-related medical Comment. Commenters suggested that medical personnel are expected and services at no financial cost. The final DHS remove the phrase ‘‘by a male obligated to provide age appropriate standard includes language that requires abuser’’ because detainees could also be care as a duty under the medical victims to receive timely and abused by females. The commenters standard of care, adding this language comprehensive information about all expressed concern that if the language is would be superfluous. lawful pregnancy-related medical retained, the victims of female abusers Comment. A commenter expressed services, and that access to pregnancy- will not receive critical health care concern about victims of various forms related medical services must be timely. services. of sexual abuse, which includes oral, Also, facilities are required to provide Response. DHS declines to make the anal, and vaginal abuse, receiving access information about and access to ‘‘all suggested revision, because the phrase to ongoing medical and mental health lawful’’ pregnancy-related medical ‘‘by a male abuser’’ in § 115.83(d) relates care services due to the misinformation services. These requirements include by to the possibility of pregnancy, and in

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no way mitigates a female victim’s right Sexual Abuse Incident Reviews information in the context of making a to care if the abuser is female. The (§§ 115.86, 115.186) report or otherwise, DHS believes it might be inappropriate to require staff to remaining provisions in § 115.83 apply Summary of Proposed Rule to all incidents of detainee sexual abuse question the detainee about his or her and are not limited by gender. The standards in the proposed rule set sexual orientation and gender identity forth requirements for sexual abuse for these purposes. DHS believes that Comment. A commenter suggested incident reviews, including when this could constitute a breach of that full confidential rape counseling or reviews should take place and who detainees’ privacy, especially detainees mental health care be provided to a should participate. The standards also who prefer to not share this information sexual abuse victim. Another required the facility to forward all openly. commenter suggested that the language reports and responses to the agency PSA DHS agrees, however, that LGBTIGNC be improved to include unmonitored Coordinator. The proposed rule further status can contribute to vulnerability. telephone calls from detainee victims to required an annual review of all sexual DHS is therefore revising the Subpart A non-governmental organizations or rape abuse investigations, in order to assess standard to require facilities to take into crisis organizations as opposed to the and improve sexual abuse intervention, account whether the incident or OIG or other offices affiliated with ICE prevention, and response efforts. allegation was motivated by race, or DHS. This commenter also stated that ethnicity, gender identity, or lesbian, Changes in Final Rule detainees do not always have phone gay, bisexual, transgender, or intersex access to call the JIC because some Section 115.86(a) now includes a identification status (or perceived facilities may have the number blocked requirement that facilities must status); or gang affiliation; or was on their telephone system. conclude incident reviews within 30 motivated or otherwise caused by other Response. While DHS appreciates the days of the completion of the group dynamics at the facility. In commenters’ concern about the benefits investigation. Section 115.186(a) now practice, this requires the facility to of confidential rape counseling, mental includes a requirement that the agency affirmatively consider the possibility health care, and unmonitored phone review shall ordinarily occur within 30 that these factors motivated the incident days of the agency receiving the calls to lodge complaints or seek help, or allegation, and to record this investigation results from the DHS believes that provisions relating to information if known. It does not, investigative authority. The slightly however, require facilities to access to outside confidential support different formulation for Subpart B affirmatively inquire as to the victim’s services set forth in § 115.53 are reflects the fact that frequently the sexual orientation and gender identity. adequate to address these concerns. agency that oversees a holding facility is DHS also is adding a requirement to Comment. Multiple commenters not the investigative authority. §§ 115.87(d)(2) and 115.187(b)(2) that suggested that DHS clarify the Section 115.86(b) now requires the agency PSA Coordinator must regulations to include treatment for facility incident review teams to (1) aggregate information regarding whether sexually transmitted infections, consider whether the incident or the victim or perpetrator has self- including HIV-related post-exposure allegation was motivated by race, identified as gay, lesbian, bisexual, prophylaxis for victims of sexual abuse. ethnicity, gender identity, or lesbian, transgender, intersex, or gender Commenters observed that paragraph (e) gay, bisexual, transgender, or intersex nonconforming. calls for access to testing, but not identification status (or perceived Comment. Multiple commenters treatment. Commenters expressed status); and (2) consider whether the suggested matching DHS’s proposed concern that without treatment, sexually incident or allegation was motivated by §§ 115.86 and 115.186 to DOJ’s transmitted infections can lead to more gang affiliation or other group corresponding sections in their PREA serious and possibly permanent affiliation. rule. The relevant provisions of DOJ’s complications. They suggested that the Section 115.86(c) now requires rule include the following: regulation state explicitly that victims facility incident review teams to prepare 1. The review must be concluded will receive ongoing regular treatment. a report of their findings and any within 30 days of the conclusion of the recommendations for improvement and investigation. Response. DHS recognizes the submit such report to the facility 2. The review team must include importance of providing testing for administrator, the FOD or his or her upper-level management officials, with sexually transmitted infections, and designee, and the agency PSA input from line supervisors, included paragraph (e) in the proposed Coordinator. If no allegations were made investigators, and medical or mental rule which requires facilities to offer at a facility during the annual reporting health practitioners. such tests, as medically appropriate to period, a negative report is required. 3. The review team must consider victims of sexual abuse while detained. whether the incident or allegation was DHS clarifies that paragraph (a) requires Comments and Responses motivated by race; ethnicity; gender that all detainees who have been Comment. One comment suggested identity; lesbian, gay, bisexual, victimized by sexual abuse have access that DHS track whether the victims are transgender, or intersex identification, to treatment. Paragraph (b) requires that LGBTIGNC. A commenter suggested status, or perceived status; or gang the evaluation and treatment include, as that this would be a way to track affiliation; or was motivated or appropriate, follow-up services, whether the regulations are effective. otherwise caused by other group treatment plans, and, when necessary, Response. DHS does not fully concur dynamics at the facility. referrals for continued care following with the commenter’s suggestion to 4. The review team must examine the their transfer to or placement in another track LGBTIGNC status in the incident area in the facility where the incident facility or release from custody. DHS review context. Many detainees choose allegedly occurred to assess whether trusts that medical practitioners to not disclose to staff or others in the physical barriers in the area may enable administering such tests will adhere to detention setting that they identify as abuse. professionally accepted standards for lesbian, gay, bisexual, transgender, or 5. The review team must assess the pre- and post-test counseling and intersex. In the event that a detainee adequacy of staffing levels in that area treatment. does not affirmatively disclose this during different shifts.

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6. The review team must assess there has been no report of sexual abuse contact to aggregate relevant data whether monitoring technology should or assault then the report should reflect pursuant to this regulation. be deployed or augmented to that information. Another commenter Comments and Responses supplement supervision by staff. suggested that each facility’s annual 7. The review team must submit its reviews be available to the public on Comment. One commenter suggested report to both the facility head and the their Web site as well as the agency’s that the data collected be kept in a agency PREA compliance manager. Web site. secure area to which unauthorized The commenters stated that the Response. DHS agrees with the individuals would not have access. Response. DHS concurs with this additional language would better protect suggestion to require that facilities that concern and accepts the change detainees and encourage the overall goal do not have any sexual abuse or assault suggested by the commenter. of eliminating sexual abuse in facilities allegations in the reporting period still be required to submit a negative report. Comment. One commenter suggested by helping facilities identify and fill that paragraph (a) take effect gaps in current policies and procedures. Facilities are required to provide results and findings of the annual review to the immediately and require all facilities to Response. DHS has considered each begin acquiring and maintaining the of these recommendations carefully, and agency PSA coordinator. The PSA coordinator will use these reviews to necessary data. has revised its proposal to incorporate Response. Currently facilities report provisions implementing items 1 and 3, develop the agency’s annual report, which will be made available to the all allegations through the agency Field as noted above. DHS understands the Office, which is responsible for issuing importance of reviewing reported public through the agency’s Web site. DHS does not believe, however, it is a Significant Incident Report. The PSA incidents to better protect detainees and Coordinator has access to all Significant help facilities identify and fill gaps in appropriate or necessary to mandate individual facilities post the annual Incident Reports as well as the current policies and procedures. To electronic investigative case files of achieve this, §§ 115.87 and 115.187 review on their Web site, as the reviews can be accessed more easily through the ICE’s OPR. Therefore, it is not necessary require the collection of all case records to make the provision applicable associated with claims of sexual abuse, single portal of the agency Web site. Comment. A commenter suggested immediately as a process is already in including incident reports. The data place. In any case, DHS does not concur collected is required to be shared with that DHS require all immigration detention facilities to comply with this with the suggestion to add a different the PSA Compliance Manager and DHS implementation timeline for data entities, including ICE leadership and, standard immediately. Response. DHS does not concur with collection than the rest of the standards. upon request, CRCL. Comment. A few commenters the suggestion to add a different Under § 115.88, after this data is suggested that data be collected, implementation timeline for incident reviewed by agency leadership, the analyzed, and maintained for all reviews than the rest of the standards. agency will issue a report that will facilities, including contract facilities. identify problem areas and patterns to Data Collection (§§ 115.87, 115.187) Response. The standard applies to all be improved upon, potentially facilities, including contract facilities. Summary of Proposed Rule including items 4–6 in the list above. In Therefore the requirements in these short, DHS believes that the final The standards contained in the sections regarding data collection also regulation sufficiently accounts for the proposed rule required the facility (in apply to all facilities. considerations raised by the Subpart A) or agency (in Subpart B) to commenters. maintain case records associated with Data Review for Corrective Action Comment. One commenter suggested claims of sexual abuse. The standards (§§ 115.88, 118.188) that DHS require that the PSA required the agency to aggregate the Summary of Proposed Rule Compliance Manager be an upper-level incident-based data at least annually. The standards contained in the facility official. The standards further mandated that proposed rule described how the Response. DHS rejects the suggestion upon request the agency would be collected data would be analyzed and to require that the PSA Compliance required to provide all such data from reported. The standards mandated that Manager be an upper-level facility the previous calendar year to CRCL. agencies use the data to identify official, as facilities should have some problem areas, take ongoing corrective discretion about whom they choose for Changes in Final Rule action, and prepare an annual report for this role. Smaller facilities may not Sections 115.87(a) and 115.187(a) each facility as well as the agency as a always have an upper-level official now include a requirement that whole, including a comparison with available to fulfill the role of PSA facilities keep data collected on sexual data from previous years. The standards Compliance Manager. abuse and assault incidents in a secure mandated that this report be made Comment. Commenters suggested that location. Sections 115.87(d)(2) and public through the agency’s Web site or DHS require that all incident reviews be 115.187(b)(2) have been revised to also other means to help promote agency conducted by a team of upper-level require the PSA Coordinator to accountability. management officials. aggregate information about whether the Response. DHS does not concur with victim or perpetrator has self-identified Changes in Final Rule the suggestion to require that all as LGBTIGNC. The requirement under DHS is adopting the regulation as incident reviews be conducted by a Subpart B for the agency to provide all proposed. team of upper-level officials as smaller data collected under § 115.187 to the facilities may not have the staffing PSA Coordinator was removed in order Comments and Responses resources and may elect to have an to ensure that the requirements in both Comment. An advocacy group individual, the PSA Compliance subparts were consistent. Such a suggested that data be reviewed from all Manager, conduct the review. requirement is not necessary and was facilities in which immigration Comment. One commenter suggested not originally included under Subpart A detainees are confined. that a paragraph be added stating that if because the PSA Coordinator has been Response. The standard, including a facility’s annual review finds that designated as the agency point of data review, applies to all facilities.

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Comment. An advocacy group be made available to the public through including facilities run by non-DHS suggested that the reports that are the agency’s Web site. private or public entities, and that they published on the public Web site be Comment. One commenter suggested all be audited on the same timeframe. updated at least annually. replacing the Subpart B provision with One advocacy group suggested adding Response. Annual reports will materially identical language, except clarifying language that describes include assessments and information that the commenter removed part of an auditing of ‘‘each facility operated by about progress and corrective actions internal cross-reference. the agency, or by a private organization from prior years. Response. DHS declines to on behalf of the agency.’’ It was also incorporate this revision, in the interest recommended that the standards clarify Data Storage, Publication, and of ensuring clarity and consistency the point at which the audit Destruction (§§ 115.89, 115.189) purposes with the parallel provision in requirement is triggered based upon the Summary of Proposed Rule Subpart A. standards, particularly with regard to contract facilities. Former NPREC The standards in the proposed rule Audits of Standards (§§ 115.93, Commissioners also recommended the described how to store, publish, and 115.193) standards clarify that it is prohibited to retain data collected pursuant to Summary of Proposed Rule hold detainees in any custodial setting §§ 115.87 and 115.187. The standard where external audits are not required that the agency make the The proposed rule mandated that applicable. aggregated data publicly available at audits under these sections shall be Response. Under the standards as least annually on its Web site and shall conducted pursuant to §§ 115.201 proposed and in final form, DHS must remove all personal identifiers. through 115.205 of Subpart C. In ensure that each covered immigration Subpart A, the standard required audits Changes in Final Rule detention facility and holding facility, of each immigration detention facility at as defined in §§ 115.5, 115.12, and The final rule adds a requirement in least once every three years. The 115.112, undergoes an audit. DHS has both subparts that the agency maintain proposed rule allowed for expedited revised § 115.93(a) as indicated above sexual abuse data collected pursuant to audits if the agency has reason to for clarity. the above-described standard on data believe that a particular facility is Regarding the timeframe for collection (§§ 115.87 and 115.187) for at experiencing problems related to sexual implementation of audits, both subparts least 10 years after the date of the initial abuse. The Subpart B standard required, include a clear standard that for covered collection unless Federal, State, or local within three years, an initial round of facilities established prior to July 6, law requires otherwise. audits of each holding facility that 2015, ICE and CBP coordinate audits Comments and Responses houses detainees overnight. Following within the timeframe specified. the initial audit, the Subpart B standard Additionally, under § 115.193, CBP will Comment. Multiple commenters required follow-up audits every five ensure holding facilities that hold suggested that data be securely retained years for low-risk facilities and every detainees overnight and established under agency record retention policies three years for facilities not identified as after July 6, 2015 are audited within and procedures, including a low risk. All audits were required to be three years. requirement to retain the collected data coordinated by the agency with CRCL. DHS clarifies that in the immigration for a minimum period of time, detention facility context, a facility will Changes in Final Rule preferably 10 years as contained in the not be audited until it has adopted the DOJ standard. Section 115.93 previously required PREA standards. However, DHS notes Response. DHS has considered this the agency to ensure that ‘‘each of its that immigration detention facilities are comment and concurs that data immigration detention facilities’’ is subject to regular inspections under collected must be retained for an audited at least once during the initial current contracts and detention adequate length of time. Given the three-year period. Due to confusion standards regardless of whether they are interests involved and the possibility for expressed by some commenters, DHS considered a covered facility pursuant legal action based on an incident, a now requires the agency to ensure that to this regulation or whether they have longer period—such as 10 years—would ‘‘each immigration detention facility’’ is adopted the PREA standards. DHS, more appropriately account for such audited at least once during the initial through ICE, is committed to interests. DHS agrees with the three-year period. In the interest of endeavoring to ensure that SPCs, CDFs, commenters, and the final rule adds a clarity, DHS modified § 115.93(b) to and dedicated IGSAs adopt the paragraph requiring the agency to allow the agency to ‘‘require’’ rather standards set forth in this final rule maintain the collected data for a than ‘‘request’’ an expedited audit and within 18 months of the effective date. minimum of 10 years after the date of allows the agency to provide resource Additionally, DHS, through ICE, will initial collection, unless otherwise referrals to facilities to assist with make serious efforts to initiate the prohibited by law. PREA-related issues. DHS also revised renegotiation process so the remaining Comment. A commenter suggested §§ 115.93 and 115.193 to allow CRCL to covered facilities adopt the standards that data from state and local public request expedited audits if it has reason and become subject to auditing as facilities in which immigration to believe that such an audit is quickly as operational and budgetary detainees are confined should also be appropriate. constraints will allow. As noted made publicly available. previously, ICE can remove detainees Comments and Responses Response. The data retention from facilities that do not uphold requirement applies to all data collected Comment. Some commenters, adopted sexual abuse and assault by facilities covered by the standards or including advocacy groups, expressed practices. by the agency. All facilities are required concern regarding whether contract Comment. Commenters suggested that to provide sexual abuse and assault data facilities would be subject to auditing. a paragraph be added to the Subpart A to the agency PSA coordinator. The PSA Commenters advised clarifying that standard requiring CRCL to create a coordinator will use this data to develop audit standards in their entirety would process by which a member of the the agency’s annual report, which will be a requirement for all facilities, public is able to recommend an

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expedited audit of any facility if he or Response. ICE has 149 holding Commissioners. Upon consideration, she believes that the facility may be facilities and CBP has 768 holding however, DHS has determined that experiencing sexual abuse problems. facilities, for a total of 917 holding rather than leading to the conclusion The collection of groups also facilities. In considering the appropriate that all facilities must be audited every recommended allowing the agency to audit cycle for holding facilities, DHS three years, these factors lead to the order such an expedited audit of a DHS- took into account the extremely high conclusion that DHS ought to run facility and to request the expedited number of facilities, as well as the implement robust standards across the audit of a contract facility for such unique elements of holding facilities board. problems. These groups believe that this and the variances between holding Upon consideration, DHS believes its modification to the section is necessary facilities. For example, some holding audit program is comprehensive, robust, for clarification purposes. facilities are used for detention on a and cost-efficient. DHS therefore Response. DHS has considered these handful of occasions per year, or less, maintains this program in the final rule. comments, but does not believe that any and some holding facilities are in public benefit of standing up such a formal view (for example, in the airport Additional Provisions in Agency process justifies the potential resource context). Requiring more frequent audits Policies (§ 115.95, 115.195) and logistical difficulties involved, in those situations is neither Summary of Proposed Rule especially given the many ways in operationally practical nor the most The standards in the proposed rule which the public can already raise such efficient use of resources. issues with DHS. Members of the public With this in mind, DHS proposed that provided that the regulations in both always have the ability to reach out to all holding facilities that house Subparts A and B establish minimum CRCL regarding any matter of interest or detainees overnight would be audited requirements for agencies and facilities. potentially problematic aspect with within three years of the final rule’s Additional requirements from the regard to DHS’s programs and mission, effective date. Thereafter, holding agencies and facilities may be included. through CRCL’s complaint form or facilities would be placed into two Changes in Final Rule simply in writing. Additionally, as categories: (1) Facilities that an DHS is adopting the regulation as noted previously regarding immigration independent auditor has designated as proposed. detention facilities, detainees low risk, based on its physical themselves are able to report sexual characteristics and passing its most Comments and Responses abuse or assault problems in several recent audit; and (2) facilities that an DHS did not receive any public ways, including by calling the JIC or the independent auditor has not designated comments on this provision during the point of contact listed on the sexual as low risk. Facilities that are not public comment period. abuse and assault posters. Detainees or determined to be low risk will adhere to members of the public may also call the the three year audit cycle recommended Scope of Audits (§ 115.201) JIC and the OIG or report incidents to by commenters. Facilities that are Summary of Proposed Rule CRCL. The Detainee Handbook and determined to be low risk will follow a posters provide contact information to five year audit cycle. The standard contained in the detainees and also note that detainee In making its proposal and proposed rule mandated the reports are confidential. considering the comments received, coordination with CRCL on the conduct Regarding agency ability to request DHS carefully considered the and contents of the audit as well as how audits, § 115.93(b) was revised in order appropriate allocation of resources to the audits are to be conducted. to clarify that the agency can require an ensure an appropriate audit strategy that Changes in Final Rule expedited audit if the agency has reason allocates the greatest portion of limited to believe that a particular facility may resources to areas that are potentially DHS is adopting the regulation as be experiencing problems relating to higher risk. DHS also took into account proposed. sexual abuse. Section 115.193 instructs the variety of holding facilities. For Comments and Responses the agency to prioritize audits based on example, not all holding facilities are whether a facility has previously failed consistently used; some may be used to Comment. A commenter suggested to meet the standards. house detainees overnight only a that an audit committee make Comment. Some commenters handful of times per year, and some appropriate recommendations to suggested that holding facilities have an may generally be used to house only one Congress, which the commenter audit cycle of three years as opposed to detainee at a time. believed would ensure PREA its proposed audit cycle of five years. With respect to the concerns raised by compliance. Commenters wrote that five years is an the former Commissioners of NPREC, Response. DHS has considered this inadequate period of time as compared DHS agrees that size, physical structure, comment but believes sufficient to the DOJ standards. The former and past audit history should not protections are in place under the NPREC Commissioners wrote that in all eliminate the need for oversight of a auditing standards and other standards of its research on the issue of prison facility or agency. Accordingly, DHS is to reasonably ensure sexual abuse rape, NPREC did not find that that size, requiring regular, independent, rigorous prevention is maximized. physical structure or passing an audit oversight of all immigration detention Recommendations from audits are best eliminated the need for oversight of a facilities and immigration holding addressed by the agency and the facility facility or agency. NPREC wrote that facilities, regardless of each facility’s in coordination. Furthermore, because many facilities that were classified as size, physical structure, and past audit DHS is accountable to Congress and the having ‘‘low’’ incidents of sexual abuse history. DHS also agrees with the former public, the agency will provide by the data collected by BJS were often Commissioners that facilities with information about audits as required by facilities where there were leadership apparently ‘‘low’’ incidence of sexual Congressional and/or FOIA requests, as and culture issues, lack of reporting, abuse still require careful scrutiny, not well as pursuant to the proactive lack of access to medical and mental least because of the possibility of under- disclosure requirement of 115.203(f). health, and notoriously poor reporting, poor investigative structures, Comment. A commenter investigative structures. and other factors cited by the former recommended that facility audit

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mechanisms currently in place reasons previously enumerated. ICE’s Audit Corrective Action Plan incorporate questions and checklists transfer policy is designed to limit (§ 115.204) relating to compliance with the PREA transfers for all aliens and provides Summary of Proposed Rule standards. Some examples of current adequate protection for aliens who have mechanisms that the commenter sexual abuse complaints or grievances. The standard contained in the provided were detention service Providing regulatory authority for proposed rule required that when a facility ‘‘Does Not Meet Standard’’ after monitors, external facility audits, and outside auditors lacking direct an audit, a 180-day corrective action CRCL investigations. accountability to the ICE policy in place Response. Due to implementation of plan is to be developed and to protect detainees would not be implemented. these PREA standards, external auditing appropriate. All auditors will have the will be required for all covered ability, however, to make such Changes in Final Rule confinement settings, to be carried out recommendations to the FOD or his or in the manner in which the auditing The final rule revises paragraph (b)’s her designee. requirements are most effectively and description of the roles of the various functionally implemented. DHS Comment. A commenter suggested entities regarding development of the declines to prescribe in regulations a that the auditor’s standards and contact corrective action plan in order to more specific form or process for this information be provided to every clearly delineate responsibilities and to independent oversight. detainee and for the detainee to have the ensure the independence of the auditor Comment. A commenter suggested ability to confidentially contact the is not compromised. that ICE and contract employee auditor for free. Comments and Responses ‘‘whistleblowers’’ should be protected, Response. DHS agrees that detainees Comment. An advocacy group encouraged, and should have direct must have access to multiple ways to suggested the removal of the phrase ‘‘if access to auditors. report abuse. This regulation includes practicable’’ written in paragraph (b). Response. DHS agrees that reporting multiple standards that ensure such This change would require that in all any information concerning a sexual access. In this case, however, DHS has cases the auditor, agency, and the abuse or assault incident occurring in a determined that it is more appropriate facility jointly develop a corrective detention or holding facility is vital in to provide an auditor with discretion to action plan to achieve compliance. the fight against sexual abuse and Response. DHS has considered the assault in DHS confinement facilities. conduct each investigation as it best sees fit, within the bounds of the PREA comment and agrees with the concerns This reporting includes whistleblowing expressed. By removing the notion that on any corruption or wrongdoing in an standards and consistent with other DHS policies. Additionally, paragraphs the facility need not be involved in agency or facility setting. DHS believes development of the corrective action (i) and (j) of § 115.201 should provide that this concern is addressed through plan if impracticable, DHS clarifies in reasonably sufficient avenues for the ICE Sexual Assault training and by the final rule that the agency and the detainee-auditor interaction by, the publication of this regulation in that facility must develop the plan jointly. both of these mechanisms will respectively, requiring the agency and Additionally, DHS has determined that encourage whistleblowing by anyone facilities to allow the auditor to conduct including the auditor as a party with sexual abuse or assault incident private interviews with detainees, and responsible for jointly developing the information. allowing detainees to send confidential plan with the agency and the facility is information or correspondence to the Auditor Qualifications (§ 115.202) not appropriate. Because of the auditor’s auditor. unique role as an outside, independent Summary of Proposed Rule Audit Contents and Findings (§ 115.203) analyst, and because the auditor may The standard in the proposed rule have further involvement in ensuring required an auditor to attain specific Summary of Proposed Rule the agency and facility meets the qualifications before being eligible for standards in the future, removing the The standard contained in the employment by the agency to perform auditor from development of the proposed rule mandated specific the required audits. corrective action plan ensures that the information that the auditor is required auditor’s independent judgment is not Changes in Final Rule to include in its report to DHS. compromised at any point. Under the DHS revised the auditor certification Changes in Final Rule final rule, the agency and the facility (if provision in paragraph (b), to make the facility is not operated by the explicit agencies’ responsibility to DHS is adopting the regulation as agency) will develop the plan. The certify auditors in coordination with proposed. auditor can then effectively and DHS. Otherwise, DHS is adopting the independently make the determination regulation as proposed. Comments and Responses as to whether the agency and facility have achieved compliance after the plan Comments and Responses Comment. A commenter suggested that the facility bear the burden of is implemented. Comment. A commenter demonstrating compliance with the Comment. Several commenters recommended that the auditor be given suggested stating specific criteria that a PREA standards. It was recommended authority to transfer an alleged facility must meet following a finding of that this requirement be added to victimized detainee during the ‘‘Does Not Meet Standard.’’ One group paragraph (b). investigation process. suggested creating a remediation plan Response. The ICE policy on Detainee Response. Under the regulation, for these facilities and another advocacy Transfers, referred to previously as covered facilities bear the burden of group suggested providing a specified governing the transfer of all aliens in compliance with all relevant provisions period of time (suggested 180 days) for ICE custody, discourages transfers of the regulations; the audit will be facilities to meet the requirements in the unless a FOD or his or her designee directed to determining the facility’s plan. One commenter suggested a deems the transfer necessary for the success or failure in that regard. similar 6-month probationary period. If

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after this given period of time the Question 1: Would external audits of Question 2: Once a holding facility is facility does not meet the requirements immigration detention facilities and/or designated as low risk, would it be a given in the remediation plan, the holding facilities conducted through more cost effective yet still sufficient facility would be terminated for an random sampling be sufficient to assess approach to furthering compliance with extended period of time (one the scope of compliance with the the standards to externally audit a commenter suggested three years) from standards of the proposed rule? random selection of such facilities housing any DHS detainees. One instead of re-auditing each such facility commenter suggested that this Commenters were nearly unanimous once every five years? termination clause should also be listed that auditing through random sampling DHS received conflicting comments in the agency/facility contract. An would not be sufficient. A collective in response to this question. A advocacy group generally suggested that comment of advocacy groups stated that collection of various advocacy groups DHS adopt a standard to prevent the random sampling requires some responded negatively to the idea of housing of detainees in facilities that do consistency among facilities in the auditing a random selection of low-risk not comply with the majority of the broader sample; because of the variety holding facilities instead of re-auditing PREA standards and that fail to of facilities at issue, sampling could not each periodically. The groups, rejecting successfully implement a corrective be conducted accurately. Commenters any use of random sampling, stated that action plan for those standards. also pointed out that the degree of any designation of a facility as low risk Response. The standards in the final discretion vested in individual facility would be a mistake that does not rule and other DHS policies have been heads, the differences among the account for the scope of the culture of developed to ensure that populations being held, and the change necessary to end the crisis of noncompliance is not tolerated. Even differences in physical layout make use sexual abuse in confinement facilities. prior to establishing these standards, of random sampling insufficient for Response. DHS agrees with the ICE could withhold paying a contract measuring compliance across facilities. commenters that audits of immigration facility’s invoice or could remove detention facilities and holding facilities Former NPREC Commissioners stated detainees from a noncomplying facility. should not be conducted through that no rational basis for random Facility contracts have already included random sampling. Audits selected by and will continue to include the option sampling existed, as the only way to random sampling would not sufficiently to terminate or discontinue holding ensure detainees’ safety from abuse is assess the scope of compliance with detainees if the facility does not meet regular audits of all facilities without PREA standards. Therefore, the agency standards after periods of remediation. exception, citing DOJ final rule findings maintains the final rule language in With respect to the specific proposals in support of a triennial cycle. §§ 115.93 and 115.193 setting forth the at issue, DHS has concerns that the One human rights advocacy group definitive audit schedule for suggested 180-day period of time to found audits for cause acceptable, but immigration detention facilities and meet the requirements of a corrective only if in addition to regular, periodic holding facilities. action plan and similar 6-month audits, with auditing every three years probationary period may not be Question 3: Would the potential being sufficient. The group stated that sufficiently long for many corrective benefits associated with requiring actions, including, for example, actions random audits or audits only for cause external audits outweigh the potential that require construction or other would not meet objectives such as costs? providing oversight, transparency, physical renovation. Corrective action A commenter agreed that the benefits accountability, and feedback in every plans themselves are intended to create would outweigh the costs, stating that a facility. The group agreed with requiring a process that will lead to full realistic, cost-effective monitoring compliance. Therefore, DHS does not every agency to have a full audit within system is critical to the standards’ believe it is necessary to make changes the first three years after PREA’s overall effectiveness and impact. to this standard. implementation, and if a facility Commenters suggested that the external receives an extremely high audit score, Audit Appeals (§ 115.205) scrutiny, oversight, transparency, such as 90%, then the standard could accountability, and credible assessment Summary of Proposed Rule allow a subsequent audit three years of safety that a qualified independent The standard contained in the later to be a more streamlined version. entity would bring are vitally important proposed rule allowed facilities to The group expressed concerns with for confinement facilities, could identify appeal the findings from an audit. audits based on cause only, because it systemic problems and could offer was unclear who would determine solutions. Commenters believed that Changes in Final Rule whether cause existed and when and on thorough audits will help prevent abuse, DHS is adopting the regulation as what basis that decision would be made. improve facility safety, lead to more proposed. Response. DHS agrees with the effective management, and, ultimately, lower fiscal and human costs to the Comments and Responses commenters that external audits of immigration detention facilities and community. The groups also noted that it seemed DHS did not receive any public holding facilities should not be DHS cost projections did not account for comments on this provision during the conducted through random sampling. public comment period. contract facilities already auditing Audits selected by random sampling under DOJ PREA standards, but that— Additional Comments and Responses would not sufficiently assess the scope as a cost-related measure—the two The proposed rule posed several of compliance with PREA standards. audits could be conducted questions specifically regarding audits. Therefore, the agency maintains the simultaneously if the auditor were The following contains a summary of final rule language in §§ 115.93 and properly trained in differences between comments received regarding the 115.193 setting forth the definitive audit the standards and wrote separate, but questions addressing these standards schedule for immigration detention related, reports for each set of standards. and the DHS response. facilities and holding facilities. The group suggested that DHS consider

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offering an abbreviated auditor training less-frequent basis; the data from the consist of members of non-governmental and certification process for auditors two cycles could also allow advocates to organizations, attorneys, community already certified by DOJ, focusing on the have concrete data to comment on such members, media, and former detainees. differences between the two sets of a revised plan. Another organization stated that standards, the principles of civil Response. DHS appreciates the auditors should simply not be confinement, and the unique features of constructive comments provided by employees of DHS or the detention DHS detainees. advocacy groups regarding the audit center, seemingly meaning the facility Response. After reviewing the process. DHS is not substantively being audited; yet another set of groups comments regarding Question 3, DHS revising the audit provision in the final stated that prior corrections or detention decided to maintain the audit rule because the agency believes that the official experience alone would not provisions set forth in Subpart C despite final rule provides an effective and suffice. Another commenter suggested the fact that external auditing does incur efficient framework for external audits. that auditing requires a well-founded financial costs to the agency. DHS In response to the specific comments, individual or team with prior expertise agrees that external audits will be a DHS notes that unannounced audits and/or training in both sexual violence valuable tool in assessing the standards’ would be overly burdensome for the dynamics and detention environments, overall effectiveness and impact as well facility and for agency personnel. with state certification in rape crisis as help to prevent abuse, improve Section 115.204 requires facilities with counseling being a strongly-preferred facility safety, and lead to more effective a finding of ‘‘Does Not Meet Standards’’ qualification. Commenters wrote that detention and custody management. with one or more standards have 180 requirements must include While DHS appreciates that some days to develop a corrective action plan. demonstrable skills in gathering commenters acknowledged that external After the 180-day corrective action information from traumatized audits are required by both DOJ and period, the auditor will issue a final individuals and ability to ascertain DHS and that the agencies could be seen determination as to whether the facility clues of possible concerns that detainees as conducting and financing redundant has achieved compliance. The agency and others may not feel comfortable external audits, DHS believes that the will use this assessment to determine sharing. unique detention missions of each what steps are necessary to bring the Response. The agency in conjunction agency warrant a separate audit process. facility into compliance or to determine with CRCL is required by this rule to If in the future DHS finds that an that the facility is not safe for detainees develop and issue guidance on the expedited certification process is and therefore, whether detainees must conduct of and contents of the audit. preferable, DHS can implement such a be transferred to other facilities. This The agency must also certify all auditors process under § 115.202(b). process is an effective safeguard and and develop and issue procedures therefore, an automatic 18-month Question 4: Is there a better approach regarding the certification process, follow-up audit is not necessary. DHS to external audits other than the which must include training does not mandate the exact composition approaches discussed in the proposed requirements. of the audit team, but rather requires rule? Finally, DHS received a number of that the audit be conducted by entities generalized comments relevant to the A commenter stated affirmatively that or individuals outside of the agency that rulemaking but which did not a better approach may exist, have relevant audit experience. specifically fall within any particular acknowledging it may include Paragraph (g) of § 115.201 already standard as embodied in the proposed additional but reasonable costs. The requires that the auditor interview a rule. groups expressed the following various representative sample of detainees and Comment. Numerous comments were changes that they believe would be staff. Finally, the agency does not improvements: (1) Audits could be believe that the agency’s resources supportive of the standards, stating it is conducted on an unannounced basis to would be maximized if CRCL could a good idea to promulgate a rule to ensure they are reviewing typical automatically trigger expedited audits. prevent such assault and abuse. conditions; (2) facilities which have CRCL already has the authority to Response. DHS agrees that this rule is been required to take corrective action conduct reviews related to civil rights an important tool for the agency to after an initial audit could be required and civil liberties issues at any facility prevent, detect, and respond to sexual to undergo a follow-up audit 18 months that houses detainees. However, DHS abuse and assault in confinement later to assess improvement; (3) auditors acknowledges that CRCL will play an facilities. could be required to work in teams that important role in developing audit Comment. Former Commissioners of include advocates and/or former procedures and guidelines. In light of NPREC suggested that DHS engage BJS detainees to increase this, §§ 115.93 and 115.193 have been to work to collect data on the prevalence comprehensiveness of inspection; (4) revised to allow CRCL to request of sexual abuse in DHS facilities, with such teams could be required to meet expedited audits if it has reason to the results of such surveys being with a certain percentage of current and believe that such an audit is available to the public. The former former detainees and employees, appropriate. Commissioners believed the data to be contractors, and volunteers to accrue necessary both for DHS and for the information; and (5) DHS could require Question 5: In an external auditing public to be able to understand the that all facilities submit to expedited process, what types of entities or scope of abuse and to monitor the audits when requested by CRCL. individuals should qualify as external impact and success of the standards. The collection of groups expressed auditors? Response. DHS has considered the that they believed DHS could amend its Some commenters described specific suggested approach in this comment; PREA auditing standards at a later date types of individuals who would or however, given the current budgetary if, for example, after two complete would not qualify as external auditors, environment, DHS does not have the three-year audit cycles under the while one set of advocates described resources to expend personnel and/or groups’ suggested standard, DHS could typical characteristics contributing to a funds to develop and execute a separate then better determine which facilities quality auditor. One commenter stated additional survey and accompanying could appropriately be audited on a that such external auditors should interagency agreement at this time. DHS

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notes that BJS recently conducted a comments, as the standards are mental and physical suffering. As the survey that included ICE facilities.16 intended to be flexible enough to fit National Prison Rape Elimination In addition, the need for such a many situations. Commission (NPREC) explained in its survey is negated by the fact that DHS 2009 report: V. Regulatory Analysis itself, through ICE, has conducted Until recently . . . the public viewed surveys of the detainee population. The We developed this rule after sexual abuse as an inevitable feature of surveys have focused on conditions of considering numerous statues and confinement. Even as courts and human detention, including the grievance executive orders related to rulemaking. rights standards increasingly confirmed that process, staff retaliation, intake Below we summarize our analyses prisoners have the same fundamental rights education—including regarding how to based on a number of these statues or to safety, dignity, and justice as individuals contact ICE personnel—posting of legal executive orders. living at liberty in the community, vulnerable assistance information, and the Detainee men, women, and children continued to be A. Executive Orders 12866 and 13563 Handbook, with space to add other sexually victimized by other prisoners and Executive Orders 13563 and 12866 corrections staff. Tolerance of sexual abuse of information that the detainee may wish prisoners in the government’s custody is to share. DHS may consider conducting direct agencies to assess the costs and totally incompatible with American values.17 similar surveys in the future for benefits of available regulatory comparison purposes. alternatives and, if regulation is As discussed in the accompanying Several commenters generally necessary, to select regulatory RIA, ICE keeps records of any sexual suggested that various standards should approaches that maximize net benefits abuse allegation made by detainees at include ‘‘critical protections’’ for LGBTI (including potential economic, all facilities in which it holds detainees detainees, in addition to the specific environmental, public health and safety in its Joint Integrity Case Management areas where LGBTI-related comments effects, distributive impacts, and System (JICMS). In estimating the are listed above. Areas where equity). Executive Order 13563 current level of sexual abuse for commenters believed these protections emphasizes the importance of purposes of this analysis, DHS relies on are needed include in §§ 115.15, quantifying both the costs and benefits facility-reported data in ICE’s JICMS 115.115, Limits to cross-gender viewing of reducing costs of harmonizing rules, database. In 2010, ICE had four and searches; § 115.42, Use of and of promoting flexibility. This rule is substantiated sexual abuse allegations in assessment information; § 115.43, a ‘‘significant regulatory action,’’ immigration detention facilities, two in Protective custody; §§ 115.62, 115.162, although not an economically 2011, and one in 2012. There were no (Agency) Protection duties; § 115.53, significant regulatory action, under substantiated allegations by individuals Detainee access to outside confidential § 3(f) of Executive Order 12866. detained in a DHS holding facility.18 In support services; and § 115.78, Accordingly, the Office of Management the RIA, DHS extrapolates the number Disciplinary sanctions for detainees. and Budget (OMB) has reviewed this of substantiated and unsubstantiated Response. As noted elsewhere that the regulation. allegations at immigration detention issue has specifically arisen, DHS facilities based on the premise that there generally provides safety and security 1. Synopsis may be additional detainees who may measures for all populations, including Sexual violence against any victim is have experienced sexual abuse but did all those that may be vulnerable; DHS an assault on human dignity and an not report it. Table 1 below summarizes declines to make specific changes for affront to American values. Many the estimated number of sexual abuse the standards referred to in these victims report persistent, even lifelong allegations at ICE confinement facilities.

TABLE 1—ESTIMATED BENCHMARK LEVEL OF ADULT SEXUAL ABUSE AT ICE CONFINEMENT FACILITIES, BY APPROACH AND TYPE OF ALLEGATION

Lower bound Adjusted Class code Subject approach Primary approach

1: Nonconsensual Acts—High ...... Detainee-on-Detainee ...... 0.0 4.9 9.9 Staff-on Detainee ...... 0.0 3.8 7.7 Unknown ...... 0.0 0.0 0.0

Subtotal ...... 0.0 8.8 17.6

2: Nonconsensual Acts—Low ...... Detainee-on-Detainee ...... 0.0 4.9 9.9 Staff-on-Detainee ...... 1.8 5.7 9.6 Unknown ...... 0.0 0.8 1.6

Subtotal ...... 1.8 10.6 19.5

3: ‘‘Willing’’ Sex with Staff ...... Detainee-on-Detainee ...... 0.0 0.0 0.0 Staff-on-Detainee ...... 0.0 1.0 1.9 Unknown ...... 0.0 0.0 0.0

Subtotal ...... 0.0 1.0 1.9

16 BJS, Sexual Victimization in Prisons and Jails 17 National Prison Rape Elimination Commission 18 This does not include allegations involved in Reported by Inmates, 2011–12: Nat’l Inmate Survey, Report 1 (2009), http://www.ncjrs.gov/pdffiles1/ still-open investigations or allegations outside the 2011–12 (May 2013), http://www.bjs.gov/content/ 226680.pdf. scope of these regulations. pub/pdf/svpjri1112.pdf.

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TABLE 1—ESTIMATED BENCHMARK LEVEL OF ADULT SEXUAL ABUSE AT ICE CONFINEMENT FACILITIES, BY APPROACH AND TYPE OF ALLEGATION—Continued

Lower bound Adjusted Class code Subject approach Primary approach

4: Abusive Sexual Contacts—High ...... Detainee-on-Detainee ...... 2.6 5.5 8.4 Staff-on-Detainee ...... 0.0 0.0 0.0 Unknown ...... 0.0 0.0 0.0

Subtotal ...... 2.6 5.5 8.4

5: Abusive Sexual Contacts—Low ...... Detainee-on-Detainee ...... 2.6 18.2 33.8 Staff-on-Detainee ...... 0.0 0.0 0.0 Unknown ...... 0.0 0.0 0.0

Subtotal ...... 2.6 18.2 33.8

6: Staff Sexual Misconduct Touching Only .... Detainee-on-Detainee ...... 0.0 0.0 0.0 Staff-on-Detainee ...... 0.0 20.2 40.4 Unknown ...... 0.0 0.0 0.0

Subtotal ...... 0.0 20.2 40.4

Sexual Harassment Not Involving Touching .. Detainee-on-Detainee ...... 0.0 5.6 11.3 Staff-on-Detainee ...... 3.5 13.3 23.1 Unknown ...... 0.0 0.0 0.0

Subtotal ...... 3.5 18.9 34.4

Total ...... 10.4 83.2 156.0 Note: Details may not sum to total due to rounding for shown values.

In order to address the allegations of even analysis,’’ by first estimating the society as a whole. As noted by sexual abuse at DHS immigration monetary value of preventing various Congress, sexual abuse increases the detention and holding facilities, the types of sexual abuse (incidents levels of violence within facilities. Both final rule sets minimum requirements involving violence, inappropriate staff and other detainees will benefit for the prevention, detection, and touching, or a range of other behaviors) from a potential reduction in levels of response to sexual abuse. Specifically, and then, using those values, calculating violence and other negative factors. 42 the rule establishes standards for the reduction in the annual number of U.S.C. 15601(14). This will improve the prevention planning; prompt and victims that would need to occur for the safety of the environment for other coordinated response and intervention; benefits of the rule to equal the cost of detainees and workplace for facility training and education of staff, compliance. When all facilities and staff. In addition, long-term trauma from contractors, volunteers and detainees; costs are phased into the rulemaking, sexual abuse in confinement may proper treatment for victims; procedures the break even point would be reached for investigation, discipline and if the standards reduced the annual diminish a victim’s ability to reenter prosecution of perpetrators; data number of incidents of sexual abuse by society resulting in unstable collection and review for corrective 122 from the estimated benchmark employment. Preventing these incidents action; and audits for compliance with levels, which is 147 percent of the total will decrease the cost of health care, the standards. DHS estimates that the number of assumed incidents in ICE spread of disease, and the amount of full cost of compliance with these confinement facilities, including an public assistance benefits required for standards at all covered DHS estimated number of those who may not victims upon reentry into society, confinement facilities will be have reported an incident.19 whether such reentry is in the United approximately $57.4 million over the There are additional benefits of the States or a detainee’s home country. period 2013–2022, discounted at 7 rule that DHS is unable to monetize or Table 2, below, presents a summary of percent, or $8.2 million per year when quantify. Not only will victims benefit the benefits and costs of the final rule. annualized at a 7 percent discount rate. from a potential reduction in sexual The costs are discounted at seven With respect to benefits, DHS abuse in facilities, so too will DHS percent. conducts what is known as a ‘‘break agencies and staff, other detainees, and

TABLE 2—ESTIMATED COSTS AND BENEFITS OF FINAL RULE [$millions]

Immigration Total DHS detention Holding PREA facilities facilities rulemaking

10-Year Cost Annualized at 7% Discount Rate ...... $4.9 $3.3 $8.2

19 As discussed in Chapter 1, and shown in Table of sexual assaults includes all types of sexual 17, of the accompanying RIA, the benchmark level assaults.

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TABLE 2—ESTIMATED COSTS AND BENEFITS OF FINAL RULE—Continued [$millions]

Immigration Total DHS detention Holding PREA facilities facilities rulemaking

% 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.

2. Summary of Affected Population of authorized ICE immigration detention CDFs, 9 dedicated IGSA facilities, and facilities are as follows: 136 non-dedicated IGSA facilities. Sixty This rule covers two types of • Service Processing Center (SPC)— four of the non-dedicated IGSA facilities confinement facilities: (1) Immigration full service immigration facilities owned are covered by the DOJ PREA, not this detention facilities, and (2) holding by the government and staffed by a rule, because they are USMS IGA facilities. Immigration detention combination of Federal and contract facilities. As the USMS IGA facilities are facilities, which are operated or staff; not within the scope of this rulemaking, supervised by ICE, routinely hold • Contract Detention Facility (CDF)— this analysis covers the 94 authorized persons for over 24 hours pending owned by a private company and SPC, CDF, dedicated IGSA, and non- resolution or completion of immigration contracted directly with the dedicated IGSA immigration detention removal or processing. Holding government; and facilities that hold detainees for more facilities, used and maintained by DHS • Intergovernmental Service than 72 hours. components including ICE and CBP, Agreement Facility (IGSA)—facilities at tend to be short-term. The analysis ICE additionally has 91 authorized which detention services are provided immigration detention facilities that are below presents immigration detention to ICE by State or local government(s) contracted to hold detainees for less facilities and holding facilities through agreements with ICE and which than 72 hours.21 All 91 facilities are separately. may fall under public or private non-dedicated IGSA facilities, but 55 of This rule directly regulates the ownership and may be fully dedicated them are covered by the DOJ PREA rule, Federal Government, notably any DHS immigration facilities (housing detained not this rule, because they are USMS agency with immigration detention aliens only) or non-dedicated facilities IGA facilities. Again, ICE excludes the facilities or holding facilities. This rule (housing various detainees). USMS IGA facilities from the scope of also affects private and public entities ICE enters into IGSAs with States and this rulemaking and analysis; the that operate confinement facilities counties across the country to use space analysis covers the 36 authorized non- under contracts or agreements with in jails and prisons for civil immigration dedicated IGSA immigration detention DHS. The sections below describe and detention purposes. Some of these facilities that hold detainees for under quantify, where possible, the number of facilities are governed by IGSAs that 72 hours. Facilities that are labeled by affected immigration detention facilities limit the length of an immigration and holding facilities. detainee’s stay to less than 72 hours. ICE as ‘‘under 72-hour’’ still meet the Some of these facilities have limited bed definition of immigration detention a. Subpart A—Immigration Detention facilities, because they process Facilities space that precludes longer stays by detainees. Others are used primarily detainees for detention intake. Detainees ICE is the only DHS component with under special circumstances such as housed in these facilities are processed immigration detention facilities. ICE housing a detainee temporarily to into the facility just as they would be in holds detainees during proceedings to facilitate detainee transfers or to hold a a long-term detention facility. determine whether they will be detainee for court appearances in a Furthermore, ICE also has two removed from the United States, and different jurisdiction. In some authorized family residential centers. pending their removal, in ICE-owned circumstances the under-72-hour These are IGSA facilities that house facilities or in facilities contracting with facilities house immigration detainees only ICE detainees. One of the facilities ICE. Therefore, though this rule directly only occasionally. accommodates families subject to regulates the Federal Government, it ICE owns or has contracts with mandatory detention and the other is a requires that its standards ultimately approximately 158 authorized dedicated female facility. ICE family apply to some State and local immigration detention facilities that residential centers are subject to the governments as well as private entities hold detainees for more than 72 hours.20 immigration detention facility standards through contracts with DHS. The types The 158 facilities consist of 6 SPCs, 7 proposed in Subpart A. The table below

20 As noted above, facilities ICE used as of spring as the baseline for the cost estimates for this to which facilities were held accountable or 2012, and the sexual abuse and assault standards rulemaking. planned to be held accountable at that time, serve to which facilities were held accountable or 21 As noted above, facilities ICE used as of spring as the baseline for the cost estimates for this planned to be held accountable at that time, serve 2012, and the sexual abuse and assault standards rulemaking.

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summarizes the facilities included in this analysis.

TABLE 1—SUMMARY OF ICE AUTHORIZED IMMIGRATION DETENTION FACILITIES

Under 72 Family Facility Over 72 hours hours residential

Non-Dedicated IGSA ...... 74 36 0 SPC ...... 6 0 0 CDF ...... 7 0 0 Dedicated IGSA ...... 7 0 2

Total Covered by Rule ...... 94 36 2

USMS IGA a ...... 64 55 0

Total Authorized Facilities ...... 158 91 2 a Not within the scope of the rulemaking. USMS confinement facilities are covered by DOJ’s PREA regulations.

b. Subpart B—Holding Facilities Subpart A of this rule. ICE has 149 entered into approximately 14 contracts holding facilities that are covered under with State, local, and/or private entity A holding facility may contain Subpart B of the rule. facilities on a rider to a USMS contract holding cells, cell blocks, or other that provides for a consistent secure locations that are: (1) under the ii. U.S. Customs and Border Protection arrangement with particular facilities to control of the agency and (2) primarily There is a wide range of facilities cover instances in which CBP has used for the confinement of individuals where CBP detains individuals. Some insufficient space to detain individuals. who have recently been detained, or are individuals are detained in secured being transferred to another agency. Because CBP entered into these detention areas, while others are contracts via a rider to a USMS contract, i. U.S. Immigration and Customs detained in open seating areas where the impacts to these facilities have been agents or officers interact with the Enforcement accounted for in the DOJ’s PREA rule detainee. Hold rooms in CBP facilities and to consider them again here would Most ICE holding rooms are in ICE where case processing occurs are used double count any costs and/or benefits field offices and satellite offices. These to search, detain, or interview persons associated with these facilities. As such, rooms are rooms or areas that are who are being processed. CBP operates specifically designed and built for 768 holding facilities at ports of entry these facilities are excluded from this temporarily housing detainees in ICE and Border Patrol stations, checkpoints, analysis. ERO offices. It may also include staging and processing facilities across the 3. Costs of Rule facilities. ICE holding facilities as country. presented in this analysis are exclusive The number of detainees in CBP This rule covers DHS immigration of hold rooms or staging areas at custody fluctuates. Consequently, at detention facilities and holding immigration detention facilities, which times CBP is unable to accommodate its facilities. Table 3 summarizes the are covered by the standards of the short-term detention needs through its number of facilities covered by the immigration detention facility under facilities. Similar to ICE, CBP has rulemaking over 10 years.

TABLE 3—ESTIMATED POPULATION SUMMARY FOR RULE

Immigration Holding facilities detention Year facilities Total ICE CBP ICE

1 ...... 132 149 768 1,049 2 ...... 134 149 768 1,051 3 ...... 136 149 768 1,053 4 ...... 138 149 768 1,055 5 ...... 140 149 768 1,057 6 ...... 142 149 768 1,059 7 ...... 144 149 768 1,061 8 ...... 146 149 768 1,063 9 ...... 148 149 768 1,065 10 ...... 150 149 768 1,067

The cost estimates set forth in this scope of the rulemaking.22 This final rule implements many of the proposed analysis represent the costs of compliance with, and implementation 22 The baseline for these cost estimates is the implementing sexual abuse and assault standards in of, the standards in facilities within the sexual abuse and assault standards to which facilities. As a result, the baseline of the rule from facilities were held accountable or planned to be which the costs and benefits of the rulemaking were held accountable at the time of writing the NPRM. estimated, differ from the current sexual abuse and Since the NPRM, ICE has made great strides in assault standards at some facilities.

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standards in the NPRM. In addition, than a de minimis impact results from estimates that compliance with the DHS made a number of changes to expanding the scope of training standards, in the aggregate, will be provisions set forth in the NPRM based requirements for personnel that have approximately $57.4 million, on public comments. These changes are contact with detainees under § 115.32. discounted at 7 percent, over the period discussed previously in the preamble. This change resulted in an increase in 2013–2022, or $8.2 million per year DHS received no public comments on estimated cost of approximately $16,000 when annualized at a 7 percent discount the estimates in the economic analysis. per year. DHS also fixed a mistake in rate. Table 4 below, presents a 10-year After analyzing the changes made in estimating the year audits would begin summary of the estimated benefits and this final rule, DHS concludes the only for facilities. Thus, this analysis costs of the final rule. cost change from the NPRM with more

TABLE 4—TOTAL COST OF FINAL RULE [$millions]

Immigration detention facilities Holding facilities subpart A subpart B Year Total Under 72 Over 72 hours hours ICE CBP

1 ...... $3.9 $1.2 $0.0 $5.6 $10.7 2 ...... 3.6 1.1 0.0 5.5 10.1 3 ...... 3.6 1.1 0.0 3.6 8.3 4 ...... 3.7 1.1 0.0 2.4 7.1 5 ...... 3.7 1.1 0.0 2.4 7.2 6 ...... 3.7 1.1 0.0 2.3 7.2 7 ...... 3.8 1.1 0.0 2.3 7.2 8 ...... 3.8 1.1 0.0 2.3 7.2 9 ...... 3.8 1.1 0.0 2.3 7.2 10 ...... 3.8 1.2 0.0 2.3 7.2

Total ...... 37.4 11.3 0.0 31.0 79.6

Total (7%) ...... 26.2 7.9 0.0 23.2 57.4

Total (3%) ...... 31.9 9.6 0.0 27.2 68.7

Annualized (7%) ...... 3.7 1.1 0.0 3.3 8.2

Annualized (3%) ...... 3.7 1.1 0.0 3.2 8.0

The total cost, discounted at 7 various types of sexual abuse (from that when all facilities and costs are percent, consists of $34.1 million for incidents involving violence to phased into the rulemaking, the immigration detention facilities under inappropriate touching) and then, using breakeven point will be reached if the Subpart A, and $23.2 million for those values, calculating the reduction standards reduced the annual number of holding facilities under Subpart B. The in the annual number of victims that incidents of sexual abuse by 122 from largest costs for immigration detention would need to occur for the benefits of the estimated benchmark level, which is facilities are for staff training, the rule to equal the cost of compliance. 147 percent of the total number of documentation of cross-gender pat The NPRM estimated the benefits based assumed incidents in ICE confinement downs, duties for the PSA Compliance on sexual abuse data from 2011, the facilities, including those who may not Manager, and audit requirements. DHS most recent full year of data at that time. have reported an incident. estimates zero compliance costs for ICE DHS has included sexual abuse data There are additional benefits of the holding facilities under this rule as the from 2010, 2011, and 2012 in this final rule that DHS is unable to monetize or requirements of ICE’s SAAPID and other analysis. In addition, since the quantify. Not only will victims benefit ICE policies are commensurate with the publication of the NPRM, ICE’s PSA from a potential reduction in sexual requirements of the rule. The largest Coordinator has reviewed the individual abuse in facilities, so too will DHS costs for CBP holding facilities are staff reports and data from these years and agencies and staff, other detainees, and training, audits, and facility design assigned a level of sexual victimization society as a whole. As noted by modifications and monitoring to each based on the levels used in the Congress, sexual abuse increases the 23 technology upgrades. DOJ PREA RIA. This has allowed DHS levels of violence within facilities. Both to provide a more comprehensive 4. Benefits of the Rule staff and other detainees will benefit assessment of sexual abuse in ICE from a potential reduction in levels of DHS has not estimated the anticipated confinement facilities, and the violence and other negative factors. 42 monetized benefits of this rule or how estimated avoidance value of preventing U.S.C. 15601(14). This will improve the many incidents or victims of sexual such abuse. The DHS RIA concludes safety of the environment for other abuse DHS anticipates will be avoided detainees and workplace for facility by this rule. Instead, DHS conducts 23 Department of Justice, Regulatory Impact staff. In addition, long-term trauma from Analysis for the National Standards to Prevent, what is known as a ‘‘break even Detect, and Respond to Prison Rape under PREA, sexual abuse in confinement may analysis,’’ by first estimating the Table 1.1 on page 24 of 168, available at http:// diminish a victim’s ability to reenter monetary value of preventing victims of www.ojp.usdoj.gov/programs/pdfs/prea_ria.pdf. society resulting in unstable

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employment. Preventing these incidents under 72-hour immigration detention 115.193. Immigration detention will decrease the cost of health care, facilities and DHS’s holding facilities facilities currently undergo several spread of disease, and the amount of would remain largely the same. layers of inspections for compliance public assistance benefits required for DHS also considered requiring the ICE with ICE’s detention standards. This victims upon reentry into society, immigration detention facilities that are alternative would allow ICE to whether such reentry is in the United only authorized to hold detainees for incorporate the audit requirements for States or a detainee’s home country. under 72 hours to meet the standards for the standards into current inspection 5. Alternatives holding facilities under Subpart B, procedures. However, it would require As alternatives to the regulatory rather than the standards for outside auditors for all immigration regime discussed in this rule, DHS immigration detention in Subpart A, as detention facilities. For holding examined three other options. The first discussed in the final rule. The facilities that hold detainees overnight, is taking no regulatory action. For over standards in Subpart B are somewhat it would require 10 internal audits, 10 72-hour immigration detention less stringent than those for immigration external audits, and three audits by facilities, the 2011 PBNDS sexual abuse detention facilities, as appropriate for CRCL be conducted annually. The standards might reach all facilities over facilities holding detainees for a much following table presents the 10-year time as the new version of the standards shorter time and with an augmented costs of the alternatives compared to the are implemented at facilities as planned. level of direct supervision. costs of the final rule. These costs of However, in the absence of regulatory Finally, DHS considered changing the these alternatives are discussed in detail action, sexual abuse standards for ICE’s audit requirements under §§ 115.93 and in Chapter 2 of the Final RIA.

TABLE 5—COST COMPARISON OF REGULATORY ALTERNATIVES TO THE FINAL RULE [$millions]

Total Total 10-Year total costs by alternative Total (7%) (3%)

Alternative 1—No Action ...... $0 $0 $0 Alternative 2—Under 72-Hour ...... 77.4 55.7 66.7 Alternative 3—Final Rule ...... 79.6 57.4 68.7 Alternative 4—Audit Requirements ...... 70.1 50.5 60.4

B. Executive Order 13132—Federalism entities, that own and operate these community corrections programs, and This final rule does not have facilities across the country, the lockups—among other individuals and substantial direct effects on the States, Presidential Memorandum provides groups—during the course of this on the relationship between the national DHS with no direct authority to rulemaking. mandate binding standards for their government and the States, or on C. Executive Order 12988—Civil Justice facilities. However, in line with distribution of power and Reform responsibilities among the various Congress’s and the President’s statutory levels of government. This rule direction in the VAWA Reauthorization This regulation meets the applicable implements the Presidential that the standards are to apply to DHS- standards set forth in §§ 3(a) and 3(b)(2) Memorandum of May 17, 2012 operated detention facilities and to of Executive Order 12988. detention facilities operated under ‘‘Implementing the Prison Rape D. Unfunded Mandates Reform Act of contract with DHS, including CDFs and Elimination Act’’ and the requirements 1995 found in the recently enacted VAWA detention facilities operated through an Reauthorization (Mar. 7, 2013) by IGSA with DHS, these standards impact Section 202 of the Unfunded setting forth national DHS standards for State, local, and private entities to the Mandates Reform Act of 1995 (UMRA) the detection, prevention, reduction, extent that such entities make voluntary (Pub. L. 104–4, 109 Stat. 48, 2 U.S.C. and punishment of sexual abuse in DHS decisions to contract with DHS for the 1532) generally requires agencies to immigration detention and holding confinement of immigration detainees prepare a statement before submitting facilities. In drafting the standards, DHS or that such entities and DHS agree to any rule that may result in an annual was mindful of its obligation to meet the enter into a modification or renewal of expenditure of $100 million or more President’s objectives and Congress’s such contracts. This approach is fully (adjusted annually for inflation) by intent while also minimizing conflicts consistent with DHS’s historical State, local, or tribal governments, or by between State law and Federal interests. relationship to State and local agencies the private sector. DHS has assessed the Insofar, however, as the rule sets forth in this context. Therefore, in accordance probable impact of these regulations and standards that might apply to with Executive Order 13132, DHS has believes these regulations may result in immigration detention facilities and determined that this final rule does not an aggregate expenditure by State and holding facilities operated by State and have sufficient federalism implications local governments of approximately local governments and private entities, to warrant the preparation of a $4.3 million in the first year. this rule has the potential to affect the Federalism Assessment. However, DHS believes the States, the relationship between the Notwithstanding the determination requirements of the UMRA do not apply Federal government and the States, and that the formal consultation process to these regulations because UMRA the distribution of power and described in Executive Order 13132 is excludes from its definition of ‘‘Federal responsibilities among the various not required for this rule, DHS intergovernmental mandate’’ those levels of government and private welcomed consultation with regulations imposing an enforceable entities. With respect to the State and representatives of State and local duty on other levels of government local agencies, as well as the private prisons and jails, juvenile facilities, which are ‘‘a condition of Federal

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assistance.’’ 2 U.S.C. 658(5)(A)(i)(I). section above. DHS will not retaliate prevention, reduction, and punishment Compliance with these standards would against small entities that question or of rape and sexual assault in be a condition of ongoing Federal complain about this rule or about any immigration confinement settings. See assistance through implementation of policy or action by DHS related to this Public Law 113–4 (Mar. 7, 2013). This the standards in new contracts and rule. regulation responds to and fulfills the contract renewals. While DHS does not F. Regulatory Flexibility Act President’s direction and the VAWA believe that a formal statement pursuant Reauthorization statutory mandate by to the UMRA is required, it has, for the DHS drafted this final rule so as to creating comprehensive, national convenience of the public, summarized minimize its impact on small entities, in regulations for the detection, as follows various matters discussed at accordance with the RFA, 5 U.S.C. 601– prevention, and reduction of prison rape greater length elsewhere in this 612, while meeting its intended at DHS confinement facilities. rulemaking which would have been objectives. The term ‘‘small entities’’ DHS uses a variety of legal included in a UMRA statement should comprises small business, not-for-profit authorities, which are listed below in that have been required: organizations that are independently the ‘‘Authority’’ provision preceding the • These standards are being issued owned and operated and are not regulatory text, to detain individuals in pursuant to the Presidential dominant in their fields, and confinement facilities. Most individuals Memorandum of May 17, 2012, section governmental jurisdictions with detained by DHS are detained in the 1101 of the VAWA Reauthorization, and populations of less than 50,000. Based immigration removal process, and DHS detention authorities. on presently available information, DHS normally DHS derives its detention • is unable to state with certainty that the A qualitative and quantitative authority for these actions from § 236(a) rule will not have any effect on small assessment of the anticipated costs and of the INA, 8 U.S.C. 1226(a), which entities of the type described in 5 U.S.C. benefits of these standards appears provides the authority to arrest and 601(3). Accordingly, DHS has prepared below in the Regulatory Flexibility Act detain an alien pending a decision on a Final Regulatory Flexibility Impact (RFA) section; whether the alien is to be removed from • Analysis in accordance with 5 U.S.C. DHS does not believe that these the United States, and § 241(a)(2) of the 604. standards will have an effect on the INA, 8 U.S.C. 1231(a)(2), which national economy, such as an effect on 1. A Statement of the Need for, and provides the authority to detain an alien productivity, economic growth, full Objectives of, the Rule during the period following the issuance employment, creation of productive of an order of removal. DHS jobs, or international competitiveness of In 2003 Congress enacted PREA, Public Law 108–79 (Sept. 4, 2003). components, however, use many other United States goods and services; legal authorities to meet their statutory • Before it issued these final PREA directs the Attorney General to promulgate national standards for mandates and to detain individuals regulations DHS: during the course of executing DHS (1) Provided notice of these enhancing the prevention, detection, missions. requirements to potentially affected reduction, and punishment of prison small governments by publishing the rape. On May 17, 2012, DOJ released a The objective of the rule is to create NPRM, and by other activities; final rule setting national standards to minimum requirements for DHS (2) Enabled officials of affected small prevent, detect, and respond to prison immigration detention and holding governments to provide meaningful and rape for facilities operated by BOP and facilities for the prevention, detection, timely input, via the methods listed USMS. The final rule was published in and response to sexual abuse. The rule above; and the Federal Register on June 20, 2012. will ensure prompt and coordinated (3) Worked to inform, educate, and 77 FR 37106 (June 20, 2012). In its final response and intervention, proper advise small governments on rule, DOJ concluded that PREA treatment for victims, discipline and compliance with the requirements. ‘‘encompass[es] any Federal prosecution of perpetrators, and • As discussed above in the RIA confinement facility ‘whether effective oversight and monitoring to summary, DHS has identified and administered by [the] government or by prevent and deter sexual abuse. a private organization on behalf of such considered a reasonable number of 2. A Statement of the Significant Issues government.’ ’’ Id. at 37113 (quoting 42 regulatory alternatives and from those Raised by the Public Comments in U.S.C. 15609(7)). DOJ recognized, alternatives has attempted to select the Response to the Initial Regulatory however, that, in general, each Federal least costly, most cost effective, or least Flexibility Analysis (IRFA), a Statement agency is accountable for, and has burdensome alternative that achieves of the Assessment of the Agency of Such statutory authority to regulate the DHS’s objectives. Issues, and a Statement of Any Changes operations of its own facilities and is Made in the Proposed Rule as a Result E. Small Business Regulatory best positioned to determine how to of Such Comments Enforcement Fairness Act of 1996 implement Federal laws and rules that Under section 213(a) of the Small govern its own operations, staff, and DHS did not receive any public Business Regulatory Enforcement persons in custody. Id. The same day comments in response to the initial Fairness Act of 1996, Public Law 104– that DOJ released its final rule, regulatory flexibility analysis. 121, DHS wants to assist small entities President Obama issued a Presidential 3. The Response of the Agency to Any in understanding this rule so that they Memorandum directing Federal Comments Filed by the Chief Counsel can better evaluate its effects on them agencies with confinement facilities to for Advocacy of the Small Business and participate in the rulemaking. If the issue regulations or procedures within Administration (SBA) in Response to rule would affect your small business, 120 days of his Memorandum to satisfy the Proposed Rule, and a Detailed organization, or governmental the requirements of PREA. On March 7, Statement of Any Change Made to the jurisdiction and you have questions 2013, Congress enacted a statutory Proposed Rule in the Final Rule as a concerning its provisions or options for mandate in the VAWA Reauthorization Result of the Comments compliance, please contact DHS via the directing DHS to publish, within 180 address or phone number provided in days of enactment, a final rule adopting DHS did not receive comments from the FOR FURTHER INFORMATION CONTACT national standards for the detection, the Chief Counsel for Advocacy of the

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Small Business Administration in facilities and staffed by a combination of databases such as Manta.com and data response to the proposed rule. Federal and contract staff. CDFs are from the U.S. Census Bureau 24 to search owned by a private company and for entity type (public, private, parent, 4. A Description of and an Estimate of contracted directly with ICE. Detention subsidiary, etc.), primary line of the Number of Small Entities To Which services at IGSA facilities are provided business, employee size, revenue, the Rule Will Apply or an Explanation to ICE by State or local governments(s) population, and any other necessary of Why No Such Estimate Is Available through agreements with ICE and may information. This information is used to This rule will affect owners of DHS be owned by the State or local determine if an entity is considered confinement facilities, including private government, or by a private entity. small by the SBA size standards, within owners, State and local governments, Finally, there are two types of IGSA its primary line of business. and the Federal government. DHS has facilities: dedicated and non-dedicated. Of the 79 entities owning immigration two types of confinement facilities: (1) Dedicated IGSA facilities hold only detention facilities and subject to the Immigration detention facilities, and (2) detained aliens whereas non-dedicated RFA, the search returned 75 entities for holding facilities. Holding facilities tend facilities hold a mixture of detained which sufficient data are available to to be short-term in nature. ICE, in aliens and inmates. ICE does not determine if they are small entities, as particular, is charged with include USMS IGA facilities used by defined by the RFA. The table below administration of the immigration ICE under intergovernmental shows the North American Industry detention facilities while CBP and ICE agreements in the scope of this Classification System (NAICS) codes each have many holding facilities under rulemaking. Those facilities would be corresponding with the number of their detention authority. The analysis covered by the DOJ PREA standards. facilities for which data are available. below addresses immigration detention Any references to authorized There are 27 small governmental facilities and holding facilities immigration detention facilities are jurisdictions, one small business, and separately. exclusive of these 119 USMS IGA one small not-for-profit. In order to facilities. ensure that the interests of small entities i. Immigration Detention Facilities Of the current 158 ICE detention are adequately considered, DHS ICE divides its detention facilities into facilities that are for use over 72 hours, assumes that all entities without two groups: There are 158 for use over 6 are owned by the Federal government available ownership, NAICS, revenue, 72 hours, and 91 that typically hold and are not subject to the RFA. An or employment data are small entities. detainees for more than 24 hours and additional 64 are covered not by this Therefore, DHS estimates there are a less than 72 hours. These are treated rule but by the DOJ PREA rule, as USMS total of 33 small entities to which this separately, below. Further, there are IGA facilities. Of the 88 facilities subject rule applies. The table below shows the several types of immigration detention to the RFA, there are 79 distinct entities. number of small entities by type for facilities. SPC facilities are ICE-owned DHS uses ICE information and public which data are available.

TABLE 5—SMALL ENTITIES BY TYPE—IMMIGRATION DETENTION FACILITIES

Type Entities found SBA Size standard

Small Governmental Jurisdiction ...... 27 Population less than 50,000. Small Business ...... 1 $7 million (NAICS 488999); $30 million (NAICS 488119). Small Organization ...... 1 Independently owned and operated not-for-profit not domi- nant in its field.

Subtotal ...... 29

Entities without Available Information ...... 4

Total Small Entities ...... 33

ICE also has shorter-term immigration rural areas that only occasionally have revenue, population, and any other detention facilities, for several reasons: immigration detainees. necessary information needed to Some of ICE’s immigration detention At the time of writing, ICE has 91 determine if an entity is considered facilities are governed by IGSAs that immigration detention facilities which small by SBA size standards. limit the length of an immigration are used to detain individuals for less Of the 33 entities owning immigration detainee’s stay to less than 72 hours for than 72 hours. Of those, three are owned detention facilities and subject to the various reasons. Some of these facilities by the Federal or State government and RFA, all have sufficient data available to have limited bed space that precludes are not subject to the RFA. An determine if they are small entities as longer stays by detainees. Others are additional 55 are covered not by this defined by the RFA. The table below used primarily under special rule but by the DOJ PREA rule, as USMS circumstances such as housing a IGA facilities. Of the 33 facilities subject shows the NAICS codes corresponding detainee temporarily to facilitate to the RFA, all are owned by distinct with the number of facilities for which detainee transfers or to hold a detainee entities. Again, DHS uses public data are available. DHS determines there for court appearances in a different databases such as Manta.com and U.S. are 10 small governmental jurisdictions, jurisdiction. In some circumstances the Census Bureau to search for entity type, 0 small businesses, and 0 small under 72-hour facilities are located in primary line of business, employee size, organizations. The table below shows

24 U.S. Census Bureau, State and County QuickFacts, 2010 Population Data, available at http://quickfacts.census.gov/qfd/index.html.

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the number of small entities by type for which data are available.

TABLE 6—SMALL ENTITIES BY TYPE—OTHER DHS CONFINEMENT FACILITIES

Type Entities found SBA Size standard

Small Governmental Jurisdiction ...... 10 Population less than 50,000. Small Business ...... 0 Small Organization ...... 0

Total Small Entities ...... 10

At the time of writing, ICE has two Federal Government, and to contract ii. Zero Tolerance of Sexual Abuse; immigration detention facilities that are renewals. To the extent this rule Prevention of Sexual Assault considered family residential facilities. increases costs to any detainment Coordinator, § 115.11 Both are owned by counties. Again, facilities, which may be small entities, The rule requires immigration DHS uses public databases such as it may be reflected in the cost paid by detention facilities to have a written Manta.com and U.S. Census Bureau to the Federal Government for the contract. zero-tolerance policy for sexual abuse search for entity type, primary line of Costs associated with implementing the and establish a PSA Compliance business, employee size, revenue, rule paid by the Federal Government to Manager at each facility. ICE is not population, and any other necessary small entities are transfer payments requiring facilities to hire any new staff information needed to determine if an ultimately born by the Federal for these responsibilities; rather ICE entity is considered small by SBA size Government. However, DHS cannot say believes the necessary PSA Compliance standards. DHS was able to obtain with certainty how much, if any, of Manager duties can be collateral duties sufficient data to determine if they are these costs will be paid in the form of for a current staff member. small entities. Based on the size of the increased bed rates for facilities. For some of the standards in this counties, DHS determines neither are Therefore, for the purposes of this rulemaking, the actual effort required to considered small governmental analysis, DHS assumes all costs comply with the standard will jurisdictions as defined by the RFA. associated with the rule will be borne by presumably be undertaken by the PSA In summary, DHS estimates the the facility. Of the 45 small entities, 37 Compliance Manager. The costs of number of small entities covered by this operate under the NDS. The following compliance with those standards are rulemaking is 33 over 72-hour discussion addresses the standards that thus essentially subsumed within the immigration detention facilities, 10 may create implementation costs for cost of this standard. For this reason, under 72-hour facilities, and 2 family facilities that are currently operating and to avoid double counting, many residential facilities, for a total of 45 under the ICE NDS. standards are assessed as having small entities. i. Contracting With Other Non-DHS minimal to zero cost even though they ii. Holding Facilities Entities for the Confinement of will require some resources to ensure Detainees, § 115.12 compliance; this is because the cost of U.S. Customs and Border Protection. those resources is assigned to this CBP operates 768 facilities with holding The rule requires that any new standard to the extent DHS assumes the facilities. Of the 768, 364 are owned by contracts or contract renewals comply primary responsibility for complying private sector entities. CBP is with the rule and provide for agency with the standard will lie with the PSA responsible for funding any facility contract monitoring to ensure that the Compliance Manager. The table below modifications once CBP has begun contractor is complying with these presents the standards and requirements operations at the location. As such, any standards. Therefore, DHS adds a 20- DHS assumes are the responsibility of modifications at these facilities as a hour opportunity cost of time for the the PSA Compliance Manager, and are result of this rule will have no direct contractor to read and process the included in the costs estimated for this impact on the facilities. modification, determine if a request for standard. U.S. Immigration and Customs a rate increase is necessary, and have Enforcement. Most ICE hold rooms are discussions with the government if TABLE 7—ASSUMED PSA COMPLIANCE needed. DHS estimates this standard in ICE field offices and satellite offices. MANAGER DUTIES—IMMIGRATION ICE estimates it has 149 holding may cost a facility approximately $1,488 DETENTION FACILITIES facilities that are covered under the rule. (20 hours × $74.41) in the first year.25 None of these facilities are considered Standard small entities under the RFA. 25 Bureau of Labor Statistics, Occupational Employment Statistics (OES), May 2011, NAICS 115.11 Zero tolerance of sexual abuse. 5. A Description of the Projected 999300, SOC 11–1021 General and Operations Manager Median Hourly Wage, retrieved on June 115.21 Evidence protocols and forensic Reporting, Recordkeeping, and Other medical examinations. Compliance Requirements of the Rule, 29, 2012 from http://www.bls.gov/oes/2011/may/ naics4_999300.htm. Loaded for benefits. Bureau of 115.31 Staff training. Including an Estimate of the Classes of Labor Statistics, Employer Cost for Employee 115.32 Volunteer and contractor training. Small Entities Which Will Be Subject to Compensation, June 2011, Table 3: Employer Costs 115.34 Specialized training: Investigations. the Requirement and the Types of per hour worked for employee compensation and 115.63 * Reporting to other confinement fa- Professional Skills Necessary for costs as a percent of total compensation: State and cilities. local government workers, by major occupational 115.65 Coordinated response. Preparation of the Report or Record and industry group, Service Occupations, Salary and Compensation Percent of Total Compensation, 115.67 Agency protection against retalia- With regard to non-DHS facilities, the retrieved on June 29, 2012 from http://www.bls.gov/ tion. requirements of the rule are applicable news.release/archives/ecec_09082011.pdf. $74.41 = 115.86 Sexual abuse incident reviews. only to new detention contracts with the $44.42/0.597. 115.87 Data collection.

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TABLE 7—ASSUMED PSA COMPLIANCE facilities 28 and 28 percent at jails are allows them in exigent circumstances MANAGER DUTIES—IMMIGRATION female.29 Though there may be only. However, cross-gender pat-down DETENTION FACILITIES—Continued disproportionate gender ratios of staff to searches of male detainees may happen detainees at some individual facilities, more frequently. DHS believes this Standard the overall national statistics do not requirement may be a notable burden on indicate that there will be a significant facilities both for the process of 115.93 * Audits. problem with compliance. Facilities are documenting the pat-down, but also * Indicates new requirement for facilities allowed to conduct cross-gender pat- keeping these records administratively. under 2011 PBNDS or Family Residential down searches on male detainees when, Therefore, as we discuss below, DHS Standards. after reasonable diligence by the facility, estimates an opportunity cost for this DHS spoke with some SPCs and CDFs a member of the same gender is not provision. ICE does not currently track who had Sexual Abuse and Assault available at the time. The pat-down the number of cross-gender pat-down Prevention Intervention Coordinators restrictions for female detainees are searches, or any pat-down searches required under the 2008 PBNDS. Based more stringent. Female detainees only conducted. In the IRFA DHS requested on these discussions, DHS estimates a comprise 10 percent of the overall comment from facilities on the number PSA Compliance Manager will spend, population, and one to five percent are of cross-gender pat-down searches on average, 114 hours in the first year held at ICE’s dedicated female facility. conducted. No comments were received and 78 hours thereafter, which includes The Family Residential Standards, in response to this request. Because DHS believes this may be a writing/revising policies related to under which the dedicated female noticeable burden on facilities, DHS sexual abuse and working with auditors. facility operates, already prohibit cross- includes a rough estimate using DHS estimates this standard may cost a gender pat-downs. assumptions. DHS also requested facility approximately $5,330 (114 hours DHS does not expect any facilities to comment on these assumptions in the × $46.75) in the first year.26 hire new staff or lay off any staff specifically to meet the requirement. IRFA. No comments were received in iii. Limits to Cross-Gender Viewing and Instead, DHS expects that facilities response to this request. Detainees may Searches, § 115.15 which may have an unbalanced gender receive a pat-down for a number of The requirement prohibits cross- ratio take this requirement into reasons. All detainees receive a pat- gender pat-down searches unless, after consideration during hiring decisions down upon intake at the facility, reasonable diligence, staff of the same resulting from normal attrition and staff detainees may receive a pat-down after gender is not available at the time the turnover. In the IRFA, DHS requested visitation, before visiting the attorney pat-down search is required (for male comments from facilities on this room, if visiting medical, if in detainees), or in exigent circumstances conclusion. No comments were received segregation, etc. Therefore, DHS (for female and male detainees alike). In in response to this request. assumes that in any given day, addition, it bans cross-gender strip or DHS includes a cost for facilities to approximately 50 percent of detainees body cavity searches except in exigent examine their staff rosters, gender ratios, may receive a pat-down. DHS uses the circumstances; requires documentation and staffing plans for all shifts for ratio of male guards to male detainees of all strip and body cavity searches and maximum compliance with cross- and female guards to female detainees cross-gender pat-down searches; gender pat downs. The length of time it as a proxy for the percentage of these prohibits physical examinations for the takes for facilities to adjust staffing pat-downs that will be cross-gender, sole purpose of determining genital plans, strategies, and schedules for realizing that this may not be characteristics; requires training of law gender balance while ensuring there is representative of every facility, the enforcement staff on proper procedures adequate detainee supervision and circumstances at the time a pat-down is for conducting pat-down searches, monitoring pursuant to § 115.13 will required, nor the results after the staff including transgender and intersex vary with the size of the facility. DHS realignment previously discussed. As detainees; and, implements policies on estimates this may take a supervisor 12 referenced previously, between 72 and staff viewing of showering, performing hours initially. DHS anticipates 87 percent of guards are male and 90 bodily functions, and changing clothes. facilities will be able to incorporate percent of detainees are male. Therefore, The restrictions placed on cross- these considerations into regular staffing to estimate a rough order of magnitude, gender pat-down searches will be a new decisions in the future. DHS estimates DHS assumes between 3 and 18 percent requirement for facilities operating the restrictions on cross-gender pat- of pat-downs of male detainees may be under the NDS or 2008 PBNDS, and a downs may cost a facility approximately cross-gender, with a primary estimate of modified requirement for facilities $561 (12 hours × $46.75) in the first 10 percent. 27 DHS finds the total average daily operating under the 2011 PBNDS. year. ICE’s detention population is 10 percent The requirement for documentation of population of male detainees at the 43 female, and 90 percent male. In cross-gender pat-down searches is new facilities classified as small entities and comparison, 13 percent of correctional for all facilities, regardless of the version takes the average to determine an average daily population of 93 for a officers at Federal confinement of the detention standards under which facility classified as a small entity (4,457 the facility operates. Presumably, cross- 26 × 90% ÷ 43). Then DHS applies the Bureau of Labor Statistics, Occupational gender pat-down searches of female methodology described above to Employment Statistics (OES), May 2011, NAICS detainees will occur rarely, as the rule 999300, SOC 33–1011 First Line Supervisors of estimate that approximately 2,000 cross Correctional Officers Median Hourly Wage, gender pat-downs may be conducted at retrieved on June 29, 2012 from http://www.bls.gov/ 28 Bureau of Justice Statistics, Census of State and oes/2011/may/oes331011.htm. Loaded for benefits. Federal Correctional Facilities, 2005, page 4, an average small entity annually (93 $46.75 = $27.91/0.597 retrieved on August 13, 2012 from http:// male ADP × 50% receive pat-down daily 27 Specifically, the 2011 PBNDS permits cross- www.bjs.gov/content/pub/pdf/csfcf05.pdf. × 365 days × 10% cross-gender), which gender pat-down searches of women when staff of 29 Department of Justice, Final Regulatory Impact is rounded to the nearest thousand due the same gender is not available at the time the pat- Analysis, section 5.6.15.1 Analysis and down search is required. Under the proposed Methodology for Adult Facilities of standards to uncertainty. DHS estimates it will standard, cross-gender searches of females would be 115.15, retrieved May 24 from www.ojp.usdoj.gov/ require an average of five minutes of allowed only in exigent circumstances. programs/pdfs/prea_ria.pdf. staff for documentation. DHS estimates

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this standard may cost a facility have contact with immigration § 115.32. This expands the training approximately $5,435 (5 minutes × detention facilities also receive training requirements to a population that was $32.61 per hour), annually. on specific items related to prevention, not previously covered under the The total estimate per small entity for detection, and response to sexual abuse. NPRM. DHS estimates this standard for § 115.15 is $5,996 ($561 for staff In the final rule this was changed to other contractors may cost realignment + $5,435 for cross-gender volunteers and other contractors. Other approximately $121 per facility (15 pat-down documentation). contractors are those that do not have minutes × 20 other contractors × 34 iv. Evidence Protocols and Forensic training requirements under § 115.31, $24.24). Medical Examinations, § 115.21 but who have contact with detainees The total estimated cost per facility and provide services on a non-recurring for volunteer and other contractor The rule requires ICE and any of its basis to the facility pursuant to a training is $2,129 ($2,008 for volunteers immigration detention facilities to contractual agreement. The standard + $121 for other contractors). establish a protocol for the investigation also requires the agency or facility to of allegations of sexual abuse or the maintain documentation that all vii. Specialized Training: Investigations, referral of allegations to investigators. In volunteers and other contractors have §§ 115.34, 115.134 addition, where appropriate, at no cost completed the training requirements. The rule requires the agency or to the detainee, a forensic medical exam The provisions in this standard allow facility to provide specialized training should be offered and an outside victim the level and type of training required on sexual abuse and effective cross- advocate shall be made available for of volunteers and other contractors to be agency coordination to agency or facility support if requested. based upon the services they provide investigators, respectively, who conduct DHS includes a cost for facilities to and the level of contact they have with investigations into alleged sexual abuse enter into a memorandum of detainees, but sets a minimum level at immigration detention facilities. understanding (MOU) with entities that requiring notification of the zero- DHS conducts investigations of all provide victim advocate services, such tolerance policy and reporting allegations of detainee sexual abuse in as rape crisis centers. DHS estimates it responsibilities and procedures. will require approximately 20 hours of detention facilities. The 2012 ICE Because of the regular nature of SAAPID mandates that ICE’s OPR staff time to negotiate and settle on each volunteers and the types of duties they MOU. DHS estimates this standard may provide specialized training to OPR perform, DHS uses the same investigators and other ICE staff. cost a facility approximately $1,488 (20 assumptions as staff for the frequency hours × $74.41). Facilities may also conduct their own and hours of training required of investigations. However, because ICE v. Staff Training, § 115.31 volunteers. DHS estimates this standard conducts investigations into the for volunteers may cost approximately Under § 115.31 the rule requires that × allegations, training for facility $2,008 per facility (2 hours 30 investigators will likely be less any facility staff who may have contact × 32 33 volunteers $33.47). specialized than required of ICE with immigration detention facilities To provide flexibility to facilities to investigators. DHS includes a cost for have training on specific items related determine the appropriate level of the time required for training to prevention, detection, and response training necessary, the NPRM included investigators. DHS estimates the training to sexual abuse. It also requires facilities training for contractors under § 115.31 may take approximately one hour. DHS to maintain documentation that all staff and § 115.32 recognizing there are estimates this standard may cost a have completed the training different types of contractors ranging facility approximately $468 (1 hour × 10 requirements. Staff includes any from guards to those that come weekly investigators × $46.75).35 36 employees or contractors of the agency to service vending machines. In this or facility, including any entity that final rule, DHS proposes to address this operates within the facility. Contractor flexibility in a different manner. DHS 34 Bureau of Labor Statistics, Occupational means a person who or entity that Employment Statistics (OES), May 2011, National, has removed from § 115.32 contractors, Weighted Average Median Wage Rate for SOC 37– provides services on a recurring basis as defined under § 115.5 as a ‘‘person or 0000 Building Grounds Cleaning and Maintenance pursuant to a contractual agreement entity that provides services on a Occupations; 47–0000 Construction and Extraction with the agency or facility. recurring basis pursuant to a contractual Occupations; and 49–0000 Installation, DHS uses the National Institute of Maintenance, and Repair Occupations, retrieved on agreement with the agency or facility.’’ June 13 2012 from http://www.bls.gov/oes/2011/ Corrections Information Center 2-hour The final rule includes these types of may/oes_nat.htm. Loaded for benefits. training timeframe as an approximation recurring contractors solely under the Bureau of Labor Statistics, Employer Cost for for the length of the training course to training requirements of § 115.31. In Employee Compensation, June 2011, Table 1: fulfill the proposed requirements. DHS recognition that there may be other non- Employer Costs per hour worked for employee estimates this standard may cost a compensation and costs as a percent of total recurring contractors with access to compensation: Civilian workers, by major facility approximately $18,914 (2 hours detainees, DHS has included a occupational and industry group, Management, × 290 staff × $32.61), annually.30 31 requirement for these other contractors professional, and related, Salary and Compensation to also undergo training appropriate for Percent of Total Compensation, retrieved on vi. Other Training, § 115.32 October 15, 2012 from http://www.bls.gov/ the services they provide and level of _ In the NPRM, § 115.32 required that news.release/archives/ecec 09082011.pdf. $24.24 = contact they have with detainees, under $16.86/0.694. any volunteers and contractors who may 35 ICE does not keep record of the number of 32 ICE does not keep record of the number of investigators at contract facilities. The estimates 30 ICE does not keep record of the number of staff volunteers at contract facilities. The estimates represent the results from a small sample, stratified at contract facilities. The estimates represent the represent the results from a small sample, stratified by facility type. ICE estimates 10 investigators per results from a small sample, stratified by facility by facility type. ICE estimates approximately 30 facility. type. ICE estimates approximately 290 staff per volunteers per facility. 36 Bureau of Labor Statistics, Occupational facility. 33 Bureau of Labor Statistics, Occupational Employment Statistics (OES), May 2011, NAICS 31 Though there may be other types of staff that Employment Statistics (OES), May 2011, SOC 00– 99300, Median Wage Rate for SOC 33–1011 First- will require this training, such as medical 0000 All Occupations Median Hourly Wage, Line Supervisors of Correctional Officers, retrieved practitioners or administrative staff, DHS assumes retrieved on August 16, 2012 from http:// on August 16, 2012 from http://www.bls.gov/oes/ correctional officers and their supervisors comprise www.bls.gov/oes/2011/may/naics4_999300.htm. 2011/may/naics4_999300.htm. Loaded for benefits. the majority of staff with detainee contact. Loaded for benefits. $33.47 = $19.98/0.597. $46.75 = $27.91/0.597.

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viii. Specialized Training: Medical and provided by a rape crisis center. DHS PSA Compliance Manager under Mental Health Care, § 115.35 estimates it will require approximately § 115.11. The rule requires specialized training 20 hours of staff time to negotiate and To account for these costs, DHS adds to DHS medical and mental health care settle on each MOU. DHS estimates this an additional category of staff. In addition, it requires all facilities standard may cost a facility × implementation costs for immigration to have policies and procedures to approximately $1,488 (20 hours detention facilities. Implementation ensure that the facility trains or certifies $74.41). costs will vary by the size of the facility, all full- or part-time facility medical and x. Audits, § 115.93 a facility’s current practices, and other mental health care staff in procedures facility-specific factors. DHS assumes Facilities may also incur costs for re- for treating victims of sexual abuse, in the costs any additional implementation audits. Re-audits can be requested in the facilities where medical or mental costs might occur as a result of the event that the facility does not achieve health staff may be assigned these standards with start-up costs, such as compliance with each standard or if the activities.37 entering into MOUs, rather than facility files an appeal with the agency DHS searched for continuing medical standards with action or on-going costs, regarding any specific finding that it education courses that focused on the such as training. DHS estimates believes to be incorrect. Costs for these evaluation and treatment for victims of additional implementation costs as 10 audits will be borne by the facility; sexual assault. Based on the results, percent of the total costs of standards however, the request for these re-audits DHS estimates an average course will be with a start-up cost. DHS requests is at the discretion of the facility. one hour in length and cost between $10 comment on this assumption. The tables and $15, and can be completed online. xi. Additional Implementation Costs below present the estimates for DHS estimates this standard may cost a Facilities contracting with DHS additional implementation costs. DHS facility approximately $1,957 (30 estimates this standard may cost a medical and mental health care agencies may incur organizational costs related to proper planning and overall facility approximately $1,579 in the first practitioners × ($50.23 × 1 hr + $15)).38 × execution of the rulemaking, in addition year (10% ($1,488 for § 115.12 + ix. Detainee Access to Outside to the specific implementation costs $5,330 for § 115.11 + $5,996 for § 115.15 Confidential Support Services, § 115.53 facilities are estimated to incur for each + $1,488 for § 115.21 + $1,488 for The rule requires facilities to maintain of the requirements. The burden § 115.53)). or attempt to enter into MOUs with resulting from the time required to read xii. Total Cost per Facility organizations that provide legal the rulemaking, research how it might advocacy and confidential emotional impact facility operations, procedures, DHS estimates the total cost per support services for victims of sexual and budget, as well as consideration of immigration detention facility under the abuse. It also requires notices of these how best to execute the rulemaking NDS for compliance with the standards services be made available to detainees, requirements or other costs of overall is approximately $40,837 for the first as appropriate. execution. This is exclusive of the time year. In subsequent years, DHS DHS includes a cost for facilities to required under § 115.12 to determine estimates the costs drop to enter into a MOU with entities that and agree upon the new terms of the approximately $31,033. The following provide legal advocacy and confidential contract and the specific requirements table summarizes the preceding support services, such as services expected to be performed by the facility discussion.

TABLE 8—ESTIMATED COST PER SMALL ENTITY UNDER NDS—IMMIGRATION DETENTION FACILITIES

Standard Cost in year 1 On-going cost

115.12 Consulting with non-DHS entities for the confinement of detainees ...... $1,488 $0 115.11 Zero tolerance of sexual abuse; PSA Coordinator * ...... 5,330 3,647 115.15 Limits to cross-gender viewing and searches * ...... 5,996 5,435 115.21 Evidence protocols and forensic medical examinations ...... 1,488 0 115.31 Staff training * ...... 18,914 18,914 115.327 Other training * ...... 2,129 2,129 115.34 Specialized training: Investigations ...... 468 0 115.35 Specialized training: Medical and mental health care ...... 1,957 0 115.53 Detainee access to outside confidential support Services ...... 1,488 0 Additional Implementation Costs* ...... 1,579 908

Total ...... 40,837 31,033 * Standards for which DHS estimates there may be on-going costs.

37 ICE does not keep record of the number of 38 Bureau of Labor Statistics, Occupational Technicians; and 29–2061 Licensed Practical and medical and mental health care providers at Employment Statistics (OES), May 2011, NAICS Licensed Vocational Nurses, retrieved on August contract facilities. The estimates represent the 99300, Weighted Average Median Wage Rate for 16, 2012 from http://www.bls.gov/oes/2011/may/ results from a small sample, stratified by facility SOC 29–1062 Family and General Practitioners; 29– naics4_999300.htm. Loaded for benefits. $50.23 = type. ICE estimates 30 medical and mental health 1066 Psychiatrists; 29–1071 Physician Assistants; $29.99/0.597 care providers per new facility. 29–1111 Registered Nurses; 29–2053 Psychiatric

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6. A Description of the Steps the Agency (PRA), so as to ensure clarity of 115.32 Other training. Has Taken to Minimize Any Significant requirements associated with this 115.33 Detainee education. Economic Impact on Small Entities rulemaking. 115.34 Specialized training: Investigations. Consistent With the Stated Objectives of This final rule contains a new 115.35 Specialized training: Medical and Applicable Statutes, Including A collection of information covered by the mental health care. Statement of the Factual, Policy, and PRA. The information collection Assessment for Risk of Sexual Victimization Legal Reasons for Selecting the described by DHS in the proposed rule and Abusiveness Alternative Adopted in the Final Rule, garnered no comments from the public, 115.41 Assessment for risk of victimization and Why Each One of the Other and thus no changes were necessitated and abusiveness. Significant Alternatives to the Rule based upon any comments pertaining to 115.42 Use of assessment information. Considered by the Agency Which the PRA aspects of the rule. However, 115.43 Protective custody. Affected the Impact on Small Entities changes to the PREA standards made in Reporting Was Rejected response to substantive comments on 115.51 Detainee reporting. DHS considered a longer phase-in the NPRM and due to additional analysis resulted in the total PRA 115.52 Grievances. period for small entities subject to the 115.53 Detainee access to outside rulemaking. A longer period would burden hours being greater than those estimated in DHS’s initial information confidential support services. reduce immediate burden on small 115.54 Third-party reporting. entities with current contracts. The collection request. DHS has submitted a revised current requirements require that Official Response Following a Detainee information collection request to OMB Report facilities comply with the standards for review and clearance in accordance upon renewal of a contract or exercising 115.61 Staff reporting duties. with the review procedures of the PRA. a contract option. Essentially, this 115.62 Protection duties. would phase-in all authorized List of Subjects in 6 CFR Part 115 115.63 Reporting to other confinement immigration detention facilities within a facilities. Administrative practice and 115.64 Responder duties. year of the effective date of the final procedure, Aliens, Immigration, 115.65 Coordinated response. rule. DHS is willing to work with small Reporting and recordkeeping 115.66 Protection of detainees from contact facilities upon contract renewal in requirements. with alleged abusers. implementing these standards. Accordingly, Part 115 of Title 6 of the 115.67 Agency protection against DHS also considered requiring lesser Code of Federal Regulations is added to retaliation. standards, such as those under the NDS read as follows: 115.68 Post-allegation protective custody. or the 2008 PBNDS for small entities. Investigations However, DHS rejected this alternative PART 115—SEXUAL ABUSE AND because DHS believes in the importance ASSAULT PREVENTION STANDARDS 115.71 Criminal and administrative of protecting detainees from, and investigations. providing treatment after, instances of Sec. 115.72 Evidentiary standard for sexual abuse, regardless of a facility’s 115.5 General definitions. administrative investigations. size. In the IRFA DHS requested 115.6 Definitions related to sexual abuse 115.73 Reporting to detainees. and assault. comment on additional alternatives that Discipline might help reduce the impact on small Subpart A—Standards for Immigration 115.76 Disciplinary sanctions for staff. Detention Facilities entities. No comments were received in 115.77 Corrective action for contractors and response to this request. Coverage volunteers. 115.78 Disciplinary sanctions for detainees. G. Paperwork Reduction Act 115.10 Coverage of DHS immigration detention facilities. DHS is setting standards for the Medical and Mental Care prevention, detection, and response to Prevention Planning 115.81 Medical and mental health sexual abuse in its confinement 115.11 Zero tolerance of sexual abuse; assessments; history of sexual abuse. facilities. For DHS facilities and as Prevention of Sexual Assault 115.82 Access to emergency medical and incorporated in DHS contracts, these Coordinator. mental health services. 115.83 Ongoing medical and mental health standards require covered facilities to 115.12 Contracting with non-DHS entities for the confinement of detainees. care for sexual abuse victims and retain and report to the agency certain 115.13 Detainee supervision and abusers. specified information relating to sexual monitoring. abuse prevention planning, responsive 115.14 Juvenile and family detainees. Data Collection and Review planning, education and training, and 115.15 Limits to cross-gender viewing and 115.86 Sexual abuse incident reviews. investigations, as well as to collect, searches. 115.87 Data collection. retain, and report to the agency certain 115.16 Accommodating detainees with 115.88 Data review for corrective action. specified information relating to disabilities and detainees who are 115.89 Data storage, publication, and allegations of sexual abuse within the limited English proficient. destruction. 115.17 Hiring and promotion decisions. covered facility. As stated in the NPRM, 115.18 Upgrades to facilities and Audits and Compliance DHS believes that most of the technologies. 115.93 Audits of standards. information collection requirements placed on facilities are already Responsive Planning Additional Provisions in Agency Policies requirements derived from existing 115.21 Evidence protocols and forensic 115.95 Additional provisions in agency contracts with immigration detention medical examinations. policies. facilities. However, DHS included these 115.22 Policies to ensure investigation of allegations and appropriate agency Subpart B—Standards for DHS Holding requirements as part of an information oversight. Facilities collection request associated with the proposed rule, pursuant to the Training and Education Coverage Paperwork Reduction Act of 1995 115.31 Staff training. 115.110 Coverage of DHS holding facilities.

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Prevention Planning 115.189 Data storage, publication, and conform to traditional societal gender 115.111 Zero tolerance of sexual abuse; destruction. expectations. Prevention of Sexual Assault Audits and Compliance Holding facility means a facility that Coordinator. contains holding cells, cell blocks, or 115.193 Audits of standards. 115.112 Contracting with non-DHS entities other secure enclosures that are: for the confinement of detainees. Additional Provisions in Agency Policies (1) Under the control of the agency; 115.113 Detainee supervision and 115.195 Additional provisions in agency and monitoring. policies. (2) Primarily used for the short-term 115.114 Juvenile and family detainees. confinement of individuals who have 115.115 Limits to cross-gender viewing and Subpart C—External Auditing and searches. Corrective Action recently been detained, or are being transferred to or from a court, jail, 115.116 Accommodating detainees with 115.201 Scope of audits. disabilities and detainees who are prison, other agency, or other unit of the 115.202 Auditor qualifications. limited English proficient. 115.203 Audit contents and findings. facility or agency. 115.117 Hiring and promotion decisions. 115.204 Audit corrective action plan. Immigration detention facility means 115.118 Upgrades to facilities and 115.205 Audit appeals. a confinement facility operated by or technologies. pursuant to contract with U.S. Authority: 5 U.S.C. 301, 552, 552a; 8 Immigration and Customs Enforcement Responsive Planning U.S.C. 1103, 1182, 1223, 1224, 1225, 1226, 115.121 Evidence protocols and forensic 1227, 1228, 1231, 1251, 1253, 1255, 1330, (ICE) that routinely holds persons for medical examinations. 1362; 18 U.S.C. 4002, 4013(c)(4); Pub. L. 107– over 24 hours pending resolution or 115.122 Policies to ensure investigation of 296, 116 Stat. 2135 (6 U.S.C. 101, et seq.); 8 completion of immigration removal allegations and appropriate agency CFR part 2. operations or processes, including oversight. facilities that are operated by ICE, § 115.5 General definitions. Training and Education facilities that provide detention services For purposes of this part, the term— under a contract awarded by ICE, and 115.131 Employee, contractor, and Agency means the unit or component volunteer training. facilities used by ICE pursuant to an 115.132 Notification to detainees of the of DHS responsible for operating or Intergovernmental Service Agreement. agency’s zero-tolerance policy. supervising any facility, or part of a Intersex means having sexual or 115.133 [Reserved] facility, that confines detainees. reproductive anatomy or chromosomal 115.134 Specialized training: Agency head means the principal pattern that does not seem to fit typical Investigations. official of an agency. definitions of male or female. Intersex Contractor means a person who or Assessment for Risk of Sexual Victimization medical conditions are sometimes and Abusiveness entity that provides services on a referred to as disorders of sex recurring basis pursuant to a contractual 115.141 Assessment for risk of development. victimization and abusiveness. agreement with the agency or facility. Juvenile means any person under the Detainee means any person detained age of 18. Reporting in an immigration detention facility or Law enforcement staff means officers 115.151 Detainee reporting. holding facility. or agents of the agency or facility that 115.152–115.153 [Reserved] Employee means a person who works are responsible for the supervision and 115.154 Third-party reporting. directly for the agency. control of detainees in a holding facility. Official Response Following a Detainee Exigent circumstances means any set Medical practitioner means a health Report of temporary and unforeseen professional who, by virtue of 115.161 Staff reporting duties. circumstances that require immediate education, credentials, and experience, 115.162 Agency protection duties. action in order to combat a threat to the is permitted by law to evaluate and care 115.163 Reporting to other confinement security or institutional order of a for patients within the scope of his or facilities. facility or a threat to the safety or her professional practice. A ‘‘qualified 115.164 Responder duties. security of any person. medical practitioner’’ refers to such a 115.165 Coordinated response. Facility means a place, building (or professional who has also successfully 115.166 Protection of detainees from part thereof), set of buildings, structure, completed specialized training for contact with alleged abusers. or area (whether or not enclosing a 115.167 Agency protection against treating sexual abuse victims. retaliation. building or set of buildings) that was Mental health practitioner means a built or retrofitted for the purpose of mental health professional who, by Investigations detaining individuals and is routinely virtue of education, credentials, and 115.171 Criminal and administrative used by the agency to detain individuals experience, is permitted by law to investigations. in its custody. References to evaluate and care for patients within the 115.172 Evidentiary standard for requirements placed on facilities extend scope of his or her professional practice. administrative investigations. to the entity responsible for the direct A ‘‘qualified mental health practitioner’’ Discipline operation of the facility. refers to such a professional who has 115.176 Disciplinary sanctions for staff. Facility head means the principal also successfully completed specialized 115.177 Corrective action for contractors official responsible for a facility. training for treating sexual abuse and volunteers. Family unit means a group of victims. detainees that includes one or more Pat-down search means a sliding or Medical and Mental Care non-United States citizen juvenile(s) patting of the hands over the clothed 115.181 [Reserved] accompanied by his/her/their parent(s) body of a detainee by staff to determine 115.182 Access to emergency medical or legal guardian(s), whom the agency whether the individual possesses services. will evaluate for safety purposes to contraband. Data Collection and Review protect juveniles from sexual abuse and Security staff means employees 115.186 Sexual abuse incident reviews. violence. primarily responsible for the 115.187 Data collection. Gender nonconforming means having supervision and control of detainees in 115.188 Data review for corrective action. an appearance or manner that does not housing units, recreational areas, dining

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areas, and other program areas of an Sexual abuse of a detainee by a staff Prevention Planning immigration detention facility. member, contractor, or volunteer Staff means employees or contractors § 115.11 Zero tolerance of sexual abuse; includes any of the following acts, if Prevention of Sexual Assault Coordinator. of the agency or facility, including any engaged in by one or more staff (a) The agency shall have a written entity that operates within the facility. members, volunteers, or contract policy mandating zero tolerance toward Strip search means a search that personnel who, with or without the requires a person to remove or arrange all forms of sexual abuse and outlining consent of the detainee, engages in or the agency’s approach to preventing, some or all clothing so as to permit a attempts to engage in: visual inspection of the person’s breasts, detecting, and responding to such (1) Contact between the penis and the buttocks, or genitalia. conduct. (b) The agency shall employ or Substantiated allegation means an vulva or anus and, for purposes of this designate an upper-level, agency-wide allegation that was investigated and paragraph (1), contact involving the Prevention of Sexual Assault determined to have occurred. penis upon penetration, however slight; Coordinator (PSA Coordinator) with Transgender means a person whose (2) Contact between the mouth and sufficient time and authority to develop, gender identity (i.e., internal sense of the penis, vulva, or anus; implement, and oversee agency efforts feeling male or female) is different from (3) Penetration, however slight, of the to comply with these standards in all of the person’s assigned sex at birth. anal or genital opening of another its immigration detention facilities. Unfounded allegation means an person by a hand or finger or by any (c) Each facility shall have a written allegation that was investigated and object that is unrelated to official duties policy mandating zero tolerance toward determined not to have occurred. or where the staff member, contractor, all forms of sexual abuse and outlining Unsubstantiated allegation means an or volunteer has the intent to abuse, the facility’s approach to preventing, allegation that was investigated and the arouse, or gratify sexual desire; detecting, and responding to such investigation produced insufficient (4) Intentional touching of the conduct. The agency shall review and evidence to make a final determination approve each facility’s written policy. as to whether or not the event occurred. genitalia, anus, groin, breast, inner thighs or buttocks, either directly or (d) Each facility shall employ or Volunteer means an individual who designate a Prevention of Sexual Assault through the clothing, that is unrelated to donates time and effort on a recurring Compliance Manager (PSA Compliance official duties or where the staff basis to enhance the activities and Manager) who shall serve as the facility member, contractor, or volunteer has the programs of the agency or facility. point of contact for the agency PSA intent to abuse, arouse, or gratify sexual Coordinator and who has sufficient time § 115.6 Definitions related to sexual abuse desire; and assault. and authority to oversee facility efforts (5) Threats, intimidation, harassment, For purposes of this part, the term— to comply with facility sexual abuse Sexual abuse includes— indecent, profane or abusive language, prevention and intervention policies (1) Sexual abuse and assault of a or other actions or communications, and procedures. detainee by another detainee; and aimed at coercing or pressuring a detainee to engage in a sexual act; § 115.12 Contracting with non-DHS entities (2) Sexual abuse and assault of a for the confinement of detainees. detainee by a staff member, contractor, (6) Repeated verbal statements or (a) When contracting for the or volunteer. comments of a sexual nature to a confinement of detainees in Sexual abuse of a detainee by another detainee; immigration detention facilities detainee includes any of the following (7) Any display of his or her operated by non-DHS private or public acts by one or more detainees, prisoners, uncovered genitalia, buttocks, or breast agencies or other entities, including inmates, or residents of the facility in in the presence of an inmate, detainee, other government agencies, the agency which the detainee is housed who, by or resident, or shall include in any new contracts, force, coercion, or intimidation, or if the (8) Voyeurism, which is defined as contract renewals, or substantive victim did not consent or was unable to contract modifications the entity’s consent or refuse, engages in or attempts the inappropriate visual surveillance of a detainee for reasons unrelated to obligation to adopt and comply with to engage in: these standards. (1) Contact between the penis and the official duties. Where not conducted for reasons relating to official duties, the (b) Any new contracts, contract vulva or anus and, for purposes of this renewals, or substantive contract paragraph (1), contact involving the following are examples of voyeurism: staring at a detainee who is using a modifications shall provide for agency penis upon penetration, however slight; contract monitoring to ensure that the (2) Contact between the mouth and toilet in his or her cell to perform bodily functions; requiring an inmate detainee contractor is complying with these the penis, vulva, or anus; standards. (3) Penetration, however slight, of the to expose his or her buttocks, genitals, anal or genital opening of another or breasts; or taking images of all or part § 115.13 Detainee supervision and person by a hand or finger or by any of a detainee’s naked body or of a monitoring. object; detainee performing bodily functions. (a) Each facility shall ensure that it (4) Touching of the genitalia, anus, maintains sufficient supervision of groin, breast, inner thighs or buttocks, Subpart A—Standards for Immigration detainees, including through either directly or through the clothing, Detention Facilities Coverage appropriate staffing levels and, where with an intent to abuse, humiliate, § 115.10 Coverage of DHS immigration applicable, video monitoring, to protect harass, degrade or arouse or gratify the detention facilities. detainees against sexual abuse. sexual desire of any person; or (b) Each facility shall develop and (5) Threats, intimidation, or other This subpart covers ICE immigration document comprehensive detainee actions or communications by one or detention facilities. Standards set forth supervision guidelines to determine and more detainees aimed at coercing or in this subpart A are not applicable to meet the facility’s detainee supervision pressuring another detainee to engage in Department of Homeland Security needs, and shall review those guidelines a sexual act. (DHS) holding facilities. at least annually.

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(c) In determining adequate levels of of Health and Human Services Office of records, or, if necessary, learning that detainee supervision and determining Refugee Resettlement facility. information as part of a standard the need for video monitoring, the medical examination that all detainees facility shall take into consideration § 115.15 Limits to cross-gender viewing must undergo as part of intake or other and searches. generally accepted detention and processing procedure conducted in correctional practices, any judicial (a) Searches may be necessary to private, by a medical practitioner. findings of inadequacy, the physical ensure the safety of officers, civilians (j) The agency shall train security staff layout of each facility, the composition and detainees; to detect and secure in proper procedures for conducting of the detainee population, the evidence of criminal activity; and to pat-down searches, including cross- prevalence of substantiated and promote security, safety, and related gender pat-down searches and searches unsubstantiated incidents of sexual interests at immigration detention of transgender and intersex detainees. abuse, the findings and facilities. All pat-down searches shall be recommendations of sexual abuse (b) Cross-gender pat-down searches of conducted in a professional and incident review reports, and any other male detainees shall not be conducted respectful manner, and in the least relevant factors, including but not unless, after reasonable diligence, staff intrusive manner possible, consistent limited to the length of time detainees of the same gender is not available at the with security needs and agency policy, spend in agency custody. time the pat-down search is required or including consideration of officer safety. in exigent circumstances. (d) Each facility shall conduct (c) Cross-gender pat-down searches of § 115.16 Accommodating detainees with frequent unannounced security female detainees shall not be conducted disabilities and detainees who are limited inspections to identify and deter sexual unless in exigent circumstances. English proficient. abuse of detainees. Such inspections (d) All cross-gender pat-down (a) The agency and each facility shall shall be implemented for night as well searches shall be documented. take appropriate steps to ensure that as day shifts. Each facility shall prohibit (e) Cross-gender strip searches or detainees with disabilities (including, staff from alerting others that these cross-gender visual body cavity searches for example, detainees who are deaf or security inspections are occurring, shall not be conducted except in exigent hard of hearing, those who are blind or unless such announcement is related to circumstances, including consideration have low vision, or those who have the legitimate operational functions of of officer safety, or when performed by intellectual, psychiatric, or speech the facility. medical practitioners. Facility staff shall disabilities) have an equal opportunity § 115.14 Juvenile and family detainees. not conduct visual body cavity searches to participate in or benefit from all of juveniles and, instead, shall refer all aspects of the agency’s and facility’s (a) Juveniles shall be detained in the such body cavity searches of juveniles efforts to prevent, detect, and respond to least restrictive setting appropriate to to a medical practitioner. sexual abuse. Such steps shall include, the juvenile’s age and special needs, (f) All strip searches and visual body when necessary to ensure effective provided that such setting is consistent cavity searches shall be documented. communication with detainees who are with the need to protect the juvenile’s (g) Each facility shall implement deaf or hard of hearing, providing access well-being and that of others, as well as policies and procedures that enable to in-person, telephonic, or video with any other laws, regulations, or detainees to shower, perform bodily interpretive services that enable legal requirements. functions, and change clothing without effective, accurate, and impartial (b) The facility shall hold juveniles being viewed by staff of the opposite interpretation, both receptively and apart from adult detainees, minimizing gender, except in exigent circumstances expressively, using any necessary sight, sound, and physical contact, or when such viewing is incidental to specialized vocabulary. In addition, the unless the juvenile is in the presence of routine cell checks or is otherwise agency and facility shall ensure that any an adult member of the family unit, and appropriate in connection with a written materials related to sexual abuse provided there are no safety or security medical examination or monitored are provided in formats or through concerns with the arrangement. bowel movement. Such policies and methods that ensure effective (c) In determining the existence of a procedures shall require staff of the communication with detainees with family unit for detention purposes, the opposite gender to announce their disabilities, including detainees who agency shall seek to obtain reliable presence when entering an area where have intellectual disabilities, limited evidence of a family relationship. detainees are likely to be showering, reading skills, or who are blind or have (d) The agency and facility shall performing bodily functions, or low vision. An agency or facility is not provide priority attention to changing clothing. required to take actions that it can unaccompanied alien children as (h) The facility shall permit detainees demonstrate would result in a defined by 6 U.S.C. 279(g)(2), including in Family Residential Facilities to fundamental alteration in the nature of transfer to a Department of Health and shower, perform bodily functions, and a service, program, or activity, or in Human Services Office of Refugee change clothing without being viewed undue financial and administrative Resettlement facility within 72 hours, by staff, except in exigent circumstances burdens, as those terms are used in except in exceptional circumstances, in or when such viewing is incidental to regulations promulgated under title II of accordance with 8 U.S.C. 1232(b)(3). routine cell checks or is otherwise the Americans with Disabilities Act, 28 (e) If a juvenile who is an appropriate in connection with a CFR 35.164. unaccompanied alien child has been medical examination or monitored (b) The agency and each facility shall convicted as an adult of a crime related bowel movement. take steps to ensure meaningful access to sexual abuse, the agency shall (i) The facility shall not search or to all aspects of the agency’s and provide the facility and the Department physically examine a detainee for the facility’s efforts to prevent, detect, and of Health and Human Services Office of sole purpose of determining the respond to sexual abuse to detainees Refugee Resettlement with the detainee’s genital characteristics. If the who are limited English proficient, releasable information regarding the detainee’s gender is unknown, it may be including steps to provide in-person or conviction(s) to ensure the appropriate determined during conversations with telephonic interpretive services that placement of the alien in a Department the detainee, by reviewing medical enable effective, accurate, and impartial

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interpretation, both receptively and including a criminal background Responsive Planning expressively, using any necessary records check. Upon request by the specialized vocabulary. § 115.21 Evidence protocols and forensic agency, the facility shall submit for the medical examinations. (c) In matters relating to allegations of agency’s approval written sexual abuse, the agency and each documentation showing the detailed (a) To the extent that the agency or facility shall provide in-person or elements of the facility’s background facility is responsible for investigating telephonic interpretation services that check for each staff member and the allegations of sexual abuse involving enable effective, accurate, and impartial facility’s conclusions. The agency shall detainees, it shall follow a uniform interpretation, by someone other than conduct an updated background evidence protocol that maximizes the another detainee, unless the detainee investigation every five years for agency potential for obtaining usable physical expresses a preference for another evidence for administrative proceedings employees who may have contact with detainee to provide interpretation and and criminal prosecutions. The protocol detainees. The facility shall require an the agency determines that such shall be developed in coordination with updated background investigation every interpretation is appropriate and DHS and shall be developmentally consistent with DHS policy. The five years for those facility staff who appropriate for juveniles, where provision of interpreter services by may have contact with detainees and applicable. who work in immigration-only minors, alleged abusers, detainees who (b) The agency and each facility detention facilities. witnessed the alleged abuse, and developing an evidence protocol detainees who have a significant (d) The agency or facility shall also referred to in paragraph (a) of this relationship with the alleged abuser is perform a background investigation section, shall consider how best to not appropriate in matters relating to before enlisting the services of any utilize available community resources allegations of sexual abuse. contractor who may have contact with and services to provide valuable § 115.17 Hiring and promotion decisions. detainees. Upon request by the agency, expertise and support in the areas of the facility shall submit for the agency’s crisis intervention and counseling to (a) An agency or facility shall not hire most appropriately address victims’ or promote anyone who may have approval written documentation contact with detainees, and shall not showing the detailed elements of the needs. Each facility shall establish enlist the services of any contractor or facility’s background check for each procedures to make available, to the full volunteer who may have contact with contractor and the facility’s conclusions. extent possible, outside victim services detainees, who has engaged in sexual (e) Material omissions regarding such following incidents of sexual abuse; the abuse in a prison, jail, holding facility, misconduct, or the provision of facility shall attempt to make available to the victim a victim advocate from a community confinement facility, materially false information, shall be rape crisis center. If a rape crisis center juvenile facility, or other institution (as grounds for termination or withdrawal is not available to provide victim defined in 42 U.S.C. 1997); who has of an offer of employment, as advocate services, the agency shall been convicted of engaging or appropriate. attempting to engage in sexual activity provide these services by making (f) Unless prohibited by law, the facilitated by force, overt or implied available a qualified staff member from agency shall provide information on threats of force, or coercion, or if the a community-based organization, or a substantiated allegations of sexual abuse victim did not consent or was unable to qualified agency staff member. A consent or refuse; or who has been involving a former employee upon qualified agency staff member or a civilly or administratively adjudicated receiving a request from an institutional qualified community-based staff to have engaged in such activity. employer for whom such employee has member means an individual who has (b) An agency or facility considering applied to work. received education concerning sexual hiring or promoting staff shall ask all (g) In the event the agency contracts assault and forensic examination issues applicants who may have contact with with a facility for the confinement of in general. The outside or internal detainees directly about previous detainees, the requirements of this victim advocate shall provide emotional support, crisis intervention, misconduct described in paragraph (a) section otherwise applicable to the information, and referrals. of this section, in written applications agency also apply to the facility and its or interviews for hiring or promotions staff. (c) Where evidentiarily or medically and in any interviews or written self- appropriate, at no cost to the detainee, evaluations conducted as part of § 115.18 Upgrades to facilities and and only with the detainee’s consent, reviews of current employees. Agencies technologies. the facility shall arrange for an alleged victim detainee to undergo a forensic and facilities shall also impose upon (a) When designing or acquiring any medical examination by qualified health employees a continuing affirmative duty new facility and in planning any care personnel, including a Sexual to disclose any such misconduct. The substantial expansion or modification of agency, consistent with law, shall make Assault Forensic Examiner (SAFE) or existing facilities, the facility or agency, Sexual Assault Nurse Examiner (SANE) its best efforts to contact all prior as appropriate, shall consider the effect institutional employers of an applicant where practicable. If SAFEs or SANEs of the design, acquisition, expansion, or cannot be made available, the for employment, to obtain information modification upon their ability to on substantiated allegations of sexual examination can be performed by other protect detainees from sexual abuse. abuse or any resignation during a qualified health care personnel. pending investigation of alleged sexual (b) When installing or updating a (d) As requested by a victim, the abuse. video monitoring system, electronic presence of his or her outside or internal (c) Before hiring new staff who may surveillance system, or other monitoring victim advocate, including any available have contact with detainees, the agency technology in an immigration detention victim advocacy services offered by a or facility shall conduct a background facility, the facility or agency, as hospital conducting a forensic exam, investigation to determine whether the appropriate, shall consider how such shall be allowed for support during a candidate for hire is suitable for technology may enhance their ability to forensic exam and investigatory employment with the facility or agency, protect detainees from sexual abuse. interviews.

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(e) To the extent that the agency is not Inspector General, as well as to the (c) The agency and each facility shall responsible for investigating allegations appropriate ICE Field Office Director, document that staff that may have of sexual abuse, the agency or the and to the local government entity or contact with immigration facility facility shall request that the contractor that owns or operates the detainees have completed the training. investigating agency follow the facility. If the incident is potentially requirements of paragraphs (a) through criminal, the facility shall ensure that it § 115.32 Other training. (d) of this section. is promptly referred to an appropriate (a) The facility shall ensure that all law enforcement agency having volunteers and other contractors (as § 115.22 Policies to ensure investigation of jurisdiction for investigation. defined in paragraph (d) of this section) allegations and appropriate agency who have contact with detainees have oversight. (g) The agency shall ensure that all allegations of detainee sexual abuse are been trained on their responsibilities (a) The agency shall establish an promptly reported to the PSA under the agency’s and the facility’s agency protocol, and shall require each Coordinator and to the appropriate sexual abuse prevention, detection, facility to establish a facility protocol, to offices within the agency and within intervention and response policies and ensure that each allegation of sexual DHS to ensure appropriate oversight of procedures. abuse is investigated by the agency or the investigation. (b) The level and type of training facility, or referred to an appropriate (h) The agency shall ensure that any provided to volunteers and other investigative authority. The agency shall alleged detainee victim of sexual abuse contractors shall be based on the ensure that an administrative or that is criminal in nature is provided services they provide and level of criminal investigation is completed for timely access to U nonimmigrant status contact they have with detainees, but all all allegations of sexual abuse. information. volunteers and other contractors who (b) The agency shall ensure that the have contact with detainees shall be agency and facility protocols required Training and Education notified of the agency’s and the facility’s by paragraph (a) of this section, include § 115.31 Staff training. zero-tolerance policies regarding sexual a description of responsibilities of the abuse and informed how to report such agency, the facility, and any other (a) The agency shall train, or require incidents. investigating entities; and require the the training of, all employees who may (c) Each facility shall receive and documentation and maintenance, for at have contact with immigration maintain written confirmation that least five years, of all reports and detainees, and all facility staff, to be volunteers and other contractors who referrals of allegations of sexual abuse. able to fulfill their responsibilities have contact with immigration facility (c) The agency shall post its protocols under this part, including training on: detainees have completed the training. on its Web site; each facility shall also (1) The agency’s and the facility’s (d) In this section, the term other post its protocols on its Web site, if it zero-tolerance policies for all forms of contractor means a person who provides has one, or otherwise make the protocol sexual abuse; services on a non-recurring basis to the available to the public. (2) The right of detainees and staff to facility pursuant to a contractual (d) Each facility protocol shall ensure be free from sexual abuse, and from agreement with the agency or facility. that all allegations are promptly retaliation for reporting sexual abuse; reported to the agency as described in (3) Definitions and examples of § 115.33 Detainee education. paragraphs (e) and (f) of this section, prohibited and illegal sexual behavior; (a) During the intake process, each and, unless the allegation does not (4) Recognition of situations where facility shall ensure that the detainee involve potentially criminal behavior, sexual abuse may occur; orientation program notifies and are promptly referred for investigation (5) Recognition of physical, informs detainees about the agency’s to an appropriate law enforcement behavioral, and emotional signs of and the facility’s zero-tolerance policies agency with the legal authority to sexual abuse, and methods of for all forms of sexual abuse and conduct criminal investigations. A preventing and responding to such includes (at a minimum) instruction on: facility may separately, and in addition occurrences; (1) Prevention and intervention to the above reports and referrals, (6) How to avoid inappropriate strategies; conduct its own investigation. relationships with detainees; (2) Definitions and examples of (e) When a detainee, prisoner, inmate, (7) How to communicate effectively detainee-on-detainee sexual abuse, staff- or resident of the facility in which an and professionally with detainees, on-detainee sexual abuse and coercive alleged detainee victim is housed is including lesbian, gay, bisexual, sexual activity; alleged to be the perpetrator of detainee transgender, intersex, or gender (3) Explanation of methods for sexual abuse, the facility shall ensure nonconforming detainees; reporting sexual abuse, including to any that the incident is promptly reported to (8) Procedures for reporting staff member, including a staff member the Joint Intake Center, the ICE Office of knowledge or suspicion of sexual abuse; other than an immediate point-of- Professional Responsibility or the DHS and contact line officer (e.g., the compliance Office of Inspector General, as well as (9) The requirement to limit reporting manager or a mental health specialist), the appropriate ICE Field Office of sexual abuse to personnel with a the DHS Office of Inspector General, Director, and, if it is potentially need-to-know in order to make and the Joint Intake Center; criminal, referred to an appropriate law decisions concerning the victim’s (4) Information about self-protection enforcement agency having jurisdiction welfare and for law enforcement or and indicators of sexual abuse; for investigation. investigative purposes. (5) Prohibition against retaliation, (f) When a staff member, contractor, (b) All current facility staff, and all including an explanation that reporting or volunteer is alleged to be the agency employees who may have sexual abuse shall not negatively impact perpetrator of detainee sexual abuse, the contact with immigration detention the detainee’s immigration proceedings; facility shall ensure that the incident is facility detainees, shall be trained and promptly reported to the Joint Intake within one year of May 6, 2014, and the (6) The right of a detainee who has Center, the ICE Office of Professional agency or facility shall provide refresher been subjected to sexual abuse to Responsibility or the DHS Office of information every two years. receive treatment and counseling.

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(b) Each facility shall provide the (3) How and to whom to report (e) The facility shall reassess each detainee notification, orientation, and allegations or suspicions of sexual detainee’s risk of victimization or instruction in formats accessible to all abuse, and abusiveness between 60 and 90 days detainees, including those who are (4) How to preserve physical evidence from the date of initial assessment, and limited English proficient, deaf, visually of sexual abuse. If medical staff at any other time when warranted based impaired or otherwise disabled, as well employed by the agency conduct upon the receipt of additional, relevant as to detainees who have limited forensic examinations, such medical information or following an incident of reading skills. staff shall receive the appropriate abuse or victimization. (c) The facility shall maintain training to conduct such examinations. (f) Detainees shall not be disciplined documentation of detainee participation (c) The agency shall review and for refusing to answer, or for not in the intake process orientation. approve the facility’s policy and disclosing complete information in (d) Each facility shall post on all procedures to ensure that facility response to, questions asked pursuant to housing unit bulletin boards the medical staff is trained in procedures for paragraphs (c)(1), (c)(7), (c)(8), or (c)(9) following notices: examining and treating victims of sexual of this section. (1) The DHS-prescribed sexual assault abuse, in facilities where medical staff (g) The facility shall implement awareness notice; may be assigned these activities. appropriate controls on the dissemination within the facility of (2) The name of the Prevention of Assessment for Risk of Sexual responses to questions asked pursuant Sexual Abuse Compliance Manager; and Victimization and Abusiveness (3) The name of local organizations to this standard in order to ensure that that can assist detainees who have been § 115.41 Assessment for risk of sensitive information is not exploited to victims of sexual abuse. victimization and abusiveness. the detainee’s detriment by staff or other (e) The facility shall make available (a) The facility shall assess all detainees or inmates. and distribute the DHS-prescribed detainees on intake to identify those § 115.42 Use of assessment information. ‘‘Sexual Assault Awareness likely to be sexual aggressors or sexual Information’’ pamphlet. abuse victims and shall house detainees (a) The facility shall use the (f) Information about reporting sexual to prevent sexual abuse, taking information from the risk assessment abuse shall be included in the agency necessary steps to mitigate any such under § 115.41 of this part to inform Detainee Handbook made available to danger. Each new arrival shall be kept assignment of detainees to housing, all immigration detention facility separate from the general population recreation and other activities, and detainees. until he/she is classified and may be voluntary work. The agency shall make housed accordingly. individualized determinations about § 115.34 Specialized training: how to ensure the safety of each Investigations. (b) The initial classification process and initial housing assignment should detainee. (a) In addition to the general training be completed within twelve hours of (b) When making assessment and provided to all facility staff and admission to the facility. housing decisions for a transgender or employees pursuant to § 115.31, the (c) The facility shall also consider, to intersex detainee, the facility shall agency or facility shall provide the extent that the information is consider the detainee’s gender self- specialized training on sexual abuse and available, the following criteria to assess identification and an assessment of the effective cross-agency coordination to detainees for risk of sexual effects of placement on the detainee’s agency or facility investigators, victimization: health and safety. The facility shall respectively, who conduct (1) Whether the detainee has a mental, consult a medical or mental health investigations into allegations of sexual physical, or developmental disability; professional as soon as practicable on abuse at immigration detention (2) The age of the detainee; this assessment. The facility should not facilities. All investigations into alleged (3) The physical build and appearance base placement decisions of transgender sexual abuse must be conducted by of the detainee; or intersex detainees solely on the qualified investigators. (4) Whether the detainee has identity documents or physical anatomy (b) The agency and facility must previously been incarcerated or of the detainee; a detainee’s self- maintain written documentation detained; identification of his/her gender and self- verifying specialized training provided (5) The nature of the detainee’s assessment of safety needs shall always to investigators pursuant to this section. criminal history; be taken into consideration as well. The (6) Whether the detainee has any facility’s placement of a transgender or § 115.35 Specialized training: Medical and convictions for sex offenses against an intersex detainee shall be consistent mental health care. adult or child; with the safety and security (a) The agency shall provide (7) Whether the detainee has self- considerations of the facility, and specialized training to DHS or agency identified as gay, lesbian, bisexual, placement and programming employees who serve as full- and part- transgender, intersex, or gender assignments for each transgender or time medical practitioners or full- and nonconforming; intersex detainee shall be reassessed at part-time mental health practitioners in (8) Whether the detainee has self- least twice each year to review any immigration detention facilities where identified as having previously threats to safety experienced by the medical and mental health care is experienced sexual victimization; and detainee. provided. (9) The detainee’s own concerns about (c) When operationally feasible, (b) The training required by this his or her physical safety. transgender and intersex detainees shall section shall cover, at a minimum, the (d) The initial screening shall be given the opportunity to shower following topics: consider prior acts of sexual abuse, prior separately from other detainees. (1) How to detect and assess signs of convictions for violent offenses, and sexual abuse; history of prior institutional violence or § 115.43 Protective custody. (2) How to respond effectively and sexual abuse, as known to the facility, (a) The facility shall develop and professionally to victims of sexual in assessing detainees for risk of being follow written procedures consistent abuse, sexually abusive. with the standards in this subpart for

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each facility governing the management housing option at another facility or Office Director at the end of the of its administrative segregation unit. other appropriate custodial options; and grievance process. These procedures, which should be (3) Whether the placement is only as (f) To prepare a grievance, a detainee developed in consultation with the ICE a last resort and when no other viable may obtain assistance from another Enforcement and Removal Operations housing options exist. detainee, the housing officer or other Field Office Director having jurisdiction facility staff, family members, or legal for the facility, must document detailed Reporting representatives. Staff shall take reasons for placement of an individual § 115.51 Detainee reporting. in administrative segregation on the reasonable steps to expedite requests for (a) The agency and each facility shall assistance from these other parties. basis of a vulnerability to sexual abuse develop policies and procedures to or assault. ensure that detainees have multiple § 115.53 Detainee access to outside (b) Use of administrative segregation ways to privately report sexual abuse, confidential support services. by facilities to protect detainees retaliation for reporting sexual abuse, or vulnerable to sexual abuse or assault (a) Each facility shall utilize available staff neglect or violations of shall be restricted to those instances community resources and services to responsibilities that may have where reasonable efforts have been provide valuable expertise and support contributed to such incidents. The made to provide appropriate housing in the areas of crisis intervention, agency and each facility shall also and shall be made for the least amount counseling, investigation and the provide instructions on how detainees of time practicable, and when no other prosecution of sexual abuse perpetrators may contact their consular official, the viable housing options exist, as a last to most appropriately address victims’ DHS Office of the Inspector General or, resort. The facility should assign needs. The facility shall maintain or as appropriate, another designated detainees vulnerable to sexual abuse or office, to confidentially and, if desired, attempt to enter into memoranda of assault to administrative segregation for anonymously, report these incidents. understanding or other agreements with their protection until an alternative (b) The agency shall also provide, and community service providers or, if local means of separation from likely abusers the facility shall inform the detainees of, providers are not available, with can be arranged, and such an at least one way for detainees to report national organizations that provide legal assignment shall not ordinarily exceed a sexual abuse to a public or private entity advocacy and confidential emotional period of 30 days. or office that is not part of the agency, support services for immigrant victims (c) Facilities that place vulnerable of crime. detainees in administrative segregation and that is able to receive and for protective custody shall provide immediately forward detainee reports of (b) Each facility’s written policies those detainees access to programs, sexual abuse to agency officials, shall establish procedures to include visitation, counsel and other services allowing the detainee to remain outside agencies in the facility’s sexual available to the general population to anonymous upon request. abuse prevention and intervention the maximum extent practicable. (c) Facility policies and procedures protocols, if such resources are (d) Facilities shall implement written shall include provisions for staff to available. accept reports made verbally, in writing, procedures for the regular review of all (c) Each facility shall make available anonymously, and from third parties vulnerable detainees placed in to detainees information about local administrative segregation for their and to promptly document any verbal reports. organizations that can assist detainees protection, as follows: who have been victims of sexual abuse, (1) A supervisory staff member shall § 115.52 Grievances. including mailing addresses and conduct a review within 72 hours of the telephone numbers (including toll-free detainee’s placement in administrative (a) The facility shall permit a detainee hotline numbers where available). If no segregation to determine whether to file a formal grievance related to such local organizations exist, the segregation is still warranted; and sexual abuse at any time during, after, (2) A supervisory staff member shall or in lieu of lodging an informal facility shall make available the same conduct, at a minimum, an identical grievance or complaint. information about national review after the detainee has spent (b) The facility shall not impose a organizations. The facility shall enable seven days in administrative time limit on when a detainee may reasonable communication between segregation, and every week thereafter submit a grievance regarding an detainees and these organizations and for the first 30 days, and every 10 days allegation of sexual abuse. agencies, in as confidential a manner as thereafter. (c) The facility shall implement possible. (e) Facilities shall notify the written procedures for identifying and (d) Each facility shall inform handling time-sensitive grievances that appropriate ICE Field Office Director no detainees, prior to giving them access to involve an immediate threat to detainee later than 72 hours after the initial outside resources, of the extent to which health, safety, or welfare related to placement into segregation, whenever a such communications will be monitored detainee has been placed in sexual abuse. (d) Facility staff shall bring medical and the extent to which reports of abuse administrative segregation on the basis will be forwarded to authorities in of a vulnerability to sexual abuse or emergencies to the immediate attention of proper medical personnel for further accordance with mandatory reporting assault. laws. (f) Upon receiving notification assessment. pursuant to paragraph (e) of this section, (e) The facility shall issue a decision § 115.54 Third-party reporting. the ICE Field Office Director shall on the grievance within five days of review the placement and consider: receipt and shall respond to an appeal Each facility shall establish a method (1) Whether continued placement in of the grievance decision within 30 to receive third-party reports of sexual administrative segregation is warranted; days. Facilities shall send all grievances abuse in its immigration detention (2) Whether any alternatives are related to sexual abuse and the facility’s facilities and shall make available to the available and appropriate, such as decisions with respect to such public information on how to report placing the detainee in a less restrictive grievances to the appropriate ICE Field sexual abuse on behalf of a detainee.

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Official Response Following a Detainee (c) The agency or facility shall facility of the incident and the victim’s Report document that it has provided such potential need for medical or social notification. services, unless the victim requests § 115.61 Staff reporting duties. (d) The agency or facility office that otherwise. (a) The agency and each facility shall receives such notification, to the extent require all staff to report immediately the facility is covered by this subpart, § 115.66 Protection of detainees from contact with alleged abusers. and according to agency policy any shall ensure that the allegation is knowledge, suspicion, or information referred for investigation in accordance Staff, contractors, and volunteers regarding an incident of sexual abuse with these standards and reported to the suspected of perpetrating sexual abuse that occurred in a facility; retaliation appropriate ICE Field Office Director. shall be removed from all duties against detainees or staff who reported requiring detainee contact pending the or participated in an investigation about § 115.64 Responder duties. outcome of an investigation. such an incident; and any staff neglect (a) Upon learning of an allegation that § 115.67 Agency protection against or violation of responsibilities that may a detainee was sexually abused, the first retaliation. have contributed to an incident or security staff member to respond to the (a) Staff, contractors, and volunteers, retaliation. The agency shall review and report, or his or her supervisor, shall be and immigration detention facility approve facility policies and procedures required to: detainees, shall not retaliate against any and shall ensure that the facility (1) Separate the alleged victim and person, including a detainee, who specifies appropriate reporting abuser; reports, complains about, or participates procedures, including a method by (2) Preserve and protect, to the in an investigation into an allegation of which staff can report outside of the greatest extent possible, any crime scene sexual abuse, or for participating in chain of command. until appropriate steps can be taken to sexual activity as a result of force, (b) Staff members who become aware collect any evidence; coercion, threats, or fear of force. of alleged sexual abuse shall (3) If the abuse occurred within a time (b) The agency shall employ multiple immediately follow the reporting period that still allows for the collection protection measures, such as housing requirements set forth in the agency’s of physical evidence, request the alleged changes, removal of alleged staff or and facility’s written policies and victim not to take any actions that could detainee abusers from contact with procedures. destroy physical evidence, including, as victims, and emotional support services (c) Apart from such reporting, staff appropriate, washing, brushing teeth, for detainees or staff who fear retaliation shall not reveal any information related changing clothes, urinating, defecating, for reporting sexual abuse or for to a sexual abuse report to anyone other smoking, drinking, or eating; and cooperating with investigations. than to the extent necessary to help (4) If the sexual abuse occurred within (c) For at least 90 days following a protect the safety of the victim or a time period that still allows for the report of sexual abuse, the agency and prevent further victimization of other collection of physical evidence, ensure facility shall monitor to see if there are detainees or staff in the facility, or to that the alleged abuser does not take any facts that may suggest possible make medical treatment, investigation, actions that could destroy physical retaliation by detainees or staff, and law enforcement, or other security and evidence, including, as appropriate, shall act promptly to remedy any such management decisions. washing, brushing teeth, changing retaliation. Items the agency should (d) If the alleged victim is under the clothes, urinating, defecating, smoking, monitor include any detainee age of 18 or considered a vulnerable drinking, or eating. disciplinary reports, housing or program adult under a State or local vulnerable (b) If the first staff responder is not a changes, or negative performance persons statute, the agency shall report security staff member, the responder reviews or reassignments of staff. DHS the allegation to the designated State or shall be required to request that the shall continue such monitoring beyond local services agency under applicable alleged victim not take any actions that 90 days if the initial monitoring mandatory reporting laws. could destroy physical evidence and indicates a continuing need. then notify security staff. § 115.62 Protection duties. § 115.68 Post-allegation protective If an agency employee or facility staff § 115.65 Coordinated response. custody. member has a reasonable belief that a (a) Each facility shall develop a (a) The facility shall take care to place detainee is subject to a substantial risk written institutional plan to coordinate detainee victims of sexual abuse in a of imminent sexual abuse, he or she actions taken by staff first responders, supportive environment that represents shall take immediate action to protect medical and mental health practitioners, the least restrictive housing option the detainee. investigators, and facility leadership in possible (e.g., protective custody), response to an incident of sexual abuse. subject to the requirements of § 115.43. § 115.63 Reporting to other confinement (b) Each facility shall use a (b) Detainee victims shall not be held facilities. coordinated, multidisciplinary team for longer than five days in any type of (a) Upon receiving an allegation that approach to responding to sexual abuse. administrative segregation, except in a detainee was sexually abused while (c) If a victim of sexual abuse is highly unusual circumstances or at the confined at another facility, the agency transferred between facilities covered by request of the detainee. or facility whose staff received the subpart A or B of this part, the sending (c) A detainee victim who is in allegation shall notify the appropriate facility shall, as permitted by law, protective custody after having been office of the agency or the administrator inform the receiving facility of the subjected to sexual abuse shall not be of the facility where the alleged abuse incident and the victim’s potential need returned to the general population until occurred. for medical or social services. completion of a proper re-assessment, (b) The notification provided in (d) If a victim is transferred from a taking into consideration any increased paragraph (a) of this section shall be DHS immigration detention facility to a vulnerability of the detainee as a result provided as soon as possible, but no facility not covered by paragraph (c) of of the sexual abuse. later than 72 hours after receiving the this section, the sending facility shall, as (d) Facilities shall notify the allegation. permitted by law, inform the receiving appropriate ICE Field Office Director

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whenever a detainee victim has been shall include a description of the position and from the Federal service, held in administrative segregation for 72 physical and testimonial evidence, the when there is a substantiated allegation hours. reasoning behind credibility of sexual abuse, or when there has been (e) Upon receiving notification that a assessments, and investigative facts and a violation of agency sexual abuse rules, detainee victim has been held in findings; and policies, or standards. Removal from administrative segregation, the ICE Field (vii) Retention of such reports for as their position and from the Federal Office Director shall review the long as the alleged abuser is detained or service is the presumptive disciplinary placement and consider: employed by the agency or facility, plus sanction for staff who have engaged in (1) Whether the placement is only as five years. or attempted or threatened to engage in a last resort and when no other viable (2) Such procedures shall govern the sexual abuse, as defined under the housing options exist; and coordination and sequencing of the two definition of sexual abuse of a detainee (2) In cases where the detainee has types of investigations, in accordance by a staff member, contractor, or been held in administrative segregation with paragraph (b) of this section, to volunteer, paragraphs (1)–(4) and (7)–(8) for longer than 5 days, whether the ensure that the criminal investigation is of the definition of ‘‘sexual abuse of a placement is justified by highly unusual not compromised by an internal detainee by a staff member, contractor, circumstances or at the detainee’s administrative investigation. or volunteer’’ in § 115.6. request. (d) The agency shall review and (c) Each facility shall report all approve the facility policy and Investigations removals or resignations in lieu of procedures for coordination and removal for violations of agency or § 115.71 Criminal and administrative conduct of internal administrative facility sexual abuse policies to investigations. investigations with the assigned appropriate law enforcement agencies, (a) If the facility has responsibility for criminal investigative entity to ensure unless the activity was clearly not investigating allegations of sexual abuse, non-interference with criminal criminal. all investigations into alleged sexual investigations. (d) Each facility shall make reasonable abuse must be prompt, thorough, (e) The departure of the alleged abuser efforts to report removals or resignations objective, and conducted by specially or victim from the employment or in lieu of removal for violations of trained, qualified investigators. control of the facility or agency shall not agency or facility sexual abuse policies (b) Upon conclusion of a criminal provide a basis for terminating an to any relevant licensing bodies, to the investigation where the allegation was investigation. extent known. substantiated, an administrative (f) When outside agencies investigate investigation shall be conducted. Upon sexual abuse, the facility shall cooperate § 115.77 Corrective action for contractors conclusion of a criminal investigation with outside investigators and shall and volunteers. where the allegation was endeavor to remain informed about the (a) Any contractor or volunteer who unsubstantiated, the facility shall progress of the investigation. has engaged in sexual abuse shall be review any available completed prohibited from contact with detainees. § 115.72 Evidentiary standard for Each facility shall make reasonable criminal investigation reports to administrative investigations. determine whether an administrative efforts to report to any relevant licensing When an administrative investigation investigation is necessary or body, to the extent known, incidents of is undertaken, the agency shall impose appropriate. Administrative substantiated sexual abuse by a no standard higher than a investigations shall be conducted after contractor or volunteer. Such incidents preponderance of the evidence in consultation with the appropriate shall also be reported to law determining whether allegations of investigative office within DHS, and the enforcement agencies, unless the sexual abuse are substantiated. assigned criminal investigative entity. activity was clearly not criminal. (c)(1) The facility shall develop § 115.73 Reporting to detainees. (b) Contractors and volunteers written procedures for administrative The agency shall, when the detainee suspected of perpetrating sexual abuse investigations, including provisions is still in immigration detention, or shall be removed from all duties requiring: where otherwise feasible, following an requiring detainee contact pending the (i) Preservation of direct and investigation into a detainee’s allegation outcome of an investigation. (c) The facility shall take appropriate circumstantial evidence, including any of sexual abuse, notify the detainee as remedial measures, and shall consider available physical and DNA evidence to the result of the investigation and any whether to prohibit further contact with and any available electronic monitoring responsive action taken. data; detainees by contractors or volunteers (ii) Interviewing alleged victims, Discipline who have not engaged in sexual abuse, suspected perpetrators, and witnesses; but have violated other provisions (iii) Reviewing prior complaints and § 115.76 Disciplinary sanctions for staff. within these standards. reports of sexual abuse involving the (a) Staff shall be subject to suspected perpetrator; disciplinary or adverse action up to and § 115.78 Disciplinary sanctions for (iv) Assessment of the credibility of including removal from their position detainees. an alleged victim, suspect, or witness, and the Federal service for substantiated (a) Each facility shall subject a without regard to the individual’s status allegations of sexual abuse or for detainee to disciplinary sanctions as detainee, staff, or employee, and violating agency or facility sexual abuse pursuant to a formal disciplinary without requiring any detainee who policies. process following an administrative or alleges sexual abuse to submit to a (b) The agency shall review and criminal finding that the detainee polygraph; approve facility policies and procedures engaged in sexual abuse. (v) An effort to determine whether regarding disciplinary or adverse (b) At all steps in the disciplinary actions or failures to act at the facility actions for staff and shall ensure that the process provided in paragraph (a), any contributed to the abuse; and facility policy and procedures specify sanctions imposed shall be (vi) Documentation of each disciplinary or adverse actions for staff, commensurate with the severity of the investigation by written report, which up to and including removal from their committed prohibited act and intended

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to encourage the detainee to conform § 115.83 Ongoing medical and mental motivated by race; ethnicity; gender with rules and regulations in the future. health care for sexual abuse victims and identity; lesbian, gay, bisexual, abusers. (c) Each facility holding detainees in transgender, or intersex identification, custody shall have a detainee (a) Each facility shall offer medical status, or perceived status; or gang disciplinary system with progressive and mental health evaluation and, as affiliation; or was motivated or appropriate, treatment to all detainees levels of reviews, appeals, procedures, otherwise caused by other group who have been victimized by sexual and documentation procedure. dynamics at the facility. abuse while in immigration detention. (c) Each facility shall conduct an (d) The disciplinary process shall (b) The evaluation and treatment of annual review of all sexual abuse consider whether a detainee’s mental such victims shall include, as investigations and resulting incident disabilities or mental illness contributed appropriate, follow-up services, reviews to assess and improve sexual to his or her behavior when determining treatment plans, and, when necessary, abuse intervention, prevention and what type of sanction, if any, should be referrals for continued care following response efforts. If the facility has not imposed. their transfer to, or placement in, other had any reports of sexual abuse during (e) The facility shall not discipline a facilities, or their release from custody. the annual reporting period, then the detainee for sexual contact with staff (c) The facility shall provide such facility shall prepare a negative report. unless there is a finding that the staff victims with medical and mental health The results and findings of the annual member did not consent to such contact. services consistent with the community review shall be provided to the facility level of care. administrator, Field Office Director or (f) For the purpose of disciplinary (d) Detainee victims of sexually his or her designee, and the agency PSA action, a report of sexual abuse made in abusive vaginal penetration by a male Coordinator. good faith based upon a reasonable abuser while incarcerated shall be belief that the alleged conduct occurred § 115.87 Data collection. offered pregnancy tests. If pregnancy shall not constitute falsely reporting an results from an instance of sexual abuse, (a) Each facility shall maintain in a incident or lying, even if an the victim shall receive timely and secure area all case records associated investigation does not establish comprehensive information about with claims of sexual abuse, including evidence sufficient to substantiate the lawful pregnancy-related medical incident reports, investigative reports, allegation. services and timely access to all lawful offender information, case disposition, medical and counseling evaluation Medical and Mental Care pregnancy-related medical services. (e) Detainee victims of sexual abuse findings, and recommendations for post- § 115.81 Medical and mental health while detained shall be offered tests for release treatment, if necessary, and/or assessments; history of sexual abuse. sexually transmitted infections as counseling in accordance with these medically appropriate. standards and applicable agency (a) If the assessment pursuant to policies, and in accordance with § 115.41 indicates that a detainee has (f) Treatment services shall be provided to the victim without financial established schedules. The DHS Office experienced prior sexual victimization of Inspector General shall maintain the or perpetrated sexual abuse, staff shall, cost and regardless of whether the victim names the abuser or cooperates official investigative file related to as appropriate, ensure that the detainee claims of sexual abuse investigated by is immediately referred to a qualified with any investigation arising out of the incident. the DHS Office of Inspector General. medical or mental health practitioner (b) On an ongoing basis, the PSA (g) The facility shall attempt to for medical and/or mental health Coordinator shall work with relevant conduct a mental health evaluation of follow-up as appropriate. facility PSA Compliance Managers and all known detainee-on-detainee abusers DHS entities to share data regarding (b) When a referral for medical follow- within 60 days of learning of such abuse effective agency response methods to up is initiated, the detainee shall receive history and offer treatment when sexual abuse. a health evaluation no later than two deemed appropriate by mental health (c) On a regular basis, the PSA working days from the date of practitioners. assessment. Coordinator shall prepare a report for (c) When a referral for mental health Data Collection and Review ICE leadership compiling information follow-up is initiated, the detainee shall received about all incidents or § 115.86 Sexual abuse incident reviews. allegations of sexual abuse of detainees receive a mental health evaluation no (a) Each facility shall conduct a sexual later than 72 hours after the referral. in immigration detention during the abuse incident review at the conclusion period covered by the report, as well as § 115.82 Access to emergency medical of every investigation of sexual abuse ongoing investigations and other and mental health services. and, where the allegation was not pending cases. determined to be unfounded, prepare a (d) On an annual basis, the PSA (a) Detainee victims of sexual abuse written report within 30 days of the Coordinator shall aggregate, in a manner shall have timely, unimpeded access to conclusion of the investigation that will facilitate the agency’s ability to emergency medical treatment and crisis recommending whether the allegation or detect possible patterns and help intervention services, including investigation indicates that a change in prevent future incidents, the incident- emergency contraception and sexually policy or practice could better prevent, based sexual abuse data, including the transmitted infections prophylaxis, in detect, or respond to sexual abuse. The number of reported sexual abuse accordance with professionally accepted facility shall implement the allegations determined to be standards of care. recommendations for improvement, or substantiated, unsubstantiated, or (b) Emergency medical treatment shall document its reasons for not doing unfounded, or for which investigation is services provided to the victim shall be so in a written response. Both the report ongoing, and for each incident found to without financial cost and regardless of and response shall be forwarded to the be substantiated, information whether the victim names the abuser or agency PSA Coordinator. concerning: cooperates with any investigation (b) The review team shall consider (1) The date, time, location, and arising out of the incident. whether the incident or allegation was nature of the incident;

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(2) The demographic background of its direct control and from any private Prevention Planning the victim and perpetrator (including agencies with which it contracts citizenship, age, gender, and whether § 115.111 Zero tolerance of sexual abuse; available to the public at least annually Prevention of Sexual Assault Coordinator. either has self-identified as gay, lesbian, on its Web site consistent with existing (a) The agency shall have a written bisexual, transgender, intersex, or agency information disclosure policies policy mandating zero tolerance toward gender nonconforming); and processes. (3) The reporting timeline for the all forms of sexual abuse and outlining (c) Before making aggregated sexual incident (including the name of the agency’s approach to preventing, abuse data publicly available, the individual who reported the incident, detecting, and responding to such and the date and time the report was agency shall remove all personal conduct. (b) The agency shall employ or received); identifiers. designate an upper-level, agency-wide (4) Any injuries sustained by the (d) The agency shall maintain sexual PSA Coordinator with sufficient time victim; abuse data collected pursuant to and authority to develop, implement, (5) Post-report follow up responses § 115.87 for at least 10 years after the and oversee agency efforts to comply and action taken by the facility (e.g., date of the initial collection unless with these standards in all of its holding housing placement/custody Federal, State, or local law requires facilities. classification, medical examination, otherwise. mental health counseling, etc.); and § 115.112 Contracting with non-DHS (6) Any sanctions imposed on the Audits and Compliance entities for the confinement of detainees. perpetrator. § 115.93 Audits of standards. (a) An agency that contracts for the (e) Upon request, the agency shall confinement of detainees in holding provide all data described in this (a) During the three-year period facilities operated by non-DHS private section from the previous calendar year starting on July 6. 2015, and during each or public agencies or other entities, to the Office for Civil Rights and Civil three-year period thereafter, the agency including other government agencies, Liberties no later than June 30. shall ensure that each immigration shall include in any new contracts, detention facility that has adopted these contract renewals, or substantive § 115.88 Data review for corrective action. standards is audited at least once. contract modifications the entity’s (a) The agency shall review data obligation to adopt and comply with collected and aggregated pursuant to (b) The agency may require an expedited audit if the agency has reason these standards. § 115.87 of this part in order to assess (b) Any new contracts, contract to believe that a particular facility may and improve the effectiveness of its renewals, or substantive contract be experiencing problems relating to sexual abuse prevention, detection, and modifications shall provide for agency response policies, practices, and sexual abuse. The agency may also contract monitoring to ensure that the training, including by: include referrals to resources that may contractor is complying with these (1) Identifying problem areas; assist the facility with PREA-related standards. (2) Taking corrective action on an issues. (c) To the extent an agency contracts ongoing basis; and (c) Audits under this section shall be for confinement of holding facility (3) Preparing an annual report of its conducted pursuant to §§ 115.201 detainees, all rules in this subpart that findings and corrective actions for each through 115.205. apply to the agency shall apply to the immigration detention facility, as well contractor, and all rules that apply to as the agency as a whole. (d) Audits under this section shall be coordinated by the agency with the DHS staff or employees shall apply to (b) Such report shall include a contractor staff. comparison of the current year’s data Office for Civil Rights and Civil and corrective actions with those from Liberties, which may request an § 115.113 Detainee supervision and prior years and shall provide an expedited audit if it has reason to monitoring. assessment of the agency’s progress in believe that an expedited audit is (a) The agency shall ensure that each preventing, detecting, and responding to appropriate. facility maintains sufficient supervision of detainees, including through sexual abuse. Additional Provisions in Agency appropriate staffing levels and, where (c) The agency’s report shall be Policies approved by the agency head and made applicable, video monitoring, to protect readily available to the public through § 115.95 Additional provisions in agency detainees against sexual abuse. its Web site. policies. (b) The agency shall develop and (d) The agency may redact specific document comprehensive detainee The regulations in this subpart A material from the reports, when supervision guidelines to determine and establish minimum requirements for appropriate for safety or security, but meet each facility’s detainee supervision agencies and facilities. Agency and must indicate the nature of the material needs, and shall review those facility policies may include additional redacted. supervision guidelines and their requirements. application at each facility at least § 115.89 Data storage, publication, and annually. destruction. Subpart B—Standards for DHS Holding (c) In determining adequate levels of (a) The agency shall ensure that data Facilities Coverage detainee supervision and determining the need for video monitoring, agencies collected pursuant to § 115.87 are § 115.110 Coverage of DHS holding securely retained in accordance with facilities. shall take into consideration the agency record retention policies and the physical layout of each holding facility, agency protocol regarding investigation This subpart B covers all DHS holding the composition of the detainee of allegations. facilities. Standards found in subpart A population, the prevalence of (b) The agency shall make all of this part are not applicable to DHS substantiated and unsubstantiated aggregated sexual abuse data from facilities except ICE immigration incidents of sexual abuse, the findings immigration detention facilities under detention facilities. and recommendations of sexual abuse

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incident review reports, and any other gender is unknown, it may be effective, accurate, and impartial relevant factors, including but not determined during conversations with interpretation, both receptively and limited to the length of time detainees the detainee, by reviewing medical expressively, using any necessary spend in agency custody. records (if available), or, if necessary, specialized vocabulary. learning that information as part of a (c) In matters relating to allegations of § 115.114 Juvenile and family detainees. broader medical examination conducted sexual abuse, the agency shall provide (a) Juveniles shall be detained in the in private, by a medical practitioner. in-person or telephonic interpretation least restrictive setting appropriate to (f) The agency shall train law services that enable effective, accurate, the juvenile’s age and special needs, enforcement staff in proper procedures and impartial interpretation, by provided that such setting is consistent for conducting pat-down searches, someone other than another detainee, with the need to protect the juvenile’s including cross-gender pat-down unless the detainee expresses a well-being and that of others, as well as searches and searches of transgender preference for another detainee to with any other laws, regulations, or and intersex detainees. All pat-down provide interpretation, and the agency legal requirements. searches shall be conducted in a determines that such interpretation is (b) Unaccompanied juveniles shall professional and respectful manner, and appropriate and consistent with DHS generally be held separately from adult in the least intrusive manner possible, policy. The provision of interpreter detainees. The juvenile may temporarily consistent with security needs and services by minors, alleged abusers, remain with a non-parental adult family agency policy, including consideration detainees who witnessed the alleged member where: of officer safety. abuse, and detainees who have a (1) The family relationship has been § 115.116 Accommodating detainees with significant relationship with the alleged vetted to the extent feasible, and abuser is not appropriate in matters (2) The agency determines that disabilities and detainees who are limited English proficient. relating to allegations of sexual abuse is remaining with the non-parental adult (a) The agency shall take appropriate not appropriate in matters relating to family member is appropriate, under the allegations of sexual abuse. totality of the circumstances. steps to ensure that detainees with disabilities (including, for example, § 115.117 Hiring and promotion decisions. § 115.115 Limits to cross-gender viewing detainees who are deaf or hard of and searches. hearing, those who are blind or have (a) The agency shall not hire or (a) Searches may be necessary to low vision, or those who have promote anyone who may have contact ensure the safety of officers, civilians intellectual, psychiatric, or speech with detainees, and shall not enlist the and detainees; to detect and secure disabilities), have an equal opportunity services of any contractor or volunteer evidence of criminal activity; and to to participate in or benefit from all who may have contact with detainees, promote security, safety, and related aspects of the agency’s efforts to who has engaged in sexual abuse in a interests at DHS holding facilities. prevent, detect, and respond to sexual prison, jail, holding facility, community (b) Cross-gender strip searches or abuse. Such steps shall include, when confinement facility, juvenile facility, or cross-gender visual body cavity searches necessary to ensure effective other institution (as defined in 42 U.S.C. shall not be conducted except in exigent communication with detainees who are 1997); who has been convicted of circumstances, including consideration deaf or hard of hearing, providing access engaging or attempting to engage in of officer safety, or when performed by to in-person, telephonic, or video sexual activity facilitated by force, overt medical practitioners. An agency shall interpretive services that enable or implied threats of force, or coercion, not conduct visual body cavity searches effective, accurate, and impartial or if the victim did not consent or was of juveniles and, instead, shall refer all interpretation, both receptively and unable to consent or refuse; or who has such body cavity searches of juveniles expressively, using any necessary been civilly or administratively to a medical practitioner. specialized vocabulary. In addition, the adjudicated to have engaged in such (c) All strip searches and visual body agency shall ensure that any written activity. cavity searches shall be documented. materials related to sexual abuse are (b) When the agency is considering (d) The agency shall implement provided in formats or through methods hiring or promoting staff, it shall ask all policies and procedures that enable that ensure effective communication applicants who may have contact with detainees to shower (where showers are with detainees with disabilities, detainees directly about previous available), perform bodily functions, including detainees who have misconduct described in paragraph (a) and change clothing without being intellectual disabilities, limited reading of this section, in written applications viewed by staff of the opposite gender, skills, or who are blind or have low or interviews for hiring or promotions except in exigent circumstances or vision. An agency is not required to take and in any interviews or written self- when such viewing is incidental to actions that it can demonstrate would evaluations conducted as part of routine cell checks or is otherwise result in a fundamental alteration in the reviews of current employees. The appropriate in connection with a nature of a service, program, or activity, agency shall also impose upon medical examination or monitored or in undue financial and administrative employees a continuing affirmative duty bowel movement under medical burdens, as those terms are used in to disclose any such misconduct. supervision. Such policies and regulations promulgated under title II of (c) Before hiring new employees who procedures shall require staff of the the Americans with Disabilities Act, 28 may have contact with detainees, the opposite gender to announce their CFR 35.164. agency shall require a background presence when entering an area where (b) The agency shall take reasonable investigation to determine whether the detainees are likely to be showering, steps to ensure meaningful access to all candidate for hire is suitable for performing bodily functions, or aspects of the agency’s efforts to employment with the agency. The changing clothing. prevent, detect, and respond to sexual agency shall conduct an updated (e) The agency and facility shall not abuse to detainees who are limited background investigation for agency search or physically examine a detainee English proficient, including steps to employees every five years. for the sole purpose of determining the provide in-person or telephonic (d) The agency shall also perform a detainee’s gender. If the detainee’s interpretive services that enable background investigation before

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enlisting the services of any contractor facility to undergo a forensic medical Training and Education who may have contact with detainees. examination, including a Sexual Assault (e) Material omissions regarding such Forensic Examiner (SAFE) or Sexual § 115.131 Employee, contractor, and volunteer training. misconduct, or the provision of Assault Nurse Examiner (SANE) where materially false information, shall be practicable. If SAFEs or SANEs cannot (a) The agency shall train, or require grounds for termination or withdrawal be made available, the examination can the training of all employees, of an offer of employment, as be performed by other qualified health contractors, and volunteers who may appropriate. care personnel. have contact with holding facility (f) Unless prohibited by law, the detainees, to be able to fulfill their (d) If, in connection with an allegation agency shall provide information on responsibilities under these standards, substantiated allegations of sexual abuse of sexual abuse, the detainee is including training on: involving a former employee upon transported for a forensic examination (1) The agency’s zero-tolerance receiving a request from an institutional to an outside hospital that offers victim policies for all forms of sexual abuse; employer for whom such employee has advocacy services, the detainee shall be (2) The right of detainees and applied to work. permitted to use such services to the employees to be free from sexual abuse, (g) In the event the agency contracts extent available, consistent with and from retaliation for reporting sexual with a facility for the confinement of security needs. abuse; detainees, the requirements of this (e) To the extent that the agency is not (3) Definitions and examples of section otherwise applicable to the responsible for investigating allegations prohibited and illegal sexual behavior; agency also apply to the facility. of sexual abuse, the agency shall request (4) Recognition of situations where that the investigating agency follow the sexual abuse may occur; § 115.118 Upgrades to facilities and (5) Recognition of physical, technologies. requirements of paragraphs (a) through (d) of this section. behavioral, and emotional signs of (a) When designing or acquiring any sexual abuse, and methods of new holding facility and in planning § 115.122 Policies to ensure investigation preventing such occurrences; any substantial expansion or of allegations and appropriate agency (6) Procedures for reporting modification of existing holding oversight. knowledge or suspicion of sexual abuse; facilities, the agency shall consider the (7) How to communicate effectively (a) The agency shall establish a effect of the design, acquisition, and professionally with detainees, protocol to ensure that each allegation expansion, or modification upon the including lesbian, gay, bisexual, of sexual abuse is investigated by the agency’s ability to protect detainees transgender, intersex, or gender agency, or referred to an appropriate from sexual abuse. nonconforming detainees; and investigative authority. (b) When installing or updating a (8) The requirement to limit reporting video monitoring system, electronic (b) The agency protocol shall be of sexual abuse to personnel with a surveillance system, or other monitoring developed in coordination with DHS need-to-know in order to make technology in a holding facility, the investigative entities; shall include a decisions concerning the victim’s agency shall consider how such description of the responsibilities of welfare and for law enforcement or technology may enhance the agency’s both the agency and the investigative investigative purposes. ability to protect detainees from sexual entities; and shall require the (b) All current employees, contractors abuse. documentation and maintenance, for at and volunteers who may have contact least five years, of all reports and with holding facility detainees shall be Responsive Planning referrals of allegations of sexual abuse. trained within two years of the effective § 115.121 Evidence protocols and forensic The agency shall post its protocol on its date of these standards, and the agency medical examinations. Web site, redacted if appropriate. shall provide refresher information, as (a) To the extent that the agency is (c) The agency protocol shall ensure appropriate. responsible for investigating allegations that each allegation is promptly (c) The agency shall document those of sexual abuse in its holding facilities, reported to the Joint Intake Center and, employees who may have contact with the agency shall follow a uniform unless the allegation does not involve detainees have completed the training evidence protocol that maximizes the potentially criminal behavior, promptly and receive and maintain for at least potential for obtaining usable physical referred for investigation to an five years confirmation that contractors evidence for administrative proceedings appropriate law enforcement agency and volunteers have completed the and criminal prosecutions. The protocol with the legal authority to conduct training. shall be developed in coordination with criminal investigations. The agency may § 115.132 Notification to detainees of the DHS and shall be developmentally separately, and in addition to the above agency’s zero-tolerance policy. appropriate for juveniles, where reports and referrals, conduct its own The agency shall make public its zero- applicable. investigation. (b) In developing the protocol referred tolerance policy regarding sexual abuse to in paragraph (a) of this section, the (d) The agency shall ensure that all and ensure that key information agency shall consider how best to utilize allegations of detainee sexual abuse are regarding the agency’s zero-tolerance available community resources and promptly reported to the PSA policy is visible or continuously and services to provide valuable expertise Coordinator and to the appropriate readily available to detainees, for and support in the areas of crisis offices within the agency and within example, through posters, detainee intervention and counseling to most DHS to ensure appropriate oversight of handbooks, or other written formats. the investigation. appropriately address victims’ needs. § 115.133 [Reserved] (c) Where evidentiarily or medically (e) The agency shall ensure that any appropriate, at no cost to the detainee, alleged detainee victim of sexual abuse § 115.134 Specialized training: and only with the detainee’s consent, that is criminal in nature is provided Investigations. the agency shall arrange for or refer the timely access to U nonimmigrant status (a) In addition to the training alleged victim detainee to a medical information. provided to employees, DHS agencies

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with responsibility for holding facilities placement in a cell actively monitored misconduct outside of their chain of shall provide specialized training on on video by a staff member sufficiently command. sexual abuse and effective cross-agency proximate to intervene, unless no such (b) Staff members who become aware coordination to agency investigators option is determined to be feasible. of alleged sexual abuse shall who conduct investigations into (e) The facility shall implement immediately follow the reporting allegations of sexual abuse at holding appropriate controls on the requirements set forth in the agency’s facilities. All investigations into alleged dissemination of sensitive information written policies and procedures. sexual abuse must be conducted by provided by detainees under this (c) Apart from such reporting, the qualified investigators. section. agency and staff shall not reveal any (b) The agency must maintain written information related to a sexual abuse Reporting documentation verifying specialized report to anyone other than to the extent training provided to agency § 115.151 Detainee reporting. necessary to help protect the safety of investigators pursuant to this section. (a) The agency shall develop policies the victim or prevent further victimization of other detainees or staff Assessment for Risk of Sexual and procedures to ensure that the in the facility, or to make medical Victimization and Abusiveness detainees have multiple ways to privately report sexual abuse, retaliation treatment, investigation, law § 115.141 Assessment for risk of for reporting sexual abuse, or staff enforcement, or other security and victimization and abusiveness. neglect or violations of responsibilities management decisions. (a) Before placing any detainees that may have contributed to such (d) If the alleged victim is under the together in a holding facility, agency incidents, and shall provide instructions age of 18 or considered a vulnerable staff shall consider whether, based on on how detainees may contact the DHS adult under a State or local vulnerable the information before them, a detainee Office of the Inspector General or, as persons statute, the agency shall report may be at a high risk of being sexually appropriate, another designated office, the allegation to the designated State or abused and, when appropriate, shall to confidentially and, if desired, local services agency under applicable take necessary steps to mitigate any anonymously, report these incidents. mandatory reporting laws. such danger to the detainee. (b) The agency shall also provide, and § 115.162 Agency protection duties. (b) All detainees who may be held shall inform the detainees of, at least overnight with other detainees shall be When an agency employee has a one way for detainees to report sexual reasonable belief that a detainee is assessed to determine their risk of being abuse to a public or private entity or sexually abused by other detainees or subject to a substantial risk of imminent office that is not part of the agency, and sexual abuse, he or she shall take sexually abusive toward other detainees; that is able to receive and immediately staff shall ask each such detainee about immediate action to protect the forward detainee reports of sexual abuse detainee. his or her own concerns about his or her to agency officials, allowing the physical safety. detainee to remain anonymous upon § 115.163 Reporting to other confinement (c) The agency shall also consider, to request. facilities. the extent that the information is (c) Agency policies and procedures (a) Upon receiving an allegation that available, the following criteria to assess shall include provisions for staff to a detainee was sexually abused while detainees for risk of sexual accept reports made verbally, in writing, confined at another facility, the agency victimization: anonymously, and from third parties that received the allegation shall notify (1) Whether the detainee has a mental, and to promptly document any verbal the appropriate office of the agency or physical, or developmental disability; reports. the administrator of the facility where (2) The age of the detainee; the alleged abuse occurred. (3) The physical build and appearance § 115.152–115.153 [Reserved] (b) The notification provided in of the detainee; § 115.154 Third-party reporting. paragraph (a) of this section shall be (4) Whether the detainee has The agency shall establish a method provided as soon as possible, but no previously been incarcerated or later than 72 hours after receiving the detained; to receive third-party reports of sexual abuse in its holding facilities. The allegation. (5) The nature of the detainee’s (c) The agency shall document that it criminal history; and agency shall make available to the public information on how to report has provided such notification. (6) Whether the detainee has any (d) The agency office that receives sexual abuse on behalf of a detainee. convictions for sex offenses against an such notification, to the extent the adult or child; Official Response Following a Detainee facility is covered by this subpart, shall (7) Whether the detainee has self- Report ensure that the allegation is referred for identified as gay, lesbian, bisexual, investigation in accordance with these § 115.161 Staff reporting duties. transgender, intersex, or gender standards. nonconforming; (a) The agency shall require all staff (8) Whether the detainee has self- to report immediately and according to § 115.164 Responder duties. identified as having previously agency policy any knowledge, (a) Upon learning of an allegation that experienced sexual victimization; and suspicion, or information regarding an a detainee was sexually abused, the first (9) The detainee’s own concerns about incident of sexual abuse that occurred to law enforcement staff member to his or her physical safety. any detainee; retaliation against respond to the report, or his or her (d) If detainees are identified pursuant detainees or staff who reported or supervisor, shall be required to: to the assessment under this section to participated in an investigation about (1) Separate the alleged victim and be at high risk of victimization, staff such an incident; and any staff neglect abuser; shall provide such detainees with or violation of responsibilities that may (2) Preserve and protect, to the heightened protection, to include have contributed to an incident or greatest extent possible, any crime scene continuous direct sight and sound retaliation. Agency policy shall include until appropriate steps can be taken to supervision, single-cell housing, or methods by which staff can report collect any evidence;

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(3) If the sexual abuse occurred within Investigations (e) When outside agencies investigate a time period that still allows for the sexual abuse, the agency shall cooperate collection of physical evidence, request § 115.171 Criminal and administrative with outside investigators and shall investigations. the alleged victim not to take any endeavor to remain informed about the actions that could destroy physical (a) If the agency has responsibility for progress of the investigation. evidence, including, as appropriate, investigating allegations of sexual abuse, washing, brushing teeth, changing all investigations into alleged sexual § 115.172 Evidentiary standard for administrative investigations. clothes, urinating, defecating, smoking, abuse must be prompt, thorough, drinking, or eating; and objective, and conducted by specially When an administrative investigation (4) If the abuse occurred within a time trained, qualified investigators. is undertaken, the agency shall impose period that still allows for the collection (b) Upon conclusion of a criminal no standard higher than a of physical evidence, ensure that the investigation where the allegation was preponderance of the evidence in alleged abuser does not take any actions substantiated, an administrative determining whether allegations of that could destroy physical evidence, investigation shall be conducted. Upon sexual abuse are substantiated. conclusion of a criminal investigation including, as appropriate, washing, Discipline brushing teeth, changing clothes, where the allegation was urinating, defecating, smoking, unsubstantiated, the agency shall review § 115.176 Disciplinary sanctions for staff. drinking, or eating. any available completed criminal (a) Staff shall be subject to (b) If the first staff responder is not a investigation reports to determine disciplinary or adverse action up to and law enforcement staff member, the whether an administrative investigation including removal from their position responder shall be required to request is necessary or appropriate. and the Federal service for substantiated that the alleged victim not take any Administrative investigations shall be allegations of sexual abuse or violating actions that could destroy physical conducted after consultation with the agency sexual abuse policies. evidence and then notify law appropriate investigative office within (b) The agency shall review and enforcement staff. DHS and the assigned criminal approve policy and procedures investigative entity. regarding disciplinary or adverse action § 115.165 Coordinated response. (c) The agency shall develop written for staff and shall ensure that the policy (a) The agency shall develop a written procedures for administrative and procedures specify disciplinary or institutional plan and use a coordinated, investigations, including provisions adverse actions for staff, up to and multidisciplinary team approach to requiring: including removal from their position responding to sexual abuse. (1) Preservation of direct and and from the Federal service, when (b) If a victim of sexual abuse is circumstantial evidence, including any there is a substantiated allegation of transferred between facilities covered by available physical and DNA evidence sexual abuse, or when there has been a subpart A or B of this part, the agency and any available electronic monitoring violation of agency sexual abuse rules, shall, as permitted by law, inform the data; policies, or standards. Removal from receiving facility of the incident and the (2) Interviewing alleged victims, their position and from the Federal victim’s potential need for medical or suspected perpetrators, and witnesses; service is the presumptive disciplinary social services. (3) Reviewing prior complaints and sanction for staff who have engaged in (c) If a victim is transferred from a reports of sexual abuse involving the or attempted or threatened to engage in DHS holding facility to a facility not suspected perpetrator; sexual abuse, as defined under the covered by paragraph (b) of this section, (4) Assessment of the credibility of an definition of sexual abuse of a detainee the agency shall, as permitted by law, alleged victim, suspect, or witness, by a staff member, contractor, or inform the receiving facility of the without regard to the individual’s status volunteer, paragraphs (1)–(4) and (7)–(8) incident and the victim’s potential need as detainee, staff, or employee, and of the definition of ‘‘sexual abuse of a for medical or social services, unless the without requiring any detainee who detainee by a staff member, contractor, victim requests otherwise. alleges sexual abuse to submit to a or volunteer’’ in § 115.6. polygraph; (c) Each facility shall report all § 115.166 Protection of detainees from (5) Documentation of each removals or resignations in lieu of contact with alleged abusers. investigation by written report, which removal for violations of agency or Agency management shall consider shall include a description of the facility sexual abuse policies to whether any staff, contractor, or physical and testimonial evidence, the appropriate law enforcement agencies, volunteer alleged to have perpetrated reasoning behind credibility unless the activity was clearly not sexual abuse should be removed from assessments, and investigative facts and criminal. duties requiring detainee contact findings; and (d) Each agency shall make reasonable pending the outcome of an (6) Retention of such reports for as efforts to report removals or resignations investigation, and shall do so if the long as the alleged abuser is detained or in lieu of removal for violations of seriousness and plausibility of the employed by the agency, plus five years. agency or facility sexual abuse policies allegation make removal appropriate. Such procedures shall establish the to any relevant licensing bodies, to the coordination and sequencing of the two extent known. § 115.167 Agency protection against types of investigations, in accordance retaliation. with paragraph (b) of this section, to § 115.177 Corrective action for contractors Agency employees shall not retaliate ensure that the criminal investigation is and volunteers. against any person, including a not compromised by an internal (a) Any contractor or volunteer detainee, who reports, complains about, administrative investigation. suspected of perpetrating sexual abuse or participates in an investigation into (d) The departure of the alleged shall be prohibited from contact with an allegation of sexual abuse, or for abuser or victim from the employment detainees. The agency shall also participating in sexual activity as a or control of the agency shall not consider whether to prohibit further result of force, coercion, threats, or fear provide a basis for terminating an contact with detainees by contractors or of force. investigation. volunteers who have not engaged in

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sexual abuse, but have violated other abuse intervention, prevention and (2) Taking corrective action on an provisions within these standards. The response efforts. ongoing basis; and agency shall be responsible for promptly (3) Preparing an annual report of its reporting sexual abuse allegations and § 115.187 Data collection. findings and corrective actions for the incidents involving alleged contractor or (a) The agency shall maintain in a agency as a whole. volunteer perpetrators to an appropriate secure area all agency case records (b) Such report shall include a law enforcement agency as well as to associated with claims of sexual abuse, comparison of the current year’s data the Joint Intake Center or another in accordance with these standards and and corrective actions with those from appropriate DHS investigative office in applicable agency policies, and in prior years and shall provide an accordance with DHS policies and accordance with established schedules. assessment of the agency’s progress in procedures. The agency shall make The DHS Office of Inspector General preventing, detecting, and responding to reasonable efforts to report to any shall maintain the official investigative sexual abuse. relevant licensing body, to the extent file related to claims of sexual abuse (c) The agency’s report shall be known, incidents of substantiated investigated by the DHS Office of approved by the agency head and made sexual abuse by a contractor or Inspector General. readily available to the public through volunteer. (b) On an annual basis, the PSA its Web site. (b) Contractors and volunteers Coordinator shall aggregate, in a manner (d) The agency may redact specific suspected of perpetrating sexual abuse that will facilitate the agency’s ability to material from the reports, when may be removed from all duties detect possible patterns and help appropriate for safety or security, but requiring detainee contact pending the prevent future incidents, the incident- must indicate the nature of the material outcome of an investigation, as based sexual abuse data available, redacted. appropriate. including the number of reported sexual abuse allegations determined to be § 115.189 Data storage, publication, and Medical and Mental Care substantiated, unsubstantiated, or destruction. § 115.181 [Reserved] unfounded, or for which investigation is (a) The agency shall ensure that data ongoing, and for each incident found to collected pursuant to § 115.187 are § 115.182 Access to emergency medical be substantiated, such information as is securely retained in accordance with services. available to the PSA Coordinator agency record retention policies and the (a) Detainee victims of sexual abuse concerning: agency protocol regarding investigation shall have timely, unimpeded access to (1) The date, time, location, and of allegations. emergency medical treatment and crisis nature of the incident; (b) The agency shall make all intervention services, including (2) The demographic background of aggregated sexual abuse data from emergency contraception and sexually the victim and perpetrator (including holding facilities under its direct control transmitted infections prophylaxis, in citizenship, age, gender, and whether and from any private agencies with accordance with professionally accepted either has self-identified as gay, lesbian, which it contracts available to the standards of care. bisexual, transgender, intersex, or public at least annually on its Web site (b) Emergency medical treatment gender nonconforming); consistent with agency information services provided to the victim shall be (3) The reporting timeline for the disclosure policies and processes. without financial cost and regardless of incident (including the name of (c) Before making aggregated sexual whether the victim names the abuser or individual who reported the incident, abuse data publicly available, the cooperates with any investigation and the date and time the report was agency shall remove all personal arising out of the incident. received); identifiers. (4) Any injuries sustained by the (d) The agency shall maintain sexual Data Collection and Review victim; abuse data collected pursuant to § 115.186 Sexual abuse incident reviews. (5) Post-report follow up responses § 115.187 for at least 10 years after the and action taken by the agency (e.g., date of the initial collection unless (a) The agency shall conduct a sexual supervision, referral for medical or abuse incident review at the conclusion Federal, State, or local law requires mental health services, etc.); and otherwise. of every investigation of sexual abuse (6) Any sanctions imposed on the and, where the allegation was not perpetrator. Audits and Compliance determined to be unfounded, prepare a (c) The agency shall maintain, review, § 115.193 Audits of standards. written report recommending whether and collect data as needed from all the allegation or investigation indicates available agency records. (a) Within three years of July 6, 2015, that a change in policy or practice could (d) Upon request, the agency shall the agency shall ensure that each of its better prevent, detect, or respond to provide all such data from the previous immigration holding facilities that sexual abuse. Such review shall calendar year to the Office for Civil houses detainees overnight and has ordinarily occur within 30 days of the Rights and Civil Liberties no later than adopted these standards is audited. For agency receiving the investigation June 30. any such holding facility established results from the investigative authority. after July 6, 2015, the agency shall The agency shall implement the § 115.188 Data review for corrective ensure that the facility is audited within recommendations for improvement, or action. three years. Audits of new holding shall document its reasons for not doing (a) The agency shall review data facilities as well as holding facilities so in a written response. Both the report collected and aggregated pursuant to that have previously failed to meet the and response shall be forwarded to the § 115.187 in order to assess and improve standards shall occur as soon as agency PSA Coordinator. the effectiveness of its sexual abuse practicable within the three-year cycle; (b) The agency shall conduct an prevention, detection, and response however, where it is necessary to annual review of all sexual abuse policies, practices, and training, prioritize, priority shall be given to investigations and resulting incident including by: facilities that have previously failed to reviews to assess and improve sexual (1) Identifying problem areas; meet the standards.

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(1) Audits required under this Additional Provisions in Agency § 115.202 Auditor qualifications. paragraph (a) shall: Policies (a) An audit shall be conducted by (i) Include a determination whether entities or individuals outside of the § 115.195 Additional provisions in agency agency and outside of DHS that have the holding facility is low-risk based on policies. its physical characteristics and whether relevant audit experience. The regulations in this subpart B (b) All auditors shall be certified by it passes the audit conducted pursuant establish minimum requirements for to paragraph (a)(1)(ii) of this section, the agency, in coordination with DHS. agencies. Agency policies may include The agency, in coordination with DHS, (ii) Be conducted pursuant to additional requirements. shall develop and issue procedures §§ 115.201 through 115.205, and regarding the certification process, Subpart C—External Auditing and (iii) Be coordinated by the agency which shall include training Corrective Action with the DHS Office for Civil Rights and requirements. Civil Liberties, which may request an § 115.201 Scope of audits. (c) No audit may be conducted by an expedited audit if it has reason to (a) The agency shall develop and auditor who has received financial believe that an expedited audit is issue an instrument that is coordinated compensation from the agency being appropriate. with the DHS Office for Civil Rights and audited (except for compensation (2) [Reserved] Civil Liberties, which will provide received for conducting other audits, or other consulting related to detention (b) Following an audit, the agency guidance on the conduct of and contents reform) within the three years prior to shall ensure that any immigration of the audit; the agency’s retention of the auditor. holding facility that houses detainees (b) The auditor shall review all (d) The agency shall not employ, overnight and is determined to be low- relevant agency policies, procedures, contract with, or otherwise financially risk, based on its physical reports, internal and external audits, compensate the auditor for three years characteristics and passing its most and accreditations for each facility type. subsequent to the agency’s retention of recent audit, is audited at least once (c) The audits shall review, at a the auditor, with the exception of every five years. minimum, a sampling of relevant documents and other records and contracting for subsequent audits or (1) Audits required under this other consulting related to detention paragraph (b) shall: information for the most recent one-year period. reform. (i) Include a determination whether (d) The auditor shall have access to, § 115.203 Audit contents and findings. the holding facility is low-risk based on and shall observe, all areas of the its physical characteristics and whether (a) Each audit shall include a audited facilities. certification by the auditor that no it passes the audit conducted pursuant (e) The agency shall provide the to paragraph (b)(1)(ii) of this section, conflict of interest exists with respect to auditor with relevant documentation to his or her ability to conduct an audit of (ii) Be conducted pursuant to complete a thorough audit of the the facility under review. §§ 115.201 through 115.205, and facility. (b) Audit reports shall state whether (iii) Be coordinated by the agency (f) The auditor shall retain and facility policies and procedures comply with the DHS Office for Civil Rights and preserve all documentation (including, with relevant standards. Civil Liberties, which may request an e.g., videotapes and interview notes) (c) For each of these standards, the expedited audit if it has reason to relied upon in making audit auditor shall determine whether the believe that an expedited audit is determinations. Such documentation audited facility reaches one of the appropriate. shall be provided to the agency upon following findings: Exceeds Standard (2) [Reserved] request. (substantially exceeds requirement of (g) The auditor shall interview a standard); Meets Standard (substantial (c) Following an audit, the agency representative sample of detainees and compliance; complies in all material shall ensure that any immigration of staff, and the facility shall make space ways with the standard for the relevant holding facility that houses detainees available suitable for such interviews. review period); Does Not Meet Standard overnight and is determined to not be (h) The auditor shall review a (requires corrective action). The audit low-risk, based on its physical sampling of any available videotapes summary shall indicate, among other characteristics or not passing its most and other electronically available data things, the number of provisions the recent audit, is audited at least once that may be relevant to the provisions facility has achieved at each grade level. every three years. being audited. (d) Audit reports shall describe the (1) Audits required under this (i) The auditor shall be permitted to methodology, sampling sizes, and basis paragraph (c) shall: conduct private interviews with for the auditor’s conclusions with regard (i) Include a determination whether detainees. to each standard provision for each the holding facility is low-risk based on (j) Detainees shall be permitted to audited facility, and shall include its physical characteristics and whether send confidential information or recommendations for any required it passes the audit conducted by correspondence to the auditor. corrective action. paragraph (c)(1)(ii) of this section, (k) Auditors shall attempt to solicit (e) Auditors shall redact any input from community-based or victim (ii) Be conducted pursuant to personally identifiable detainee or staff advocates who may have insight into §§ 115.201 through 115.205, and information from their reports, but shall relevant conditions in the facility. provide such information to the agency (iii) Be coordinated by the agency (l) All sensitive but unclassified upon request. with the DHS Office for Civil Rights and information provided to auditors will (f) The agency shall ensure that the Civil Liberties, which may request an include appropriate designations and auditor’s final report is published on the expedited audit if it has reason to limitations on further dissemination. agency’s Web site if it has one, or is believe that an expedited audit is Auditors will be required to follow all otherwise made readily available to the appropriate. appropriate procedures for handling and public. The agency shall redact any (2) [Reserved] safeguarding such information. sensitive but unclassified information

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(including law enforcement sensitive (d) After the 180-day corrective action within 90 days of the auditor’s final information) prior to providing such period ends, the auditor shall issue a determination. reports publicly. final determination as to whether the (b) If the agency determines that the facility has achieved compliance with § 115.204 Audit corrective action plan. facility has stated good cause for a re- those standards requiring corrective evaluation, the facility may commission (a) A finding of ‘‘Does Not Meet action. Standard’’ with one or more standards a re-audit by an auditor mutually agreed shall trigger a 180-day corrective action (e) If the facility does not achieve upon by the agency and the facility. The period. compliance with each standard, it may facility shall bear the costs of this re- (b) The agency and the facility shall (at its discretion and cost) request a audit. develop a corrective action plan to subsequent audit once it believes that is has achieved compliance. (c) The findings of the re-audit shall achieve compliance. be considered final. (c) The auditor shall take necessary § 115.205 Audit appeals. and appropriate steps to verify Jeh Charles Johnson, implementation of the corrective action (a) A facility may lodge an appeal Secretary. plan, such as reviewing updated with the agency regarding any specific [FR Doc. 2014–04675 Filed 3–6–14; 8:45 am] policies and procedures or re-inspecting audit finding that it believes to be portions of a facility. incorrect. Such appeal must be lodged BILLING CODE 9110–9B–P

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