[Federal Register Volume 61, Number 128 (Tuesday, July 2, 1996)]
[Rules and Regulations]
[Pages 34371-34375]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-16042]
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DEPARTMENT OF THE INTERIOR
Bureau of Indian Affairs
25 CFR Part 10
RIN 1076-AD77
Indian Country Detention Facilities and Programs
AGENCY: Bureau of Indian Affairs, Interior.
ACTION: Final rule.
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SUMMARY: The Bureau of Indian Affairs (Bureau) is establishing
regulations to ensure that all Bureau and tribal entities that receive
Federal funding for the operation, maintenance, design and
construction, or renovation of detention facilities are operated and
maintained in a constitutionally sound manner and comply with the
Indian Law Enforcement Reform Act of 1990, Public Law 101-379 (25
U.S.C. 2801 et seq.). These regulations define the policies, standards
and guidelines for detention and rehabilitation programs within Indian
country.
EFFECTIVE DATE: These regulations take effect on August 1, 1996.
FOR FURTHER INFORMATION CONTACT: Theodore R. Quasula, 202-208-5786.
SUPPLEMENTARY INFORMATION:
Background
The authority to issue rules and regulations is vested in the
Secretary of the Interior by 5 U.S.C. 301 and sections 463 and 465 of
the Revised Statutes, 25 U.S.C. 2 and 9. The proposed rule was
published August 5, 1994, (59 FR 40086). Comments received during the
comment period ending November 3, 1994, were considered in the drafting
this final rule.
What is the purpose of this rule? The purpose of this rule is to
provide standards and procedures for the operation of detention
facilities funded under the Indian Alcohol and Substance Abuse
Prevention and Treatment Act, Pub. L. 99-570, (25 U.S.C. Sec. 2453).
Who must follow these regulations? Every BIA and tribal law
enforcement program receiving Federal funding or performing duties
during the operation of detention or rehabilitation facilities or
functions must follow these minimum standards. These programs and
functions are high risk activities that subject the Federal Government
to the risk of liability for tort claims. Self-governance tribes and
tribes with limited jurisdiction are encouraged to use this rule,
Chapter 69 Bureau of Indian Affairs Manual (BIAM), and handbooks for
detention and rehabilitation programs under their administration.
How will these regulations be enforced? All programs will be
subject to periodic inspections or evaluations during which the BIA
will provide technical assistance, will ensure compliance with the
standards and procedures contained in this rule, and will identify
necessary corrective actions or improvements to policies and
procedures. The Bureau adopted a voluntary accreditation process with
an audit and evaluation system.
Why were regulations rewritten and moved? Detention standards were
published in 25 CFR Sec. 11.305 and later moved to Section 12.104. The
regulations had not been modified for sixteen years. They did not
address current detention problems and were inconsistent with current
acceptable detention practices and procedures. The regulations also
failed to address code compliance and related physical plant issues,
and lacked options to allow for alternative types of detention
programs. The need for more detailed and contemporary standards was
intensified by the provision of funding for detention programs under
Indian Alcohol and Substance Abuse Prevention and Treatment Act.
Are all the standards and procedures applicable to adult and
juvenile detention facilities, Inmate Handbook
[[Page 34372]]
facilities, and holding facilities and programs published in this rule?
No. Although Part 10 is reserved entirely for Indian country detention
and rehabilitation programs, Chapter 69 BIAM, and handbooks for
detention and rehabilitation programs detail the standards and
procedures.
How were the rules or regulations revised and updated? A multi-
agency task force was assembled to develop the first draft of these
standards. The task force included representatives from the Office of
Law Enforcement Services, Area Office Supervisory Criminal
Investigators, Agency Criminal Investigators, detention staff, and
Indian Health Service program specialists. The task force also included
individuals with experience working in tribal detention programs.
Additional internal reviews were conducted at the Bureau area and
agency level. Interested parties and professionals submitted written
comments, suggestions or objections to the proposed rules.
Review of Public Comments
Building and Safety Code Compliance.
The Bureau of Indian Affairs, Facilities Management & Construction
Center recommended the standards relating to building and safety code
compliance be revised to reflect current requirements. If the facility
is owned by the BIA, it must comply with the codes and standards
adopted by the BIA in the Chapter 25 Bureau of Indian Affairs Manual
(BIAM) Supplements 18 and 19. If the facility is owned by a tribe, it
must comply with either tribally adopted building codes, tribally
adopted state or municipal building codes, or the Chapter 25 BIAM
Supplements 18 and 19. This change has been incorporated into each
applicable standard.
Mississippi Band of Choctaw Indians
The Mississippi Band of Choctaw Indians expressed numerous concerns
and recommendations. Each of the Tribe's concerns has been addressed:
(1) Development of requirements that are applicable to all facility
types. As directed of the Department of the Interior, Office of
Regulatory Affairs, the format for the rule must be general in nature.
Specific requirements are published in the policy and standards
manuals, rather than as rules. The recommendation will not be
incorporated in this rule.
(2) Publication of an accreditation process prior to the approval
of the final rule. An accreditation process has been drafted. A
standards compliance information packet, corrective action plan
workbook, self-audit workbook, and standard accreditation workbook have
been developed. This process will be field tested and adopted by the
BIA.
(3) Reduction of the levels of Bureau approval required for
standard compliance--operational descriptions. Standards have been
developed for Bureau operated detention/correctional facilities and
programs. Through the contracting programs of the Indian Self-
Determination and Education Assistance Act, The tribe can develop a
facility specific line of authority and approval process of their own
when contracting detention/correction programs under the Indian Self-
Determination and Education Assistance Act.
(4) Involvement of the Indian Health Service and tribes in the
drafting of these standards. The Bureau established a task force to
draft these standards. The task force was comprised of representatives
from the Office of Law Enforcement Services, Area Office Supervisory
Criminal Investigators, Agency Criminal Investigators, detention staff,
and Indian Health Service program specialists and tribes. They provided
Indian Health Services and the tribes many opportunities to review the
standards, including the publication of the proposed rule in the
Federal Register on August 5, 1994.
(5) Incorporation of the numbering changes for various tables and
charts for Mandatory Standards, Separation of Adults and Juveniles, and
Suicide Screening. This has been done.
(6) Modification of accreditation requirements and the minimum
qualifications for new recruits. The minimum standards are critical to
a quantified accreditation process in order to evaluate compliance and
performance. The recommendation will not be incorporated in this rule.
(7) Addition of Detention Officer to the definitions section. The
definition section for this rule and the definition has been added.
(8) Provision of funds to train detention staff in the operation of
new generation jails. The BIA Indian Police Academy offers detention
officer training and is revamping its detention officers' curriculum to
incorporate direct supervision methodologies and philosophies.
(9) Incorporation of the rate of facility capacity as a mandatory
standard. During drafting of the rule, BIA agreed that mandatory
standards would be limited to those areas that create a potential
danger to the life, health, and safety of inmates, staff, and/or the
community, and those areas in which there are other statutes,
regulations, or directives that mandate compliance. The recommendation
will not be incorporated in this rule.
(10) Inclusion and/or clarification of the following definitions:
(a) Protective Holding Cell--a specialized cell or room that is
utilized to detain or isolate an incapacitated or combative
individual(s) for a short period of time, in the standards. The
protective holding cell may be equipped with specialized security and/
or medical equipment to control and manage individuals detained in
these areas in a safe, secure, and humane environment. (b) Special
Management--confinement of a detainee in an individual cell that is
separated from the remainder of the population for the purpose of
disciplinary, administrative segregation, protective custody, or
medical segregation, in standards. The exceptions to house an inmate in
special management must coincide with this criteria. (c) Multiple
Occupancy Cells or Rooms--an area, room or cell housing more than two
and less than fifty persons. These recommendations were incorporated in
the standards or rule.
(11) Addition of Designated Security Post to clarify staffing
requirements.
(12) Addition of Adult Holding Facility and Mass Arrest to the
definitions for this rule. The Department of the Interior, Office of
Regulatory Affairs established the definitions section for this rule.
The recommendation will not be incorporated in this rule.
(13) Inclusion of square footage requirements as a mandatory
standard. During drafting of the rule, BIA agreed that mandatory
standards would be limited to those areas that create a potential
danger to the life, health, and safety of inmates, staff, and/or the
community, and those areas in which there are other statutes,
regulations, or directives that mandate compliance. The recommendation
will not be incorporated in this rule.
(14) Addition of a transition program for accepting, moving into,
and operating a new facility beginning one year prior to the completion
of a facility. The Planning of New Institutions (PONI) is the Bureau's
process for constructing and operating new facilities in Indian
country. The Bureau has determined that this transition must begin when
the construction phase starts. The recommendation will not be
incorporated in this rule.
(15) Consolidation of limitations on inmate correspondence and
inspection of letters and packages. Upon review, it was decided that no
change would be made. The limitations on inmate correspondence
addresses the volume of lawful correspondence an inmate may
[[Page 34373]]
send or receive. The standard dealing with the inspection of letters
and packages addresses the search of inmate mail for contraband. The
recommendation will not be incorporated in this rule.
(16) Removal of the requirement that a governing board or advisory
committee oversee the operation of a residential facility. The
structure of these programs will be the responsibility of the tribe.
Oversight of these facilities should include representation from the
community and the overall Tribal government. The recommendation will
not be incorporated in this rule.
(17) Removal of the designated staff position for recreational and
leisure activities, would not be realistic due to the limited staff
resources. A position must be specified for accountability purposes,
however, the administrator will have the latitude to designate
collateral duties where staff is limited. The recommendation will not
be incorporated in this rule.
(18) Amendment of Staffing Requirements to Administrative Review of
Staff Requirement to include institutional operations dealing with
staff requirements. The staffing requirement in the Administration and
Management section is an institutional requirement that staff be on
board at all times to operate the facility, rather than the
administrative process to review staffing patterns within the
institution. The recommendation will not be incorporated in this rule.
(19) Inclusion of comparable tribal regulations in the standards.
The standards indicate that non-regulatory documents will not be
incorporated into the rule. The standards were developed for BIA
operated detention/correctional facilities and programs, but permit
tribes to operate under comparable tribal regulations when the program
is contracted under the Indian Self-Determination and Education
Assistance Act. The recommendation will not be incorporated in this
rule.
National Commission on Correctional Health Care and the American
Psychiatric Association
The recommendation by the National Commission on Correctional
Health Care (NCOCHC) and American Psychiatric Association suggested
replacing the drafted health care standards developed in association
with the Indian Health Service with the NCOCHC's standards for health
services in jails. Indian country detention and holding facilities, in
general, are smaller than the facilities referenced in NCOCHC
standards. The NCOCHC standards are unrealistic for reservation
facilities. The Indian Health Service has a legal obligation to provide
health services to Indian people and to mandate NCOCHC's standards is
duplicative. The Bureau standards are equal to or exceed the American
Correctional Association standards. These standards are consistent with
national professional standards. The recommendation will not be
incorporated in this rule.
Changes Reflecting Department of the Interior Policy
The Office of Regulatory Affairs and the Office of the Solicitor,
Department of the Interior, indicated that the proposed rule was
predominately standards and procedures for the operation of detention
or holding facilities in Indian country; as such they should not be
published in the Code of Federal Regulations. This is consistent with
Executive Order 12866 that mandates that agencies streamline the
regulatory process and enhance the planning and coordination of new and
existing regulations.
The Bureau has separated the operational standards and day-to-day
guidance from the rulemaking process. The operational standards are now
included in easy-to-read reference handbooks and guides. These
handbooks and guides are specific to Indian country detention and
holding facilities. They are now part of the Bureau's operations
management handbook and are available to the public, tribal programs,
and BIA employees upon request. Inmates will receive written guidelines
at the time of booking into a facility detailing what behavior will be
expected of them, their rights and privileges, and the nutritional/
medical/emergency treatment to be provided.
Public comments have been incorporated in the ``Indian Country
Detention Facilities and Programs 69'' (Chapter 69 Bureau of Indian
Affairs Manual) and accompanying handbooks. The Inmate Handbook ensures
that all persons incarcerated in Indian country detention or holding
facilities understand their rights, privileges, safety procedures,
detainee treatment during incarceration, and the behavior expected of
detainees.
Evaluation and Certification
Executive Order 12988
The Department has determined that these regulations meet the
applicable standards provided in sections 3(a) and 3(b)(2) of Executive
Order 12988.
Executive Order 12866
This rule is not a significant regulatory action under Executive
Order 12866.
Regulatory Flexibility Act
This rule will not have a significant economic impact on a
substantial number of small entities under the Regulatory Flexibility
Act (5 U.S.C. Sec. 601 et seq.)
Executive Order 12630
The Department has determined that this rule does not have
``significant'' takings implications. The rule does not pertain to
``taking'' of private property interests, nor does it impact private
property.
Executive Order 12612
The Department has determined that this rule does not have
significant federalism effects because it pertains solely to Federal-
tribal relations and will not interfere with the roles, rights and
responsibilities of states.
NEPA Statement
The Department has determined that this rule does not constitute a
major Federal action significantly affecting the quality of the human
environment and that no detailed statement is required pursuant to the
National Environmental Policy Act of 1969.
Unfunded Mandates Act of 1995
This proposed rule imposes no unfunded mandates on any governmental
or private entity and is in compliance with the provisions of the
Unfunded Mandates Act of 1995.
Paperwork Reduction Act of 1995
This rule has been examined under the Paperwork Reduction Act of
1995 and has been found to contain no information collection
requirements.
Drafting Information
The primary author of this document is Warren LeBeau, Detention
Specialist, Bureau of Indian Affairs, Office of Law Enforcement
Services.
List of Subjects in 25 CFR Part 10
Buildings, Indians, Law enforcement, Prisoners, Youth.
For the reasons given in the preamble, a new part 10 is added to
Chapter I of title 25 of the Code of Federal Regulations as set forth
below.
[[Page 34374]]
PART 10--INDIAN COUNTRY DETENTION FACILITIES AND PROGRAMS
Sec.
10.1 Why are policies and standards needed for Indian country
detention programs?
10.2 Who is responsible for developing and maintaining the policies
and standards for detention and holding facilities in Indian
country?
10.3 Who must follow these policies and standards?
10.4 What happens if the policies and standards are not followed?
10.5 Where can I find the policies and standards for the
administration, operation, services, and physical plant/construction
of Indian country detention, Inmate Handbook, and holding
facilities?
10.6 How is the BIA assured that the policies and standards are
being applied uniformly and facilities are properly accredited?
10.7 Where do I find help or receive technical assistance in
complying with the policies and standards?
10.8 What minimum records must be kept and reports made at each
detention, Inmate Handbook, or holding facility in Indian country?
10.9 If a person is detained or incarcerated in an Indian country
detention, Inmate Handbook, or holding facility, how would they know
what their rights, privileges, safety, protection and expected
behavior would be?
10.10 What happens if I believe my civil rights have been violated
while incarcerated in an Indian country detention or holding
facility?
10.11 How would someone detained or incarcerated, or their
representative, get the BIA policies and standards?
Authority: 5 U.S.C. 301; 25 U.S.C. 2, 9, 13, 2417, 2453, and
2802.
Sec. 10.1 Why are policies and standards needed for Indian country
detention programs?
Policies and standards are required to ensure that all Bureau of
Indian Affairs (BIA) and tribal entities that receive Federal funding
for the operation, maintenance, design and construction or renovation
of detention facilities, Inmate Handbook, or holding facilities are
supporting constitutional rights and are complying with the Indian Law
Enforcement Reform Act of 1990. Self-governance tribes and tribes with
limited jurisdiction are encouraged to follow the regulations in this
part, and other BIA manuals and handbooks. The provision for funding
tribes for detention programs under the Indian Alcohol and Substance
Abuse Prevention and Treatment Act, Public Law 99-570, (25 U.S.C. 2453)
requires standards and procedures for such facilities.
Sec. 10.2 Who is responsible for developing and maintaining the
policies and standards for detention and holding facilities in Indian
country?
The Director, Office of Law Enforcement Services who reports to the
Deputy Commissioner of Indian Affairs, BIA, establishes policies,
procedures, and standards for the operations, design, planning,
maintenance, renovation, and construction of detention programs in the
BIA and by tribal contract under Indian Self-Determination and
Education Assistance Act, Public Law 93-638, as amended, 25 U.S.C. 450.
Sec. 10.3 Who must follow these policies and standards?
You must follow these minimum policies, standards, and guides if
you are part of the BIA or tribal detention or rehabilitation program
receiving Federal funding. Self-governance tribes and tribes with
limited jurisdiction are encouraged to follow the regulations in this
part, and other BIA manuals and handbooks. Detention officers, guards,
cooks and other staff conducting business in the facilities must meet
minimum standards of law enforcement personnel as prescribed in 25 CFR
part 12, subpart D, ``Qualifications and Training Requirements.'' Those
tribal programs not receiving Federal funding under the Indian Self-
Determination and Education Assistance Act (Public Law 93-638, as
amended) who wish to be accredited are encouraged to use the policies
and standards in that part since they have been modified and approved
for Indian country.
Sec. 10.4 What happens if the policies and standards are not
followed?
The risk for human and civil rights violations due to lack of
common standards will subject the operation and/or facility to
unnecessary exposure to liability. Lack of employee standards,
particularly for training and background checks, will increase the risk
of misconduct and vicarious liability of the tribes and the Federal
government through tort claims. Funding sources for detention programs
may become scarce to nonexistent because of contract noncompliance. The
tribes' opportunity to receive funding from potential resource sharing
agreements with other law enforcement agencies may be damaged because
the facility may have to be closed for cause due to violation of the
life safety codes.
Sec. 10.5 Where can I find the policies and standards for the
administration, operation, services, and physical plant/construction of
Indian country detention, Inmate Handbook, and holding facilities?
The Bureau of Indian Affairs, Department of the Interior, maintains
a manual of policies and procedures called the Bureau of Indian Affairs
Manual (BIAM). The Chapter 69 BIAM titled ``Indian Country Detention
Facilities and Programs,'' contains the BIA's policies, procedures, and
standards for detention and holding programs in Indian country. The
standards for the programs within the BIAM are in handbook format for
easy field reference and use. Copies of the Chapter 69 BIAM and
handbooks may be obtained from the Director, Office of Law Enforcement
Services.
Sec. 10.6 How is the BIA assured that the policies and standards are
being applied uniformly and facilities are properly accredited?
The tribes and BIA programs will use a phased approach to meeting
all non-mandatory detention standards and will document progress on
uniform reporting. The BIA Office of Law Enforcement Services will
conduct periodic operational evaluations for oversight.
Sec. 10.7 Where do I find help or receive technical assistance in
complying with the policies and standards?
The BIA has a trained Detention Specialist on the staff of the
Office of Law Enforcement Services, Albuquerque, New Mexico, who is
available to conduct evaluations and provide technical assistance or
guidance in all facets of Indian country detention programs.
Sec. 10.8 What minimum records must be kept and reports made at each
detention, Inmate Handbook, or holding facility in Indian country?
The Director, Office of Law Enforcement Services, BIA, will develop
all necessary requirements for maintaining records, reporting data, and
archiving information. These requirements will be published in 69 BIAM,
``Indian Country Detention Facilities and Programs.''
Sec. 10.9 If a person is detained or incarcerated in an Indian country
detention, Inmate Handbook, or holding facility, how would they know
what their rights, privileges, safety, protection and expected behavior
would be?
When an individual is incarcerated in an Indian country detention,
Inmate Handbook, or holding facility, he/she will be given, or in some
cases notified of the availability of, an Inmate
[[Page 34375]]
Handbook. This book of guidelines describes in detail the inmate's
rights, privileges, protection and safety, cleanliness and sanitation,
and general health and nutritional standards. The Inmate Handbook
describes the emergency evacuation procedures, medical, counseling,
rehabilitation services, visitation procedures, and other appropriate
information. The Inmate Handbook is published by the Director, Office
of Law Enforcement Services and maintained by the detention facility
administrator at each facility location.
Sec. 10.10 What happens if I believe my civil rights have been
violated while incarcerated in an Indian country detention or holding
facility?
All allegations of civil rights violations must be reported
immediately to the Internal Affairs Branch of the Office of Law
Enforcement Services. This office will ensure that such allegations are
immediately reported to the Civil Rights Division of the U.S.
Department of Justice through established procedures. The BIA Internal
Affairs Branch may also investigate alleged violations and make
recommendations for additional action as necessary. Detailed
instructions on the procedure to report violations can be found in the
Inmate Handbook.
Sec. 10.11 How would someone detained or incarcerated, or their
representative, get the BIA policies and standards?
At each detention, Inmate Handbook, or holding facility located in
a tribal jurisdiction where federal funds are used for operations or
maintenance programs, the BIA's policies, standards, and procedures
will be made available upon request. The Inmate Handbook will be made
available to all persons at the time they are incarcerated or detained
in a facility. There may be times when this may be delayed due to the
physical or mental condition of the person at time of incarceration. In
these cases, the Inmate Handbook will be made available when the person
is deemed receptive and cognizant by the detention officer in charge.
All policies, standards, procedures, and guidelines are available at
each facility to the public or by writing to the Director, Office of
Law Enforcement Services.
Dated: May 28, 1996.
Ada E. Deer,
Assistant Secretary--Indian Affairs.
[FR Doc. 96-16042 Filed 7-1-96; 8:45 am]
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