[Federal Register Volume 77, Number 244 (Wednesday, December 19, 2012)]
[Proposed Rules]
[Pages 75300-75347]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-29916]



[[Page 75299]]

Vol. 77

Wednesday,

No. 244

December 19, 2012

Part III





Department of Homeland Security





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6 CFR Part 115





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

  Federal Register / Vol. 77 , No. 244 / Wednesday, December 19, 2012 / 
Proposed Rules  

[[Page 75300]]


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DEPARTMENT OF HOMELAND SECURITY

6 CFR Part 115

[ICEB-2012-0003]
RIN 1653-AA65


Standards To Prevent, Detect, and Respond to Sexual Abuse and 
Assault in Confinement Facilities

AGENCY: Department of Homeland Security.

ACTION: Notice of proposed rulemaking.

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

DATES: Comments and related material must either be submitted to our 
online docket via http://www.regulations.gov on or before 11:59 p.m. on 
February 19, 2013 or reach the Mail or Hand Delivery/Courier address 
listed below in ADDRESSES by that date.

ADDRESSES: You may submit comments, identified by DHS Docket No. ICEB-
2012-0003, by one of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
     Mail: Office of Policy; U.S. Immigration and Customs 
Enforcement, Department of Homeland Security; Potomac Center North, 500 
12th Street SW., Washington, DC 20536; Contact Telephone Number (202) 
732-4292. To ensure proper handling, please reference DHS Docket No. 
ICEB-2012-0003 on your correspondence.
     Hand Delivery/Courier: Office of Policy; U.S. Immigration 
and Customs Enforcement, Department of Homeland Security; Potomac 
Center North, 500 12th Street SW., Washington, DC 20536; Telephone: 
(202) 732-4292 between 9 a.m. and 5 p.m., Monday through Friday, except 
Federal holidays.
    To avoid duplication, please use only one of these three methods. 
See the ``Public Participation'' portion of the SUPPLEMENTARY 
INFORMATION section below for instructions on submitting comments.

FOR FURTHER INFORMATION CONTACT: Alexander Y. Hartman, Office of 
Policy; U.S. Immigration and Customs Enforcement, Department of 
Homeland Security; Potomac Center North, 500 12th Street SW., 
Washington, DC 20536; Telephone: (202) 732-4292 (not a toll-free 
number).

SUPPLEMENTARY INFORMATION:

I. Public Participation and Request for Comments

    We encourage you to participate in this rulemaking by submitting 
comments and related materials. Please note that all comments received 
are considered part of the public record and made available for public 
inspection online at http://www.regulations.gov and in the DHS public 
docket. Such information includes personal identifying information 
(such as your name, address, etc.) voluntarily submitted by the 
commenter.
    You are not required to submit personal identifying information in 
order to comment on this rule. Nevertheless, if you still want to 
submit personal identifying information (such as your name, address, 
etc.) as part of your comment, but do not want it to be posted online 
or made available in the public docket, you must include the phrase 
``PERSONAL IDENTIFYING INFORMATION'' in the first paragraph of your 
comment. You must also place all the personal identifying information 
you do not want posted online or made available in the public docket in 
the first paragraph of your comment and identify what information you 
want redacted.
    If you want to submit confidential business information as part of 
your comment, but do not want it to be posted online or made available 
in the public docket, you must include the phrase ``CONFIDENTIAL 
BUSINESS INFORMATION'' in the first paragraph of your comment. You must 
also prominently identify confidential business information to be 
redacted within the comment. If a comment has so much confidential 
business information that it cannot be effectively redacted, all or 
part of that comment may not be posted online or made available in the 
public docket.
    Personal identifying information and confidential business 
information identified and located as set forth above will be redacted 
and the comment, in redacted form, will be posted online and placed in 
the DHS public docket file. Please note that the Freedom of Information 
Act applies to all comments received. If you wish to inspect the 
agency's public docket file in person by appointment, please see the 
FOR FURTHER INFORMATION CONTACT section above.

A. Submitting Comments

    If you submit a comment, please include the docket number for this 
rulemaking (ICEB-2012-0003), indicate the specific section of this 
document to which each comment applies, and provide a reason for each 
suggestion or recommendation. You may submit your comments and material 
online or by mail or hand delivery. Please use only one of these means.
    To submit your comment online, go to http://www.regulations.gov, 
click on the ``submit a comment'' box, which will then become 
highlighted in blue. In the ``Document Type'' drop down menu select 
``Proposed Rule'' and insert ``ICEB-2012-0003'' in the ``Keyword'' box. 
Click ``Search'' then click on the balloon shape in the ``Actions'' 
column. If you submit comments by mail or hand delivery, submit them in 
an unbound format, no larger than 8\1/2\ by 11 inches, suitable for 
copying and electronic filing. If you submit comments by mail and would 
like to know that they reached the mailing address, please enclose a 
stamped, self-addressed postcard or envelope.
    We will consider all comments and material received during the 
comment period and may change this proposed rule based on your 
comments.

B. Viewing Comments and Documents

    To view comments, as well as documents mentioned in this preamble 
as being available in the docket, go to http://www.regulations.gov, and 
click on the ``read comments'' box, which will then become highlighted 
in blue. In the ``Keyword'' box insert ``ICEB-2012-0003'', click 
``Search'' and then click ``Open Docket Folder'' in the ``Actions'' 
column. Individuals without internet access can make alternate 
arrangements for viewing comments and documents related to this 
rulemaking by contacting DHS at the contact number listed in the FOR 
FURTHER INFORMATION CONTACT section above.

C. Public Meeting

    We do not now plan to hold a public meeting, but you may submit a 
request for one to the docket using one of the methods specified under 
ADDRESSES. In your request, explain why you believe a public meeting 
would be beneficial. If we determine that a public meeting would aid 
this rulemaking, we will hold one at a time and place announced by a 
later notice in the Federal Register.

II. Abbreviations

ADA Americans with Disability Act of 1990, as amended
ANPRM Advance Notice of Proposed Rulemaking
BJS Bureau of Justice Statistics
CBP U.S. Customs and Border Protection
CDF Contract Detention Facility
CFR Code of Federal Regulations
CMD Custody Management Division
CRCL DHS Office for Civil Rights and Civil Liberties
DHS Department of Homeland Security

[[Page 75301]]

DOJ Department of Justice
ERO Enforcement and Removal Operations
FR Federal Register
HHS Department of Health and Human Services
ICE U.S. Immigration and Customs Enforcement
IGSA Intergovernmental Service Agreement
INA Immigration and Nationality Act
IRIA Initial Regulatory Impact Analysis
LEP Limited English Proficiency
NAICS North American Industry Classification System
NPREC National Prison Rape Elimination Commission
NPRM Notice of Proposed Rulemaking
OMB Office of Management and Budget
PBNDS Performance Based National Detention Standards
PLRA Prison Litigation Reform Act
PREA Prison Rape Elimination Act of 2003
PSA Prevention of Sexual Abuse
RFA Regulatory Flexibility Act
SAAPID Sexual Abuse and Assault Prevention and Intervention 
Directive
SPC Service Processing Center
SSV Survey of Sexual Violence
UMRA Unfunded Mandate Reform Act of 1995
U.S.C. United States Code
USMS U.S. Marshals Service

III. Executive Summary

A. Purpose of the Regulatory Action

    The purpose of this regulatory action is to propose regulations 
setting standards to prevent, detect, and respond to sexual abuse in 
Department of Homeland Security (DHS) confinement facilities.\1\ Sexual 
violence, against any victim, is an assault on human dignity and an 
affront to American values. Many victims report persistent, even 
lifelong mental and physical suffering. As the National Prison Rape 
Elimination Commission explained in its 2009 report:
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    \1\ As discussed in greater detail below, in these proposed 
standards, ``sexual abuse'' includes sexual abuse and assault of a 
detainee by another detainee, as well as sexual abuse and assault of 
a detainee by a staff member, contractor, or volunteer.

    Until recently * * * the public viewed sexual abuse as an 
inevitable feature of confinement. Even as courts and human rights 
standards increasingly confirmed that prisoners have the same 
fundamental rights to safety, dignity, and justice as individuals 
living at liberty in the community, vulnerable men, women, and 
children continued to be sexually victimized by other prisoners and 
corrections staff. Tolerance of sexual abuse of prisoners in the 
government's custody is totally incompatible with American 
values.\2\
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    \2\ National Prison Rape Elimination Commission Report 1 (2009), 
http://www.ncjrs.gov/pdffiles1/226680.pdf.

The commitment to eliminate sexual abuse behind bars applies equally to 
DHS confinement facilities, which detain individuals for civil 
immigration purposes. Sexual abuse is not an inevitable feature of 
detention, and with DHS's strong commitment, DHS immigration detention 
and holding facilities can have a culture that promotes safety and 
refuses to tolerate abuse. DHS is fully committed to a zero-tolerance 
policy against sexual abuse in its confinement facilities, and the 
proposed standards will effectively apply that policy across DHS 
confinement facilities. DHS is also fully committed to the full 
implementation of the proposed standards in DHS confinement facilities, 
and to robust oversight of these facilities to ensure this 
implementation.
    The proposed standards build on current U.S. Immigration and 
Customs Enforcement (ICE) Performance Based National Detention 
Standards (PBNDS) and other DHS detention policies, and respond to the 
President's May 17, 2012 Memorandum, ``Implementing the Prison Rape 
Elimination Act,'' which directs all agencies with Federal confinement 
facilities to work with the Attorney General to propose rules or 
procedures setting standards to prevent, detect, and respond to sexual 
abuse in confinement facilities. DHS seeks and welcomes public comments 
to this proposal.

B. Summary of the Provisions of the Regulatory Action

    The proposed DHS provisions span eleven categories that were 
originally used by the National Prison Rape Elimination Commission 
(NPREC) to discuss and evaluate prison rape elimination standards: 
prevention planning, responsive planning, training and education, 
assessment for risk of sexual victimization and abusiveness, reporting, 
official response following a detainee report, investigations, 
discipline, medical and mental care, data collection and review, and 
audits and compliance. Each provision proposed under these categories 
reflects the DHS experience in confinement of individuals and draws 
upon the unique experiences and requirements DHS faces in fulfilling 
its missions.
    For example, DHS has broken down the standards to cover two 
distinct types of DHS facilities: (1) Immigration detention facilities, 
which are overseen by U.S. Immigration and Customs Enforcement (ICE) 
and used for longer-term detention of individuals involved in 
immigration removal operations or processes; and (2) holding 
facilities, which are used by ICE, U.S Customs and Border Protection 
(CBP), and other DHS component agencies for temporary administrative 
detention of individuals pending transfer to a court, jail, prison, 
other agency or other unit of the facility or agency.
    In addition, the standards reflect the characteristics of the 
population encountered by DHS in carrying out its border security and 
immigration enforcement missions by providing, for example, for 
language assistance services for limited-English proficient detainees, 
safe detention of family units, and other provisions specific to DHS's 
needs. A more detailed discussion of all of the proposed provisions in 
the rulemaking is included below in section V of this notice of 
proposed rulemaking, ``Discussion of Proposed Rule,'' including a 
section-by-section analysis of the DHS proposal.

C. Costs and Benefits

    The anticipated costs of full nationwide compliance with the 
proposed rule, if ultimately made final, as well as the benefits of 
reducing the prevalence of sexual abuse in DHS immigration detention 
facilities and holding facilities, are discussed at length in section 
VI, entitled ``Statutory and Regulatory Requirements--Executive Orders 
12866 and 13563'' and in the accompanying Initial Regulatory Impact 
Analysis (IRIA), which is found in the Federal rulemaking docket for 
this rulemaking.
    As shown in the Summary Table below, DHS estimates that the costs 
of these standards would be approximately $57.7 million over the period 
2013-2022, discounted at 7 percent, or $8.2 million per year when 
annualized at a 7 percent discount rate.
    With respect to benefits, DHS conducts what is known as a ``break 
even analysis,'' by first estimating the monetary value of preventing 
various types of sexual abuse (from incidents involving violence to 
inappropriate touching) and then, using those values, calculating the 
reduction in the annual number of victims that would need to occur for 
the benefits of the rule to equal the cost of compliance. This analysis 
begins by estimating the current levels of sexual abuse in covered 
facilities. In 2011, ICE had two substantiated sexual abuse allegations 
in immigration detention facilities. During the same year, DHS 
experienced one substantiated allegation of sexual abuse of an 
individual detained in a DHS holding facility. (This does not include 
allegations involved in still-open investigations or allegations 
outside the scope of these proposed regulations.) The regulatory impact 
analysis extrapolates the number of substantiated and founded 
allegations at immigration detention facilities based on the premise 
that there may be additional detainees

[[Page 75302]]

who may have experienced sexual abuse, but did not report it.
    Next, DHS estimates how much monetary benefit (to the victim and to 
society) accrues from reducing the annual number of victims of sexual 
abuse. This is, of course, an imperfect endeavor, given the inherent 
difficulty in assigning a dollar figure to the cost of such an event. 
Executive Order 13563 states that agencies ``may consider (and discuss 
qualitatively) values that are difficult or impossible to quantify, 
including equity, human dignity, fairness, and distributive impacts.'' 
Each of these values is relevant here, including human dignity, which 
is offended by acts of sexual abuse.
    DHS uses the DOJ estimates of unit avoidance values for sexual 
abuse. DOJ estimates extrapolate from the existing economic and 
criminological literature regarding rape in the community.\3\ The RIA 
concludes that when all facilities and costs are phased into the 
rulemaking, the breakeven point would be reached if the standards 
reduced the annual number of incidents of sexual abuse by 55 from the 
estimated benchmark levels, which is 79 percent of the total number of 
assumed incidents in ICE confinement facilities, including an estimated 
number of those who may not have reported an incident. Chapter 3 of the 
IRIA presents detailed descriptions of the monetized benefits and 
break-even results. The Summary Table, below, presents a summary of the 
benefits and costs of the Notice of Proposed Rulemaking (NPRM). The 
costs are discounted at seven percent.
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    \3\ Department of Justice, National Standards to Prevent, 
Detect, and Respond to Prison Rape, Final Rule, Final Regulatory 
Impact Analysis, Docket No. DOJ-OAG-2011-0002, available at 
www.regulations.gov.

                               Summary Table--Estimated Costs and Benefits of NPRM
                                                   [$millions]
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                                                                    Immigration                      Total DHS
                                                                     detention        Holding          PREA
                                                                    facilities      facilities      rulemaking
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10-Year Cost Annualized at 7% Discount Rate.....................            $4.9            $3.3            $8.2
% Reduction of Sexual Abuse Victims to Break Even with Monetized             N/A             N/A           * 79%
 Costs..........................................................
                                                                 -----------------------------------------------
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....................................................             N/A             N/A             N/A
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* For ICE confinement facilities.

IV. Background

    Rape is violent, destructive, and a crime, no matter where it takes 
place. In response to concerns related to incidents of rape of 
prisoners in Federal, State, and local prisons and jails, as well as 
the lack of data available about such incidents, Congress passed PREA 
in July 2003. The bill became law with the President's signature in 
September 2003. See Public Law 108-79 (Sept. 4, 2003). Some of the key 
purposes of the statute were to ``develop and implement national 
standards for the detection, prevention, reduction, and punishment of 
prison rape,'' and to ``increase the available data and information on 
the incidence of prison rape.'' 42 U.S.C. 15602(3), (4). As the 
memorandum issued by the President on May 17, 2012 makes clear, the 
Administration concluded that PREA applies to all federal confinement 
facilities, including those operated by DHS.
    To accomplish these ends, PREA established the NPREC to conduct a 
``comprehensive legal and factual study of the penological, physical, 
mental, medical, social, and economic impacts of prison rape in the 
United States,'' and to recommend national standards for the reduction 
of prison rape. 42 U.S.C. 15606. PREA charged the Attorney General, 
within one year of NPREC issuing its report, to ``publish a final rule 
adopting national standards for the detection, prevention, reduction, 
and punishment of prison rape * * * based upon the independent judgment 
of the Attorney General, after giving due consideration to the 
recommended national standards provided by [NPREC] * * * and being 
informed by such data, opinions, and proposals that the Attorney 
General determines to be appropriate to consider.'' 42 U.S.C. 
15607(a)(1)-(2).
    The NPREC released its findings and recommended national standards 
in a report (the NPREC report) dated June 23, 2009. The report is 
available at http://www.ncjrs.gov/pdffiles1/226680.pdf. In that report, 
NPREC set forth four sets of recommended national standards for 
eliminating prison rape and other forms of sexual abuse. Each set was 
applicable to one of four unique confinement settings: (1) Adult 
prisons and jails; (2) lockups; (3) juvenile facilities; and (4) 
community corrections facilities. NPREC report at pgs. 215-235. The 
NPREC report recommends supplemental standards for facilities with 
immigration detainees. Id. at 219-220. Specifically, and of particular 
interest to DHS, the NPREC made eleven recommendations for supplemental 
standards for facilities with immigration detainees and four 
recommendations for supplemental standards for family facilities. NPREC 
felt that standards for facilities with immigrant detainees must be 
enforced in any facility that is run by ICE or through an ICE contract. 
Although immigrants are detained in various settings, efforts to 
prevent and respond to sexual abuse should require attention to the 
vulnerabilities of this detained population.
    As stated above, PREA provides that the Attorney General's final 
rule ``shall be based upon the independent judgment of the Attorney 
General, after giving due consideration to the recommended national 
standards provided by the Commission * * * and being informed by such 
data, opinion, and proposals that the Attorney General determines to be 
appropriate to consider.'' 42 U.S.C. 15607(a)(2).

A. Department of Justice Rulemaking

    In response to the NPREC report, the Attorney General established a 
PREA Working Group to review the NPREC's proposed standards and to 
assist him in the rulemaking process. The Working Group included 
representatives from DOJ offices including the Access to

[[Page 75303]]

Justice Initiative, the Bureau of Prisons (including the National 
Institute of Corrections), the Civil Rights Division, the Executive 
Office for United States Attorneys, the Office of Legal Policy, the 
Office of Legislative Affairs, the Office of Justice Programs 
(including the Bureau of Justice Assistance, the Bureau of Justice 
Statistics (BJS), the National Institute of Justice, the Office of 
Juvenile Justice and Delinquency Prevention, and the Office for Victims 
of Crime), the Office on Violence Against Women, and the United States 
Marshals Service. On March 10, 2010, DOJ published an advance notice of 
proposed rulemaking (ANPRM) to solicit public comment on the NPREC's 
proposed standards and to receive information useful in publishing a 
proposed rule proffering national standards as required under PREA. 75 
FR 11077 (Mar. 10, 2010). Throughout the rulemaking process, DOJ 
solicited and received substantial public input in the form of written 
comments and from listening sessions with key stakeholders. In general, 
the commenters to the DOJ ANPRM supported the broad goals of PREA and 
the overall intent of the NPREC's recommendations. The commenters were 
sharply divided, however, as to the merits of a number of the NPREC's 
recommended national standards. Some commenters, particularly those 
whose responsibilities involve the care and custody of detainees, 
expressed concern that the NPREC's recommended national standards 
implementing PREA would impose unduly burdensome costs on already tight 
State and local government budgets. Other commenters, particularly 
advocacy groups concerned with protecting the health and safety of 
detainees, expressed concern that the NPREC's standards were not 
protective enough, and, therefore, would not fully achieve PREA's 
goals.
    On February 3, 2011, after reviewing the public input to the ANPRM, 
DOJ issued a notice of proposed rulemaking (NPRM) setting forth 
proposed national PREA standards. 76 FR 6248 (Feb. 3, 2011). The DOJ 
NPRM solicited comments on DOJ's proposed standards, and posed 64 
specific questions on the proposed standards and the accompanying 
economic analysis.
    In response to the NPRM, DOJ received over 1,300 comments, 
representing the same broad range of stakeholders as commented to the 
DOJ ANPRM. Commenters provided general assessments of DOJ's efforts as 
well as specific and detailed recommendations regarding each standard. 
Pertinent to DHS, there was specific concern expressed by the 
commenters with respect to NPREC's recommended supplemental standards 
for immigration detention number six, which proposed to mandate that 
immigration detainees be housed separately from criminal detainees. The 
NPRM noted that several comments to the DOJ ANPRM raised a concern that 
this requirement would impose a significant burden on jails and 
prisons, which often do not have the capacity to house immigration 
detainees and criminal detainees separately. Id. The NPRM also noted 
DOJ's concern about other proposed supplemental standards, such as 
imposing separate training requirements, and requiring agencies to 
attempt to enter into separate memoranda of understanding with 
immigration-specific community service providers. Id. Furthermore, 
comments to the NPRM addressed whether the proposed standards should 
cover immigration detention facilities, prompting DOJ to examine the 
application of PREA to other federal confinement facilities, which is 
discussed further below.
    Following the public comment period for the NPRM, DOJ issued a 
final rule setting national standards to prevent, detect, and respond 
to prison rape. 77 FR 37106 (June 20, 2012). The final rule 
incorporates changes based upon the public comments and sets a national 
framework of standards to prevent, detect, and respond to prison rape 
at DOJ confinement facilities, as well as State prisons and local 
jails.

B. Application of PREA Standards to Other Federal Confinement 
Facilities

    DOJ's NPRM interpreted PREA to bind only facilities operated by the 
Bureau of Prisons, and extended the standards to U.S. Marshals Service 
(USMS) facilities under other authorities of the Attorney General. 76 
FR 6248, 6265. Numerous commenters criticized this interpretation of 
the statute. In light of those comments, DOJ re-examined whether PREA 
extends to Federal facilities beyond those operated by DOJ and 
concluded that PREA does, in fact, encompass any Federal confinement 
facility ``whether administered by [the] government or by a private 
organization on behalf of such government.'' 42 U.S.C. 15609(7).
    In its final rule, DOJ further concluded that, in general, each 
Federal department is accountable for, and has statutory authority to 
regulate, the operations of its own facilities and, therefore, is best 
positioned to determine how to implement the federal laws and rules 
that govern its own operations, the conduct of its own employees, and 
the safety of persons in its custody. 77 FR 37106, 37113. In 
particular, DOJ noted that DHS possesses great knowledge and experience 
regarding the specific characteristics of its immigration facilities, 
which differ in certain respects from DOJ, State, and local facilities 
with regard to the manner in which they are operated and the 
composition of their populations. Thus, and given each department's 
various statutory authorities to regulate conditions of detention, DOJ 
stated that Federal departments with confinement facilities, like DHS, 
will work with the Attorney General to issue rules or procedures 
consistent with PREA.

C. The Presidential Memorandum on Implementing the Prison Rape 
Elimination Act

    On May 17, 2012, the same day DOJ released its final rule, 
President Obama issued a Presidential Memorandum reiterating the goals 
of PREA and directing Federal agencies with confinement facilities that 
are not already subject to the DOJ final rule to propose rules or 
procedures necessary to satisfy the requirements of PREA within 120 
days of the Memorandum. In the Memorandum, the President firmly 
establishes that sexual violence, against any victim, is an assault on 
human dignity and an affront to American values, and that PREA 
established a ``zero-tolerance standard'' for rape in prisons in the 
United States. The Memorandum further expresses the Administration's 
conclusion that PREA encompasses all Federal confinement facilities, 
including those operated by executive departments and agencies other 
than DOJ, whether administered by the Federal Government or by an 
organization on behalf of the Federal Government, and that each agency 
is responsible for, and must be accountable for, the operations of its 
own confinement facilities. The President charged each agency, within 
the agency's own expertise, to determine how to implement the Federal 
laws and rules that govern its own operations, but to ensure that all 
agencies that operate confinement facilities adopt high standards to 
prevent, detect, and respond to sexual abuse. The President directed 
all agencies with Federal confinement facilities that are not already 
subject to the DOJ final rule, such as DHS, to work with the Attorney 
General to propose rules or procedures that will satisfy the 
requirements of PREA.
    As Congress and the President have concluded, sexual abuse in 
custodial environments is a serious concern with dire consequences for 
victims. DHS is firmly committed to protecting detainees from all forms 
of sexual abuse.

[[Page 75304]]

By this regulation, DHS responds to and fulfills the President's 
directive by proposing comprehensive, national regulations for the 
detection, prevention and reduction of sexual abuse at DHS immigration 
detention facilities and at DHS holding facilities.

D. Types of DHS Confinement Facilities

    Unlike DOJ, which followed the pattern of the NPREC report by 
issuing regulations related to four types of confinement facilities, 
DHS has just two types of confinement facilities: (1) Immigration 
detention facilities and (2) holding facilities.\4\
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    \4\ For simplicity, all persons confined in DHS immigration 
detention facilities and holding facilities are referred to as 
``detainees'' in this rulemaking.
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    As proposed in this rule, DHS defines an immigration detention 
facility as a ``confinement facility operated by or affiliated with 
U.S. Immigration and Customs Enforcement (ICE) that routinely holds 
persons for over 24 hours pending resolution or completion of 
immigration removal operations or processes, including facilities that 
are operated by ICE, facilities that provide detention services under a 
contract awarded by ICE, or facilities used by ICE pursuant to an 
Intergovernmental Service Agreement.'' These facilities are designed 
for long-term detention (more than 24 hours) and house the largest 
number of DHS detainees. ICE is the only DHS component agency with 
immigration detention facilities, and it has several types of such 
facilities: service processing center (SPC) facilities are ICE-owned 
facilities staffed by a combination of Federal employees and contract 
staff; contract detention facilities (CDFs) are owned by private 
companies and contracted directly with ICE; detention services at 
Intergovernmental Service Agreement (IGSA) facilities are provided to 
ICE by States or local governments through agreements and may be owned 
by the State or local government, or a private entity; and 
Intergovernmental Agreement (IGA) facilities are provided to ICE by 
States or local governments through intergovernmental agreements and 
may be owned by the State or local government, but not private 
entities. In addition, there are two types of IGSA facilities: 
dedicated IGSA facilities, which house only detained aliens, and non-
dedicated IGSA facilities, which house a variety of detainees. The 
standards set forth in Subpart A of these proposed regulations are 
meant ultimately to apply to all of these various types of immigration 
detention facilities--but not, notably, to USMS facilities used by ICE 
under intergovernmental agreements; those facilities and their 
immigrant detainees would be covered by the DOJ PREA standards and not 
the provisions within Subpart A of these proposed rules.
    The proposed regulations would not apply to CDF and IGSA facilities 
directly; rather, standards for these facilities would be phased in 
through new contracts and contract renewals. Specifically, the proposed 
regulations would require that when contracting for the confinement of 
detainees in immigration detention facilities operated by non-DHS 
private or public agencies or other entities, the agency include in any 
new contracts or contract renewals the obligation to adopt and comply 
with these standards. In other words, DHS intends to enforce the 
proposed standards though terms in its contracts with facilities.
    DHS defines a holding facility similarly to DOJ's definition of 
``lockup.'' A ``holding facility'' is a facility that contains holding 
cells, cell blocks, or other secure enclosures that are: (1) Under the 
control of the agency; and (2) primarily used for the short-term 
confinement of individuals who have recently been detained, or are 
being transferred to or from a court, jail, prison, or other agency. 
These facilities, which are operated by ICE, CBP, or other DHS 
components, are designed for confinement that is short-term in nature, 
but are permanent structures intended primarily for the purpose of such 
confinement. Temporary-use hold rooms and other types of short-term 
confinement areas not primarily used for confinement are not amenable 
to compliance with these standards, but are covered by other DHS 
policies and procedures. We discuss the distinctions between these 
facilities in more detail later in this proposal.
1. ICE Detention Facilities
    As stated above, the NPREC report contained eleven recommended 
standards for facilities with immigration detainees and four 
recommended standards specifically addressing family facilities. ICE 
oversees immigration detention facilities nationwide. The vast majority 
of facilities are operated through government contracts, State and 
local entities, private entities, or other federal agencies. The ICE 
Office of Enforcement and Removal Operations (ERO) is the subdivision 
within ICE that manages ICE operations related to the immigration 
detention system.
    ERO is responsible for providing adequate and appropriate custody 
management to support the immigration removal process. This includes 
providing traditional and alternative custody arrangements for those in 
removal proceedings, providing aliens access to legal resources and 
representatives of advocacy groups, and facilitating the appearance of 
detained aliens at immigration court hearings. Through various 
immigration detention reform initiatives, ERO is committed to providing 
and maintaining appropriate conditions of confinement, providing 
required medical and mental healthcare, housing detainees in the least 
restrictive setting commensurate with their criminal background, 
ensuring appropriate conditions for all detainees, employing fiscal 
accountability, increasing transparency, and strengthening critical 
oversight, including efforts to ensure compliance with applicable 
detention standards through inspection programs.
    The ERO Custody Management Division (CMD) provides policy and 
oversight for the administrative custody of immigration detainees; one 
of the most highly transient and diverse populations of any 
correctional or detention system in the world. CMD's mission is to 
manage ICE detention operations efficiently and effectively to provide 
for the safety, security and care of aliens in ERO custody.
    ERO is currently responsible for providing custody management to 
approximately 158 authorized immigration detention facilities, 
consisting of 6 SPCs, 7 CDFs, 9 dedicated IGSA facilities, and 136 non-
dedicated IGSA facilities (of which 64 are covered by the DOJ PREA 
rule, not this proposed rule, because they are USMS IGA facilities). 
ERO has 91 other authorized immigration detention facilities that 
typically hold detainees for more than 24 hours and less than 72 hours, 
including 55 USMS IGA facilities and 36 non-dedicated IGSA facilities. 
In addition, ICE has 149 holding facilities that hold detainees for 
less than 24 hours. These holding facilities are nationwide and are 
located within ICE ERO Field and Sub-Field Offices.
2. ICE Sexual Abuse and Assault Policies
    The proposed regulation for immigration detention facilities and 
holding facilities discussed in this rulemaking supports existing 
sexual abuse policies promulgated by ICE, including ICE's PBNDS 2011 
and its 2012 Sexual Abuse and Assault Prevention and Intervention 
Directive (SAAPID),\5\ which provide strong

[[Page 75305]]

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

    \5\ ICE, Performance-Based National Detention Standards (2011), 
http://www.ice.gov/doclib/detention-standards/2011/pbnds2011.pdf; 
ICE, Directive No. 11062.1: Sexual Abuse and Assault Prevention and 
Intervention (2012), http://www.ice.gov/detention-standards. These 
documents are available, redacted as appropriate, in the docket for 
this rule where indicated under ADDRESSES.
---------------------------------------------------------------------------

    ICE's PBNDS 2011 standard on ``Sexual Abuse and Assault Prevention 
and Intervention'' was developed in order to enhance protections for 
immigration detainees as well as ensure a swift and effective response 
to allegations of sexual abuse. This standard derived in significant 
part from earlier policies contained in the agency's PBNDS 2008, 
promulgated in response to the passage of PREA, and took into 
consideration the subsequently released recommendations of the NPREC 
(including those for facilities housing immigration detainees) in June 
2009 and ensuing draft standards later issued by DOJ in its Advance 
Notice of Proposed Rulemaking in March 2010. In drafting the PBNDS 
2011, ICE also incorporated the input of the DHS Office for Civil 
Rights and Civil Liberties (CRCL), local and national advocacy 
organizations, and representatives of DOJ (including correctional 
experts from the Bureau of Prisons) on methods for accomplishing the 
objectives of PREA in ICE's operational context, and closely consulted 
information and best practices reflected in policies of international 
corrections systems, statistical data on sexual violence collected by 
the DOJ BJS, and reports published by the United Nations High 
Commissioner for Refugees and the Inter-American Commission on Human 
Rights of the Organization of American States regarding sexual abuse 
and other issues affecting vulnerable populations in U.S. correctional 
systems. The PBNDS 2011 establish responsibilities of all immigration 
detention facility staff with respect to preventative measures such as 
screening, staff training, and detainee education, as well as effective 
response to all incidents of sexual abuse, including timely reporting 
and notification, protection of victims, provision of medical and 
mental health care, investigation, and monitoring of incident data.
    The 2012 ICE SAAPID complements the requirements established by the 
2011 PBNDS by delineating ICE-wide policy and procedures and 
corresponding duties of agency employees for reporting, responding to, 
investigating, and monitoring incidents of sexual abuse. In conjunction 
with the PBNDS, the Directive ensures an integrated and comprehensive 
system of preventing and responding to all incidents or allegations of 
sexual abuse of individuals in ICE custody.
    ICE's combined policies prescribe a comprehensive range of 
protections against sexual abuse addressing prevention planning, 
reporting, response and intervention, investigation, and oversight, 
including: articulation of facility zero-tolerance policies; 
designation of facility and agency sexual abuse coordinators; screening 
and classification of detainees; staff training; detainee education; 
detainee reporting methods; staff reporting and notification; first 
responder duties following incidents or allegations of sexual abuse 
(including to protect victims and preserve evidence); emergency and 
ongoing medical and mental health services; investigation procedures 
and coordination; discipline of assailants; and sexual abuse incident 
data collection and review.
    These policies are tailored to the unique operational and 
logistical circumstances encountered in the DHS confinement system in 
order to maximize their effective achievement of the goals of the PREA 
within the immigration detention context. To further improve 
transparency and enforcement, DHS has decided to issue this regulation 
and adopt the overall structure of the DOJ standards, as well as the 
wholesale text of various individual DOJ standards where it has deemed 
them appropriate and efficacious for DHS facilities, to meet the 
President's goal of setting high standards, government-wide, consistent 
with the goals of PREA. Where appropriate, DHS has also used the 
results of DOJ research and considered public comments submitted in 
response to the DOJ ANPRM and NPRM in formulating the DHS proposals.
3. U.S. Customs and Border Protection Detention Facilities
    U.S. Customs and Border Protection (CBP) has a priority mission of 
keeping terrorists and their weapons out of the United States. CBP is 
also responsible for securing and facilitating trade and travel while 
enforcing hundreds of U.S. statutes and regulations, including 
immigration and drug laws. All persons, baggage, and other merchandise 
arriving in or leaving the United States are subject to inspection and 
search by CBP officials under legal authorities for any number of 
reasons relating to its immigration, customs, and other law enforcement 
activities.
    CBP detains individuals in a wide range of facilities. CBP detains 
some individuals in secured detention areas, while others are detained 
in open seating areas where agents or officers interact with the 
detainee. CBP uses ``hold rooms'' in its facilities for case 
processing, and to search, detain, or interview persons who are being 
processed. CBP does not currently contract for staff within its holding 
facilities, but exercises oversight of detainees with its own 
employees.
    CBP generally detains individuals for only the short time necessary 
for inspection and processing, including pending release or transfer of 
custody to appropriate agencies. Some examples of situations in which 
CBP detains individuals prior to transferring them to other agencies 
are: (1) Persons processed for administrative immigration violations 
may, for example, be repatriated to contiguous territory or transferred 
to ICE pending removal from the United States or removal proceedings 
with the Executive Office of Immigration Review; (2) unaccompanied 
alien children placed in removal proceedings under section 240 of the 
Immigration and Nationality Act (INA), 8 U.S.C. 1229a, are transferred, 
in coordination with ICE, to the Department of Health and Human 
Services (HHS), Office of Refugee Resettlement; (3) persons detained 
for criminal prosecution are temporarily held pending case processing 
and transfer to other Federal, State, local or tribal law enforcement 
agencies. CBP policies and directives currently cover these and other 
detention scenarios.
4. CBP Detention Directives and Guidance
    The various CBP policies and directives containing guidance on the 
topics addressed in these proposed regulations include, but are not 
limited to:
    Personal Search Handbook, Office of Field Operations, CIS HB 3300-
04B, July 2004--describes the procedures for personal searches as well 
as detention of juveniles, short-term detention, and those persons 
being detained who require medical examinations. The handbook further 
details the procedures for transportation of, detention of and, 
reporting procedures for persons detained for prolonged medical 
examinations as well as detentions lasting more than two hours.
    CBP Directive No. 3340-030B, Secure Detention, Transport and Escort 
Procedures at Ports of Entry--includes general guidelines on detention. 
The policy also defines procedures for the handling of juveniles, 
medical situations, meals, water, restrooms, phone notifications, 
sanitation of the hold room, restraining procedures, classification of 
detainees,

[[Page 75306]]

transportation, emergency procedures, escort procedures, transfer 
procedures, and property disposition.
    U.S. Border Patrol Policy No. 08-11267, Hold Rooms and Short-Term 
Custody--establishes national policy describing the responsibilities 
and procedures for the short-term custody of persons in Border Patrol 
hold rooms pending case disposition. The policy also contains 
requirements regarding the handling of juveniles in Border Patrol 
custody.
    DHS referenced all of these policies in its consideration of DHS-
wide standards to prevent, detect, and respond to sexual abuse in DHS 
confinement facilities. The policies are available, redacted as 
appropriate, in the docket for this rule where indicated under 
ADDRESSES.

V. Discussion of Proposed Rule

A. The DHS Proposal

    Sexual violence, against any victim, is an assault on human 
dignity. Such acts are particularly damaging in the detention 
environment, where the power dynamic is heavily skewed against victims 
and recourse is often limited. Until recently, however, this has been 
widely viewed as an inevitable aspect of imprisonment within the United 
States. This view is not only incorrect but incompatible with American 
values.
    DHS keeps records of any known or alleged sexual abuse incidents in 
its facilities. ICE keeps records of any claims in its Joint Integrity 
Case Management System (JICMS). ICE records indicate 138 sexual abuse 
allegations from 2010 to June 2012. Of those, 57 percent were inmate- 
or detainee-on-detainee allegations, 38 percent were contract staff-on-
detainee, and the remaining 5 percent were ICE and/or State or local 
staff-on-detainee. These figures are unacceptable to DHS and the 
Administration, which has articulated a ``zero-tolerance'' standard for 
sexual abuse in confinement facilities. Accordingly, DHS has a mandate 
to work towards eliminating all such incidents.
    With respect to its proposal, DHS did not begin its work from a 
blank slate. Many correctional administrators have developed and 
implemented policies and practices to more effectively prevent and 
respond to sexual abuse in DHS confinement facilities. DHS applauds 
these efforts, and views them as an excellent first step. However, DHS 
needs a national effort to meet PREA's goals and comply with the 
President's directive that can be applied effectively to all covered 
facilities in light of their particular physical characteristics, the 
nature of their diverse populations, and resource constraints.
    DHS appreciates the considerable work DOJ has done in this area, 
and also recognizes that each DHS component has extensive expertise 
regarding its own facilities, particularly those housing unique 
populations, and that each DHS component is best positioned to 
determine how to implement the Federal laws and rules that govern its 
own operations, the conduct of its own employees, and the safety of 
persons in its custody. Thus DHS, because of its own unique 
circumstances, has adopted the overall structure of DOJ's regulations 
and has used its content to inform the provisions of this proposed 
rule, but has tailored individual provisions to maximize their efficacy 
in DHS confinement facilities.
    DHS also emphasizes that these proposed standards are not intended 
to establish a safe harbor for otherwise constitutionally-deficient 
conditions regarding detainee sexual abuse. Likewise, while the DHS 
standards aim to include a variety of best practices, the need to adopt 
standards applicable to a wide range of facilities while accounting for 
costs of implementation means that the proposed standards do not 
incorporate every promising avenue of combating sexual abuse. The 
proposed standards represent policies and practices that are attainable 
by DHS components and their contractors, while recognizing that other 
DHS policies and procedures can, and in some cases currently do, exceed 
these standards in a variety of ways. DHS applauds such efforts, and 
encourages its components and contractors to further support the 
identification and adoption of additional innovative methods to protect 
detainees from sexual abuse.

B. Section by Section Analysis

    The DHS proposal follows the DOJ rule in devising separate sets of 
standards tailored to different types of confinement facilities 
utilized by the DHS: ``immigration detention facilities'' and ``holding 
facilities.'' Each set of standards consists of the same eleven 
categories used by the DOJ rule: prevention planning, responsive 
planning, training and education, assessment for risk of sexual 
victimization and abusiveness, reporting, official response following a 
detainee report, investigations, discipline, medical and mental care, 
data collection and review, and audits and compliance. As in the DOJ 
rule, a General Definitions section applicable to both sets of 
standards is provided.
    Definitions. Sections 115.5 and 115.6 provide definitions for key 
terms used in the proposed standards, including definitions related to 
sexual abuse. The definitions in this section largely mirror those used 
in the DOJ rule, with adjustments as necessary for DHS operational 
contexts. DHS has also largely relied on the NPREC's definitions in the 
Glossary sections that accompanied the NPREC's four sets of standards, 
but has made a variety of adjustments and has eliminated definitions 
for various terms that either do not appear in the DHS proposed 
standards or whose meaning is sufficiently clear so as not to need 
defining. Below is an explanation for key definitions modified or added 
by DHS:
    Agency. The rule proposes to define agency as the unit or component 
of DHS responsible for operating or supervising any facility, or part 
of a facility, that confines detainees. This definition reflects the 
common understanding of the term agency as a unit of the Federal 
government and permits DHS to more appropriately and clearly place 
responsibility for compliance with the individual standards set forth 
in the proposed rule on the DHS component responsible for overseeing or 
supervising the facility, including the DHS component's responsibility 
for implementing DHS policy.
    Exigent circumstances. The rule proposes a definition for this 
term, which is used in several standards. The term is defined to mean 
``any set of temporary and unforeseen circumstances that require 
immediate action in order to combat a threat to the security or 
institutional order of a facility or a threat to the safety or security 
of any person.'' Such circumstances include, for example, the 
unforeseen absence of a staff member whose presence is indispensable to 
carrying out a specific standard, or an outbreak of violence within the 
facility that requires immediate action.
    Facility. A facility for purposes of the proposed rule means a 
place, building (or part thereof), set of buildings, structure, or area 
(whether or not enclosing a building or set of buildings) that was 
built or retrofitted for the purpose of detaining individuals and is 
routinely used by the agency to detain individuals in its custody. The 
proposed rule also clarifies that ``[r]eferences to requirements placed 
on facilities extend to the entity responsible for the direct operation 
of the facility'' to ensure that there is no ambiguity about each 
operator's responsibility to comply with given standards within the 
proposed rule. In the case of long-term detention facilities and 
holding facilities used by ICE, this generally refers to the

[[Page 75307]]

corporate contractor or State or local government entity responsible 
for the day-to-day operation of the facility. In the case of CBP 
holding facilities, this generally refers to the agency itself. This 
definition does not include temporary locations--such as U.S. Coast 
Guard vessels, hotel rooms, and conference rooms--temporarily or 
sporadically used to detain individuals for short periods of time 
during agency operations.
    Family unit. DHS, unlike DOJ, oversees a Family Residential Program 
which houses non-criminal residents in a family-friendly, shelter-like 
setting. In order to facilitate placing families into this arrangement, 
ICE is required to identify family units. As such, DHS proposes to 
adopt the definition of ``family unit'' from the ICE Family Detention 
and Intake Guidance.\6\ In the Guidance, and in this proposed rule, 
family unit means a group of detainees that includes one or more non-
United States citizen juvenile(s) accompanied by his/her/their 
parent(s) or legal guardian(s), none of whom has a known history of 
criminal or delinquent activity, or of sexual abuse, violence, or 
substance abuse.
---------------------------------------------------------------------------

    \6\ See Memorandum from David J. Venturella, Acting Dir., Office 
of Detention and Removal Operations, to Field Office Directors (Aug. 
14, 2009). This document is available, redacted as appropriate, in 
the docket for this rule where indicated under ADDRESSES.
---------------------------------------------------------------------------

    Holding Facility. The DHS proposed rule uses the DOJ's definition 
of ``lockup,'' as the basis for its definition of ``holding facility'' 
which is more consistent with terminology used throughout DHS policy 
documents. Important to this definition is that the holding facility 
must be ``primarily used'' for the short-term confinement of 
individuals who have recently been detained. As with the definition of 
``facility'' above, the definition does not include temporary 
locations--such as U.S. Coast Guard vessels, hotel rooms, and 
conference rooms--temporarily or sporadically used to detain 
individuals for short periods of time during agency operations. These 
are governed separately by other agency operational policies.
    Immigration detention facility. DHS detains the largest number of 
its detainees at ICE immigration detention facilities around the 
country. DHS and ICE define an immigration detention facility as a 
confinement facility operated by or affiliated with ICE that routinely 
holds persons for over 24 hours pending resolution or completion of 
immigration removal operations or processes, including facilities that 
are operated by ICE, facilities that provide detention services under a 
contract awarded by ICE, or facilities used by ICE pursuant to an IGSA. 
ICE ERO is responsible for providing custody management to 
approximately 158 authorized immigration detention facilities that 
house detainees for over 72 hours, including 6 SPCs, 7 CDFs, 9 
dedicated IGSA facilities, and 136 non-dedicated IGSA facilities (62 of 
the non-dedicated IGSA facilities and 2 of the dedicated IGSA 
facilities are covered by the DOJ PREA rule, not this proposed rule, 
because they are USMS IGA facilities). ICE ERO also provides custody 
management to an additional 91 authorized immigration detention 
facilities that are contracted to hold detainees for less than 72 
hours, including 36 non-dedicated IGSA facilities and 55 USMS IGA 
facilities. The provisions within Subpart A below apply to all of the 
facilities just mentioned that are not USMS facilities, which are 
already covered by the DOJ PREA rule: 94 over 72-hour facilities and 36 
under 72-hour facilities. Please see Table 1 in Section VI.A.2 Summary 
of Affected Populations.
    Juvenile. DHS's existing detention policies define a juvenile as 
any person under the age of 18. The DOJ rule further qualified this 
with the phrase ``unless under adult court supervision and confined or 
detained in a prison or jail.'' DHS does not operate or oversee prison 
or jail facilities and, as such, this phrase was not included as it is 
not applicable to DHS facilities. DHS does not incorporate this 
qualification because the juveniles DHS detains are detained for civil 
administrative purposes.
    Sexual abuse. The DHS definition of sexual abuse in the proposed 
rule differs slightly from DOJ's definition of sexual abuse in the DOJ 
final rule. Both the DHS and DOJ standards define staff-on-detainee 
sexual abuse to cover all types of sexual contact between detainees and 
staff members, volunteers, or contractors that is unrelated to proper 
searches or medical duties, as well as any attempts by staff to engage 
in such contact or to coerce a detainee into doing so. Detainee-on-
detainee sexual abuse is similarly defined by both standards to 
encompass all types of sexual contact between detainees accomplished 
through force, coercion, or intimidation. In order to account for the 
fact that DHS detainees are often held with prisoners, inmates, and 
facility residents, the proposed rule includes sexual abuse of a 
detainee by a prisoner, inmate, or resident in the definition of 
``sexual abuse of a detainee by another detainee.'' However, whereas 
the DOJ standards include attempted acts of sexual abuse (in addition 
to completed acts of sexual abuse) only in their definition of staff-
on-detainee abuse, DHS believes it is important to provide equal 
protection against attempted sexual abuse in all instances, and 
therefore includes attempted acts of sexual abuse in its definitions of 
both staff-on-detainee and detainee-on-detainee sexual abuse. In 
addition, DOJ separately defines sexual harassment by an inmate to 
include ``[r]epeated and unwelcome sexual advances, requests for sexual 
favors, or verbal comments, gestures, or actions of a derogatory or 
offensive sexual nature by one inmate, detainee, or resident directed 
toward another.'' DHS, instead, incorporates much of the same behavior 
into the proposed definition of sexual abuse, which forbids ``threats, 
intimidation, or other actions or communications by one or more 
detainees aimed at coercing or pressuring another detainee to engage in 
a sexual act.''
    In addition, DHS has included sexual harassment within its 
definition of staff-on-detainee sexual abuse, as DHS believes that 
combating precursors to sexual abuse represents an important aspect of 
preventing sexual abuse. DHS also has included unnecessary or 
inappropriate visual surveillance of a detainee as part of the 
definition of sexual abuse of a detainee by a staff member, contractor, 
or volunteer. The DHS prohibition on unnecessary or inappropriate 
visual surveillance is consistent with and addresses the same types of 
conduct as DOJ's prohibition on voyeurism, as that term is defined in 
DOJ's PREA final rule. Under the DHS rule, unnecessary or inappropriate 
surveillance generally derives from a prurient interest and is carried 
out through one or a series of embarrassing, intimidating, or degrading 
incidents involving leering, unnecessary supervision, or improper 
photography or videotaping of the detainee in a state of undress or 
performing bodily functions. For example, as DOJ explained in its PREA 
final rule, a staff member who happens to witness a detainee in a state 
of undress while conducting rounds has not engaged in unnecessary and 
inappropriate visual surveillance. On the other hand, a staff member 
who, outside of their official duties, takes images of all or part of a 
detainee's naked body, or of an inmate performing bodily functions, for 
the staff member's own use or for further distribution, has likely 
engaged in unnecessary and inappropriate visual surveillance.
    Coverage: Section 115.10 clarifies that Subpart A of the proposed 
rule is only applicable to ICE immigration detention

[[Page 75308]]

facilities. DHS holding facilities are governed by Subpart B of the 
proposed rule. DHS recognizes the importance of preventing, detecting, 
and responding to all sexual abuse, but also that the resources and 
environment of immigration detention facilities and holding facilities 
are different by nature and need to have a respectively different set 
of standards tailored to each of them for an effective outcome.
    Prevention Planning: Sections 115.11, 115.111, 115.12, 115.112, 
115.13, 115.113, 115.14, 115.114, 115.15, 115.115, 115.16, 115.116, 
115.17, 115.117, 115.18 and 115.118. DHS believes it is important to 
establish what actions facilities are expected to take to prevent 
sexual abuse. Sections 115.11 and 115.111 require each DHS agency 
responsible for operation of confinement facilities and each 
immigration detention facility covered by Subpart A to establish a 
written zero-tolerance policy toward sexual abuse outlining the 
agency's or facility's approach to preventing, detecting, and 
responding to such conduct.
    Sections 115.11 and 115.111 also mandate that each covered agency 
appoint an upper-level, agency-wide Prevention of Sexual Abuse 
Coordinator (PSA Coordinator) to oversee agency efforts to comply with 
DHS sexual abuse prevention, detection, and response standards and that 
each immigration detention facility covered by Subpart A appoint a 
Prevention of Sexual Abuse Compliance Manager (PSA Compliance Manager) 
to oversee facility efforts in this regard. A similar facility-level 
requirement is not included for Subpart B holding facilities, as those 
are very numerous, often small, and operated directly by the agency, 
and thus overseen by the PSA Coordinator through the normal agency 
chain of command.
    With respect to the reporting level of the DHS component PSA 
Coordinator, DHS's proposed standard requires that the position be 
``upper-level'' but does not require that the coordinator report 
directly to the DHS component head. The PSA Coordinator should have 
access to agency and facility leadership on a regular basis, and have 
the authority to work with other staff, managers, and supervisors to 
effectuate change if necessary. By contrast, the facility-specific PSA 
Compliance Manager need not be ``upper-level,'' but should have access 
to facility staff, managers, and supervisors in order to guide 
implementation of facility sexual abuse prevention and intervention 
policies and procedures.
    Sections 115.12 and 115.112 require that agencies that contract 
with private entities for the confinement of detainees include the 
entity's obligation to comply with the DHS sexual abuse standards in 
new contracts or contract renewals. Although the proposed regulation 
would not directly apply to non-DHS private or public agencies or other 
entities, the proposed regulation requires that new contracts or 
renewals include the entity's obligation to adopt and comply with these 
standards and ``provide for agency contract monitoring to ensure that 
the contractor is complying with these standards.''
    Sections 115.13 and 115.113 govern the supervision and monitoring 
of detainees. The DHS proposal recognizes that direct staff supervision 
and video monitoring are two methods of achieving one goal: reducing 
the opportunity for sexual abuse to occur unseen. DHS recognizes that 
different agencies and facilities rely on staffing and technology to 
varying degrees depending upon their specific characteristics. 
Accordingly, the DHS proposal considers these issues together.
    DHS is also mindful that staffing and video-monitoring systems are 
both expensive. Staff salaries and benefits are typically the largest 
item in a correctional agency's budget, see, e.g., National Institute 
of Corrections, Staffing Analysis: Workbook for Jails (2d ed.) at 2, 
and economies of scale are difficult to obtain: increasing staffing by 
25% is likely to increase staff costs by 25%. Likewise, video-
monitoring systems may be beyond the financial reach of some agencies 
and facilities, although the costs of such systems may diminish in 
future years as technology advances.
    DHS, however, recognizes the importance of detainee supervision in 
combating sexual abuse and believes that the correctional community 
shares this view. See, e.g., American Correctional Association, Public 
Correctional Policy on Offender Sexual Abuse (Jan. 12, 2005) 
(recommending that agencies ``[m]aintain adequate and appropriate 
levels of staff to protect detainees against sexual assault''). 
Although proper detainee supervision and monitoring cannot eliminate 
the risk of sexual abuse, it can play a key role in reducing 
opportunities for it to occur.
    At the same time, DHS recognizes that determining adequate detainee 
supervision and monitoring is a facility-specific enterprise. For 
example, the appropriate means of supervision and monitoring, including 
appropriate staffing levels, depends upon a variety of factors, 
including (but not necessarily limited to) the physical layout of a 
facility, the security level and gender of the detainees, whether the 
facility houses adults or juveniles, the length of time detainees 
reside in the facility, the amount of programming that the facility 
offers, and the facility's population density (i.e., comparing the 
number of detainees to the number of beds or square feet). Also, the 
facility's reliance on video monitoring and other technology may reduce 
staffing requirements, as long as the facility employs sufficient staff 
to monitor the video feeds or other technologies such as call buttons 
or sensors. The viability of technology may in turn depend upon, among 
other factors, the characteristics of the confined population.
    Due to the complex interaction of these factors, DHS does not 
believe that it is possible to craft an agency-wide or facility-wide 
formula that would set appropriate staffing levels for all 
populations--although DHS is aware that some States do set such levels 
for juvenile facilities. Nor is it likely that an auditor would be able 
to determine the appropriate staffing level in the limited amount of 
time available to conduct an audit. Relying on reported incidents of 
sexual abuse to determine appropriate staffing levels is also an 
imperfect method given the uncertainty as to whether an incident will 
be reported. Indeed, facilities where detainees feel comfortable 
reporting abuse, and where investigations are conducted effectively, 
may be more likely than other facilities to experience substantiated 
allegations of sexual abuse, even if the facility is safer than its 
counterparts. For this reason, DHS, like DOJ, has opted not to adopt 
general across-the-board standards on this issue, as proposed by some 
commenters to the DOJ rulemaking.
    Accordingly, DHS is of the view that any standard that governs 
detainee supervision and monitoring must protect detainees by providing 
sufficient clarity as to its requirements, recognizing that the 
adequacy of detainee supervision and monitoring depends on several 
factors that interact differently for each facility, and accounting for 
the costs involved in employing additional staff and in purchasing and 
deploying additional technology. The agency or the facility itself 
must, therefore, make its own comprehensive assessment of adequate 
supervision levels, taking into account its use, if any, of video 
monitoring or other technology. The fact that multiple factors bear on 
the adequacy of detainee supervision and monitoring is no barrier to 
requiring an agency to conduct such an assessment for each of its 
facilities. The agency or facility must reassess at least annually such 
adequate

[[Page 75309]]

supervision and monitoring, including through appropriate staffing 
levels, and should also reassess its use of video monitoring systems 
and other technologies. This annual assessment will include an 
examination of the adequacy of resources the agency or facility has 
available to ensure adequate levels of detainee supervision and 
monitoring. The purpose of mandating such inquiries within these 
standards is to institutionalize the practice of assessing detainee 
supervision and monitoring in the context of considering how 
supervision and monitoring contribute to efforts to combat sexual 
abuse. DHS is interested in receiving comments on whether and to what 
extent this standard should include additional or alternative 
requirements.
    DHS notes, however, that this standard, like all the standards, is 
not intended to serve as a legal safe harbor. A facility that makes its 
best efforts to design and comply with its detainee supervision plan is 
not necessarily in compliance with legal requirements, even if a 
staffing shortfall is due to budgetary factors beyond its control.
    DHS also believes that heightened protection should be accorded 
detainees who are assessed to be at a high risk of victimization for 
sexual abuse. The proposed rule thus provides in the holding facility 
context under proposed 115.141 that the agency provide such detainees 
heightened protection, to include continuous direct sight and sound 
supervision, single-cell housing, or placement in a cell actively 
monitored on video by a staff member sufficiently proximate to 
intervene, unless no such option is determined to be feasible. In the 
immigration detention context, heightened protection is addressed at 
another section of the proposed rule, 115.43, which imposes 
requirements more consistent with the long-term detention context and 
the more extensive resources found within those facilities, including 
consideration of administrative segregation. The proposed rule also 
includes proposed 115.13(d), which calls for unannounced security 
inspections to augment the safety of detainees held in the immigration 
detention facilities. This provision is not included in the holding 
facility provisions as the agency visual supervision of detainees in 
that context is frequently direct and more continuous than in the long-
term detention context.
    In general, DHS provides that juveniles will be detained in the 
least restrictive setting appropriate to the juvenile's age and special 
needs, provided that such setting is consistent with the need to 
protect the juvenile's well-being and that of others, as well as any 
other laws, regulations, or legal requirements. Nearly all juveniles in 
ICE detention are located in family facilities, specifically in two 
family detention facilities that house juvenile detainees along with 
adult family members. Although the concern raised by potential mixing 
of adult and juvenile populations is thus unlikely to be an issue in 
ICE facilities as a whole, DHS has proposed a standard in section 
115.14 that restricts, but does not forbid, the placement of juveniles 
in adult facilities. This provision is in recognition that it is 
possible under certain circumstances that adult and juvenile 
populations potentially could mix and it is important to clarify in 
regulation that DHS seeks to restrict such an outcome whenever 
possible.
    The BJS previously reported that, based on its surveys of facility 
administrators, 20.6% of victims of substantiated incidents of inmate-
on-inmate sexual violence in adult jails in 2005 were under the age of 
18, and 13% of such victims in 2006 were under 18,\7\ despite the fact 
that under-18 inmates accounted for less than one percent of the total 
jail population in both years.\8\ These findings derived from facility 
responses to the BJS's Survey of Sexual Violence (SSV), which was 
administered to a representative sampling of jail facilities in 
addition to all Federal and State prison facilities. However, upon 
further review, BJS has determined that these figures are not 
statistically significant due to the small number of reported incidents 
and the small number of jails contained in the sample. Indeed, in 
reporting data from the 2007 and 2008 SSVs, BJS determined that the 
standard errors around the under-18 estimates for adult jails were 
excessively large, and consequently did not report the estimates 
separately, but rather reported combined figures for inmates under the 
age of 25. BJS has now determined that it should have done the same for 
2005 and 2006.
---------------------------------------------------------------------------

    \7\ See Beck, Sexual Violence Reported by Correctional 
Authorities, 2005, Table 4, BJS (2006); and Beck, Sexual Violence 
Reported by Correctional Authorities, 2006, Appendix Table 5, BJS 
(2007).
    \8\ See Minton, Jail Inmates at Midyear 2010--Statistical 
Tables, Table 7, BJS (2011).
---------------------------------------------------------------------------

    However, this conclusion does not impact the findings of the same 
BJS surveys performed in State prisons, which surveyed all State 
prisons (in contrast to the jails surveys, which included only a 
sampling of jails). According to SSV reports, from 2005 through 2008, 
1.5% of victims of substantiated incidents of inmate-on-inmate sexual 
violence in State prisons were under 18, even though under-18 inmates 
constituted less than 0.2% of the State prison population. While the 
number of such substantiated incidents is small from 2005 through 
2008--a total of 10--the combined data indicates that State prison 
inmates under the age of 18 are more than eight times as likely as the 
average State prison inmate to have experienced a substantiated 
incident of sexual abuse. Furthermore, the true prevalence of sexual 
abuse is undoubtedly higher than the number of substantiated incidents, 
due to the fact that many incidents are not reported, and some 
incidents that are reported are not able to be verified and thus are 
not classified as ``substantiated.'' Indeed, it is quite possible that 
prison inmates under 18 are more reluctant than the average inmate to 
report an incident because of their age and relative newness to the 
prison system.
    DOJ's review of State procedures in its final rule indicates that 
at least 28 States have laws, regulations, or policies that restrict 
the confinement of juveniles in adult facilities in varying degrees. 
Some jurisdictions house these juveniles in juvenile facilities until 
they reach a threshold age and then transfer them to an adult facility. 
Other jurisdictions require physical separation or sight and sound 
separation between these juveniles and adult offenders. Yet other 
jurisdictions maintain dedicated programs, facilities, or housing units 
for juveniles in the adult system. Overall, there appears to be a 
national trend toward limiting interaction between juveniles and adult 
inmates. In recent years, a number of States have imposed greater 
restrictions on the placement of juveniles in adult facilities or have 
passed legislation to allow juveniles tried as adults to be housed in 
juvenile facilities.\9\
---------------------------------------------------------------------------

    \9\ See 77 FR 37106, 37128 n.14 (June 20, 2012) (citing 42 Pa. 
C.S.A. Sec.  6327 (under-18 Pennsylvania inmates awaiting trial as 
adults may be detained in juvenile facilities until reaching 18); 
Va. S.B. 259, 2010 Gen. Assem., Reg. Sess. (eff. July 1, 2010) 
(presumption that under-18 Virginia inmates awaiting trial as adults 
be held in juvenile facilities); Colo. Rev. Stat. Sec.  19-2-517 
(2012) (preventing 14 and 15-year-olds from being tried as adults 
except in murder and sexual assault cases; requires prosecutors to 
state reasons and hear from defense counsel before exercising 
discretion to try 16 and 17-year-olds as adults); Ariz. S.B. 1009, 
49th Leg., 2d Reg. Sess. (2010) (eliminating eligibility of some 
juveniles to be tried as adults by requiring a criminal charge 
brought against the juvenile to be based on their age at the time 
the offense was committed and not when the charge was filed); Utah 
H.B. 14, Gen. Sess. (Utah 2010) (granting justice court judge 
discretion to transfer a matter at any time to juvenile court if it 
is in the best interest of the minor and the juvenile court 
concurs); Miss. S.B. 2969, 2010 Leg., Reg. Sess. (2010) (limiting 
the types of felonies that 17 year olds can be tried for as an 
adult);Wash. Rev. Code Sec.  13.04.030(1)(e)(v)(E)(III) (2012) 
(allowing juveniles to be transferred back to juvenile court upon 
agreement of the defense and prosecution); Wash. Rev. Code Sec.  
13.40.020 (14) (providing that juveniles previously transferred to 
adult court are not automatically treated as adults for future 
charges if found not guilty of original charge); 2009 Nev. Stat. 239 
(raising the age a juvenile may be presumptively certified as an 
adult from 14 to 16); Me. Rev. Stat. Ann. tit. 17-A Sec.  1259 
(2011) (providing that juveniles under 16 who receive adult prison 
sentence must serve sentence in juvenile correctional facility until 
their 18th birthday); 2008 Ind. Acts 1142-1144 (limiting juvenile 
courts' ability to waive jurisdiction to felonies and requiring 
access for Indiana criminal justice institute inspection and 
monitoring of facilities that are or have been used to house or hold 
juveniles); Conn. Gen. Stat. Sec.  54-76b-c (2012) (creating 
presumption that 16-17 year olds are eligible to be tried as 
youthful offenders unless they are charged with a serious felony or 
had previously been convicted of a felony or adjudicated a serious 
juvenile offender); 75 Del. Laws 269 (2005) (limiting Superior 
Court's original jurisdiction over robbery cases involving juveniles 
to crimes committed by juveniles who had previously been adjudicated 
delinquent for a felony charge and thereafter committed a robbery in 
which a deadly weapon was displayed or serious injury inflicted); 
705 Ill. Comp. Stat. 405/5-130 (2011) (eliminating the requirement 
that 15-17 year olds charged with aggravated battery with a firearm 
and violations of the Illinois Controlled Substances Act, while on 
or near school or public housing agency grounds, be tried as 
adults)).

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

[[Page 75310]]

    Furthermore, several accrediting and correctional associations have 
formulated position statements, issued standards, or provided comments 
urging either that all persons under 18 be held in juvenile facilities 
only, or that they be housed separately from adult inmates. For 
example, the National Commission on Correctional Healthcare, the 
American Jail Association, the National Juvenile Detention Association, 
and the National Association of Juvenile Correctional Agencies all 
support separate housing or placement for juveniles.\10\ So too does 
the American Bar Association.\11\
---------------------------------------------------------------------------

    \10\ See Letter from Campaign from Youth Justice, et al., to 
Attorney General Holder, at 4, April 4, 2011; NCCHC Position 
Statement, Health Services to Adolescents in Adult Correctional 
Facilities, adopted May 17, 1998, http://www.ncchc.org/resources/statements/adolescents.html.
    \11\ See ABA Criminal Justice Standards on the Treatment of 
Prisoners, at 23-3.2(b), http://www.americanbar.org/content/dam/aba/publications/criminal_justice_standards/Treatment_of_Prisoners.authcheckdam.pdf.
---------------------------------------------------------------------------

    Although many jurisdictions have moved away from incarcerating 
adults with juveniles, a significant number of juveniles continue to be 
integrated into the adult inmate population. DOJ estimates that in 
2009, approximately 2,778 juveniles were incarcerated in State prisons 
and 7,218 were held in local jails.\12\
---------------------------------------------------------------------------

    \12\ See West, Prison Inmates at Midyear 2009--Statistical 
Tables, Table 21, BJS (Rev. 2011); Minton, Jail Inmates at Midyear 
2010--Statistical Tables, Table 6, BJS (Rev. 2011).
---------------------------------------------------------------------------

    Taking these statistics and DHS operational requirements into 
consideration, DHS has decided to propose standards aimed at preventing 
unsupervised contact with adults without inadvertently causing harm to 
juveniles. The standard requires juveniles to be detained in the least 
restrictive setting appropriate to the juvenile's age and special 
needs, provided that such setting is consistent with the need to 
protect the juvenile's well-being and that of others, as well as any 
other laws, regulations or legal requirements.
    In section 115.14, Juvenile and family detainees, the proposed 
standard for ICE immigration detention facilities is consistent with 
ICE's Family Detention and Intake Guidance and recognizes that in some 
circumstances ICE detains families together. Under this standard, ICE 
immigration detention facilities would not be required to hold 
juveniles apart from adults if the adult is a member of the family unit 
and no other adult non-relative detainees are in the same detention 
cell, and provided there are no safety or security concerns with the 
arrangement. ICE policy and the standards would further require that 
facilities provide priority attention to unaccompanied alien children, 
as defined by 6 U.S.C. 279, whom DHS is legally required to transfer to 
a HHS Office of Refugee Resettlement facility within 72 hours, except 
in exceptional circumstances. If the unaccompanied alien child has been 
convicted of a sexual abuse-related crime as an adult, ICE will provide 
the entity taking custody of the juvenile--generally the facility or 
the HHS Office of Refugee Resettlement--with the releasable information 
regarding the conviction(s) to ensure the appropriate placement of the 
alien in an HHS Office of Refugee Resettlement facility.
    Section 115.114, the standard for detaining juveniles in holding 
facilities, leaves open the possibility that families detained while 
travelling or living together may be detained together, while providing 
that unaccompanied juveniles be held separately from adult detainees. 
This distinction is intended to protect unaccompanied juveniles who may 
be at an increased vulnerability to sexual abuse by virtue of their 
unaccompanied status but permit families travelling together to remain 
together while confined for temporary processing or other agency 
operations.
    With these sections, DHS is mindful of agency concerns regarding 
cost, feasibility, and preservation of State law prerogatives. The 
proposed standard still affords facilities and agencies some 
flexibility in devising an approach to protecting juveniles. Compliance 
may be achieved by, for example: (1) Confining juveniles to a separate 
unit, (2) transferring juveniles to a facility within the agency that 
enables them to be confined to a separate unit, (3) entering into a 
cooperative agreement with an outside jurisdiction to enable 
compliance, or (4) ceasing to confine juveniles in adult facilities as 
a matter of policy, or State or local law. Agencies may, of course, 
combine these approaches as they see fit.
    Sections 115.15 and 115.115 address limits on cross-gender viewing 
and searches. The proposed rule would require policies and procedures 
that enable detainees to shower (where showers are available), perform 
bodily functions, and change clothing without being viewed by staff of 
the opposite gender, except in exigent circumstances or when such 
viewing is incidental to routine cell checks or is otherwise 
appropriate in connection with a medical examination or bowel movement 
under medical supervision. The proposed rule would also require that 
staff of the opposite gender announce their presence when entering an 
area where detainees are likely to be showering, performing bodily 
functions, or changing clothing. The rule would further prohibit cross-
gender strip searches except in exigent circumstances, or when 
performed by medical practitioners, and prohibits facility staff from 
conducting body cavity searches of juveniles, requiring instead that 
all body cavity searches of juveniles be referred to a medical 
practitioner. These DHS provisions are the same for immigration 
detention facilities and holding facilities, and reflect the existing 
policies related to ICE immigration detention operations.
    In Subpart A, the DHS proposal imposes limits on immigration 
detention facilities' cross-gender searches that are broader in scope 
than the DOJ PREA final rule, generally prohibiting cross-gender pat-
down searches of all detainees, male or female. The DOJ regulations 
governing adult prisons and jails prohibit cross-gender pat-down 
searches of female inmates only, with a relatively narrow exception for 
exigent circumstances. DHS adopts the DOJ standard on cross-gender pat-
down searches of female inmates (for DHS's purposes, female detainees). 
DHS has also incorporated the PBNDS 2011 standard prohibiting cross-
gender pat-down searches of male detainees, with an exception for 
situations where, after reasonable diligence, staff of the same gender 
is not available at the time the pat-down search is required or in 
exigent circumstances. DHS intends this

[[Page 75311]]

standard to require facilities to make considerable efforts to 
facilitate same-gender staff availability. Whereas DOJ's rule is being 
phased in over three to five years, depending on the size of the 
affected facility, DHS proposes implementation of this standard at the 
same time as all other requirements placed on facilities through this 
rulemaking. DHS is soliciting public comment on this proposed approach 
to restrictions on cross-gender pat-down searches.
    DOJ explained in its final rule that it had received numerous 
comments on its proposed limits on cross-gender pat-down searches 
during the course of its rulemaking. Multiple State and local agencies 
expressed concern about a complete prohibition on cross-gender pat-down 
searches, as applied to male inmates. The commenters wrote that such a 
requirement might affect an agency's ability either to hire significant 
numbers of additional male staff or to lay off significant numbers of 
female staff, due to their overwhelmingly male inmate population and 
substantial percentage of female staff. In addition, many agencies 
expressed concern that the necessary adjustments to their workforce 
could violate Federal or State equal employment opportunity laws. DHS 
has taken note of these comments in formulating its proposals but 
believes its circumstances can accommodate the proposed prohibition of 
cross-gender pat-down searches unless staff of the same gender is not 
available, after reasonable diligence, or in exigent circumstances.
    Accordingly, and consistent with existing DHS policies, in Section 
115.15, DHS proposes to prohibit cross-gender pat-down searches in its 
immigration detention facilities unless, after reasonable diligence, 
staff of the same gender is not available at the time the pat-down 
search is required (for male detainees), or in exigent circumstances 
(for female and male detainees alike). DHS proposes to require that all 
cross-gender pat-down searches conducted pursuant to these exceptions 
be documented. Cross-gender pat-downs are not prohibited in the holding 
facility context, in Section 115.115, because of the exigencies 
encountered in those environments and the staffing and timing 
constraints in those small and short-term facilities.
    Sections 115.15 and 115.115, consistent with existing DHS policy, 
also bar examinations of detainees for the sole purpose of determining 
gender status. Rather, if the detainee's gender is unknown, it may be 
determined during conversations with the detainee, by reviewing medical 
records (if available), or, if necessary, learning that information as 
part of a broader medical examination conducted in private by a medical 
practitioner. The proposed standard also mandates that agencies train 
security staff, in the immigration detention facility context, and law 
enforcement staff, in the holding facility context, in proper 
procedures for conducting all pat-down searches, including cross-gender 
pat-down searches and searches of transgender and intersex detainees. 
The DHS standard mandates that all pat-down searches be conducted in a 
professional and respectful manner, and in the least intrusive manner 
possible consistent with security needs, including officer safety 
concerns, and existing agency policy.
    Sections 115.16 and 115.116 govern the accommodation of detainees 
with disabilities and detainees with limited English proficiency (LEP). 
As the NPREC noted, ``[t]he ability of all detainees to communicate 
effectively and directly with staff, without having to rely on detainee 
interpreters, is crucial for ensuring that they are able to report 
sexual abuse as discreetly as possible.'' Prison/Jail Standards at 13. 
Moreover, the Americans with Disabilities Act (ADA) requires State and 
local governments and their instrumentalities to make their services, 
programs, and activities accessible to individuals with all types of 
disabilities. See 42 U.S.C. 12132. The ADA also requires State and 
local governments to ensure that their communications with individuals 
with disabilities affecting communication (blindness, low vision, 
deafness, or other speech or hearing disability) are as effective as 
their communications with individuals without disabilities. In 
addition, the ADA requires each State and local government to make 
reasonable modifications to its policies, practices, and procedures 
when necessary to avoid discrimination against individuals with 
disabilities, unless it can demonstrate that making the modifications 
would fundamentally alter the nature of the relevant service, program, 
or activity. These nondiscrimination obligations apply to all 
confinement facilities operated by or on behalf of State or local 
governments. See Pa. Dep't of Corr. v. Yeskey, 524 U.S. 206, 209-10 
(1998).
    DHS's proposed standard requires all facilities to take appropriate 
steps to ensure that detainees with disabilities (including, for 
example, detainees who are deaf or hard of hearing, those who are blind 
or have low vision, or those who have intellectual, psychiatric, or 
speech disabilities) have an equal opportunity to participate in or 
benefit from all aspects of the agency's efforts to prevent, detect, 
and respond to sexual abuse. Such steps would include, when necessary, 
ensuring effective communication with detainees who are deaf or hard of 
hearing, and providing access to in-person, telephonic, or video 
interpretive services. In addition, DHS will provide all facilities 
with written materials related to sexual abuse in formats or through 
methods that ensure effective communication with detainees with 
disabilities, including detainees who have intellectual disabilities, 
limited reading skills, or who are blind or have low vision. Consistent 
with DOJ regulations under title II of the ADA, 28 CFR 35.164, the 
agency would not be required to take actions that it can demonstrate 
would result in a fundamental alteration in the nature of a service, 
program, or activity, or in undue financial and administrative burdens.
    Similarly, DHS agencies would be required to take reasonable steps 
to ensure meaningful access for LEP detainees to all aspects of the 
agency's efforts to prevent, detect, and respond to sexual abuse, 
including steps to provide in-person or telephonic interpretive 
services to enable effective, accurate, and impartial interpretation, 
both receptively and expressively, using any necessary specialized 
vocabulary. These requirements are consistent with the existing DHS-
wide Language Access Plan.\13\
---------------------------------------------------------------------------

    \13\ The DHS Language Access Plan can be found at www.dhs.gov/crcl-lep.
---------------------------------------------------------------------------

    With respect to relying on detainee interpreters, 115.16(c) limits 
reliance on detainee interpreters in circumstances related to 
allegations of sexual abuse. Specifically, the DHS standard proposes to 
require that the agency provide access to in-person or telephonic 
interpretation services by someone other than another detainee when 
dealing with issues related to sexual abuse, but would not prohibit 
reliance on a detainee interpreter where the detainee expresses a 
preference for a detainee interpreter and the agency determines that 
such interpretation is appropriate. A detainee would not be an 
appropriate interpreter if he or she is the alleged abuser or a witness 
to the alleged abuse, or has some significant relationship with the 
alleged abuser. The provision of interpreter services by minors, 
alleged abusers, detainees who witnessed the alleged abuse, and 
detainees who have a significant relationship with the alleged abuser 
to provide interpretation is not appropriate in matters relating to 
allegations of sexual abuse. This provision is intended to ensure 
access to

[[Page 75312]]

the effective, accurate, and impartial interpretation that is essential 
when addressing sensitive issues such as those involving allegations of 
sexual abuse, but to accommodate detainees who prefer to have another 
detainee interpret for them.
    DHS re-emphasizes that the requirements in this proposed standard 
are not intended to relieve agencies of any preexisting obligations 
imposed by the ADA, the Rehabilitation Act of 1973, or the meaningful 
access requirements of Title VI of the Civil Rights Act of 1964, 42 
U.S.C. 2000d et seq., and Executive Order 13166. DHS encourages all 
agencies to refer to the relevant statutes, regulations, and guidance 
when determining the extent of their obligations.
    Sections 115.17 and 115.117 govern hiring and promotion decisions. 
Like the DOJ standards, the proposed DHS standard would restrict 
agencies' ability to hire or enlist the services of anyone who may have 
contact with detainees and who previously engaged in sexual abuse in a 
prison, jail, holding facility, community confinement facility, 
juvenile facility, or other institution (as defined in 42 U.S.C. 1997); 
who has been convicted of engaging or attempting to engage in sexual 
activity facilitated by force, overt or implied threats of force, or 
coercion, or if the victim did not consent or was unable to consent or 
refuse; or who has been civilly or administratively adjudicated to have 
engaged in such activity. The agency or facilities will also be 
required to consider any substantiated allegations of sexual abuse made 
against staff in making promotion decisions.
    Finally, like the DOJ final rule, the DHS proposal would require a 
background investigation before the agency or facility hires employees, 
staff, or contractors who may have contact with detainees. These 
background investigations will include accessing the standard criminal 
records databases maintained and widely used by law enforcement 
agencies. To ensure that facilities perform a background investigation 
consistent with agency standards, DHS proposes to require the facility 
to provide written documentation to the agency upon request showing the 
elements completed in the background check and the facility's final 
determination for the agency's approval. DHS will repeat these 
background checks for agency employees every five years. In addition, 
these proposed standards would require an updated background 
investigation every five years for those facility staff who may have 
contact with detainees and who work in immigration-only detention 
facilities. Unlike the DOJ final rule, however, DHS does not propose to 
require all facilities to repeat the background checks every five 
years; the burden of this requirement seems to outweigh its beneficial 
effect, particularly given that many facility staff do not frequently 
have contact with immigrant detainees.
    Sections 115.18 and 115.118 require agencies and facilities to 
consider the effect of any facility designs, modifications, or 
technological upgrades on efforts to combat sexual abuse when designing 
or expanding facilities and when installing or updating a video 
monitoring system or other technology. DHS believes that it is 
appropriate to require agencies to consider the impact of their 
physical and technological upgrades. Indeed, the American Correctional 
Association has recommended that, as a means of deterring sexual abuse, 
agencies should promote facility design that enables effective 
supervision within facilities, including, for instance, direct lines of 
sight, video monitoring systems, and other physical and technology 
features. American Correctional Association, Public Correctional Policy 
on Offender on Offender Sexual Abuse (Jan. 12, 2005; Jan. 27, 2010). 
DHS agrees that it needs to be forward-looking in its strategy to 
prevent sexual abuse in its immigration detention and holding 
facilities, and believes that this provision will institute appropriate 
strategic thinking within DHS and its partners for future construction.
    Responsive Planning: Sections 115.21, 115.121, 115.22 and 115.122. 
DHS believes it is important to establish standards that address how 
facilities are expected to respond to an incident of sexual abuse. 
Sections 115.21 and 115.121 set forth requirements to ensure each 
agency and facility establishes a protocol for the investigation of 
allegations of sexual abuse, or the referral of allegations of sexual 
abuse to the appropriate investigative authorities. Agencies and 
facilities are also required to establish protocols that maximize the 
potential for preserving usable physical evidence for administrative or 
criminal proceedings, and are required to publish the agency and 
facility protocols on their respective Web sites, or otherwise make 
those protocols available to the public. In addition, all detainee 
victims must be provided access to a forensic medical examination as 
appropriate, at no cost to the detainee.
    These proposed standards make clear that DHS components and 
facilities must have protocols in place that maximize the potential for 
obtaining usable physical evidence. Similarly, the proposed standard 
specifies that the protocol must be developmentally appropriate for 
juveniles, where applicable. Recognizing the value of victim advocacy 
services in these circumstances, the proposed standards provide that 
immigration detention facilities must establish procedures to make 
available, to the extent possible, outside victim services following 
incidents of sexual abuse. DHS holding facilities would also be 
required to consider how best to utilize available community resources 
and victim services and if, in connection with an allegation of sexual 
abuse at a holding facility, the detainee is transported for an 
examination to an outside hospital that offers victim advocacy 
services, the detainee would be permitted to use such services to the 
extent available, consistent with DHS security needs.
    This proposed standard takes into account the fact that some DHS 
component agencies and facilities are not responsible for investigating 
alleged sexual abuse within their facilities and that those agencies 
and facilities may not be able to dictate the conduct of investigations 
conducted by outside entities, such as law enforcement agencies. In 
such situations, the proposed standard requires the agency or facility 
to request that the investigating entity follow the relevant 
investigatory requirements set out in the standard.
    Sections 115.22 and 115.122 propose standards to ensure that, to 
the extent the agency is responsible for investigating allegations of 
sexual abuse, an administrative and/or criminal investigation is 
completed for all allegations of sexual abuse. Where the agency or 
facility is not responsible for conducting such investigation, they 
would ensure that the allegations are promptly referred to an 
appropriate entity with the legal authority to conduct the 
investigation. The DHS proposal thus mandates that each DHS component 
have in place policies to ensure that allegations of sexual abuse 
either are investigated by the agency or are promptly referred to an 
appropriate entity for investigation. In order for the PSA Coordinator 
to have appropriate oversight of these allegations across the agency, 
and to support the PSA Coordinator's recordkeeping and reporting 
functions, all incidents of detainee sexual abuse would be promptly 
reported to the PSA Coordinator, and to the appropriate offices within 
the agency and within DHS.
    Sections 115.22 and 115.122 also would require that when an 
allegation of detainee abuse that is criminal in

[[Page 75313]]

nature is being investigated, each agency shall ensure that any alleged 
detainee victim of criminal sexual abuse is provided access to relevant 
information regarding the U nonimmigrant visa process. DHS intends to 
implement this requirement by providing either the phone number to an 
appropriate national hotline or relevant informational materials 
printed by U.S. Citizenship and Immigration Services. In addition, 
facilities are required to post lists of pro bono legal service 
providers with contact information and Legal Orientation Program 
presentations and materials to assist detainees seeking information 
regarding the U nonimmigrant visa process. Should the available 
informational resources change, DHS will change its practices 
accordingly to satisfy this requirement.
    Training and Education: Sections 115.31, 115.131, 115.32, 115.132, 
115.33, 115.34, 115.134, and 115.35. DHS believes that training for 
individuals who may have contact with detainees is a key component in 
combating sexual abuse. Training will create awareness on the topic of 
sexual abuse in facilities, clarify staff responsibilities, provide 
staff with information regarding reporting mechanisms, and provide 
specialized information for staff with key roles in responding to 
sexual abuse. In addition, each standard in this category requires 
documentation that the required training was provided. In order to 
facilitate compliance, such documentation may be electronic.
    Sections 115.31 and 115.131 require that all employees who have 
contact with detainees, and all facility staff receive training 
concerning sexual abuse, with refresher training to be provided 
thereafter as appropriate. This training must include at a minimum: the 
agency's zero-tolerance policies for all forms of sexual abuse; the 
right of detainees and staff to be free from sexual abuse, and from 
retaliation for reporting sexual abuse; definitions and examples of 
prohibited and illegal sexual behavior; recognition of situations where 
sexual abuse may occur; recognition of physical, behavioral, and 
emotional signs of sexual abuse, and methods of preventing such 
occurrences; and procedures for reporting knowledge or suspicion of 
sexual abuse; the requirement to limit reporting of sexual abuse to 
personnel with a need-to-know in order to make decisions concerning the 
victim's welfare and for law enforcement or investigative purposes. The 
agency or facility would need to document completion of the training 
and complete the training for current staff within one year of the 
effective date of the standard for immigration detention facilities and 
within two years of the effective date of the standard for holding 
facilities. The proposal permits holding facilities a longer period of 
time to implement the training. In light of the very large number of 
CBP personnel who will receive this training, two years is a more 
appropriate timeframe to ensure completion of the training. In the 
meantime, the agency will publish and disseminate to all agency 
personnel the agency policy mandating zero tolerance toward all forms 
of sexual abuse.
    Section 115.32 ensures that volunteers and contractors at 
immigration detention facilities have been trained on their 
responsibilities under the agency's and the facility's sexual abuse 
prevention, detection, intervention and response policies and 
procedures; in holding facilities, volunteers and contractors are 
covered by 115.131.
    DHS believes that educating detainees concerning sexual abuse 
protections is of the utmost importance. Section 115.132 requires the 
agency to make public its zero-tolerance policy regarding sexual abuse 
and ensure that key information regarding the agency's zero-tolerance 
policy is visible or continuously and readily available to detainees, 
for example, through posters, detainee handbooks, or other written 
formats.
    Separately, section 115.33 requires each immigration detention 
facility to inform detainees about the agency's and the facility's 
zero-tolerance policies regarding sexual abuse. DHS believes that 
regular communication and publication of these policies are important 
means of creating the appropriate tone to ensure compliance. As such, 
section 115.33 requires that information about combating sexual abuse 
is provided to individuals in custody upon intake. Several agency 
commenters to the DOJ PREA proposed rule expressed concern that DOJ's 
standard would impose a vague mandate by requiring the provision of 
comprehensive education to detainees within a ``reasonably brief period 
of time'' following intake. The proposed DHS standard for immigration 
detention facilities requires the provision of comprehensive education 
upon intake, and not following intake. Given the relatively short 
amount of time that individuals are detained in DHS holding facilities, 
this requirement is limited to Subpart A.
    Sections 115.34 and 115.134 require that the agency or facility 
provide specialized training to agency or facility investigators who 
conduct investigations into allegations of sexual abuse at confinement 
facilities, and require that all investigations into alleged sexual 
abuse be conducted by qualified investigators. To the extent not 
already included in agency training, ICE and CBP will train 
investigators on sexual abuse investigations, covering interviewing 
sexual abuse and assault victims; sexual abuse evidence collection in 
confinement settings; and the criteria and evidence required for 
administrative action or prosecutorial referral. DHS is also interested 
in receiving feedback on how it can provide additional assistance to 
facilities in developing and administering such training.
    Section 115.35 requires that the agency provide specialized 
training to DHS employees who serve as full- and part-time medical 
practitioners and mental health practitioners in immigration detention 
facilities where medical and mental health care is provided. DHS 
believes that investigative and medical staff members serve vital roles 
in the response to sexual abuse and, due to the nature of their 
responsibilities, require additional training in order to be effective. 
With regard to facility medical staff, the standard requires that the 
agency review and approve the facility's policy and procedures to 
ensure that facility medical staff is trained in procedures for 
examining and treating victims of sexual abuse. A parallel standard is 
not included for DHS holding facilities, which usually do not employ or 
contract for medical or mental health practitioners.
    Assessment for Risk of Sexual Victimization and Abusiveness: 
Sections 115.41, 115.141 and 115.42 and 115.43. DHS believes that the 
proper assessment of detainees is crucial to preventing sexual abuse. 
Protection of detainees in immigration detention and holding facilities 
requires that agencies and facilities obtain information from detainees 
and use such information to assign detainees to facilities or specific 
cells in which they are likely to be safe. These proposed standards are 
substantially similar to those implemented by DOJ, except that 
reassessment is required to take place 60-90 days after the initial 
assessment, rather than 30 days after. The average length of stay in 
ICE detention is 26 days, with many detainees staying just a few days 
or weeks more than that average. In addition, ICE has a robust onsite 
monitoring and review process that includes routine interaction with 
ICE detainees. This monitoring would allow ICE to be made aware of any

[[Page 75314]]

additional, relevant information after the intake assessment, to 
determine whether a reassessment is appropriate.
    Sections 115.41 and 115.141 require that before placing any 
detainees together in a holding facility or housing unit, staff 
consider whether, based on the information before them, a detainee may 
be at a high risk of being sexually abused or abusing others. When 
appropriate, staff shall take necessary steps to mitigate any such 
danger to the detainee. In the list of factors to consider, DHS 
proposes, to the extent that the information is available, that the 
agency consider whether the detainee has a mental, physical, or 
developmental disability; the age of the detainee; the physical build 
and appearance of the detainee; whether the detainee has previously 
been incarcerated; the nature of the detainee's criminal history; 
whether the detainee has any convictions for sex offenses against an 
adult or child; whether the detainee has self-identified as being gay, 
lesbian, bisexual, transgender, intersex, or gender nonconforming; 
whether the detainee has self-identified as having previously 
experienced sexual victimization; and the detainee's own concerns about 
his or her physical safety. For holding facilities, under section 
115.141, the proposed standard adds an abbreviated risk assessment 
process for facilities that do not hold detainees overnight, and a more 
extensive risk assessment process for holding facilities where 
detainees may be held overnight with other detainees.
    Section 115.42 requires administrators of immigration detention 
facilities to use the information obtained in an assessment interview 
in order to separate individuals who are at risk of abuse from those at 
high risk of being sexually abusive. The proposed DHS regulation is 
substantially similar to the NPREC's standard with one exception. The 
proposed standard does not include the NPREC's recommended ban on 
assigning detainees to particular units solely on the basis of sexual 
orientation or gender identity, but requires that the facility consider 
detainees' gender self-identification and make an individualized 
assessment of the effects of placement on detainee mental health and 
well-being. DHS believes that retaining some flexibility will allow 
facilities to employ a variety of options tailored to the needs of 
detainees with a goal of offering the least restrictive and safest 
environment for individuals.
    Section 115.43 governs the use of protective custody. Due to the 
importance of protective custody, DHS believes it warrants its own 
standard, applicable only to immigration detention facilities, as other 
types of DHS confinement facilities usually do not have protective 
custody assignments of this nature. The proposed standard provides that 
administrative segregation shall be used to protect vulnerable 
populations only in those instances where reasonable efforts have been 
made to provide appropriate housing, and shall be used for the least 
amount of time practicable, and when no other viable housing options 
exist, as a last resort. DHS recognizes that protective custody may be 
necessary in a confinement setting to ensure the safety of detainees 
and staff. However, DHS also notes that the prospect of placement in 
segregated housing may deter detainees from reporting sexual abuse. The 
new standard attempts to balance these concerns and ensure that 
alternatives to involuntary protective custody are considered. In 
addition, the proposed standard reflects the NPREC's recommendation 
that, to the extent possible, facilities that place detainees in 
administrative segregation for protective custody should provide those 
detainees access to programs, services, visitation, counsel and other 
services available to the general population to the maximum extent 
practicable.
    Reporting: Sections 115.51, 115.151, 115.52, 115.53, 115.54, and 
115.154. DHS believes that reporting instances of sexual abuse is 
critical to deterring future acts.
    Sections 115.51 and 115.151 require agencies to enable detainees to 
privately report sexual abuse, retaliation for reporting sexual abuse, 
and related misconduct. The NPREC recommendations proposed that 
agencies be required to allow detainees to report abuse to an outside 
public entity, which would then forward reports to the facility head 
``except when [a detainee] requests confidentiality.'' Several 
commenters to the DOJ PREA rulemaking expressed concern that a public 
entity would be required to ignore reports of criminal activity if a 
detainee requested confidentiality. DHS proposes that detainees be 
provided instruction on how to contact the DHS Office of the Inspector 
General or, as appropriate, another designated office, to 
confidentially report sexual abuse. However, DHS will also provide and 
facilities shall inform the detainees of at least one way for detainees 
to report sexual abuse to a public or private entity or office not part 
of the agency, and that is able to receive and immediately forward 
detainee's reports of sexual abuse to agency officials allowing the 
detainee to remain anonymous, upon request. In light of the short time 
in which individuals are detained in holding facilities, the 
requirement in section 115.151 would be met if information regarding 
consular notification is posted in holding facilities. DHS further 
proposes that policies and procedures include provisions for staff to 
accept reports of sexual abuse, and to promptly document any verbal 
reports.
    Consistent with existing policy, DHS employees may report 
misconduct outside their chain of command to, for instance, the Joint 
Intake Center; likewise, the proposed rule requires an option for staff 
of non-chain-of-command reporting.
    Section 115.52 governs grievance procedures and the methods by 
which detainees can, if they choose, file grievances related to sexual 
abuse. First, the proposal requires that facilities not impose any 
deadline on the submission of a grievance regarding sexual abuse 
incidents. Detainees are to be permitted to file a formal grievance at 
any time before, during, after, or in lieu of lodging an informal 
complaint related to sexual abuse. The facility then must issue a 
decision on the formal grievance within five days of receipt. To 
prepare a grievance, a detainee may obtain assistance from fellow 
detainees, the housing officer, other facility staff, family members, 
attorneys, or outside advocates. DHS does not use a formal grievance 
process to govern holding facilities because of the short-term, 
transitory nature of detention in such facilities; detainees can use 
any of the methods in Section 115.151 to report misconduct.
    Several State correctional agencies asserted in comments to the DOJ 
PREA rulemaking that imposing a standard governing the exhaustion of 
administrative remedies would undermine or violate the Prison 
Litigation Reform Act (PLRA). DOJ determined that its corresponding 
standards were not, however, inconsistent with the PLRA. And in any 
event, the PLRA does not apply to immigration detainees, even if they 
are housed in correctional settings. See 18 U.S.C. 1997e.
    Several agency commenters to the DOJ PREA rulemaking stated that a 
requirement to treat any notification of an alleged sexual assault as a 
grievance, regardless of the method by which notification was made 
(other than by notification by a fellow inmate), would pose 
administrative difficulties, particularly when such notification came 
from a third party. Commenters suggested that it would be burdensome 
and impracticable to require staff to complete a grievance form on 
behalf of

[[Page 75315]]

an inmate whenever staff learns of an allegation of sexual abuse. DHS 
agrees with these commenters and has not included a similar provision 
in its proposed rule.
    Section 115.53 requires that agencies provide detainees access to 
outside confidential support services, similar to the NPREC's 
recommended standard. The DHS proposed standard modifies the NPREC's 
recommended language, which would require communications to be 
``private, confidential, and privileged, to the extent allowable by 
Federal, State, and local law.'' Instead, the proposed DHS rule 
requires that each facility consider utilizing available community 
resources and services to provide valuable expertise and support in the 
areas of crisis intervention, counseling, investigation and the 
prosecution of sexual abuse perpetrators to most appropriately address 
victims' needs. DHS recognizes that allowing detainee access to outside 
victim advocacy organizations can greatly benefit detainees who have 
experienced sexual abuse yet who may be reluctant to report it to 
facility administrators, and notes that some agencies, such as the 
California Department of Corrections and Rehabilitation, have 
established successful pilot programs working with outside 
organizations.\14\ At the same time, DHS recognizes that communications 
with outsiders raise legitimate security concerns. The proposed DHS 
standard strikes a balance by allowing confidentiality while 
recognizing the importance of safeguarding security. The DHS proposal 
further requires each facility's written policies to establish 
procedures to include outside agencies in the facility's sexual abuse 
prevention and intervention protocols, if resources are available, and 
to make available to detainees the names of local organizations that 
can assist detainee victims of sexual abuse. PSA Compliance Managers 
are in the best position to assist with identifying these community 
victim service resources given their familiarity with the local 
environment and should make such contact information available to 
victims. Under current ICE policy, the PSA Compliance Managers are 
required to develop written protocols, including any available outside 
agencies/resources in the facility's sexual abuse and assault 
prevention and intervention program. Again, DHS does not propose a 
requirement for access to outside confidential support services in DHS 
holding facilities due to the very short-term, transitory nature of 
detention in such facilities.
---------------------------------------------------------------------------

    \14\ See Testimony of Wendy Still, Assoc. Dir. of Female 
Offender Program and Services, Cal. Dep't of Corr. and Rehab., 
Testimony at a Public Hearing of the National Prison Rape 
Elimination Commission, Confidentiality and Reporting: Medical 
Ethics, Victim Safety, and Facility Security 230 (Dec. 5, 2007).
---------------------------------------------------------------------------

    Sections 115.54 and 115.154 require that immigration detention 
facilities and holding facilities establish a method to receive third-
party reports of sexual abuse and publicly distribute information on 
how to report such abuse on behalf of a detainee. DHS believes this 
provision is essential to promptly receiving reports of sexual abuse, 
as some reports of sexual abuse may undoubtedly come to the attention 
of third parties before they are brought to the agency.
    Official Response Following a Detainee Report: Sections 115.61, 
115.161, 115.62, 115.162, 115.63, 115.163, 115.64, 115.164, 115.65, 
115.165, 115.66, 115.67 and 115.167. DHS proposes standards addressing 
the appropriate official response following a report of sexual abuse. 
These standards are intended to ensure coordinated, thorough, and 
complete reactions to reports of sexual abuse.
    Sections 115.61 and 115.161 set forth staff and agency reporting 
duties regarding incidents of sexual abuse. The standards require all 
staff to report immediately and according to agency or facility policy: 
(1) Any knowledge, suspicion, or information regarding an incident of 
sexual abuse that occurred in any facility; (2) retaliation against 
detainees or staff who reported such an incident; and (3) any staff 
neglect or violation of responsibilities that may have contributed to 
an incident or retaliation. The standards would prohibit the agency 
from revealing any information related to a sexual abuse report to 
anyone other than to the extent necessary to make medical treatment, 
investigation, law enforcement, and other security and management 
decisions.
    Sections 115.62 and 115.162 require generally that when an agency 
employee has a reasonable belief that a detainee is subject to a 
substantial risk of imminent sexual abuse, the agency must take 
immediate action to protect the detainee. Section 115.62 further places 
this protection duty on facility staff, given that in the immigration 
detention facility context often the facility staff is best positioned 
to take such protective action, for example, when conducting initial 
intake or receiving a detainee from another facility.
    Sections 115.63 sets forth responsibilities for reporting 
allegations of sexual abuse to other confinement facilities. Upon 
receiving an allegation that a detainee was sexually abused, the 
facility is required to: (1) If the alleged sexual abuse occurred at a 
different facility than where it was reported, ensure that the 
appropriate office of the facility where the sexual abuse is alleged to 
have occurred is notified as soon as possible, but no later than 72 
hours after receiving the allegation; (2) document the efforts taken 
under this section; and (3) ensure the allegation is referred for 
investigation, to the extent that the facility that receives the 
notification is covered by these regulations. Section 115.163 proposes 
that these same requirements also apply to DHS holding facilities, but 
instead places the reporting and documentation requirements on the 
agency, given that DHS components are responsible for the management 
and operation of DHS holding facilities.
    Sections 115.64 and 115.164 address responder duties. Upon learning 
of an allegation that a detainee was sexually abused, the first 
security staff member at an immigration detention facility or law 
enforcement staff member at a holding facility to respond to the 
report, or his or her supervisor, would be required to separate the 
alleged victim and abuser, and to preserve and protect, to the greatest 
extent possible, any crime scene until appropriate steps can be taken 
to collect any evidence. If the abuse occurred within a time period 
that still allows for the collection of physical evidence, the agency 
would be required to request that the alleged victim not take any 
actions that could destroy physical evidence, including, as 
appropriate, washing, brushing teeth, changing clothes, urinating, 
defecating, smoking, drinking, or eating. Similarly, if the abuse 
occurred within a time period that still allows for the collection of 
physical evidence, the agency would be required to ensure that the 
alleged abuser does not take any actions that could destroy physical 
evidence, including, as appropriate, washing, brushing teeth, changing 
clothes, urinating, defecating, smoking, drinking, or eating.
    Sections 115.65 and 115.165 require a coordinated approach to 
responding to sexual abuse. This includes utilizing a multidisciplinary 
team approach, with appropriate information sharing, as permitted by 
law, in the case of a transfer of a victim of sexual abuse between DHS 
facilities or from a DHS facility to a non-DHS facility.
    Section 115.66 requires the agency to remove staff suspected of 
perpetrating sexual abuse from all duties requiring detainee contact 
pending the outcome of an investigation. In Section 115.166, the DHS 
proposal includes a similar

[[Page 75316]]

requirement for holding facilities, adjusted to reflect the smaller 
staff at holding facilities that would make an absolute rule 
administratively onerous. The proposal requires supervisors to 
affirmatively consider removing staff pending the completion of an 
investigation, and to remove them if the seriousness and/or 
plausibility of the allegation make such removal appropriate.
    Section 115.67 would require that agency and/or facility staff, and 
immigration detention facility detainees, not retaliate against any 
person, including a detainee, who reports, complains about, or 
participates in an investigation into an allegation of sexual abuse, or 
for participating in sexual activity as a result of force, coercion, 
threats, or fear of force. Section 115.167 prescribes the same 
requirement for agency employees at DHS holding facilities. Retaliation 
for reporting instances of sexual abuse and for cooperating with sexual 
abuse investigations is a real and serious threat in detention 
facilities. Fear of retaliation, such as being subjected to harsh or 
hostile conditions, being attacked by other detainees, or suffering 
harassment from staff, may prevent many detainees and staff from 
reporting sexual abuse, which in turn would make it difficult to keep 
facilities safe and secure.
    Section 115.68 requires facilities to take care to place detainee 
victims of sexual abuse in a supportive environment that represents the 
least restrictive housing option possible. A detainee in protective 
custody who has been subjected to sexual abuse shall not be returned to 
the general population until proper re-assessment, taking into 
consideration any increased vulnerability of the detainee as a result 
of the abuse, is completed. In addition, section 115.68 proposes that 
detainee victims shall not be held for longer than five days in any 
type of administrative segregation, except in unusual circumstances or 
at the request of the detainee. DHS does not propose such post-
allegation protective custody requirements for the holding facility 
context. Detainees in a holding facility typically are in such 
confinement for a short period of time only and, accordingly, provision 
of post-allegation protective custody is not appropriate.
    Investigations: Sections 115.71, 115.171, 115.72, 115.172, 115.73. 
It is important to set standards to govern investigations of 
allegations of sexual abuse. The DHS standard requires that 
investigations by the agency or facility with responsibility for 
investigating the allegations of sexual abuse be prompt, thorough, 
objective, fair, and concluded by specially trained, qualified 
investigators. The standard does not distinguish between third-party 
allegations of abuse and allegations from a victim, staff, etc. In 
instances where the agency or facility does not investigate allegations 
of sexual abuse, it must refer the allegation to the appropriate 
investigating authority. Because sexual abuse often has no witnesses 
and often leaves no visible injuries, investigators must be diligent in 
tracking down all possible evidence, including collecting DNA and 
electronic monitoring data, conducting interviews, assessing the 
credibility of alleged victims, witnesses, or suspects, document each 
investigation by written report, to include descriptions of the 
physical and testimonial evidence, reviewing prior complaints and 
reports of sexual abuse involving the alleged perpetrator, and 
retaining the report for as a long as the alleged abuser is detained or 
employed by the agency or facility plus an additional five years. The 
departure of the alleged abuser or victim from the employment or 
control of the facility or agency shall not provide a basis for 
terminating an investigation. Because of the delicate nature of these 
investigations, investigators should be trained in conducting sexual 
abuse investigations.
    The proposed DHS standard also includes a requirement to establish 
a process for an administrative investigation of substantiated 
allegations of sexual abuse, only after consultation with the assigned 
criminal investigative entity or after a criminal investigation has 
concluded. Where a criminal investigation determines that an allegation 
was unsubstantiated, the standard nonetheless requires a review of any 
completed criminal investigation reports to determine whether an 
administrative investigation is necessary or appropriate. DHS intends 
the standard to ensure proper sequencing of the investigations and 
preservation of investigative resources should the leading 
investigation, usually the criminal investigation, find the allegations 
unsubstantiated.
    Sections 115.72 and 115.172 set forth parameters on the evidentiary 
standard for administrative investigations regarding allegations of 
sexual abuse. Under these proposed standards, when an administrative 
investigation is undertaken the agency shall impose no standard higher 
than a preponderance of the evidence in determining whether allegations 
of sexual abuse are substantiated. This is the same standard found in 
the DOJ PREA final rule.
    Section 115.73 addresses the agency's duty to report to detainees, 
a topic that the NPREC included as part of its Investigations (IN)-1 
standard. Specifically, following an investigation into a detainee's 
allegation of sexual abuse, the agency shall notify the detainee as to 
the result of the investigation when the detainee is still in 
immigration detention, as well as where otherwise feasible. DHS does 
not propose a comparable provision to govern holding facilities, 
because holding facility detainees would no longer be in the custody of 
the holding facility by the time the investigation is completed.
    The NPREC's recommended standard would require a facility to 
``notif[y] victims and/or other complainants in writing of 
investigation outcomes and any disciplinary or criminal sanctions, 
regardless of the source of the allegation.'' Several agency commenters 
to the DOJ PREA rulemaking expressed concern with the NPREC's proposal 
on security or privacy grounds. These commenters questioned the wisdom 
of providing written information to victims and third-party 
complainants, where such information could easily become widely known 
throughout the facility and possibly endanger other detainees or staff. 
In addition, commenters noted that privacy laws may restrict the 
dissemination of certain information about staff members. DHS believes 
that its proposed standard strikes the proper balance between staff 
members' privacy rights and the detainee's right to know the outcome of 
the investigation, while protecting the security of both detainees and 
staff.
    Discipline: Sections 115.76, 115.176, 115.77 and 115.177. DHS 
proposes two standards to ensure appropriate and proper discipline in 
relation to cases of sexual abuse with regard to staff, contractors, 
and volunteers. These standards are substantively similar to those 
offered by the NPREC and DOJ in its PREA final rule.
    Sections 115.76 and 115.176 govern disciplinary sanctions for staff 
members who violate sexual abuse policies, regardless of whether they 
have been found criminally culpable. Imposing appropriate disciplinary 
sanctions against such staff members is critical not only to providing 
a just resolution to substantiated allegations of sexual abuse and 
sexual harassment but also to fostering a culture of zero tolerance for 
such acts. Staff are subject to disciplinary sanctions up to and 
including removal for violating agency sexual abuse rules, policies or 
standards. Removal from their position and from the Federal service is 
the

[[Page 75317]]

presumptive disciplinary sanction for staff who have engaged in or 
threatened to engage in sexual abuse, as defined under the definition 
of sexual abuse of a detainee by a staff member, contractor, or 
volunteer, paragraphs (1)-(4) and (7)-(8). Sections 115.76 and 115.176 
further require the agency to review and approve policies and 
procedures regarding disciplinary sanctions for staff at immigration 
detention facilities and holding facilities. In order to limit the 
potential for additional sexual abuse by former staff, sections 115.76 
and 115.176 would require that all removals or resignations in lieu of 
removal for violations of agency sexual abuse policies be reported to 
law enforcement agencies, unless the activity was clearly not criminal, 
and reasonable efforts be made to report such removals or resignations 
in lieu of removal to any licensing bodies, to the extent known.
    Sections 115.77 and 115.177 govern corrective action for 
contractors and volunteers who have engaged in sexual abuse. DHS 
proposes to require that any contractor or volunteer who has engaged in 
sexual abuse be prohibited from contact with detainees. These sections 
would also require that reasonable efforts be made to report to any 
licensing body, to the extent known, incidents of substantiated sexual 
abuse by a contractor or volunteer.
    Section 115.78 addresses the circumstance where a detainee is 
alleged to have sexually abused another detainee in an immigration 
detention facility. Holding detainees accountable for such abuse is an 
essential deterrent and a critical component of a zero-tolerance 
policy. As with sanctions against staff, sanctions against detainees 
must be fair and proportional, taking into consideration the detainee's 
actions, disciplinary history, mental disabilities or mental illness, 
and sanctions imposed on other detainees in similar situations, and 
must send a clear message that sexual abuse is not tolerated. The 
disciplinary process must also take into account any mitigating 
factors, such as mental illness or mental disability, and must consider 
whether to incorporate therapy, counseling, or other interventions that 
might help reduce recidivism. Holding facilities generally do not hold 
detainees for prolonged periods of time and do not impose discipline, 
and so agencies are not made responsible under these proposed standards 
for imposing disciplinary sanctions on holding facility detainees.
    Medical and Mental Health Care: Sections 115.81, 115.82, 115.182 
and 115.83. DHS has proposed three standards to ensure that detainees 
receive the appropriate medical and mental health care. Each proposed 
standard is substantially similar to that recommended by the NPREC and 
adopted by DOJ in its PREA rulemaking.
    Section 115.81 requires that, pursuant to the assessment for risk 
of victimization and abusiveness in section 115.41, facility staff 
shall ensure immediate referral to a qualified medical or mental 
practitioner, as appropriate, for detainees found to have experienced 
prior sexual victimization or perpetrated sexual abuse. Although the 
proposed standards do not require detainees to answer the assessment 
questions, detainees should be informed that disclosing prior sexual 
victimization and abuse is in their own best interest as such 
information is used both to determine whether follow-up care is needed 
and where the detainee can be safely placed within the facility. The 
DHS proposal does not provide for these requirements in DHS holding 
facilities because detainees with medical needs are referred for 
treatment outside the holding facility instead of provided the 
treatment in the holding facilities themselves.
    Some commenters to the DOJ PREA proposed rule suggested that the 
NPREC's recommended standard would be too costly because it would 
require that medical or mental health practitioners conduct these 
interviews. Unlike the NPREC's standard, the proposed DHS standard does 
not specify who should conduct this inquiry, but instead requires the 
detainee to receive a health evaluation no later than two working days 
from the date of the assessment, when a referral for a medical follow-
up is initiated. In addition, when a referral for mental health follow-
up is initiated, the detainee shall receive a mental health evaluation 
no later than 72 hours after the referral.
    Neither the NPREC's recommended standard nor DHS's proposed 
standard applies to holding facilities. The proposed standard is not 
appropriate for holding facilities given the short time that those 
facilities are responsible for detainee care.
    Sections 115.82 and 115.182, like the DOJ PREA final rule, require 
that victims of sexual abuse have timely, unimpeded access to emergency 
medical treatment if they have been a victim of sexual abuse. Under 
section 115.82, similar to the DOJ PREA final rule, the proposed DHS 
standard applicable to immigration detention facilities would expressly 
require timely, unimpeded access to emergency contraception and 
sexually transmitted infections prophylaxis, in accordance with 
professionally accepted standards of care, where appropriate under 
professional medical standards. Like the DOJ PREA final rule's standard 
on lockup detention, however, the proposed standard applicable to DHS 
holding facilities would not require such facilities to provide 
emergency contraception or sexually transmitted infections prophylaxis, 
in light of the very short-term nature of holding facility detention. 
Consistent with its obligation to provide timely, unimpeded access to 
emergency medical treatment, a DHS holding facility would transfer such 
a detainee to an appropriate emergency medical provider, which would be 
expected to provide such care as appropriate. Emergency medical 
treatment services would be provided to the victim at no financial cost 
to the victim and regardless of whether the victim names the abuser or 
cooperates with any investigation arising out of the incident.
    Section 115.83 requires that victims of sexual abuse receive access 
to ongoing medical and mental health care. This proposed standard 
recognizes that victims of sexual abuse can experience a range of 
physical injuries and emotional reactions, even long after the abuse 
has occurred, that can require medical or mental health attention. 
Thus, this standard requires facilities to offer ongoing medical and 
mental health care during the victim's detention consistent with the 
community level of care for as long as such care is needed, without 
financial cost and regardless of whether the victim names the abuser or 
cooperates with any investigation arising out of the incident. This 
access to care includes pregnancy tests for detainee victims of sexual 
abuse including vaginal penetration by a male abuser. DHS believes that 
if specific mental health concerns have contributed to the abuse, 
treatment may improve facility security. The DHS proposal does not 
provide for these requirements in DHS holding facilities because 
agencies refer holding facility detainees with emergency medical needs 
for treatment instead of providing medical care in the holding 
facilities themselves.
    Data Collection and Review: Sections 115.86, 115.186, 115.87, 
115.187, 115.88, 115.188, 115.89 and 115.189. DHS has proposed 
standards addressing how agencies and facilities should collect and 
review data to identify those policies and practices that are 
contributing to or failing to prevent sexual abuse.
    Sections 115.86 and 115.186 set forth the requirements for sexual 
abuse incident reviews, including when

[[Page 75318]]

reviews should take place and who should take part. The sexual abuse 
review is separate from the sexual abuse investigation, and is intended 
to evaluate whether the facility's or agency's policies and procedures 
would benefit from change in light of the incident or allegation. By 
contrast, the investigation is intended to determine whether the abuse 
actually occurred. A review would be required after every 
investigation, and consider whether changes in policy or practice could 
better prevent, detect, or respond to sexual abuse incidents like the 
one alleged. The DHS proposal further would require an annual review of 
all sexual abuse investigations, in order to assess and improve sexual 
abuse intervention, prevention and response efforts. Some commenters to 
the DOJ PREA rulemaking raised concerns about the cost of conducting 
sexual abuse incident reviews. There are, however, facilities that 
already do these reviews, and DHS believes that the required steps need 
not be onerous. The purpose of this requirement is not to require a 
duplicative investigation but rather to require the facility or agency 
to pause and consider what lessons, if any, it can learn from the 
investigation it has conducted and what additional steps, if any, it 
should take to further protect detainees.
    Sections 115.87 and 115.187 specify the incident-based data each 
agency or facility is required to collect in order to detect possible 
patterns and help prevent future incidents. The agency or facility 
would be required, under this standard, to aggregate the incident-based 
sexual abuse data at least annually and to maintain, review, and 
collect data as needed from all available agency records. The agency 
would work with facilities to collect and aggregate the data in a 
manner that will facilitate the agency's ability to detect possible 
patterns and help prevent future incidents. Section 115.87 would 
provide for the PSA Coordinator to work on an ongoing basis with the 
relevant PSA Compliance Managers and DHS entities to share data 
regarding effective agency response methods to allegations of sexual 
abuse. Upon request, the agency would be required to provide all such 
data from the previous calendar year to the DHS Office for Civil Rights 
and Civil Liberties no later than June 30 of the next calendar year.
    Sections 115.88 and 115.188 describe how the collected data should 
be analyzed and reported. The proposed DHS standard mandates that 
agencies use the data to identify problem areas, take ongoing 
corrective action, and prepare an annual report for each facility as 
well as the agency as a whole, including a comparison with data from 
previous years. The report must be made public through the agency's Web 
site or other means to help promote agency accountability.
    Sections 115.89 and 115.189 provide guidance on how to store, 
publish, and retain the data collected pursuant to sections 115.87 and 
115.187. Data must be stored in a way that protects its integrity and 
must be retained for an adequate length of time. In addition, data must 
protect the confidentiality of victims and alleged perpetrators. This 
standard also requires that the agency make its aggregated data 
publicly available at least annually on its Web site, consistent with 
existing agency information disclosure policies and processes, 
following the removal of all personal identifiers.
    Audits and Compliance: Sections 115.93, 115.193, 115.201, 115.202, 
115.203, 115.204, and 115.205. Like the NPREC and DOJ, DHS believes 
that audits are critical to ensuring that facilities are doing all they 
can to eliminate sexual abuse in detention facilities. The NPREC's 
proposed standard would require triennial audits of all facilities. The 
NPREC explained its inclusion of this standard as follows:

    Publicly available audits allow agencies, legislative bodies, 
and the public to learn whether facilities are complying with the 
PREA standards. Audits can also be a resource for the Attorney 
General in determining whether States are meeting their statutory 
responsibilities. Public audits help focus an agency's efforts and 
can serve as the basis upon which an agency can formulate a plan to 
correct any identified deficiencies.

Prison/Jail Standards at 57.
    Numerous agency commenters to the DOJ PREA rulemaking criticized 
the NPREC's proposals on various grounds, including cost, duplication 
of audits performed by accrediting organizations, duplication of 
existing State oversight, and the possibility that disagreements in 
interpretation could lead to inconsistencies in auditing. Other 
commenters endorsed the NPREC's proposal as necessary to ensure proper 
oversight; some commenters suggested that audits should be more 
frequent than once every three years.
    DHS believes that audits can play a key role in implementation of 
sexual abuse prevention standards. The proposed standards for audits 
clarify the requirements for an audit to be considered adequate and 
transparent. All audits would be required to be conducted using an 
audit instrument developed by the agency, in coordination with CRCL. 
CRCL has extensive experience in conducting civil rights site 
inspections of detention facilities, including inspections and 
investigations relating to sexual abuse prevention and response. The 
agency would coordinate external audits with CRCL, to ensure that CRCL 
is informed about the operation of the audit program and any findings 
relating to non-compliance, in support of CRCL's statutory advice and 
oversight role with respect to civil rights issues.
    DHS believes that external audits are necessary to ensure that the 
audits are conducted independently and objectively, and with the full 
confidence of the public. In these proposed standards, DHS has 
incorporated many of DOJ's standards related to external auditing and 
has tailored them to suit the unique characteristics of immigration 
detention and holding facilities. The proposed DHS standards set forth 
in sections 115.201-205 would prescribe methods governing the conduct 
of such audits, including provisions for reasonable inspections of 
facilities, review of documents, and interviews of staff and detainees.
    The DHS proposed standards would require that external audits be 
conducted by an outside entity or individual with relevant experience 
and certified by the agency. The DHS standards would preclude use of an 
outside auditor with a financial relationship with the agency within 
three years of an audit, except for contracts for other audits or for 
detention-reform related consulting.
    DHS has attempted to incorporate objective criteria and written 
documentation requirements into these proposed standards wherever 
practicable, although auditors would retain appropriate discretion. The 
proposed standards provide that a facility would be required to allow 
the auditor to enter and tour facilities, review documents, and 
interview staff and detainees to conduct a comprehensive audit. The 
auditor would be permitted to review all relevant agency-wide policies, 
procedures, reports, and internal and external audits, as well as a 
sampling of relevant documents and other records and information for 
the most recent one-year period. Under the DHS proposed standards, the 
auditor would be permitted to request and receive copies of any 
relevant documents (including electronically stored information), and 
would be required to retain and preserve all documentation (such as 
videotapes and interview notes) relied upon in making audit 
determinations. In order to enhance the effectiveness of external 
audits, the proposed standards would permit the auditor to conduct

[[Page 75319]]

private interviews with detainees, and detainees would be permitted to 
send confidential information or correspondence to the auditor in the 
same manner as if they were communicating with legal counsel. Auditors 
would be required to attempt to communicate with community-based or 
victim advocates who may have insight into relevant conditions in the 
facility.
    This rule proposes that the external auditor would determine 
whether the audited facility reaches one of the following: ``Exceeds 
Standard'' (substantially exceeds requirement of standard); ``Meets 
Standard'' (substantial compliance; complies in all material ways with 
the standard for the relevant review period); or ``Does Not Meet 
Standard'' (requires corrective action). The auditor would be required 
to prepare an audit summary indicating the number of provisions the 
facility has achieved at each grade level.
    Any finding of ``Does Not Meet Standard'' would trigger a 180-day 
corrective action period. Under the proposed standards, the auditor, 
the agency, and the facility (if it is not operated by the agency) 
would jointly develop a corrective action plan to achieve compliance. 
The auditor would be required to take necessary and appropriate steps 
to verify implementation of the corrective action plan, such as 
reviewing updated policies and procedures or re-inspecting portions of 
a facility. After the end of the 180-day corrective action period, the 
auditor would be required to issue a final determination as to whether 
the facility has achieved compliance with those standards requiring 
corrective action. In the event that the facility does not achieve 
compliance with each standard, it would have the opportunity (at its 
discretion and cost) to request a subsequent audit, once it believes 
that it has achieved compliance. A facility would be permitted to file 
an appeal with the agency regarding any specific finding that it 
believes to be incorrect. If the agency determines that the facility 
has demonstrated good cause for a re-evaluation, the facility may, at 
its complete discretion and cost, commission a re-audit by a mutually 
agreed upon external auditor. The agency may also, in its complete 
discretion, commission a re-audit of any facility for any reason it 
deems appropriate. In order to further promote transparency, the 
proposed standards also provide that the agency would ensure that the 
auditor's final report is published on the agency's Web site.
Immigration Detention Facilities
    The proposed standards provide that external audits of immigration 
detention facilities shall be conducted on a triennial cycle. During 
the three-year cycle, the agency would ensure that each immigration 
detention facility is audited at least once. DHS believes that this 
standard would allow substantial flexibility in scheduling audits 
within each three-year cycle while ensuring that external facility 
audits occur regularly. In addition, DHS provides a procedure for an 
expedited audit in the event the agency has reason to believe that a 
particular facility may be experiencing problems related to sexual 
abuse.
Immigration Holding Facilities
    DHS operates immigration holding facilities under the authority of 
both CBP and ICE. The ICE holding facilities do not generally house 
detainees overnight and thus are not covered by the auditing 
requirements for holding facilities under proposed section 115.193.
    CBP operates 768 holding facilities at ports of entry and Border 
Patrol stations, checkpoints, and processing facilities across the 
country. These holding facilities, which far outnumber those facilities 
operated directly by any other corrections/detention/law enforcement 
authority, nationwide (including ICE, the Bureau of Prisons, and other 
agencies), are currently subject to oversight by the CBP Office of 
Internal Affairs. All these holding facilities taken together hold, on 
average, approximately 1,100 detainees a day; however, hundreds of them 
may be unused on any given day.
    For the CBP holding facilities that house detainees overnight, DHS 
proposes a two-part audit process. The proposed standards provide that 
all holding facilities that house detainees overnight shall be subject 
to an external audit within three years of the effective date of the 
rule. If an external audit determines that a holding facility is low-
risk based on (1) whether it passed its current audit and (2) its 
physical characteristics, including lines of sight, other design 
features, and video and other monitoring technologies, the facility 
will be classified as low-risk. Low-risk facilities would be subject to 
further external audits once every five years, unless design changes 
are made that could increase the risk of sexual abuse. Facilities that 
are not classified as low-risk would be subject to audits once every 
three years. If additional holding facilities are established, they 
would be subject to an initial audit within three years to determine if 
they are low-risk. Audits of new holding facilities as well as holding 
facilities that have previously failed to meet the standards shall 
occur as soon as practicable within the three-year cycle. Where it is 
necessary to prioritize, priority shall be given to facilities that 
have previously failed to meet the standards.
Solicitation of Comments Specific to Audits
    Given the potential costs associated with the proposed auditing 
requirements DHS is specifically seeking public input on the following:
     Would external audits of immigration detention facilities 
and/or holding facilities conducted through random sampling be 
sufficient to assess the scope of compliance with the standards of this 
proposed rule?
     Once a holding facility is designated as low risk, would 
it be a more cost effective yet still sufficient approach to furthering 
compliance with the standards to externally audit a random selection of 
such facilities instead of re-auditing each such facility once every 
five years?
     Would the potential benefits associated with requiring 
external audits outweigh the potential costs?
     Is there a better approach to external audits other than 
the approaches discussed in this proposed rule?
     In an external auditing process, what types of entities or 
individuals should qualify as external auditors?
     Would external audits of immigration detention facilities 
conducted through random sampling be sufficient to assess the scope of 
compliance with the standards of this proposed rule?

Additional Provisions in Agency Policies. Sections 115.95 and 115.195 
provide that the regulations in both Subparts A and B establish minimum 
requirements for agencies. As such, they do not preclude agency 
policies from including additional requirements.

VI. Statutory and Regulatory Requirements

A. Executive Orders 12866 and 13563

    Executive Orders 12866 and 13563 direct agencies to assess the 
costs and benefits of available regulatory alternatives and, if 
regulation is necessary, to select regulatory approaches that maximize 
net benefits (including potential economic, environmental, public 
health and safety effects, distributive impacts, and equity). Executive 
Order 13563

[[Page 75320]]

emphasizes the importance of quantifying both costs and benefits, of 
reducing costs, of harmonizing rules, and of promoting flexibility. DHS 
considers this to be a ``significant regulatory action,'' although not 
an economically significant regulatory action, under section 3(f) of 
Executive Order 12866. Accordingly, the Office of Management and Budget 
(OMB) has reviewed this regulation. The IRIA, summarized below, is 
available in the docket. It contains a discussion of the costs and 
benefits of this rule.
1. Summary of Proposed Rule
    The objective of the proposed rule is to propose minimum 
requirements for DHS immigration detention and holding facilities for 
the prevention, detection, and response to sexual abuse. The proposed 
rule, if made final, would require prevention planning; prompt and 
coordinated response and intervention; training and education of staff, 
contractors, volunteers and detainees; proper treatment for victims; 
procedures for investigation, discipline and prosecution of 
perpetrators; data collection and review for corrective action; and 
audits for compliance with the standards. The cost estimates set forth 
in this analysis represent the costs of compliance with, and 
implementation of, the proposed standards in facilities within the 
scope of the proposed rulemaking.
2. Summary of Affected Population
    DHS has two types of confinement facilities: (1) Immigration 
detention facilities, and (2) holding facilities. Immigration detention 
facilities, which are operated or supervised by ICE, routinely hold 
persons for over 24 hours pending resolution or completion of 
immigration removal or processing. Holding facilities, used and 
maintained by DHS components including ICE and CBP, tend to be short-
term. The analysis below presents immigration detention facilities and 
holding facilities separately.
    This proposed rule will directly regulate the Federal Government, 
notably any DHS agency with immigration detention facilities or holding 
facilities. The sections below describe and quantify, where possible, 
the number of affected DHS immigration detention facilities or holding 
facilities.
    a. Subpart A--Immigration Detention Facilities
    ICE is the only DHS component with immigration detention 
facilities. ICE holds detainees during proceedings to determine whether 
they will be removed from the United States, and pending their removal, 
in ICE-owned facilities or in facilities contracting with ICE. 
Therefore, though this rule will directly regulate the Federal 
Government, it would require that its standards ultimately apply to 
some State and local governments as well as private entities through 
contracts with DHS. The types of authorized ICE immigration detention 
facilities are as follows:
     Contract Detention Facility (CDF)--owned by a private 
company and contracted directly with the government;
     Service Processing Center (SPC)--full service immigration 
facilities owned by the government and staffed by a combination of 
Federal and contract staff;
     Intergovernmental Service Agreement Facility (IGSA)--
facilities at which detention services are provided to ICE by State or 
local government(s) through agreements with ICE and which may fall 
under public or private ownership and may be fully dedicated 
immigration facilities (housing detained aliens only) or non-dedicated 
facilities (housing various detainees).
    ICE enters into Intergovernmental Service Agreements (IGSAs) with 
States and counties across the country to use space in jails and 
prisons for civil immigration detention purposes. Some of these 
facilities are governed by IGSAs that limit the length of an 
immigration detainee's stay to under 72 hours. Some of these facilities 
have limited bed space that precludes longer stays by detainees. Others 
are used primarily under special circumstances such as housing a 
detainee temporarily to facilitate detainee transfers or to hold a 
detainee for court appearances in a different jurisdiction. In some 
circumstances the under 72-hour facilities house immigration detainees 
only occasionally.
    At the time of writing, ICE owns or has contracts with 
approximately 158 authorized immigration detention facilities that hold 
detainees for more than 72 hours. The 158 facilities consist of 6 SPCs, 
7 CDFs, 9 dedicated IGSA facilities, and 136 non-dedicated IGSA 
facilities. (64 of the IGSA facilities are covered by the DOJ PREA, not 
this proposed rule, because they are USMS IGA facilities.) As the USMS 
IGA facilities are not within the scope of this rulemaking, this 
analysis covers the 94 authorized SPC, CDF, dedicated IGSA, and non-
dedicated IGSA immigration detention facilities that hold detainees for 
more than 72 hours.
    ICE additionally has 91 authorized immigration detention facilities 
that are contracted to hold detainees for less than 72 hours. All 91 
facilities are non-dedicated IGSA facilities, but 55 of them are 
covered by the DOJ PREA rule, not this proposed rule, because they are 
USMS IGA facilities. Again, ICE excludes the USMS IGA facilities from 
the scope of this rulemaking and analysis; the analysis covers the 36 
authorized non-dedicated IGSA immigration detention facilities that 
hold detainees for under 72 hours. Facilities that are labeled by ICE 
as ``under 72-hour'' still meet the definition of immigration detention 
facilities, because they process detainees for detention intake. 
Detainees housed in these facilities are processed into the facility 
just as they would be in a long-term detention facility.
    Furthermore, ICE also has two authorized family residential 
centers. These are IGSA facilities that house only ICE detainees. One 
of the facilities accommodates families subject to mandatory detention 
and the other is a dedicated female facility. ICE family residential 
centers are subject to the immigration detention facility standards 
proposed in Subpart A. The table below summarizes the facilities 
included in this analysis. For the purposes of the cost analysis in 
Chapter 2, DHS includes the family residential facilities in the cost 
estimates for the over 72-hour authorized immigration detention 
facilities.

                       Table 1--Summary of ICE Authorized Immigration Detention Facilities
----------------------------------------------------------------------------------------------------------------
                                                                                                     Family
                         Facility                             Over 72 hours    Under 72 hours      Residential
----------------------------------------------------------------------------------------------------------------
Non-Dedicated IGSA........................................                74                36                 0
SPC.......................................................                 6                 0                 0
CDF.......................................................                 7                 0                 0
Dedicated IGSA............................................                 7                 0                 2
                                                           -----------------------------------------------------

[[Page 75321]]

 
    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 proposed rule

b. Subpart B--Holding Facilities
    A holding facility may contain holding cells, cell blocks, or other 
secure locations that are: (1) under the control of the agency and (2) 
primarily used for the confinement of individuals who have recently 
been detained, or are being transferred to another agency.
ii. U.S. Immigration and Customs Enforcement
    Most ICE holding rooms are in ICE field offices and satellite 
offices. These rooms are rooms or areas that are specifically designed 
and built for temporarily housing detainees in ICE Enforcement and 
Removal Operations (ERO) offices. It may also include staging 
facilities. ICE holding facilities as presented in this analysis are 
exclusive of hold rooms or staging areas at immigration detention 
facilities, which are covered by the standards of the immigration 
detention facility under Subpart A of this proposed rule. ICE has 149 
holding facilities that would be covered under Subpart B of the 
proposed rule.
i. U.S. Customs and Border Protection
    There is a wide range of facilities where CBP detains individuals. 
Some individuals are detained in secured detention areas, while others 
are detained in open seating areas where agents or officers interact 
with the detainee. Hold rooms in CBP facilities where case processing 
occurs are used to search, detain, or interview persons who are being 
processed. CBP operates 768 holding facilities at ports of entry and 
Border Patrol stations, checkpoints, and processing facilities across 
the country.
3. Estimated Costs of Proposed Rule
    The proposed rule will cover DHS immigration detention facilities 
and holding facilities. Table 2 summarizes the number of facilities 
covered by the proposed rulemaking over ten years.

                             Table 2--Estimated Population Summary for Proposed 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 analysis represent the costs 
of compliance with, and implementation of, the proposed standards in 
facilities within the scope of the proposed rulemaking. This analysis 
concludes that compliance with the proposed standards, in the 
aggregate, would be approximately 57.7 million, discounted at 7 
percent, over the period 2013-2022, or 8.2 million per year when 
annualized at a 7 percent discount rate. Table 3 below, presents a 10-
year summary of the estimated benefits and costs of the Notice of 
Proposed Rulemaking (NPRM).

                                           Table 3--Total Cost of NPRM
                                                   [$millions]
----------------------------------------------------------------------------------------------------------------
                                       Immigration detention       Holding facilities subpart B
                                       facilities subpart A      --------------------------------
              Year               --------------------------------                                      Total
                                   Over 72 hours  Under 72 hours        ICE             CBP
----------------------------------------------------------------------------------------------------------------
1...............................            $4.2            $1.4            $0.0            $5.6           $11.2
2...............................             3.6             1.1             0.0             5.5            10.2
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

[[Page 75322]]

 
6...............................             3.7             1.1             0.0             2.3             7.2
7...............................             3.7             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             7.3
                                 -------------------------------------------------------------------------------
    Total.......................            37.6            11.4             0.0            31.0            79.9
                                 ===============================================================================
Total (7%)......................            26.4             8.0             0.0            23.2            57.7
Total (3%)......................            32.1             9.7             0.0            27.2            69.0
Annualized (7%).................             3.8             1.1             0.0             3.3             8.2
Annualized (3%).................             3.8             1.1             0.0             3.2             8.1
----------------------------------------------------------------------------------------------------------------

    The total cost, discounted at 7 percent, consists of 34.5 million 
for immigration detention facilities under Subpart A, and 23.2 million 
for holding facilities under Subpart B. The largest costs for 
immigration detention facilities are for staff training, documentation 
of cross-gender pat-downs, duties for the Prevention of Sexual Abuse 
Compliance Manager, and audit requirements. DHS estimates zero 
compliance costs for ICE holding facilities under the proposed rule as 
the requirements of ICE's Sexual Abuse and Assault Prevention and 
Intervention Directive and other ICE policies are commensurate with the 
requirements of the proposed rule. The largest costs for CBP holding 
facilities are staff training, audits, and facility design 
modifications and monitoring technology upgrades.
4. Estimated Benefits of the Rule
    DHS has not estimated the anticipated benefits of this proposed 
rule. Instead, DHS conducts what is known as a ``break even analysis,'' 
by first estimating the monetary value of preventing victims of various 
types of sexual abuse (from incidents involving violence to 
inappropriate touching) and then, using those values, calculating the 
reduction in the annual number of victims that would need to occur for 
the benefits of the rule to equal the cost of compliance. The IRIA 
concludes that when all facilities and costs are phased into the 
rulemaking, the break even point would be reached if the standards 
reduced the annual number of incidents of sexual abuse by 55 from the 
estimated benchmark level, which is 79 percent of the total number of 
assumed incidents in ICE confinement facilities, including those who 
may not have reported an incident.
5. Alternatives
    As alternatives to the preferred regulatory regime proposed in the 
NPRM, DHS examined three other options. The first is taking no 
regulatory action. For over 72-hour immigration detention facilities, 
the 2011 PBNDS sexual abuse standards might reach all facilities over 
time as the new version of the standards are implemented at facilities 
as planned. However, in the absence of regulatory action, proposed 
sexual abuse standards for ICE under 72-hour immigration detention 
facilities and DHS holding facilities would remain largely the same.
    DHS also considered requiring the ICE immigration detention 
facilities that are only authorized to hold detainees for under 72 
hours to meet the proposed standards for holding facilities under 
Subpart B, rather than the standards for immigration detention in 
Subpart A, as proposed in the NPRM. The standards proposed in Subpart B 
are somewhat less stringent than those for immigration detention 
facilities, as appropriate for facilities holding detainees for a much 
shorter time and with an augmented level of direct supervision.
    Finally, DHS considered changing the audit requirements proposed 
under sections 115.93 and 115.193. Immigration detention facilities 
currently undergo several layers of inspections for compliance with 
ICE's detention standards. This alternative would have allowed ICE to 
incorporate the audit requirements for the proposed standards into 
current inspection procedures. However, it would require outside 
auditors for all immigration detention facilities. For holding 
facilities that hold detainees overnight, it would require 10 internal 
audits, 10 external audits, and 3 audits by CRCL be conducted annually. 
The following table presents the 10-year costs of the alternatives 
compared to the costs of the NPRM. These costs of these alternatives 
are discussed in detail in Chapter 2 of the IRIA.

                    Table 4--Cost Comparison of Regulatory Alternatives to the Proposed NPRM
                                                   [$millions]
----------------------------------------------------------------------------------------------------------------
           10-Year total costs by alternative                  Total           Total  (7%)        Total  (3%)
----------------------------------------------------------------------------------------------------------------
Alternative 1--No Action...............................               $0                 $0                 $0
Alternative 2--Under 72-Hour...........................               77.7               56.1               67.1
Alternative 3--Proposed Rule...........................               79.9               57.7               69.0
Alternative 4--Audit Requirements......................               70.0               50.5               60.4
----------------------------------------------------------------------------------------------------------------


[[Page 75323]]

B. Executive Order 13132--Federalism

    This proposed regulation will not have substantial direct effects 
on the States, on the relationship between the national government and 
the States, or on distribution of power and responsibilities among the 
various levels of government. This proposed rule implements the 
Presidential Memorandum of May 17, 2012 ``Implementing the Prison Rape 
Elimination Act'' by recommending national DHS standards for the 
detection, prevention, reduction, and punishment of sexual abuse in DHS 
immigration detention and holding facilities. In drafting the 
standards, DHS was mindful of its obligation to meet the President's 
objectives while also minimizing conflicts between State law and 
Federal interests.
    Insofar, however, as the proposal sets forth standards that might 
apply to immigration detention facilities and holding facilities 
operated by State and local governments and private entities, this 
proposed rule has the potential to affect the States, the relationship 
between the Federal government and the States, and the distribution of 
power and responsibilities among the various levels of government and 
private entities. With respect to the State and local agencies, as well 
as the private entities, that own and operate these facilities across 
the country, the Presidential Memorandum provides DHS with no direct 
authority to mandate binding standards for their facilities. Instead, 
these standards will impact State, local, and private entities only to 
the extent that they make voluntary decisions to contract with DHS for 
the confinement of immigration detainees. This approach is fully 
consistent with DHS's historical relationship to State and local 
agencies in this context. Therefore, in accordance with Executive Order 
13132, DHS has determined that this rule does not have sufficient 
federalism implications to warrant the preparation of a Federalism 
Assessment.
    Notwithstanding the determination that the formal consultation 
process described in Executive Order 13132 is not required for this 
rule, DHS welcomes consultation with representatives of State and local 
prisons and jails, juvenile facilities, community corrections programs, 
and lockups--among other individuals and groups--during the course of 
this rulemaking.

C. Executive Order 12988--Civil Justice Reform

    This regulation meets the applicable standards set forth in 
sections 3(a) and 3(b)(2) of Executive Order 12988.

D. Unfunded Mandates Reform Act of 1995

    Section 202 of the Unfunded Mandate Reform Act of 1995 (UMRA) (Pub. 
L. 104-4, 109 Stat. 48, 2 U.S.C. 1532) generally requires agencies to 
prepare a statement before submitting any rule that may result in an 
annual expenditure of $100 million or more (adjusted annually for 
inflation) by State, local, or tribal governments, or by the private 
sector. DHS has assessed the probable impact of these proposed 
regulations and believes these regulations may result in an aggregate 
expenditure by State and local governments of approximately $4.3 
million in the first year.
    However, DHS believes the requirements of the UMRA do not apply to 
these regulations because UMRA excludes from its definition of 
``Federal intergovernmental mandate'' those regulations imposing an 
enforceable duty on other levels of government which are ``a condition 
of Federal assistance.'' 2 U.S.C. 658(5)(A)(i)(I). Compliance with 
these standards, as proposed, would be a condition of ongoing Federal 
assistance through implementation of the standards in new contracts and 
contract renewals. While DHS does not believe that a formal statement 
pursuant to the UMRA is required, it has, for the convenience of the 
public, summarized as follows various matters discussed at greater 
length elsewhere in this rulemaking which would have been included in a 
UMRA statement should that have been required:
     These standards are being issued pursuant to the 
Presidential Memorandum of May 17, 2012, and DHS detention authorities.
     A qualitative and quantitative assessment of the 
anticipated costs and benefits of these standards appears below in the 
Regulatory Flexibility Act section;
     DHS does not believe that these standards will have an 
effect on the national economy, such as an effect on productivity, 
economic growth, full employment, creation of productive jobs, or 
international competitiveness of United States goods and services;
     Before it issues final regulations implementing standards 
DHS will:
    (1) Provide notice of these requirements to potentially affected 
small governments, which it has done by publishing this notice of 
proposed rulemaking, and by other activities;
    (2) Enable officials of affected small governments to provide 
meaningful and timely input, via the methods listed above; and
    (3) Work to inform, educate, and advise small governments on 
compliance with the requirements.
     As discussed above in the Initial Regulatory Impact 
Assessment summary, DHS has identified and considered a reasonable 
number of regulatory alternatives and from those alternatives has 
attempted to select the least costly, most cost effective, or least 
burdensome alternative that achieves DHS's objectives.

E. Small Business Regulatory Enforcement Fairness Act of 1996

    Under section 213(a) of the Small Business Regulatory Enforcement 
Fairness Act of 1996, Public Law 104-121, DHS wants to assist small 
entities in understanding this proposed rule so that they can better 
evaluate its effects on them and participate in the rulemaking. If the 
proposed rule would affect your small business, organization, or 
governmental jurisdiction and you have questions concerning its 
provisions or options for compliance, please contact DHS via the 
address or phone number provided in the FOR FURTHER INFORMATION CONTACT 
section above. DHS will not retaliate against small entities that 
question or complain about this rule or about any policy or action by 
DHS related to this rule.

F. Regulatory Flexibility Act

    DHS drafted this proposed rule so as to minimize its impact on 
small entities, in accordance with the Regulatory Flexibility Act 
(RFA), 5 U.S.C. 601-612, while meeting its intended objectives. The 
term ``small entities'' comprises small business, not-for-profit 
organizations that are independently owned and operated and are not 
dominant in their fields, and governmental jurisdictions with 
populations of less than 50,000. Based on presently available 
information, DHS is unable to state with certainty that the proposed 
rule, if promulgated as a final rule, would not have any effect on 
small entities of the type described in 5 U.S.C. 601(3). Accordingly, 
DHS has prepared an Initial Regulatory Flexibility Impact Analysis 
(IRFA) in accordance with 5 U.S.C. 603.
1. A Description of the Reasons Why the Action by the Agency Is Being 
Considered
    In 2003 Congress passed PREA, 42 U.S.C. 15601. PREA directs the 
Attorney

[[Page 75324]]

General to promulgate national standards for enhancing the prevention, 
detection, reduction, and punishment of prison rape. On May 17, 2012, 
President Obama issued a Presidential Memorandum confirming the goals 
of PREA and directing Federal agencies with confinement facilities to 
issue regulations or procedures within 120 days of his Memorandum to 
satisfy the requirements of PREA. This regulation responds to and 
fulfills the President's direction by proposing comprehensive, national 
regulations for the detection, prevention, and reduction of prison rape 
at DHS confinement facilities.
2. A Succinct Statement of the Objectives of, and Legal Basis for, the 
Proposed Rule
    On May 17, 2012, DOJ released a final rule setting national 
standards to prevent, detect, and respond to prison rape for facilities 
operated by the Bureau of Prisons and the USMS. The final rule was 
published in the Federal Register on June 20, 2012. 77 FR 37106 (June 
20, 2012). In its final rule, DOJ concluded that PREA ``encompass[es] 
any Federal confinement facility `whether administered by [the] 
government or by a private organization on behalf of such 
government.''' Id. at 37113 (quoting 42 U.S.C. 15609(7)). DOJ 
recognized, however, that, in general, each Federal agency is 
accountable for, and has statutory authority to regulate the operations 
of its own facilities and is best positioned to determine how to 
implement Federal laws and rules that govern its own operations, staff, 
and persons in custody. Id. The same day that DOJ released its final 
rule, President Obama issued a Presidential Memorandum directing 
Federal agencies with confinement facilities to issue regulations or 
procedures within 120 days of his Memorandum to satisfy the 
requirements of PREA.
    DHS uses a variety of legal authorities, which are listed below in 
the ``Authority'' provision preceding the proposed regulatory text, to 
detain individuals in confinement facilities. Most individuals detained 
by DHS are detained in the immigration removal process, and normally 
DHS derives its detention authority for these actions from section 
236(a) of the INA, 8 U.S.C. 1226(a), which provides the authority to 
arrest and detain an alien pending a decision on whether the alien is 
to be removed from the United States, and section 241(a)(2) of the INA, 
8 U.S.C. 1231(a)(2), which provides the authority to detain an alien 
during the period following the issuance of an order of removal. DHS 
components, however, use many other legal authorities to meet their 
statutory mandates and to detain individuals during the course of 
executing DHS missions.
    The objective of the proposed rule is to propose minimum 
requirements for DHS immigration detention and holding facilities for 
the prevention, detection, and response to sexual abuse. The rule, if 
made final, would ensure prompt and coordinated response and 
intervention, proper treatment for victims, discipline and prosecution 
of perpetrators, and effective oversight and monitoring to prevent and 
deter sexual abuse.
3. A Description and, Where Feasible, an Estimate of the Number of 
Small Entities To Which the Proposed Rule Will Apply
    The proposed rule would affect owners of DHS confinement 
facilities, including private owners, State and local governments, and 
the Federal government. DHS has two types of confinement facilities: 
(1) Immigration detention facilities, and (2) holding facilities. 
Holding facilities tend to be short-term in nature. ICE, in particular, 
is charged with administration of the immigration detention facilities 
while CBP and ICE each have many holding facilities under their 
detention authority. The analysis below addresses immigration detention 
facilities and holding facilities separately.
i. Immigration Detention Facilities
    ICE divides its detention facilities into two groups: there are 158 
for use over 72 hours, and 91 that typically hold detainees for more 
than 24 hours and less than 72 hours. These are treated separately, 
below. Further, there are several types of immigration detention 
facilities. Service processing center (SPC) facilities are ICE-owned 
facilities and staffed by a combination of Federal and contract staff. 
Contract detention facilities (CDFs) are owned by a private company and 
contracted directly with ICE. Detention services at Intergovernmental 
Service Agreement (IGSA) facilities are provided to ICE by State or 
local governments(s) through agreements with ICE and may be owned by 
the State or local government, or by a private entity. Finally, there 
are two types of IGSA facilities: dedicated and non-dedicated. 
Dedicated IGSA facilities hold only detained aliens whereas non-
dedicated facilities hold a mixture of detained aliens and inmates. ICE 
does not include USMS facilities used by ICE under intergovernmental 
agreements in the scope of this rulemaking. Those facilities would be 
covered by the DOJ PREA standards. Any references to authorized 
immigration detention facilities is exclusive of these 119 USMS IGA 
facilities.
    Of the current 158 ICE detention facilities that are for use over 
72 hours, 6 are owned by the Federal government and are not subject to 
the Regulatory Flexibility Act (RFA). An additional 64 are covered not 
by this proposed rule but by the DOJ PREA rule, as USMS IGA facilities. 
Of the 88 facilities subject to the RFA, there are 79 distinct 
entities. DHS uses ICE information and public databases such as 
Manta.com and data from the U.S. Census Bureau \15\ to search for 
entity type (public, private, parent, subsidiary, etc.), primary line 
of business, employee size, revenue, population, and any other 
necessary information. This information is used to determine if an 
entity is considered small by SBA size standards, within its primary 
line of business.
---------------------------------------------------------------------------

    \15\ U.S. Census Bureau, State and County QuickFacts, 2010 
Population Data, available at http://quickfacts.census.gov/qfd/index.html
---------------------------------------------------------------------------

    Of the 79 entities owning immigration detention facilities and 
subject to the RFA, the search returned 75 entities for which 
sufficient data are available to determine if they are small entities, 
as defined by the RFA. The table below shows the North American 
Industry Classification System (NAICS) codes corresponding with the 
number of facilities for which data are available. There are 27 small 
governmental jurisdictions, 1 small business, and 1 small not-for-
profit. In order to ensure that the interests of small entities are 
adequately considered, DHS assumes that all entities without available 
ownership, NAICS, revenue, or employment data to determine size are 
small. Therefore, DHS estimates there are a total of 33 small entities 
to which this rule would apply. The table below shows the number of 
small entities by type for which data are available.

[[Page 75325]]



    Table 5--Small Entities by Type--Immigration Detention Facilities
------------------------------------------------------------------------
             Type                Entities found      SBA size standard
------------------------------------------------------------------------
Small Governmental                            27  Population less than
 Jurisdiction.                                     50,000.
Small Business................                 1  $7 million (NAICS
                                                   488999)
                                ................  $30 million (NAICS
                                                   488119).
Small Organization............                 1  Independently owned
                                                   and operated not-for-
                                                   profit not dominant
                                                   in its field.
                               ------------------
    Subtotal..................                29  ......................
                               ------------------
Entities without Available                     4  ......................
 Information.
                               ------------------
        Total Small Entities..                33  ......................
------------------------------------------------------------------------

    ICE also has shorter-term immigration detention facilities, for 
several reasons: Some of ICE's immigration detention facilities are 
governed by IGSAs that limit the length of an immigration detainee's 
stay to under 72 hours for various reasons. Some of these facilities 
have limited bed space that prohibits longer stays by detainees. Others 
are used primarily under special circumstances such as housing a 
detainee temporarily to facilitate detainee transfers or to hold a 
detainee for court appearances in a different jurisdiction. In some 
circumstances the under 72-hour facilities are located in rural areas 
that only occasionally have immigration detainees.
    At the time of writing, ICE has 91 immigration detention facilities 
for use under 72 hours. Of those, three are owned by the Federal or 
State government and are not subject to the RFA. An additional 55 are 
covered not by this proposed rule but by the DOJ PREA rule, as USMS IGA 
facilities. Of the 33 facilities subject to the RFA, all are owned by 
distinct entities. Again, DHS uses public databases such as Manta.com 
and U.S. Census Bureau to search for entity type, primary line of 
business, employee size, revenue, population, and any other necessary 
information needed to determine if an entity is considered small by SBA 
size standards.
    Of the 33 entities owning immigration detention facilities and 
subject to the RFA, all have sufficient data available to determine if 
they are small entities as defined by the RFA. The table below shows 
the NAICS codes corresponding with the number of facilities for which 
data are available. DHS determines there are 10 small governmental 
jurisdictions, 0 small businesses, and 0 small organizations. The table 
below shows 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                            10  Population less than
 Jurisdiction.                                     50,000.
Small Business................                 0  ......................
Small Organization............                 0  ......................
                               ------------------
    Total Small Entities......                10  ......................
------------------------------------------------------------------------

    At the time of writing, ICE has 2 immigration detention facilities 
that are considered family residential facilities. Both are owned by 
counties. Again, DHS uses public databases such as Manta.com and U.S. 
Census Bureau to search for entity type, primary line of business, 
employee size, revenue, population, and any other necessary information 
needed to determine if an entity is considered small by SBA size 
standards. DHS was able to obtain sufficient data to determine if they 
are small entities. Based on the size of the counties, DHS determines 
neither would be considered small governmental jurisdictions as defined 
by the RFA.
ii. Holding Facilities
    U.S. Customs and Border Protection. CBP operates 768 facilities 
with holding facilities. Of the 768, 364 are owned by private sector 
entities. CBP is responsible for funding any facility modifications 
once CBP has begun operations at the location. As such, any 
modifications at these facilities as a result of this rule will have no 
direct impact on the facilities.
    U.S. Immigration and Customs Enforcement. Most ICE hold rooms are 
in ICE field offices and satellite offices. ICE estimates it has 149 
holding facilities that would be covered under the proposed rule. None 
of these facilities would be considered small entities under the RFA.
4. A Description of the Projected Reporting, Recordkeeping, and Other 
Compliance Requirements of the Proposed Rule, Including an Estimate of 
the Classes of Small Entities That Will Be Subject to the Requirement 
and the Types of Professional Skills Necessary for Preparation of the 
Report or Record
    With regard to non-DHS facilities, the requirements of the proposed 
rule are applicable only to new detention contracts with the Federal 
Government, and to contract renewals. To the extent this rule increases 
costs to any detainment facilities, which may be small entities, it may 
be reflected in the cost paid by the Federal Government for the 
contract. Costs associated with implementing the proposed rule paid by 
the Federal Government to small entities are transfer payments 
ultimately born by the Federal Government. However, DHS cannot say with 
certainty how much, if any, of these costs will be

[[Page 75326]]

paid in the form of increased bed rates for facilities. Therefore, for 
the purposes of this analysis, DHS assumes all costs associated with 
the proposed rule will be borne by the facility. The following 
discussion addresses the proposed provisions for which facilities 
currently operating under the NDS may incur implementation costs.
i. Contracting With Other Non-DHS Entities for the Confinement of 
Detainees, Sec.  115.12
    The proposed rule would require that any new contracts or contract 
renewals comply with the proposed rule and provide for agency contract 
monitoring to ensure that the contractor is complying with these 
standards. Therefore, DHS adds a 20-hour opportunity cost of time for 
the contractor to read and process the modification, determine if a 
request for a rate increase is necessary, and have discussions with the 
government if needed. DHS estimates this provision may cost a facility 
approximately $1,488 (20 hours x $74.41) in the first year.\16\
---------------------------------------------------------------------------

    \16\ Bureau of Labor Statistics, Occupational Employment 
Statistics (OES), May 2011, NAICS 999300, SOC 11-1021 General and 
Operations Manager Median Hourly Wage, retrieved on June 29, 2012 
from http://www.bls.gov/oes/2011/may/naics4_999300.htm. Loaded for 
benefits. Bureau of Labor Statistics, Employer Cost for Employee 
Compensation, June 2011, Table 3: Employer Costs per hour worked for 
employee compensation and costs as a percent of total compensation: 
State and local government workers, by major occupational and 
industry group, Service Occupations, Salary and Compensation Percent 
of Total Compensation, retrieved on June 29, 2012 from http://www.bls.gov/news.release/archives/ecec_09082011.pdf. $74.41 = 
$44.42/0.597.
---------------------------------------------------------------------------

ii. Zero Tolerance of Sexual Abuse; Prevention of Sexual Abuse 
Coordinator, Sec.  115.11
    The proposed rule would require immigration detention facilities to 
have a written zero-tolerance policy for sexual abuse and establish a 
Prevention of Sexual Assault (PSA) Compliance Manager at each facility. 
ICE is not requiring facilities to hire any new staff for these 
responsibilities; rather ICE believes the necessary PSA Compliance 
Manager duties can be collateral duties for a current staff member.
    For some of the standards proposed in this rulemaking, the actual 
effort required to comply with the standard will presumably be 
undertaken by the PSA Compliance Manager. The costs of compliance with 
those standards are thus essentially subsumed within the cost of this 
standard. For this reason, and to avoid double counting, many standards 
are assessed in their as having minimal to zero cost even though they 
will require some resources to ensure compliance; this is because the 
cost of those resources is assigned to this standard to the extent DHS 
assumes the primary responsibility for complying with the standard will 
lie with the PSA Compliance Manager. The table below presents the 
provisions and requirements DHS assumes would be the responsibility of 
the PSA Compliance Manger, and are included in the costs estimated for 
this provision.

  Table 7--Assumed PSA Compliance Manager Duties--Immigration Detention
                               Facilities
------------------------------------------------------------------------
 
------------------------------------------------------------------------
                            Proposed standard
------------------------------------------------------------------------
115.11............................  Zero tolerance of sexual abuse.
115.21............................  Evidence protocols and forensic
                                     medical examinations.
115.31............................  Staff training.
115.32............................  Volunteer and contractor training.
115.34............................  Specialized training:
                                     Investigations.
115.63*...........................  Reporting to other confinement
                                     facilities.
115.65............................  Coordinated response.
115.67............................  Agency protection against
                                     retaliation.
115.86............................  Sexual abuse incident reviews.
115.87............................  Data collection.
115.93*...........................  Audits.
------------------------------------------------------------------------
* Indicates new requirement for facilities under 2011 PBNDS or FRS

    DHS spoke with some SPCs and CDFs who had SAAPICs required under 
the 2008 PBNDS. Based on these discussions, DHS estimates a PSA 
Compliance Manager will spend, on average, 114 hours in the first year 
and 78 hours thereafter, which includes writing/revising policies 
related to sexual abuse and working with auditors. DHS estimates this 
provision may cost a facility approximately $5,330 (114 hours x $46.75) 
in the first year.\17\
---------------------------------------------------------------------------

    \17\ Bureau of Labor Statistics, Occupational Employment 
Statistics (OES), May 2011, NAICS 999300, SOC 33-1011 First Line 
Supervisors of Correctional Officers Median Hourly Wage, retrieved 
on June 29, 2012 from http://www.bls.gov/oes/2011/may/oes331011.htm. 
Loaded for benefits. $46.75 = $29.67/0.597
---------------------------------------------------------------------------

iii. Limits to Cross-Gender Viewing and Searches, Sec.  115.15
    The proposed requirement would prohibit cross-gender pat-down 
searches unless, after reasonable diligence, staff of the same gender 
is not available at the time the pat-down search is required (for male 
detainees), or in exigent circumstances (for female and male detainees 
alike). In addition, it would ban cross-gender strip or body cavity 
searches except in exigent circumstances; require documentation of all 
strip and body cavity searches and cross-gender pat-down searches; 
prohibit physical examinations for the sole purpose of determining 
gender; require training of law enforcement staff on proper procedures 
for conducting pat-down searches, including transgender and intersex 
detainees; and, implement policies on staff viewing of showering, 
performing bodily functions, and changing clothes.
    The restrictions placed on cross-gender pat-down searches would be 
a new requirement for facilities operating under the NDS or 2008 PBNDS, 
and a modified requirement for facilities operating under the 2011 
PBNDS.\18\ ICE's detention population is 10 percent female, and 90 
percent male. In comparison, 13 percent of correctional officers at 
Federal confinement facilities \19\ and 28 percent at jails are 
female.\20\ Though there may be disproportionate gender ratios of staff 
to detainees at some individual facilities, the overall national 
statistics do not indicate that there would be a significant problem 
with compliance. Facilities are allowed to conduct cross-gender pat 
down searches on male detainees when, after reasonable diligence by the 
facility, a member of the same gender is not available at the time. The 
pat-down restrictions for female detainees are more stringent. Female 
detainees only comprise 10 percent of the overall population, and one 
to five percent are held at ICE's dedicated female facility. The Family 
Residential Standards, under which the dedicated female facility 
operates, already prohibit cross-gender pat-downs.
---------------------------------------------------------------------------

    \18\ Specifically, the 2011 PBNDS permits cross-gender pat-down 
searches of women when staff of the same gender is not available at 
the time the pat-down search is required. Under the proposed 
standard, cross-gender searches of females would be allowed only in 
exigent circumstances.
    \19\ Bureau of Justice Statistics, Census of State and Federal 
Correctional Facilities, 2005, page 4, retrieved on August 13, 2012 
from http://www.bjs.gov/content/pub/pdf/csfcf05.pdf.
    \20\ Department of Justice, Final Regulatory Impact Analysis, 
section 5.6.15.1 Analysis and Methodology for Adult Facilities of 
standards 115.15, retrieved May 24 from www.ojp.usdoj.gov/programs/pdfs/prea_ria.pdf.
---------------------------------------------------------------------------

    DHS does not expect any facilities to hire new staff or lay off any 
staff specifically to meet the proposed requirement. Instead, DHS 
expects that facilities which may have an unbalanced gender ratio take 
this requirement into consideration during hiring decisions resulting 
from normal attrition and staff turnover. However, DHS requests 
comments from facilities on this conclusion. Please include information 
that would help determine

[[Page 75327]]

and monetize the possible impact to facilities.
    DHS includes a cost for facilities to examine their staff rosters, 
gender ratios, and staffing plans for all shifts for maximum compliance 
with cross gender pat downs. The length of time it takes for facilities 
to adjust staffing plans, strategies, and schedules for gender balance 
while ensuring there is adequate detainee supervision and monitoring 
pursuant to section 115.13 will vary with the size of the facility. DHS 
estimates this may take a supervisor 12 hours initially. DHS 
anticipates facilities will be able to incorporate these considerations 
into regular staffing decisions in the future. DHS estimates the 
restrictions on cross-gender pat-downs may cost a facility 
approximately $561 (12 hours x $46.75) in the first year.
    The requirement for documentation of cross-gender pat-down searches 
would be new for all facilities, regardless of the version of the 
detention standards under which the facility operates. Presumably, 
cross-gender pat-down searches of female detainees would occur rarely, 
as the proposed rule would allow them in exigent circumstances only. 
However, cross-gender pat-down searches of male detainees may happen 
more frequently. DHS believes this requirement would be a notable 
burden on facilities both for the process of documenting the pat-down, 
but also keeping these records administratively. Therefore, as we 
discuss below, DHS includes an opportunity cost for this provision. ICE 
does not currently track the number of cross-gender pat-down searches, 
or any pat-down searches conducted. ICE requests comment from 
facilities on the number of cross-gender pat-down searches conducted. 
Please include details that would help with an aggregate estimate, such 
as the average daily population of detainees at your facility, the 
number of pat-downs that may occur daily, the percentage that are 
cross-gender, etc.
    Because DHS believes this may be a noticeable burden on facilities, 
DHS includes a rough estimate using assumptions. DHS also welcomes 
comment on these assumptions. Detainees may receive a pat-down for a 
number of reasons. All detainees receive a pat-down upon intake to the 
facility, detainees may receive a pat-down after visitation, before 
visiting the attorney room, if visiting medical, if in segregation, 
etc. Therefore, DHS assumes that in any given day, approximately 50 
percent of detainees may receive a pat-down. DHS uses the ratio of male 
guards to male detainees and female guards to female detainees as a 
proxy for the percentage of these pat-downs that would be cross-gender, 
realizing that this may not be representative of every facility, the 
circumstances at the time a pat-down is required, nor the results after 
the staff realignment previously discussed. As referenced previously, 
between 72 and 87 percent of guards are male and 90 percent of 
detainees are male. Therefore, to estimate a rough order of magnitude, 
DHS assumes between 3 and 18 percent of pat-downs of male detainees may 
be cross-gender, with a primary estimate of 10 percent.
    DHS finds the total average daily population of male detainees at 
the 43 facilities classified as small entities and takes the average to 
determine an average daily population of 93 for a facility classified 
as a small entity (4,457 x 90% / 43). Then DHS applies the methodology 
described above to estimate that approximately 2,000 cross gender pat-
downs may be conducted at an average small entity annually (93 male ADP 
x 50% receive pat-down daily x 365 days x 10% cross-gender), which is 
rounded to the nearest thousand due to uncertainty. DHS estimates it 
will require an average of 5 minutes of staff for documentation. DHS 
estimates this provision may cost a facility approximately $5,435 (5 
minutes x $32.61 per hour), annually.
    The total estimate per small entity for proposed section 115.15 is 
$5,996 ($561 for staff realignment + $5,435 for cross-gender pat-down 
documentation).
iv. Evidence Protocols and Forensic Medical Examinations, Sec.  115.21
    The proposed rule would require ICE and any of its immigration 
detention facilities to establish a protocol for the investigation of 
allegations of sexual abuse or the referral of allegations to 
investigators. In addition, where appropriate, at no cost to the 
detainee, a forensic medical exam should be offered and an outside 
victim advocate shall be made available for support if requested.
    DHS includes a cost for facilities to enter into a memorandum of 
understanding (MOU) with entities that provide victim advocate 
services, such as rape crisis centers. DHS estimates it will require 
approximately 20 hours of staff time to negotiate and settle on each 
MOU. DHS estimates this provision may cost a facility approximately 
$1,488 (20 hours x $74.41).
v. Staff Training, Sec.  115.31, Volunteer and Contractor Training, 
Sec.  115.32
    Under section 115.31 the proposed rule would require that any 
facility staff and employee who may have contact with immigration 
detention facilities have training on specific items related to 
prevention, detection, and response to sexual abuse. In addition, under 
section 115.32 the proposed rule would require that any volunteers and 
contractors who may have contact with immigration detention facilities 
also receive training on specific items related to prevention, 
detection, and response to sexual abuse.\21\ Both sections would also 
require facilities to maintain documentation that all staff, employees, 
contractors, and volunteers have completed the training requirements.
---------------------------------------------------------------------------

    \21\ ICE does not keep record of the number of staff and 
contractors at contract facilities. The estimates represent the 
results from a small sample, stratified by facility type. The low 
and high estimates represent one standard deviation below and above 
the mean. ICE assumes one new under 72-hour non-dedicated IGSA 
facility annually and one new over 72-hour non-dedicated IGSA 
facility annually, and approximately 290 staff and contractors per 
new facility.
---------------------------------------------------------------------------

    DHS uses the NCIC 2-hour training as an approximation for the 
length of the training course to fulfill the proposed requirements. DHS 
estimates this provision may cost a facility approximately $20,922 (2 
hours x 290 staff and contractors x $32.61) + (2 hours x 30 volunteers 
x $33.47).22 23
---------------------------------------------------------------------------

    \22\ Though there may be other types of facility staff or 
contractors that would require this training, such as medical 
practitioners or administrative staff, DHS assumes correctional 
officers and their supervisors comprise the majority of staff with 
detainee contact.
    \23\ Bureau of Labor Statistics, Occupational Employment 
Statistics (OES), May 2011, SOC 00-0000 All Occupations Median 
Hourly Wage, retrieved on August 16, 2012 from http://www.bls.gov/oes/2011/may/naics4_999300.htm. Loaded for benefits. $33.47 = 
$19.98/0.597.
---------------------------------------------------------------------------

vi. Specialized Training: Investigations, Sec. Sec.  115.34, 115.134
    The proposed rule would require the agency or facility to provide 
specialized training on sexual abuse and effective cross-agency 
coordination to agency or facility investigators, respectively, who 
conduct investigations into alleged sexual abuse at immigration 
detention facilities.
    DHS conducts investigations of all allegations of detainee sexual 
abuse in detention facilities. The 2012 ICE SAAPID mandates that ICE's 
OPR provide specialized training to OPR investigators and other ICE 
staff. However, facilities may also conduct their own investigations. 
However, because ICE conducts investigations into the allegations, 
training for facility investigators would likely be less specialized 
than required of ICE investigators. DHS includes a cost for the time 
required for training investigators. DHS estimates the training may 
take approximately 1 hour. DHS

[[Page 75328]]

estimates this provision may cost a facility approximately $468 (1 hour 
x 10 investigators x $46.75).24 25
---------------------------------------------------------------------------

    \24\ ICE does not keep record of the number of investigators at 
contract facilities. The estimates represent the results from a 
small sample, stratified by facility type. The low and high 
estimates represent one standard deviation below and above the mean. 
ICE assumes one new under 72-hour non-dedicated IGSA facility 
annually and one new over 72-hour non-dedicated IGSA facility 
annually, and based on the data from the sample of facilities, 10 
investigators per new facility.
    \25\ Bureau of Labor Statistics, Occupational Employment 
Statistics (OES), May 2011, NAICS 99300, Median Wage Rate for SOC 
33-1011 First-Line Supervisors of Correctional Officers, retrieved 
on August 16, 2012 from http://www.bls.gov/oes/2011/may/naics4_999300.htm. Loaded for benefits. $46.75 = $27.91/0.597
---------------------------------------------------------------------------

vii. Specialized Training: Medical and Mental Health Care, Sec.  115.35
    The proposed rule would require specialized training to DHS medical 
and mental health care staff. In addition, it would require all 
facilities to have policies and procedures to ensure that the facility 
trains or certifies all full- or part-time facility medical and mental 
health care staff in procedures for treating victims of sexual abuse, 
in facilities where medical or mental health staff may be assigned 
these activities.\26\
---------------------------------------------------------------------------

    \26\ ICE does not keep record of the number of medical and 
mental health care providers at contract facilities. The estimates 
represent the results from a small sample, stratified by facility 
type. The low and high estimates represent one standard deviation 
below and above the mean. ICE assumes one new under 72-hour non-
dedicated IGSA facility annually and one new over 72-hour non-
dedicated IGSA facility annually, and based on the data from the 
sample of facilities, 30 medical and mental health care providers 
per new facility.
---------------------------------------------------------------------------

    DHS searched for continuing medical education courses that focused 
on the evaluation and treatment for victims of sexual assault. Based on 
the results, DHS estimates an average course will be one hour in length 
and cost between $10 and $15, and can be completed online. DHS 
estimates this provision may cost a facility approximately $1,957 (30 
medical and mental health care practitioners x ($50.23 x 1 hr + 
$15)).\27\
---------------------------------------------------------------------------

    \27\ Bureau of Labor Statistics, Occupational Employment 
Statistics (OES), May 2011, NAICS 99300, Weighted Average Median 
Wage Rate for SOC 29-1062 Family and General Practitioners; 29-1066 
Psychiatrists; 29-1071 Physician Assistants; 29-1111 Registered 
Nurses; 29-2053 Psychiatric Technicians; and 29-2061 Licensed 
Practical and Licensed Vocational Nurses, retrieved on August 16, 
2012 from http://www.bls.gov/oes/2011/may/naics4_999300.htm. Loaded 
for benefits. $50.23 = $29.99/0.597.
---------------------------------------------------------------------------

viii. Detainee Access to Outside Confidential Support Services, Sec.  
115.53
    The proposed rule would require facilities to maintain or attempt 
to enter into MOUs with organizations that provide legal advocacy and 
confidential emotional support services for victims of sexual abuse. It 
also requires notices of these services be made available to detainees, 
as appropriate.
    DHS includes a cost for facilities to enter into a MOU with 
entities that provide legal advocacy and confidential support services, 
such as services provided by a rape crisis center. DHS estimates it 
will require approximately 20 hours of staff time to negotiate and 
settle on each MOU. DHS estimates this provision may cost a facility 
approximately $1,488 (20 hours x $74.41).
ix. Audits, Sec.  115.93
    Facilities may also incur costs for re-audits. Re-audits can be 
requested in the event that the facility does not achieve compliance 
with each standard or if the facility files an appeal with the agency 
regarding any specific finding that it believes to be incorrect. Costs 
for these audits would be borne by the facility, however the request 
for these re-audits is at the discretion of the facility.
x. Additional Implementation Costs
    Facilities contracting with DHS agencies may incur organizational 
costs related to proper planning and overall execution of the 
rulemaking, in addition to the specific implementation costs facilities 
are estimated to incur for each of the proposed requirements. The 
burden resulting from the time required to read the rulemaking, 
research how it might impact facility operations, procedures, and 
budget, as well as consideration of how best to execute the rulemaking 
requirements or other costs of overall execution. This is exclusive of 
the time required under section 115.12 to determine and agree upon the 
new terms of the contract and the specific requirements expected to be 
performed by the facility PSA Compliance Manager under section 115.11.
    To account for these costs, DHS adds an additional category of 
implementation costs for immigration detention facilities. 
Implementation costs will vary by the size of the facility, a 
facility's current practices, and other facility-specific factors. DHS 
assumes the costs any additional implementation costs might occur as a 
result of the provisions with start-up costs, such as entering into 
MOUs, rather than provisions with action or on-going costs, such as 
training. DHS estimates additional implementation costs as 10 percent 
of the total costs of provisions with a start-up cost. DHS requests 
comment on this assumption. The tables below present the estimates for 
additional implementation costs. DHS estimates this provision may cost 
a facility approximately $1,579 (10% x ($1,488 for section 115.12 + 
$5,330 for section 115.11 + $5,996 for section 115.15 + $1,488 for 
section 115.21 + $1,488 for section 115.53)).
xi. Total Cost per Facility
    DHS estimates the total cost per immigration detention facility 
under the NDS for compliance with the standards is approximately 
$40,716 for the first year. In subsequent years, DHS estimates the 
costs drop to approximately $9,990. The following table summarizes the 
preceding discussion.

     Table 8--Estimated Cost per Small Entity Under NDS--Immigration
                          Detention Facilities
------------------------------------------------------------------------
                                                  Cost in      On-going
              Proposed provision                   year 1        cost
------------------------------------------------------------------------
115.12 Consulting with non-DHS entities for          $1,488           $0
 the confinement of detainees.................
115.11 Zero tolerance of sexual abuse; PSA            5,330        3,647
 Coordinator*.................................
115.15 Limits to cross-gender viewing and             5,996        5,435
 searches.....................................
115.21 Evidence protocols and forensic medical        1,488            0
 examinations.................................
115.31 & 115.32 * Staff training & Volunteer         20,922            0
 and contractor training......................
115.34 Specialized training: Investigations...          468            0
115.35 Specialized training: Medical and              1,957            0
 mental health care...........................
115.53 Detainee access to outside confidential        1,488            0
 support Services.............................
Additional Implementation Costs *.............        1,579          908
                                               -------------------------

[[Page 75329]]

 
    Total.....................................       40,716        9,990
------------------------------------------------------------------------
* Provisions for which DHS estimates there may be on-going costs.

    DHS welcomes comments on this analysis. Members of the public 
should please submit a comment, as described in this proposed rule 
under ``Public Participation,'' if they think that their business, 
organization, or governmental jurisdiction qualifies as a small entity 
and that this proposed rule would have a significant economic impact on 
it. It would be helpful if commenters provide DHS with as much of the 
following information as possible: Does the commenter's facility 
currently have a contract with ICE? What does the commenter expect to 
be the type and extent of the direct impact on the commenter's 
facility? What are any recommended alternative measures that would 
mitigate the impact on a small business, organization, or governmental 
jurisdiction?
5. An Identification, to the Extent Practicable, of All Relevant 
Federal Rules That May Duplicate, Overlap, or Conflict With the 
Proposed Rule
    On May 17, 2012, DOJ released a final rule setting national 
standards to prevent, detect, and respond to prison rape. 77 FR 37106 
(June 20, 2012). The final rule is applicable to facilities operated by 
DOJ entities including the Bureau of Prisons and the USMS. While many 
of the immigration detention facilities with which DHS contracts may be 
facilities that would also be subject to the DOJ rule, the specific 
characteristics of immigration detention facilities differ in certain 
respects from other facilities with regard to the manner in which they 
are operated and the composition of their population. Therefore, DHS 
promulgated its own rulemaking to account for these differences.
    In preparing this proposed rule, DHS has utilized its existing 
sexual abuse policies and procedures as a baseline for setting DHS 
standards. However, recognizing that one of the key purposes of PREA is 
to ``develop and implement national standards for the detection, 
prevention, reduction, and punishment of prison rape,'' DHS has 
coordinated its proposed regulations with the final standards in the 
DOJ rulemaking to the extent practicable, given the differences in the 
types and operations of the facilities. DHS does not expect local 
jurisdictions with which DHS has contracts to have conflicts with any 
differences in the requirements between the two rulemakings. DHS, 
however, welcomes comment on this conclusion.
6. A Description of Any Significant Alternatives to the Proposed Rule 
Which Accomplish the Stated Objectives of Applicable Statutes and Which 
Minimize Any Significant Economic Impact of the Proposed Rule on Small 
Entities
    DHS considered a longer phase-in period for small entities subject 
to the rulemaking. A longer period would reduce immediate burden on 
small entities with current contracts. The current requirements propose 
that facilities must comply with the standards upon renewal of a 
contract or exercising a contract option. Essentially, this would 
phase-in all authorized immigration detention facilities within a year 
of the effective date of the final rule. DHS is willing to work with 
small facilities upon contract renewal in implementing these standards.
    DHS also considered requiring lesser standards, such as those under 
the National Detention Standards (NDS) or the 2008 PBNDS for small 
entities. However, DHS rejected this alternative because DHS believes 
in the importance of protecting detainees from, and providing treatment 
after, instances of sexual abuse, regardless of a facility's size.

G. Paperwork Reduction Act

    DHS is proposing to set standards for the prevention, detection, 
and response to sexual abuse in its confinement facilities. For DHS 
facilities and as incorporated in DHS contracts, these standards will 
require covered facilities to retain and report to the agency certain 
specified information relating to sexual abuse prevention planning, 
responsive planning, education and training, and investigations, as 
well as to collect, retain, and report to the agency certain specified 
information relating to allegations of sexual abuse within the covered 
facility. DHS believes that most of the information collection 
requirements placed on facilities already are requirements derived from 
existing contracts with facilities for immigration detention. However, 
DHS is including these requirements as part of an information 
collection request, pursuant to the Paperwork Reduction Act (PRA), so 
as to ensure clarity of requirements associated with this rulemaking.
    DHS will be submitting the following information collection request 
to the Office of Management and Budget (OMB) for review and clearance 
in accordance with the review procedures of the Paperwork Reduction Act 
of 1995. The proposed information collection requirements are outlined 
in this proposed rule to obtain comments from the public and affected 
entities. All comments and suggestions, or questions regarding 
additional information, should be directed to Alexander Y. Hartman, 
Office of Policy; U.S. Immigration and Customs Enforcement, Department 
of Homeland Security; Potomac Center North, 500 12th Street SW., 
Washington, DC 20536; Telephone: (202) 732-4292 (not a toll-free 
number). Written comments and suggestions from the public and affected 
agencies concerning the collection of information are encouraged. Your 
comments on the information collection-related aspects of this rule 
should address one or more of the following four points:
    (1) Evaluate whether the collection of information is necessary for 
the proper performance of the functions of the agency, including 
whether the information will have practical utility;
    (2) Evaluate the accuracy of the agency's estimate of the burden of 
the collection of information, including the validity of the 
methodology and assumptions used;
    (3) Enhance the quality, utility, and clarity of the information to 
be collected; and
    (4) Minimize the burden of the collection of information on those 
who are to respond, including through the use of appropriate automated, 
electronic, mechanical, or other technological collection techniques or 
other forms of information technology, e.g., permitting electronic 
submission of responses. In particular, DHS requests comments on the 
recordkeeping cost burden imposed by this rule and will use the 
information gained through such comments to assist in calculating the 
cost burden.

[[Page 75330]]

Overview of This Information Collection

    (1) Type of Information Collection: New collection.
    (2) Title of the Form/Collection: Standards to Prevent, Detect, and 
Respond to Sexual Abuse and Assault in DHS Confinement Facilities.
    (3) Agency form number, if any, and the applicable component of DHS 
sponsoring the collection: No form.
    (4) Affected public who will be asked or required to respond, as 
well as a brief abstract:
    Primary: Federal governments, State governments, local governments, 
and businesses or other for profits.
    Other: None.
    Abstract: DHS is publishing a notice of proposed rulemaking (NPRM) 
to adopt standards for the detection, prevention, and response to 
sexual abuse in its confinement facilities. These standards will 
require covered facilities to retain, and report to the agency certain 
specified information relating to sexual abuse prevention planning, 
education and training, responsive planning, and investigations, as 
well as to collect and retain certain specified information relating to 
allegations of sexual abuse within the facility. Covered facilities 
include: 126 DHS immigration detention facilities and holding 
facilities.
    (5) An estimate of the total number of responses/respondents and 
the total amount of time estimated for respondents in an average year 
to keep the required records is: 1,379,533 responses annually; 118,348 
hours. The breakout of the estimated burden and responses are stated in 
the table immediately below. However, the number or responses from each 
immigration detention facility will vary depending on a variety of 
factors which may include: How many annual allegations, the number of 
staff at each facility, and the number of detainees held at a facility.
    (6) An estimate of the total public burden (in hours) associated 
with the collection: 118,348 hours. There are no current information 
collection requirements based on a PRA instrument or approved 
collection on facilities to retain certain sexual abuse incident data. 
This information collection will be the first regulation-based national 
data collection for DHS facility-reported information on sexual abuse 
within correctional facilities, characteristics of the victims and 
perpetrators, circumstances surrounding the incidents, and how 
incidents are reported, tracked, and adjudicated. For the facilities 
that already maintain such records, there will be no additional burden 
of recordkeeping and reporting as their current recordkeeping and 
reporting will be sufficient for the need of DHS. The DHS rule would 
not impose a requirement on facilities to maintain duplicative records. 
However, for the purposes of this collection of information, DHS has 
estimated the burden as if the collection and reporting requirements 
are new for all 126 facilities.
    The recordkeeping requirements set forth by this rule are new 
requirements that will require a new OMB Control Number. DHS is seeking 
comment on these new requirements as part of this NPRM. These new 
requirements will require covered facilities to retain certain 
specified information relating to sexual abuse prevention planning, 
responsive planning, education and training, investigations and to 
collect and retain certain specified information relating to 
allegations of sexual abuse within the confinement facility. The 
proposed recordkeeping requirements may be found in the following 
sections of the proposed rule:
Subpart A--Immigration Detention Facilities
Subpart B--Holding Facilities

----------------------------------------------------------------------------------------------------------------
                                                                                    Avg. annual     Avg. annual
                   Function                                 NPRM cite                responses      hour burden
----------------------------------------------------------------------------------------------------------------
Documentation & Recordkeeping:
    Strip and visual body cavity searches.....  115.15(e).......................             500              83
    Cross-gender pat-downs....................  115.15 (d)......................         444,000          37,000
    Reports and referrals of allegations......  115.22 (b), 115.51(c), 115.61                 50              25
                                                 (a).
    Detainee education........................  115.33 (c)......................         882,520          73,543
    Administrative segregation................  115.43 (a)......................             500             125
    Training records..........................  115.31(c), 115.32(c), 115.34(b),          37,550           3,129
                                                 115.35(c).
    Incident reviews..........................  115.86(a), 115.87(b)............              50             100
    Maintaining case records of allegations...  115.87(a).......................              50             100
Reporting Requirements:
    Reporting to other confinement facilities.  115.63 (c)......................              50               4
    Annual report for agency..................  115.86(b).......................              50              50
ICE Review of Facility Policies and
 Procedures:
    Medical staff training policy.............  115.35(c).......................              45             223
    Staff disciplinary policy.................  115.76(b).......................              45             223
    Administrative investigation policy.......  115.71(c), (d)..................              45             223
Provide Evidence of Background Investigation:
    Background Investigation Records..........  115.17(c), (d)..................          14,079           3,520
                                                                                 -------------------------------
        Total.................................  ................................       1,379,533         118,348
----------------------------------------------------------------------------------------------------------------

    If additional information is required contact: Alexander Y. 
Hartman; Office of Policy; U.S. Immigration and Customs Enforcement, 
Department of Homeland Security; Potomac Center North, 500 12th Street 
SW., Washington, DC 20536; Telephone: (202) 732-4292 (not a toll-free 
number).

List of Subjects in 6 CFR Part 115

    Administrative practice and procedure, Aliens, Immigration, 
Reporting and recordkeeping requirements.

    Accordingly, Part 115 of Title 6 of the Code of Federal Regulations 
is proposed to be added to read as follows:

PART 115--SEXUAL ABUSE AND ASSAULT PREVENTION STANDARDS

Sec.
115.5 General definitions.
115.6 Definitions related to sexual abuse and assault.

[[Page 75331]]

Subpart A--Standards for Immigration Detention Facilities Coverage
115.10 Coverage of DHS immigration detention facilities.

Prevention Planning

115.11 Zero tolerance of sexual abuse; Prevention of Sexual Abuse 
Coordinator.
115.12 Contracting with non-DHS entities for the confinement of 
detainees.
115.13 Detainee supervision and monitoring.
115.14 Juvenile and family detainees.
115.15 Limits to cross-gender viewing and searches.
115.16 Accommodating detainees with disabilities and detainees who 
are limited English proficient.
115.17 Hiring and promotion decisions.
115.18 Upgrades to facilities and technologies.

Responsive Planning

115.21 Evidence protocols and forensic medical examinations.
115.22 Policies to ensure investigation of allegations and 
appropriate agency oversight.

Training and Education

115.31 Staff training.
115.32 Volunteer and contractor training.
115.33 Detainee education.
115.34 Specialized training: Investigations.
115.35 Specialized training: Medical and mental health care.

Assessment for Risk of Sexual Victimization and Abusiveness

115.41 Assessment for risk of victimization and abusiveness.
115.42 Use of assessment information.
115.43 Protective custody.

Reporting

115.51 Detainee reporting.
115.52 Grievances.
115.53 Detainee access to outside confidential support services.
115.54 Third-party reporting.

Official Response Following a Detainee Report

115.61 Staff reporting duties.
115.62 Protection duties.
115.63 Reporting to other confinement facilities.
115.64 Responder duties.
115.65 Coordinated response.
115.66 Protection of detainees from contact with alleged abusers.
115.67 Agency protection against retaliation.
115.68 Post-allegation protective custody.

Investigations

115.71 Criminal and administrative investigations.
115.72 Evidentiary standard for administrative investigations.
115.73 Reporting to detainees.

Discipline

115.76 Disciplinary sanctions for staff.
115.77 Corrective action for contractors and volunteers.
115.78 Disciplinary sanctions for detainees.

Medical and Mental Care

115.81 Medical and mental health assessments; history of sexual 
abuse.
115.82 Access to emergency medical and mental health services.
115.83 Ongoing medical and mental health care for sexual abuse 
victims and abusers.

Data Collection and Review

115.86 Sexual abuse incident reviews.
115.87 Data collection.
115.88 Data review for corrective action.
115.89 Data storage, publication, and destruction.

Audits and Compliance

115.93 Audits of standards.

Additional Provisions in Agency Policies

115.95 Additional provisions in agency policies.
Subpart B--Standards for DHS Holding Facilities Coverage
115.110 Coverage of DHS holding facilities.

Prevention Planning

115.111 Zero tolerance of sexual abuse; Prevention of Sexual Abuse 
Coordinator.
115.112 Contracting with non-DHS entities for the confinement of 
detainees.
115.113 Detainee supervision and monitoring.
115.114 Juvenile and family detainees.
115.115 Limits to cross-gender viewing and searches.
115.116 Accommodating detainees with disabilities and detainees who 
are limited English proficient.
115.117 Hiring and promotion decisions.
115.118 Upgrades to facilities and technologies.

Responsive Planning

115.121 Evidence protocols and forensic medical examinations.
115.122 Policies to ensure investigation of allegations and 
appropriate agency oversight.

Training and Education

115.131 Employee, contractor, and volunteer training.
115.132 Notification to detainees of the agency's zero-tolerance 
policy.
115.133 [Reserved]
115.134 Specialized training: Investigations.

Assessment for Risk of Sexual Victimization and Abusiveness

115.141 Assessment for risk of victimization and abusiveness.

Reporting

115.151 Detainee reporting.
115.152 [Reserved]
115.153 [Reserved]
115.154 Third-party reporting.

Official Response Following a Detainee Report

115.161 Staff reporting duties.
115.162 Agency protection duties.
115.163 Reporting to other confinement facilities.
115.164 Responder duties.
115.165 Coordinated response.
115.166 Protection of detainees from contact with alleged abusers.
115.167 Agency protection against retaliation.

Investigations

115.171 Criminal and administrative investigations.
115.172 Evidentiary standard for administrative investigations.

Discipline

115.176 Disciplinary sanctions for staff.
115.177 Corrective action for contractors and volunteers.

Medical and Mental Care

115.181 [Reserved]
115.182 Access to emergency medical services.

Data Collection and Review

115.186 Sexual abuse incident reviews.
115.187 Data collection.
115.188 Data review for corrective action.
115.189 Data storage, publication, and destruction.

Audits and Compliance

115.193 Audits of standards.

Additional Provisions in Agency Policies

115.195 Additional provisions in agency policies.
Subpart C--External Auditing and Corrective Action
115.201 Scope of audits.
115.202 Auditor qualifications.
115.203 Audit contents and findings.
115.204 Audit corrective action plan.
115.205 Audit appeals.

    Authority: 5 U.S.C. 301, 552, 552a; 8 U.S.C. 1103, 1182, 1223, 
1224, 1225, 1226, 1227, 1228, 1231, 1251, 1253, 1255, 1330, 1362; 18 
U.S.C. 4002, 4013(c)(4); Pub. L. 107-296, 116 Stat. 2135 (6 U.S.C. 
101, et seq.); 8 CFR part 2.


Sec.  115.5  General definitions.

    For purposes of this part, the term--
    Agency means the unit or component of DHS responsible for operating 
or supervising any facility, or part of a facility, that confines 
detainees.
    Agency head means the principal official of an agency.
    Contractor means a person who or entity that provides services on a 
recurring basis pursuant to a contractual agreement with the agency or 
facility.
    Detainee means any person detained in an immigration detention 
facility or holding facility.
    Employee means a person who works directly for the agency.
    Exigent circumstances means any set of temporary and unforeseen 
circumstances that require immediate action in order to combat a threat 
to the security or institutional order of a facility or a threat to the 
safety or security of any person.

[[Page 75332]]

    Facility means a place, building (or part thereof), set of 
buildings, structure, or area (whether or not enclosing a building or 
set of buildings) that was built or retrofitted for the purpose of 
detaining individuals and is routinely used by the agency to detain 
individuals in its custody. References to requirements placed on 
facilities extend to the entity responsible for the direct operation of 
the facility.
    Facility head means the principal official responsible for a 
facility.
    Family unit means a group of detainees that includes one or more 
non-United States citizen juvenile(s) accompanied by his/her/their 
parent(s) or legal guardian(s), none of whom has a known history of 
criminal or delinquent activity, or of sexual abuse, violence or 
substance abuse.
    Gender nonconforming means having an appearance or manner that does 
not conform to traditional societal gender expectations.
    Holding facility means a facility that contains holding cells, cell 
blocks, or other secure enclosures that are:
    (1) Under the control of the agency; and
    (2) Primarily used for the short-term confinement of individuals 
who have recently been detained, or are being transferred to or from a 
court, jail, prison, other agency, or other unit of the facility or 
agency.
    Immigration detention facility means a confinement facility 
operated by or pursuant to contract with U.S. Immigration and Customs 
Enforcement (ICE) that routinely holds persons for over 24 hours 
pending resolution or completion of immigration removal operations or 
processes, including facilities that are operated by ICE, facilities 
that provide detention services under a contract awarded by ICE, or 
facilities used by ICE pursuant to an Intergovernmental Service 
Agreement.
    Intersex means having sexual or reproductive anatomy or chromosomal 
pattern that does not seem to fit typical definitions of male or 
female. Intersex medical conditions are sometimes referred to as 
disorders of sex development.
    Juvenile means any person under the age of 18.
    Law enforcement staff means officers or agents of the agency or 
facility that are responsible for the supervision and control of 
detainees in a holding facility.
    Medical practitioner means a health professional who, by virtue of 
education, credentials, and experience, is permitted by law to evaluate 
and care for patients within the scope of his or her professional 
practice. A ``qualified medical practitioner'' refers to such a 
professional who has also successfully completed specialized training 
for treating sexual abuse victims.
    Mental health practitioner means a mental health professional who, 
by virtue of education, credentials, and experience, is permitted by 
law to evaluate and care for patients within the scope of his or her 
professional practice. A ``qualified mental health practitioner'' 
refers to such a professional who has also successfully completed 
specialized training for treating sexual abuse victims.
    Pat-down search means a sliding or patting of the hands over the 
clothed body of a detainee by staff to determine whether the individual 
possesses contraband.
    Security staff means employees primarily responsible for the 
supervision and control of detainees in housing units, recreational 
areas, dining areas, and other program areas of an immigration 
detention facility.
    Staff means employees or contractors of the agency or facility, 
including any entity that operates within the facility.
    Strip search means a search that requires a person to remove or 
arrange some or all clothing so as to permit a visual inspection of the 
person's breasts, buttocks, or genitalia.
    Substantiated allegation means an allegation that was investigated 
and determined to have occurred.
    Transgender means a person whose gender identity (i.e., internal 
sense of feeling male or female) is different from the person's 
assigned sex at birth.
    Unfounded allegation means an allegation that was investigated and 
determined not to have occurred.
    Unsubstantiated allegation means an allegation that was 
investigated and the investigation produced insufficient evidence to 
make a final determination as to whether or not the event occurred.
    Volunteer means an individual who donates time and effort on a 
recurring basis to enhance the activities and programs of the agency or 
facility.


Sec.  115.6  Definitions related to sexual abuse and assault.

    For purposes of this part, the term--
    Sexual abuse includes--
    (1) Sexual abuse and assault of a detainee by another detainee; and
    (2) Sexual abuse and assault of a detainee by a staff member, 
contractor, or volunteer.
    Sexual abuse of a detainee by another detainee includes any of the 
following acts by one or more detainees, prisoners, inmates, or 
residents of the facility in which the detainee is housed who, by 
force, coercion, or intimidation, or if the victim did not consent or 
was unable to consent or refuse, engages in or attempts to engage in:
    (1) Contact between the penis and the vulva or anus and, for 
purposes of this subparagraph, contact involving the penis upon 
penetration, however slight;
    (2) Contact between the mouth and the penis, vulva or anus;
    (3) Penetration, however slight, of the anal or genital opening of 
another person by a hand or finger or by any object;
    (4) Touching of the genitalia, anus, groin, breast, inner thighs or 
buttocks, either directly or through the clothing, with an intent to 
abuse, humiliate, harass, degrade or arouse or gratify the sexual 
desire of any person; or
    (5) Threats, intimidation, or other actions or communications by 
one or more detainees aimed at coercing or pressuring another detainee 
to engage in a sexual act.
    Sexual abuse of a detainee by a staff member, contractor, or 
volunteer includes any of the following acts, if engaged in by one or 
more staff members, volunteers, or contract personnel who, with or 
without the consent of the detainee, engages in or attempts to engage 
in:
    (1) Contact between the penis and the vulva or anus and, for 
purposes of this subparagraph, contact involving the penis upon 
penetration, however slight;
    (2) Contact between the mouth and the penis, vulva, or anus;
    (3) Penetration, however slight, of the anal or genital opening of 
another person by a hand or finger or by any object that is unrelated 
to official duties or where the staff member, contractor, or volunteer 
has the intent to abuse, arouse, or gratify sexual desire;
    (4) Intentional touching of the genitalia, anus, groin, breast, 
inner thighs or buttocks, either directly or through the clothing, that 
is unrelated to official duties or where the staff member, contractor, 
or volunteer has the intent to abuse, arouse, or gratify sexual desire;
    (5) Threats, intimidation, harassment, indecent, profane or abusive 
language, or other actions or communications, aimed at coercing or 
pressuring a detainee to engage in a sexual act;
    (6) Repeated verbal statements or comments of a sexual nature to a 
detainee;
    (7) Any display of his or her uncovered genitalia, buttocks, or 
breast in the presence of an inmate, detainee, or resident, or
    (8) Unnecessary or inappropriate visual surveillance of a detainee.

[[Page 75333]]

Subpart A--Standards for Immigration Detention Facilities Coverage


Sec.  115.10  Coverage of DHS immigration detention facilities.

    This subpart covers ICE immigration detention facilities. Standards 
set forth in Subpart A are not applicable to Department of Homeland 
Security (DHS) holding facilities.

Prevention Planning


Sec.  115.11  Zero tolerance of sexual abuse; Prevention of Sexual 
Abuse Coordinator.

    (a) The agency shall have a written policy mandating zero tolerance 
toward all forms of sexual abuse and outlining the agency's approach to 
preventing, detecting, and responding to such conduct.
    (b) The agency shall employ or designate an upper-level, agency-
wide Prevention of Sexual Abuse Coordinator (PSA Coordinator) with 
sufficient time and authority to develop, implement, and oversee agency 
efforts to comply with these standards in all of its immigration 
detention facilities.
    (c) Each facility shall have a written policy mandating zero 
tolerance toward all forms of sexual abuse and outlining the facility's 
approach to preventing, detecting, and responding to such conduct. The 
agency shall review and approve each facility's written policy.
    (d) Each facility shall employ or designate a Prevention of Sexual 
Abuse Compliance Manager (PSA Compliance Manager) who shall serve as 
the facility point of contact for the agency PSA Coordinator and who 
has sufficient time and authority to oversee facility efforts to comply 
with facility sexual abuse prevention and intervention policies and 
procedures.


Sec.  115.12  Contracting with non-DHS entities for the confinement of 
detainees.

    (a) When contracting for the confinement of detainees in 
immigration detention facilities operated by non-DHS private or public 
agencies or other entities, including other government agencies, the 
agency shall include in any new contracts or contract renewals the 
entity's obligation to adopt and comply with these standards.
    (b) Any new contracts or contract renewals shall provide for agency 
contract monitoring to ensure that the contractor is complying with 
these standards.


Sec.  115.13  Detainee supervision and monitoring.

    (a) Each facility shall ensure that it maintains sufficient 
supervision of detainees, including through appropriate staffing levels 
and, where applicable, video monitoring, to protect detainees against 
sexual abuse.
    (b) Each facility shall develop and document comprehensive detainee 
supervision guidelines to determine and meet the facility's detainee 
supervision needs, and shall review those guidelines at least annually.
    (c) In determining adequate levels of detainee supervision and 
determining the need for video monitoring, the facility shall take into 
consideration the physical layout of each facility, the composition of 
the detainee population, the prevalence of substantiated and 
unsubstantiated incidents of sexual abuse, the findings and 
recommendations of sexual abuse incident review reports, and any other 
relevant factors, including but not limited to the length of time 
detainees spend in agency custody.
    (d) Each facility shall conduct frequent unannounced security 
inspections to identify and deter sexual abuse of detainees. Such 
inspections shall be implemented for night as well as day shifts. Each 
facility shall prohibit staff from alerting others that these 
supervisory rounds are occurring, unless such announcement is related 
to the legitimate operational functions of the facility.


Sec.  115.14  Juvenile and family detainees.

    (a) In general, juveniles should be detained in the least 
restrictive setting appropriate to the juvenile's age and special 
needs, provided that such setting is consistent with the need to 
protect the juvenile's well-being and that of others, as well as with 
any other laws, regulations, or legal requirements.
    (b) The facility shall hold juveniles apart from adult detainees, 
minimizing sight, sound, and physical contact, unless the juvenile is 
in the presence of an adult member of the family unit, and provided 
there are no safety or security concerns with the arrangement.
    (c) In determining the existence of a family unit for detention 
purposes, the agency shall seek to obtain reliable evidence of a family 
relationship.
    (d) The agency and facility shall provide priority attention to 
unaccompanied alien children as defined by 6 U.S.C. 279(g)(2), 
including transfer to a Department of Health and Human Services Office 
of Refugee Resettlement facility within 72 hours, except in exceptional 
circumstances, in accordance with 8 U.S.C. 1232(b)(3).
    (e) If a juvenile has been convicted as an adult of crime related 
to sexual abuse, the agency shall provide the facility and the 
Department of Health and Human Services Office of Refugee Resettlement 
with the releasable information regarding the conviction(s) to ensure 
the appropriate placement of the alien in a Department of Health and 
Human Services Office of Refugee Resettlement facility.


Sec.  115.15  Limits to cross-gender viewing and searches.

    (a) Searches may be necessary to ensure the safety of officers, 
civilians and detainees; to detect and secure evidence of criminal 
activity; and to promote security, safety, and related interests at 
immigration detention facilities.
    (b) Cross-gender pat-down searches of male detainees shall not be 
conducted unless, after reasonable diligence, staff of the same gender 
is not available at the time the pat-down search is required or in 
exigent circumstances.
    (c) Cross-gender pat-down searches of female detainees shall not be 
conducted unless in exigent circumstances.
    (d) All cross-gender pat-down searches shall be documented.
    (e) Cross-gender strip searches or cross-gender visual body cavity 
searches shall not be conducted except in exigent circumstances, 
including consideration of officer safety, or when performed by medical 
practitioners. Facility staff shall not conduct visual body cavity 
searches of juveniles and, instead, shall refer all such body cavity 
searches of juveniles to a medical practitioner.
    (f) All strip searches and visual body cavity searches shall be 
documented.
    (g) Each facility shall implement policies and procedures that 
enable detainees to shower, perform bodily functions, and change 
clothing without being viewed by staff of the opposite gender, except 
in exigent circumstances or when such viewing is incidental to routine 
cell checks or is otherwise appropriate in connection with a medical 
examination or monitored bowel movement. Such policies and procedures 
shall require staff of the opposite gender to announce their presence 
when entering an area where detainees are likely to be showering, 
performing bodily functions, or changing clothing.
    (h) The facility shall permit detainees in Family Residential 
Facilities to shower, perform bodily functions, and change clothing 
without being viewed by staff, except in exigent circumstances or when 
such viewing is incidental to routine cell checks or is otherwise 
appropriate in connection with a medical examination or monitored bowel 
movement.
    (i) The facility shall not search or physically examine a detainee 
for the sole purpose of determining the

[[Page 75334]]

detainee's gender. If the detainee's gender is unknown, it may be 
determined during conversations with the detainee, by reviewing medical 
records, or, if necessary, learning that information as part of a 
broader medical examination conducted in private, by a medical 
practitioner.
    (j) The agency shall train security staff in proper procedures for 
conducting pat-down searches, including cross-gender pat-down searches 
and searches of transgender and intersex detainees. All pat-down 
searches shall be conducted in a professional and respectful manner, 
and in the least intrusive manner possible, consistent with security 
needs and existing agency policy, including consideration of officer 
safety.


Sec.  115.16  Accommodating detainees with disabilities and detainees 
who are limited English proficient.

    (a) The agency and each facility shall take appropriate steps to 
ensure that detainees with disabilities (including, for example, 
detainees who are deaf or hard of hearing, those who are blind or have 
low vision, or those who have intellectual, psychiatric, or speech 
disabilities) have an equal opportunity to participate in or benefit 
from all aspects of the agency's and facility's efforts to prevent, 
detect, and respond to sexual abuse. Such steps shall include, when 
necessary to ensure effective communication with detainees who are deaf 
or hard of hearing, providing access to in-person, telephonic, or video 
interpretive services that enable effective, accurate, and impartial 
interpretation, both receptively and expressively, using any necessary 
specialized vocabulary. In addition, the agency and facility shall 
ensure that any written materials related to sexual abuse are provided 
in formats or through methods that ensure effective communication with 
detainees with disabilities, including detainees who have intellectual 
disabilities, limited reading skills, or who are blind or have low 
vision. An agency or facility is not required to take actions that it 
can demonstrate would result in a fundamental alteration in the nature 
of a service, program, or activity, or in undue financial and 
administrative burdens, as those terms are used in regulations 
promulgated under title II of the Americans with Disabilities Act, 28 
CFR 35.164.
    (b) The agency and each facility shall take steps to ensure 
meaningful access to all aspects of the agency's and facility's efforts 
to prevent, detect, and respond to sexual abuse to detainees who are 
limited English proficient, including steps to provide in-person or 
telephonic interpretive services that enable effective, accurate, and 
impartial interpretation, both receptively and expressively, using any 
necessary specialized vocabulary.
    (c) In matters relating to allegations of sexual abuse, the agency 
and each facility shall provide in-person or telephonic interpretation 
services that enable effective, accurate, and impartial interpretation, 
by someone other than another detainee, unless the detainee expresses a 
preference for a detainee interpreter, and the agency determines that 
such interpretation is appropriate. The provision of interpreter 
services by minors, alleged abusers, detainees who witnessed the 
alleged abuse, and detainees who have a significant relationship with 
the alleged abuser is not appropriate in matters relating to 
allegations of sexual abuse.


Sec.  115.17  Hiring and promotion decisions.

    (a) An agency or facility shall not hire or promote anyone who may 
have contact with detainees, and shall not enlist the services of any 
contractor or volunteer who may have contact with detainees, who has 
engaged in sexual abuse in a prison, jail, holding facility, community 
confinement facility, juvenile facility, or other institution (as 
defined in 42 U.S.C. 1997); who has been convicted of engaging or 
attempting to engage in sexual activity facilitated by force, overt or 
implied threats of force, or coercion, or if the victim did not consent 
or was unable to consent or refuse; or who has been civilly or 
administratively adjudicated to have engaged in such activity.
    (b) An agency or facility considering hiring or promoting staff 
shall ask all applicants who may have contact with detainees directly 
about previous misconduct described in paragraph (a) of this section, 
in written applications or interviews for hiring or promotions and in 
any interviews or written self-evaluations conducted as part of reviews 
of current employees. Agencies and facilities shall also impose upon 
employees a continuing affirmative duty to disclose any such 
misconduct. The agency, consistent with law, shall make its best 
efforts to contact all prior institutional employers of an applicant 
for employment, to obtain information on substantiated allegations of 
sexual abuse or any resignation during a pending investigation of 
alleged sexual abuse.
    (c) Before hiring new staff who may have contact with detainees, 
the agency or facility shall conduct a background investigation to 
determine whether the candidate for hire is suitable for employment 
with the facility or agency, including a criminal background records 
check. Upon request by the agency, the facility shall submit for the 
agency's approval written documentation showing the detailed elements 
of the facility's background check for each staff member and the 
facility's conclusions. The agency shall conduct an updated background 
investigation every five years for agency employees who may have 
contact with detainees. The facility shall require an updated 
background investigation every five years for those facility staff who 
may have contact with detainees and who work in immigration-only 
detention facilities.
    (d) The agency or facility shall also perform a background 
investigation before enlisting the services of any contractor who may 
have contact with detainees. Upon request by the agency, the facility 
shall submit for the agency's approval written documentation showing 
the detailed elements of the facility's background check for each 
contractor and the facility's conclusions.
    (e) Material omissions regarding such misconduct, or the provision 
of materially false information, shall be grounds for termination or 
withdrawal of an offer of employment, as appropriate.
    (f) Unless prohibited by law, the agency shall provide information 
on substantiated allegations of sexual abuse involving a former 
employee upon receiving a request from an institutional employer for 
whom such employee has applied to work.
    (g) In the event the agency contracts with a facility for the 
confinement of detainees, the requirements of this section otherwise 
applicable to the agency also apply to the facility and its staff.


Sec.  115.18  Upgrades to facilities and technologies.

    (a) When designing or acquiring any new facility and in planning 
any substantial expansion or modification of existing facilities, the 
facility or agency, as appropriate, shall consider the effect of the 
design, acquisition, expansion, or modification upon their ability to 
protect detainees from sexual abuse.
    (b) When installing or updating a video monitoring system, 
electronic surveillance system, or other monitoring technology in an 
immigration detention facility, the facility or agency, as appropriate, 
shall consider how such technology may enhance their ability to protect 
detainees from sexual abuse.

[[Page 75335]]

Responsive Planning


Sec.  115.21  Evidence protocols and forensic medical examinations.

    (a) To the extent that the agency or facility is responsible for 
investigating allegations of sexual abuse involving detainees, it shall 
follow a uniform evidence protocol that maximizes the potential for 
obtaining usable physical evidence for administrative proceedings and 
criminal prosecutions. The protocol shall be developed in coordination 
with DHS and shall be developmentally appropriate for juveniles, where 
applicable.
    (b) The agency and each facility developing an evidence protocol 
referred to in paragraph (a) of this section, shall consider how best 
to utilize available community resources and services to provide 
valuable expertise and support in the areas of crisis intervention and 
counseling to most appropriately address victims' needs. Each facility 
shall establish procedures to make available, to the full extent 
possible, outside victim services following incidents of sexual abuse; 
the facility shall attempt to make available to the victim a victim 
advocate from a rape crisis center. If a rape crisis center is not 
available to provide victim advocate services, the agency shall provide 
these services by making available a qualified staff member from a 
community-based organization, or a qualified agency staff member. A 
qualified agency staff member or a qualified community-based staff 
member means an individual who has received education concerning sexual 
assault and forensic examination issues in general. The outside or 
internal victim advocate shall provide emotional support, crisis 
intervention, information, and referrals.
    (c) Where evidentiarily or medically appropriate, at no cost to the 
detainee, and only with the detainee's consent, the facility shall 
arrange for an alleged victim detainee to undergo a forensic medical 
examination by qualified health care personnel.
    (d) As requested by a victim, the presence of his or her outside or 
internal victim advocate, including any available victim advocacy 
services offered by a hospital conducting a forensic exam, shall be 
allowed for support during a forensic exam and investigatory 
interviews.
    (e) To the extent that the agency is not responsible for 
investigating allegations of sexual abuse, the agency or the facility 
shall request that the investigating agency follow the requirements of 
paragraphs (a) through (d) of this section.


Sec.  115.22  Policies to ensure investigation of allegations and 
appropriate agency oversight.

    (a) The agency shall establish an agency protocol, and shall 
require each facility to establish a facility protocol, to ensure that 
each allegation of sexual abuse is investigated by the agency or 
facility, or referred to an appropriate investigative authority. The 
agency shall ensure that an administrative or criminal investigation is 
completed for all allegations of sexual abuse.
    (b) The agency shall ensure that the agency and facility protocols 
required by paragraph (a) of this section, include a description of 
responsibilities of the agency, the facility, and any other 
investigating entities; and require the documentation and maintenance, 
for at least five years, of all reports and referrals of allegations of 
sexual abuse.
    (c) The agency shall post its protocols on its Web site; each 
facility shall also post its protocols on its Web site, if it has one, 
or otherwise make the protocol available to the public.
    (d) Each facility protocol shall ensure that all allegations are 
promptly reported to the agency as described in paragraphs (e) and (f) 
of this section, and, unless the allegation does not involve 
potentially criminal behavior, are promptly referred for investigation 
to an appropriate law enforcement agency with the legal authority to 
conduct criminal investigations. A facility may separately, and in 
addition to the above reports and referrals, conduct its own 
investigation.
    (e) When a detainee, prisoner, inmate, or resident of the facility 
in which an alleged detainee victim is housed is alleged to be the 
perpetrator of detainee sexual abuse, the facility shall ensure that 
the incident is promptly reported to the Joint Intake Center, the ICE 
Office of Professional Responsibility or the DHS Office of Inspector 
General, as well as the appropriate ICE Field Office Director, and, if 
it is potentially criminal, referred to an appropriate law enforcement 
agency having jurisdiction for investigation.
    (f) When a staff member, contractor, or volunteer is alleged to be 
the perpetrator of detainee sexual abuse, the facility shall ensure 
that the incident is promptly reported to the Joint Intake Center, the 
ICE Office of Professional Responsibility or the DHS Office of 
Inspector General, as well as to the appropriate ICE Field Office 
Director, and to the local government entity or contractor that owns or 
operates the facility. If the incident is potentially criminal, the 
facility shall ensure that it is promptly referred to an appropriate 
law enforcement agency having jurisdiction for investigation.
    (g) The agency shall ensure that all allegations of detainee sexual 
abuse are promptly reported to the PSA Coordinator, and to the 
appropriate offices within the agency and within DHS to ensure 
appropriate oversight of the investigation.
    (h) The agency shall ensure that any alleged detainee victim of 
sexual abuse that is criminal in nature is provided access to U 
nonimmigrant visa information.

Training and Education


Sec.  115.31  Staff training.

    (a) The agency shall train, or require the training of, all 
employees who may have contact with immigration detainees, and all 
facility staff, to be able to fulfill their responsibilities under this 
part, including training on:
    (1) The agency's and the facility's zero-tolerance policies for all 
forms of sexual abuse;
    (2) The right of detainees and staff to be free from sexual abuse, 
and from retaliation for reporting sexual abuse;
    (3) Definitions and examples of prohibited and illegal sexual 
behavior;
    (4) Recognition of situations where sexual abuse may occur;
    (5) Recognition of physical, behavioral, and emotional signs of 
sexual abuse, and methods of preventing and responding to such 
occurrences;
    (6) How to avoid inappropriate relationships with detainees;
    (7) How to communicate effectively and professionally with 
detainees, including lesbian, gay, bisexual, transgender, intersex, or 
gender nonconforming detainees;
    (8) Procedures for reporting knowledge or suspicion of sexual 
abuse; and
    (9) The requirement to limit reporting of sexual abuse to personnel 
with a need-to-know in order to make decisions concerning the victim's 
welfare and for law enforcement or investigative purposes.
    (b) All current facility staff, and all agency employees who may 
have contact with immigration detention facility detainees, shall be 
trained within one year of [EFFECTIVE DATE OF FINAL RULE], and the 
agency or facility shall provide refresher information every two years.
    (c) The agency and each facility shall document that staff that may 
have contact with immigration facility detainees have completed the 
training.

[[Page 75336]]

Sec.  115.32  Volunteer and contractor training.

    (a) The facility shall ensure that all volunteers and contractors 
who have contact with detainees have been trained on their 
responsibilities under the agency's and the facility's sexual abuse 
prevention, detection, intervention and response policies and 
procedures.
    (b) The level and type of training provided to volunteers and 
contractors shall be based on the services they provide and level of 
contact they have with detainees, but all volunteers and contractors 
who have contact with detainees shall be notified of the agency's and 
the facility's zero-tolerance policies regarding sexual abuse and 
informed how to report such incidents.
    (c) Each facility shall receive and maintain written confirmation 
that contractors and volunteers who may have contact with immigration 
facility detainees have completed the training.


Sec.  115.33  Detainee education.

    (a) During the intake process, each facility shall ensure that the 
detainee orientation program notifies and informs detainees about the 
agency's and the facility's zero-tolerance policies for all forms of 
sexual abuse and includes (at a minimum) instruction on:
    (1) Prevention and intervention strategies;
    (2) Definitions and examples of detainee-on-detainee sexual abuse, 
staff-on-detainee sexual abuse and coercive sexual activity;
    (3) Explanation of methods for reporting sexual abuse, including to 
any staff member, including a staff member other than an immediate 
point-of-contact line officer (e.g., the compliance manager or a mental 
health specialist), the DHS Office of Inspector General, and the Joint 
Intake Center;
    (4) Information about self-protection and indicators of sexual 
abuse;
    (5) Prohibition against retaliation, including an explanation that 
reporting sexual abuse shall not negatively impact the detainee's 
immigration proceedings; and
    (6) The right of a detainee who has been subjected to sexual abuse 
to receive treatment and counseling.
    (b) Each facility shall provide the detainee notification, 
orientation, and instruction in formats accessible to all detainees, 
including those who are limited English proficient, deaf, visually 
impaired or otherwise disabled, as well as to detainees who have 
limited reading skills.
    (c) The facility shall maintain documentation of detainee 
participation in the intake process orientation.
    (d) Each facility shall post on all housing unit bulletin boards 
the following notices:
    (1) The DHS-prescribed sexual assault awareness notice;
    (2) The name of the Prevention of Sexual Abuse Compliance Manager; 
and
    (3) The name of local organizations that can assist detainees who 
have been victims of sexual abuse.
    (e) The facility shall make available and distribute the DHS-
prescribed ``Sexual Assault Awareness Information'' pamphlet.
    (f) Information about reporting sexual abuse shall be included in 
the agency Detainee Handbook made available to all immigration 
detention facility detainees.


Sec.  115.34  Specialized training: Investigations.

    (a) In addition to the general training provided to all facility 
staff and employees pursuant to Sec.  115.31, the agency or facility 
shall provide specialized training on sexual abuse and effective cross-
agency coordination to agency or facility investigators, respectively, 
who conduct investigations into allegations of sexual abuse at 
immigration detention facilities. All investigations into alleged 
sexual abuse must be conducted by qualified investigators.
    (b) The agency and facility must maintain written documentation 
verifying specialized training provided to investigators pursuant to 
this paragraph.


Sec.  115.35  Specialized training: Medical and mental health care.

    (a) The agency shall provide specialized training to DHS or agency 
employees who serve as full- and part-time medical practitioners or 
full- and part-time mental health practitioners in immigration 
detention facilities where medical and mental health care is provided.
    (b) The training required by this section shall cover, at a 
minimum, the following topics:
    (1) How to detect and assess signs of sexual abuse;
    (2) How to respond effectively and professionally to victims of 
sexual abuse,
    (3) How and to whom to report allegations or suspicions of sexual 
abuse, and
    (4) How to preserve physical evidence of sexual abuse. If medical 
staff employed by the agency conduct forensic examinations, such 
medical staff shall receive the appropriate training to conduct such 
examinations.
    (c) The agency shall review and approve the facility's policy and 
procedures to ensure that facility medical staff is trained in 
procedures for examining and treating victims of sexual abuse, in 
facilities where medical staff may be assigned these activities.

Assessment for Risk of Sexual Victimization and Abusiveness


Sec.  115.41  Assessment for risk of victimization and abusiveness.

    (a) The facility shall assess all detainees on intake to identify 
those likely to be sexual aggressors or sexual victims and shall house 
detainees to prevent sexual abuse, taking necessary steps to mitigate 
any such danger. Each new arrival shall be kept separate from the 
general population until he/she is classified and may be housed 
accordingly.
    (b) The initial classification process and initial housing 
assignment should be completed within twelve hours of admission to the 
facility.
    (c) The facility shall also consider, to the extent that the 
information is available, the following criteria to assess detainees 
for risk of sexual victimization:
    (1) Whether the detainee has a mental, physical, or developmental 
disability;
    (2) The age of the detainee;
    (3) The physical build and appearance of the detainee;
    (4) Whether the detainee has previously been incarcerated;
    (5) The nature of the detainee's criminal history;
    (6) Whether the detainee has any convictions for sex offenses 
against an adult or child;
    (7) Whether the detainee has self-identified as gay, lesbian, 
bisexual, transgender, intersex, or gender nonconforming;
    (8) Whether the detainee has self-identified as having previously 
experienced sexual victimization; and
    (9) The detainee's own concerns about his or her physical safety.
    (d) The initial screening shall consider prior acts of sexual 
abuse, prior convictions for violent offenses, and history of prior 
institutional violence or sexual abuse, as known to the facility, in 
assessing detainees for risk of being sexually abusive.
    (e) The facility shall reassess each detainee's risk of 
victimization or abusiveness between 60 and 90 days from the date of 
initial assessment, and at any other time when warranted based upon the 
receipt of additional, relevant information or following an incident of 
abuse or victimization.
    (f) Detainees shall not be disciplined for refusing to answer, or 
for not disclosing complete information in

[[Page 75337]]

response to, questions asked pursuant to paragraphs (c)(1), (c)(7), 
(c)(8), or (c)(9) of this section.
    (g) The facility shall implement appropriate controls on the 
dissemination within the facility of responses to questions asked 
pursuant to this standard in order to ensure that sensitive information 
is not exploited to the detainee's detriment by staff or other 
detainees or inmates.


Sec.  115.42  Use of assessment information.

    (a) The facility shall use the information from the risk assessment 
under Sec.  115.41 of this part to inform assignment of detainees to 
housing, recreation and other activities, and voluntary work. The 
agency shall make individualized determinations about how to ensure the 
safety of each detainee.
    (b) When making assessment and housing decisions for a transgender 
or intersex detainee, the facility shall consider the detainee's gender 
self-identification and an assessment of the effects of placement on 
the detainee's health and safety. The facility shall consult a medical 
or mental health professional as soon as practicable on this 
assessment. The facility should not base placement decisions of 
transgender or intersex detainees solely on the identity documents or 
physical anatomy of the detainee; a detainee's self-identification of 
his/her gender and self-assessment of safety needs shall always be 
taken into consideration as well. The facility's placement of a 
transgender or intersex detainee shall be consistent with the safety 
and security considerations of the facility, and placement and 
programming assignments for each transgender or intersex detainee shall 
be reassessed at least twice each year to review any threats to safety 
experienced by the detainee.
    (c) When operationally feasible, transgender and intersex detainees 
shall be given the opportunity to shower separately from other 
detainees.


Sec.  115.43  Protective custody.

    (a) The facility shall develop and follow written procedures 
consistent with the standards in this Subpart A for each facility 
governing the management of its administrative segregation unit. These 
procedures, which should be developed in consultation with the ICE 
Enforcement and Removal Operations Field Operations Director having 
jurisdiction for the facility, must document detailed reasons for 
placement of an individual in administrative segregation.
    (b) Use of administrative segregation by facilities to protect 
vulnerable detainees shall be restricted to those instances where 
reasonable efforts have been made to provide appropriate housing and 
shall be made for the least amount of time practicable, and when no 
other viable housing options exist, as a last resort. The facility 
should assign such detainees to administrative segregation for 
protective custody only until an alternative means of separation from 
likely abusers can be arranged, and such an assignment shall not 
ordinarily exceed a period of 30 days.
    (c) Facilities that place detainees in administrative segregation 
for protective custody shall provide those detainees access to 
programs, visitation, counsel and other services available to the 
general population to the maximum extent practicable.
    (d) Facilities shall implement written procedures for the regular 
review of all detainees held in administrative segregation, as follows:
    (1) A supervisory staff member shall conduct a review within 72 
hours of the detainee's placement in administrative segregation to 
determine whether segregation is still warranted; and
    (2) A supervisory staff member shall conduct, at a minimum, an 
identical review after the detainee has spent seven days in 
administrative segregation, and every week thereafter for the first 30 
days, and every 10 days thereafter.

Reporting


Sec.  115.51  Detainee reporting.

    (a) The agency and each facility shall develop policies and 
procedures to ensure that detainees have multiple ways to privately 
report sexual abuse, retaliation for reporting sexual abuse, or staff 
neglect or violations of responsibilities that may have contributed to 
such incidents. The agency and each facility shall also provide 
instructions on how detainees may contact their consular official, the 
DHS Office of the Inspector General or, as appropriate, another 
designated office, to confidentially and, if desired, anonymously, 
report these incidents.
    (b) The agency shall also provide, and the facility shall inform 
the detainees of, at least one way for detainees to report sexual abuse 
to a public or private entity or office that is not part of the agency, 
and that is able to receive and immediately forward detainee reports of 
sexual abuse to agency officials, allowing the detainee to remain 
anonymous upon request.
    (c) Facility policies and procedures shall include provisions for 
staff to accept reports made verbally, in writing, anonymously, and 
from third parties and to promptly document any verbal reports.


Sec.  115.52  Grievances.

    (a) The facility shall permit a detainee to file a formal grievance 
related to sexual abuse at any time during, after, or in lieu of 
lodging an informal grievance or complaint.
    (b) The facility shall not impose a time limit on when a detainee 
may submit a grievance regarding an allegation of sexual abuse.
    (c) The facility shall implement written procedures for identifying 
and handling time-sensitive grievances that involve an immediate threat 
to detainee health, safety, or welfare related to sexual abuse.
    (d) Facility staff shall bring medical emergencies to the immediate 
attention of proper medical personnel for further assessment.
    (e) The facility shall issue a decision on the grievance within 
five days of receipt.
    (f) To prepare a grievance, a detainee may obtain assistance from 
another detainee, the housing officer or other facility staff, family 
members, or legal representatives. Staff shall take reasonable steps to 
expedite requests for assistance from these other parties.


Sec.  115.53  Detainee access to outside confidential support services.

    (a) Each facility shall utilize available community resources and 
services to provide valuable expertise and support in the areas of 
crisis intervention, counseling, investigation and the prosecution of 
sexual abuse perpetrators to most appropriately address victims' needs. 
The facility shall maintain or attempt to enter into memoranda of 
understanding or other agreements with community service providers or, 
if local providers are not available, with national organizations that 
provide legal advocacy and confidential emotional support services for 
immigrant victims of crime.
    (b) Each facility's written policies shall establish procedures to 
include outside agencies in the facility's sexual abuse prevention and 
intervention protocols, if such resources are available.
    (c) Each facility shall make available to detainees information 
about local organizations that can assist detainees who have been 
victims of sexual abuse, including mailing addresses and telephone 
numbers (including toll-free hotline numbers where available). If no 
such local organizations exist, the facility shall make available the 
same

[[Page 75338]]

information about national organizations. The facility shall enable 
reasonable communication between detainees and these organizations and 
agencies, in as confidential a manner as possible.


Sec.  115.54  Third-party reporting.

    Each facility shall establish a method to receive third-party 
reports of sexual abuse in its immigration detention facilities and 
shall make available to the public information on how to report sexual 
abuse on behalf of a detainee.

Official Response Following a Detainee Report


Sec.  115.61  Staff reporting duties.

    (a) The agency and each facility shall require all staff to report 
immediately and according to agency policy any knowledge, suspicion, or 
information regarding an incident of sexual abuse that occurred in a 
facility; retaliation against detainees or staff who reported such an 
incident; and any staff neglect or violation of responsibilities that 
may have contributed to an incident or retaliation. The agency shall 
review and approve facility policies and procedures and shall ensure 
that the facility specifies appropriate reporting procedures, including 
a method by which staff can report outside of the chain of command.
    (b) Staff members who become aware of alleged sexual abuse shall 
immediately follow the reporting requirements set forth in the agency's 
and facility's written policies and procedures.
    (c) Apart from such reporting, staff shall not reveal any 
information related to a sexual abuse report to anyone other than to 
the extent necessary to help protect the safety of the victim or 
prevent further victimization of other detainees or staff in the 
facility, make medical treatment, investigation, law enforcement, or 
other security and management decisions.
    (d) If the alleged victim is under the age of 18 or considered a 
vulnerable adult under a State or local vulnerable persons statute, the 
agency shall report the allegation to the designated State or local 
services agency under applicable mandatory reporting laws.


Sec.  115.62  Protection duties.

    If an agency employee or facility staff member has a reasonable 
belief that a detainee is subject to a substantial risk of imminent 
sexual abuse, he or she shall take immediate action to protect the 
detainee.


Sec.  115.63  Reporting to other confinement facilities.

    (a) Upon receiving an allegation that a detainee was sexually 
abused while confined at another facility, the agency or facility whose 
staff received the allegation shall notify the appropriate office of 
the facility where the alleged abuse occurred.
    (b) The notification provided in paragraph (a) of this section 
shall be provided as soon as possible, but no later than 72 hours after 
receiving the allegation.
    (c) The agency or facility shall document that it has provided such 
notification.
    (d) The agency or facility office that receives such notification, 
to the extent the facility is covered by this subpart, shall ensure 
that the allegation is referred for investigation in accordance with 
these standards and reported to the appropriate ICE Field Office 
Director.


Sec.  115.64  Responder duties.

    (a) Upon learning of an allegation that a detainee was sexually 
abused, the first security staff member to respond to the report, or 
his or her supervisor, shall be required to:
    (1) Separate the alleged victim and abuser;
    (2) Preserve and protect, to the greatest extent possible, any 
crime scene until appropriate steps can be taken to collect any 
evidence;
    (3) If the abuse occurred within a time period that still allows 
for the collection of physical evidence, request the alleged victim not 
to take any actions that could destroy physical evidence, including, as 
appropriate, washing, brushing teeth, changing clothes, urinating, 
defecating, smoking, drinking, or eating; and
    (4) If the sexual abuse occurred within a time period that still 
allows for the collection of physical evidence, ensure that the alleged 
abuser does not take any actions that could destroy physical evidence, 
including, as appropriate, washing, brushing teeth, changing clothes, 
urinating, defecating, smoking, drinking, or eating.
    (b) If the first staff responder is not a security staff member, 
the responder shall be required to request that the alleged victim not 
take any actions that could destroy physical evidence and then notify 
security staff.


Sec.  115.65  Coordinated response.

    (a) Each facility shall develop a written institutional plan to 
coordinate actions taken by staff first responders, medical and mental 
health practitioners, investigators, and facility leadership in 
response to an incident of sexual abuse.
    (b) Each facility shall use a coordinated, multidisciplinary team 
approach to responding to sexual abuse.
    (c) If a victim of sexual abuse is transferred between DHS 
immigration detention facilities, the sending facility shall, as 
permitted by law, inform the receiving facility of the incident and the 
victim's potential need for medical or social services.
    (d) If a victim is transferred from a DHS immigration detention 
facility to a non-DHS facility, the sending facility shall, as 
permitted by law, inform the receiving facility of the incident and the 
victim's potential need for medical or social services, unless the 
victim requests otherwise.


Sec.  115.66  Protection of detainees from contact with alleged 
abusers.

    Staff, contractors, and volunteers suspected of perpetrating sexual 
abuse shall be removed from all duties requiring detainee contact 
pending the outcome of an investigation.


Sec.  115.67  Agency protection against retaliation.

    Staff, contractors, and volunteers, and immigration detention 
facility detainees, shall not retaliate against any person, including a 
detainee, who reports, complains about, or participates in an 
investigation into an allegation of sexual abuse, or for participating 
in sexual activity as a result of force, coercion, threats, or fear of 
force. For at least 90 days following a report of sexual abuse, the 
agency and facility shall monitor to see if there are facts that may 
suggest possible retaliation by detainees or staff, and shall act 
promptly to remedy any such retaliation. Items the agency should 
monitor include any detainee disciplinary reports, housing, or program 
changes, or negative performance reviews or reassignments of staff. DHS 
shall continue such monitoring beyond 90 days if the initial monitoring 
indicates a continuing need.


Sec.  115.68  Post-allegation protective custody.

    (a) The facility shall take care to place detainee victims of 
sexual abuse in a supportive environment that represents the least 
restrictive housing option possible (e.g., protective custody), subject 
to the requirements of Sec.  115.43.
    (b) Detainee victims shall not be held for longer than five days in 
any type of administrative segregation, except in unusual circumstances 
or at the request of the detainee.
    (c) A detainee victim who is in protective custody after having 
been subjected to sexual abuse shall not be returned to the general 
population until

[[Page 75339]]

completion of a proper re-assessment, taking into consideration any 
increased vulnerability of the detainee as a result of the sexual 
abuse.

Investigations


Sec.  115.71  Criminal and administrative investigations.

    (a) If the facility has responsibility for investigating 
allegations of sexual abuse, all investigations into alleged sexual 
abuse must be prompt, thorough, objective, and conducted by specially 
trained, qualified investigators.
    (b) Upon conclusion of a criminal investigation where the 
allegation was substantiated, an administrative investigation shall be 
conducted. Upon conclusion of a criminal investigation where the 
allegation was unsubstantiated, the facility shall review any available 
completed criminal investigation reports to determine whether an 
administrative investigation is necessary or appropriate. 
Administrative investigations shall be conducted after consultation 
with the appropriate investigative office within DHS, and the assigned 
criminal investigative entity.
    (c)(1) The facility shall develop written procedures for 
administrative investigations, including provisions requiring:
    (i) Preservation of direct and circumstantial evidence, including 
any available physical and DNA evidence and any available electronic 
monitoring data;
    (ii) Interviewing alleged victims, suspected perpetrators, and 
witnesses;
    (iii) Reviewing prior complaints and reports of sexual abuse 
involving the suspected perpetrator;
    (iv) Assessment of the credibility of an alleged victim, suspect, 
or witness, without regard to the individual's status as detainee, 
staff, or employee, and without requiring any detainee who alleges 
sexual abuse to submit to a polygraph;
    (v) An effort to determine whether actions or failures to act at 
the facility contributed to the abuse; and
    (vi) Documentation of each investigation by written report, which 
shall include a description of the physical and testimonial evidence, 
the reasoning behind credibility assessments, and investigative facts 
and findings; and
    (vii) Retention of such reports for as long as the alleged abuser 
is detained or employed by the agency or facility, plus five years.
    (2) Such procedures shall govern the coordination and sequencing of 
the two types of investigations, in accordance with paragraph (b) of 
this section, to ensure that the criminal investigation is not 
compromised by an internal administrative investigation.
    (d) The agency shall review and approve the facility policy and 
procedures for coordination and conduct of internal administrative 
investigations with the assigned criminal investigative entity to 
ensure non-interference with criminal investigations.
    (e) The departure of the alleged abuser or victim from the 
employment or control of the facility or agency shall not provide a 
basis for terminating an investigation.
    (f) When outside agencies investigate sexual abuse, the facility 
shall cooperate with outside investigators and shall endeavor to remain 
informed about the progress of the investigation.


Sec.  115.72  Evidentiary standard for administrative investigations.

    When an administrative investigation is undertaken, the agency 
shall impose no standard higher than a preponderance of the evidence in 
determining whether allegations of sexual abuse are substantiated.


Sec.  115.73  Reporting to detainees.

    The agency shall, when the detainee is still in immigration 
detention, or where otherwise feasible, following an investigation into 
a detainee's allegation of sexual abuse, notify the detainee as to the 
result of the investigation and any responsive action taken.

Discipline


Sec.  115.76  Disciplinary sanctions for staff.

    (a) Staff shall be subject to disciplinary or adverse action up to 
and including removal from their position and the Federal service for 
substantiated allegations of sexual abuse or for violating agency or 
facility sexual abuse policies.
    (b) The agency shall review and approve facility policies and 
procedures regarding disciplinary or adverse actions for staff and 
shall ensure that the facility policy and procedures specify 
disciplinary or adverse actions for staff, up to and including removal 
from their position and from the Federal service, when there is a 
substantiated allegation of sexual abuse, or when there has been a 
violation of agency sexual abuse rules, policies, or standards. Removal 
from their position and from the Federal service is the presumptive 
disciplinary sanction for staff who have engaged in or attempted or 
threatened to engage in sexual abuse, as defined under paragraphs (1) 
through (4), (7), and (8) of the definition of sexual abuse of a 
detained by a staff member, contractor, or volunteer in Sec.  115.6 of 
this part.
    (c) Each facility shall report all removals or resignations in lieu 
of removal for violations of agency or facility sexual abuse policies 
to appropriate law enforcement agencies, unless the activity was 
clearly not criminal.
    (d) Each facility shall make reasonable efforts to report removals 
or resignations in lieu of removal for violations of agency or facility 
sexual abuse policies to any relevant licensing bodies, to the extent 
known.


Sec.  115.77  Corrective action for contractors and volunteers.

    (a) Any contractor or volunteer who has engaged in sexual abuse 
shall be prohibited from contact with detainees. Each facility shall 
make reasonable efforts to report to any relevant licensing body, to 
the extent known, incidents of substantiated sexual abuse by a 
contractor or volunteer. Such incidents shall also be reported to law 
enforcement agencies, unless the activity was clearly not criminal.
    (b) Contractors and volunteers suspected of perpetrating sexual 
abuse shall be removed from all duties requiring detainee contact 
pending the outcome of an investigation.
    (c) The facility shall take appropriate remedial measures, and 
shall consider whether to prohibit further contact with detainees by 
contractors or volunteers who have not engaged in sexual abuse, but 
have violated other provisions within these standards.


Sec.  115.78  Disciplinary sanctions for detainees.

    (a) Each facility shall subject a detainee to disciplinary 
sanctions pursuant to a formal disciplinary process following an 
administrative or criminal finding that the detainee engaged in sexual 
abuse.
    (b) At all steps in the disciplinary process provided in paragraph 
(a), any sanctions imposed shall be commensurate with the severity of 
the committed prohibited act and intended to encourage the detainee to 
conform with rules and regulations in the future.
    (c) Each facility holding detainees in custody shall have a 
detainee disciplinary system with progressive levels of reviews, 
appeals, procedures, and documentation procedure.
    (d) The disciplinary process shall consider whether a detainee's 
mental disabilities or mental illness contributed to his or her 
behavior when determining what type of sanction, if any, should be 
imposed.
    (e) The facility shall not discipline a detainee for sexual contact 
with staff

[[Page 75340]]

unless there is a finding that the staff member did not consent to such 
contact.
    (f) For the purpose of disciplinary action, a report of sexual 
abuse made in good faith based upon a reasonable belief that the 
alleged conduct occurred shall not constitute falsely reporting an 
incident or lying, even if an investigation does not establish evidence 
sufficient to substantiate the allegation.

Medical and Mental Care


Sec.  115.81  Medical and mental health assessments; history of sexual 
abuse.

    (a) If the assessment pursuant to Sec.  115.41 of this part 
indicates that a detainee has experienced prior sexual victimization or 
perpetrated sexual abuse, staff shall ensure, subject to the 
circumstances surrounding the indication, that the detainee is 
immediately referred to a qualified medical or mental health 
practitioner for medical and/or mental health follow-up as appropriate.
    (b) When a referral for medical follow-up is initiated, the 
detainee shall receive a health evaluation no later than two working 
days from the date of assessment.
    (c) When a referral for mental health follow-up is initiated, the 
detainee shall receive a mental health evaluation no later than 72 
hours after the referral.


Sec.  115.82  Access to emergency medical and mental health services.

    (a) Detainee victims of sexual abuse in immigration detention 
facilities shall have timely, unimpeded access to emergency medical 
treatment and crisis intervention services, including emergency 
contraception and sexually transmitted infections prophylaxis, in 
accordance with professionally accepted standards of care, where 
appropriate under medical or mental health professional standards.
    (b) Emergency medical treatment services provided to the victim 
shall be without financial cost and regardless of whether the victim 
names the abuser or cooperates with any investigation arising out of 
the incident.


Sec.  115.83  Ongoing medical and mental health care for sexual abuse 
victims and abusers.

    (a) Each facility shall offer medical and mental health evaluation 
and, as appropriate, treatment to all detainees who have been 
victimized by sexual abuse while in immigration detention.
    (b) The evaluation and treatment of such victims shall include, as 
appropriate, follow-up services, treatment plans, and, when necessary, 
referrals for continued care following their transfer to, or placement 
in, other facilities, or their release from custody.
    (c) The facility shall provide such victims with medical and mental 
health services consistent with the community level of care.
    (d) Detainee victims of sexually abusive vaginal penetration by a 
male abuser while incarcerated shall be offered pregnancy tests. If 
pregnancy results from an instance of sexual abuse, the victim shall 
receive timely and comprehensive information about lawful pregnancy-
related medical services and timely access to all lawful pregnancy-
related medical services.
    (e) Detainee victims of sexual abuse while detained shall be 
offered tests for sexually transmitted infections as medically 
appropriate.
    (f) Treatment services shall be provided to the victim without 
financial cost and regardless of whether the victim names the abuser or 
cooperates with any investigation arising out of the incident.
    (g) The facility shall attempt to conduct a mental health 
evaluation of all known detainee-on-detainee abusers within 60 days of 
learning of such abuse history and offer treatment when deemed 
appropriate by mental health practitioners.

Data Collection and Review


Sec.  115.86  Sexual abuse incident reviews.

    (a) Each facility shall conduct a sexual abuse incident review at 
the conclusion of every investigation of sexual abuse and, where the 
allegation was not determined to be unfounded, prepare a written report 
recommending whether the allegation or investigation indicates that a 
change in policy or practice could better prevent, detect, or respond 
to sexual abuse. The facility shall implement the recommendations for 
improvement, or shall document its reasons for not doing so in a 
written response. Both the report and response shall be forwarded to 
the agency PSA Coordinator.
    (b) Each facility shall conduct an annual review of all sexual 
abuse investigations and resulting incident reviews to assess and 
improve sexual abuse intervention, prevention and response efforts. The 
results and findings of the annual review shall be provided to the 
agency PSA Coordinator.


Sec.  115.87  Data collection.

    (a) Each facility shall maintain all case records associated with 
claims of sexual abuse, including incident reports, investigative 
reports, offender information, case disposition, medical and counseling 
evaluation findings, and recommendations for post-release treatment, if 
necessary, and/or counseling in accordance with these standards and 
applicable agency policies, and in accordance with established 
schedules. The DHS Office of Inspector General shall maintain the 
official investigative file related to claims of sexual abuse 
investigated by the DHS Office of Inspector General.
    (b) On an ongoing basis, the PSA Coordinator shall work with 
relevant facility PSA Compliance Managers and DHS entities to share 
data regarding effective agency response methods to sexual abuse.
    (c) On a regular basis, the PSA Coordinator shall prepare a report 
for ICE leadership compiling information received about all incidents 
or allegations of sexual abuse of detainees in immigration detention 
during the period covered by the report, as well as ongoing 
investigations and other pending cases.
    (d) On an annual basis, the PSA Coordinator shall aggregate, in a 
manner that will facilitate the agency's ability to detect possible 
patterns and help prevent future incidents, the incident-based sexual 
abuse data, including the number of reported sexual abuse allegations 
determined to be substantiated, unsubstantiated, or unfounded, or for 
which investigation is ongoing, and for each incident found to be 
substantiated, information concerning:
    (1) The date, time, location, and nature of the incident;
    (2) The demographic background of the victim and perpetrator 
(including citizenship, age, and gender);
    (3) The reporting timeline for the incident (including the name of 
individual who reported the incident, and the date and time the report 
was received);
    (4) Any injuries sustained by the victim;
    (5) Post-report follow up responses and action taken by the 
facility (e.g., housing placement/custody classification, medical 
examination, mental health counseling, etc.); and
    (6) Any sanctions imposed on the perpetrator.
    (e) Upon request, the agency shall provide all data described in 
this section from the previous calendar year to the Office for Civil 
Rights and Civil Liberties no later than June 30.


Sec.  115.88  Data review for corrective action.

    (a) The agency shall review data collected and aggregated pursuant 
to Sec.  115.87 of this part in order to assess and improve the 
effectiveness of its sexual abuse prevention, detection, and

[[Page 75341]]

response policies, practices, and training, including by:
    (1) Identifying problem areas;
    (2) Taking corrective action on an ongoing basis; and
    (3) Preparing an annual report of its findings and corrective 
actions for each immigration detention facility, as well as the agency 
as a whole.
    (b) Such report shall include a comparison of the current year's 
data and corrective actions with those from prior years and shall 
provide an assessment of the agency's progress in preventing, 
detecting, and responding to sexual abuse.
    (c) The agency's report shall be approved by the agency head and 
made readily available to the public through its Web site.
    (d) The agency may redact specific material from the reports, when 
appropriate for safety or security, but must indicate the nature of the 
material redacted.


Sec.  115.89  Data storage, publication, and destruction.

    (a) The agency shall ensure that data collected pursuant to Sec.  
115.87 of this part are securely retained in accordance with agency 
record retention policies and the agency protocol regarding 
investigation of allegations.
    (b) The agency shall make all aggregated sexual abuse data from 
immigration detention facilities under its direct control and from any 
private agencies with which it contracts available to the public at 
least annually on its Web site consistent with existing agency 
information disclosure policies and processes.
    (c) Before making aggregated sexual abuse data publicly available, 
the agency shall remove all personal identifiers.

Audits and Compliance


Sec.  115.93  Audits of standards.

    (a) During the three-year period starting on [DATE ONE YEAR PLUS 60 
DAYS AFTER EFFECTIVE DATE OF FINAL RULE], and during each three-year 
period thereafter, the agency shall ensure that each of its immigration 
detention facilities is audited at least once.
    (b) The agency may request an expedited audit if the agency has 
reason to believe that a particular facility may be experiencing 
problems relating to sexual abuse. The recommendation may also include 
referrals to resources that may assist the agency with PREA-related 
issues.
    (c) Audits under this section shall be conducted pursuant to 
Sec. Sec.  115.201 through 115.205 of Subpart C.
    (d) Audits under this section shall be coordinated by the agency 
with the DHS Office for Civil Rights and Civil Liberties.

Additional Provisions in Agency Policies


Sec.  115.95  Additional provisions in agency policies.

    The regulations in Subpart A establish minimum requirements for 
agencies and facilities. Agency and facility policies may include 
additional requirements.

Subpart B--Standards for DHS Holding Facilities

Coverage


Sec.  115.110  Coverage of DHS holding facilities.

    Subpart B covers all DHS holding facilities. Standards found in 
Subpart A of this Part are not applicable to DHS facilities except ICE 
immigration detention facilities.

Prevention Planning


Sec.  115.111  Zero tolerance of sexual abuse; Prevention of Sexual 
Abuse Coordinator.

    (a) The agency shall have a written policy mandating zero tolerance 
toward all forms of sexual abuse and outlining the agency's approach to 
preventing, detecting, and responding to such conduct.
    (b) The agency shall employ or designate an upper-level, agency-
wide PSA Coordinator with sufficient time and authority to develop, 
implement, and oversee agency efforts to comply with these standards in 
all of its holding facilities.


Sec.  115.112  Contracting with non-DHS entities for the confinement of 
detainees.

    (a) An agency that contracts for the confinement of detainees in 
holding facilities operated by non-DHS private or public agencies or 
other entities, including other government agencies, shall include in 
any new contracts or contract renewals the entity's obligation to adopt 
and comply with these standards.
    (b) Any new contracts or contract renewals shall provide for agency 
contract monitoring to ensure that the contractor is complying with 
these standards.
    (c) To the extent an agency contracts for confinement of holding 
facility detainees, all rules in this subpart that apply to the agency 
shall apply to the contractor, and all rules that apply to staff or 
employees shall apply to contractor staff.


Sec.  115.113  Detainee supervision and monitoring.

    (a) The agency shall ensure that each facility maintains sufficient 
supervision of detainees, including through appropriate staffing levels 
and, where applicable, video monitoring, to protect detainees against 
sexual abuse.
    (b) The agency shall develop and document comprehensive detainee 
supervision guidelines to determine and meet each facility's detainee 
supervision needs, and shall review those supervision guidelines and 
their application at each facility at least annually.
    (c) In determining adequate levels of detainee supervision and 
determining the need for video monitoring, agencies shall take into 
consideration the physical layout of each holding facility, the 
composition of the detainee population, the prevalence of substantiated 
and unsubstantiated incidents of sexual abuse, the findings and 
recommendations of sexual abuse incident review reports, and any other 
relevant factors, including but not limited to the length of time 
detainees spend in agency custody.


Sec.  115.114  Juvenile and family detainees.

    (a) In general, juveniles shall be detained in the least 
restrictive setting appropriate to the juvenile's age and special 
needs, provided that such setting is consistent with the need to 
protect the juvenile's well-being and that of others, as well as with 
any other laws, regulations, or legal requirements.
    (b) Unaccompanied juveniles shall be held separately from adult 
detainees.


Sec.  115.115  Limits to cross-gender viewing and searches.

    (a) Searches may be necessary to ensure the safety of officers, 
civilians and detainees; to detect and secure evidence of criminal 
activity; and to promote security, safety, and related interests at DHS 
holding facilities.
    (b) Cross-gender strip searches or cross-gender visual body cavity 
searches shall not be conducted except in exigent circumstances, 
including consideration of officer safety, or when performed by medical 
practitioners. An agency shall not conduct visual body cavity searches 
of juveniles and, instead, shall refer all such body cavity searches of 
juveniles to a medical practitioner.
    (c) All strip searches and visual body cavity searches shall be 
documented.
    (d) The agency shall implement policies and procedures that enable 
detainees to shower (where showers are available), perform bodily 
functions, and change clothing without being viewed by staff of the 
opposite gender,

[[Page 75342]]

except in exigent circumstances or when such viewing is incidental to 
routine cell checks or is otherwise appropriate in connection with a 
medical examination or monitored bowel movement under medical 
supervision. Such policies and procedures shall require staff of the 
opposite gender to announce their presence when entering an area where 
detainees are likely to be showering, performing bodily functions, or 
changing clothing.
    (e) The agency and facility shall not search or physically examine 
a detainee for the sole purpose of determining the detainee's gender. 
If the detainee's gender is unknown, it may be determined during 
conversations with the detainee, by reviewing medical records (if 
available), or, if necessary, learning that information as part of a 
broader medical examination conducted in private, by a medical 
practitioner.
    (f) The agency shall train law enforcement staff in proper 
procedures for conducting pat-down searches, including cross-gender 
pat-down searches and searches of transgender and intersex detainees. 
All pat-down searches shall be conducted in a professional and 
respectful manner, and in the least intrusive manner possible, 
consistent with security needs and existing agency policy, including 
consideration of officer safety.


Sec.  115.116  Accommodating detainees with disabilities and detainees 
who are limited English proficient.

    (a) The agency shall take appropriate steps to ensure that 
detainees with disabilities (including, for example, detainees who are 
deaf or hard of hearing, those who are blind or have low vision, or 
those who have intellectual, psychiatric, or speech disabilities), have 
an equal opportunity to participate in or benefit from all aspects of 
the agency's efforts to prevent, detect, and respond to sexual abuse. 
Such steps shall include, when necessary to ensure effective 
communication with detainees who are deaf or hard of hearing, providing 
access to in-person, telephonic, or video interpretive services that 
enable effective, accurate, and impartial interpretation, both 
receptively and expressively, using any necessary specialized 
vocabulary. In addition, the agency shall ensure that any written 
materials related to sexual abuse are provided in formats or through 
methods that ensure effective communication with detainees with 
disabilities, including detainees who have intellectual disabilities, 
limited reading skills, or who are blind or have low vision. An agency 
is not required to take actions that it can demonstrate would result in 
a fundamental alteration in the nature of a service, program, or 
activity, or in undue financial and administrative burdens, as those 
terms are used in regulations promulgated under title II of the 
Americans with Disabilities Act, 28 CFR 35.164.
    (b) The agency shall take reasonable steps to ensure meaningful 
access to all aspects of the agency's efforts to prevent, detect, and 
respond to sexual abuse to detainees who are limited English 
proficient, including steps to provide in-person or telephonic 
interpretive services that enable effective, accurate, and impartial 
interpretation, both receptively and expressively, using any necessary 
specialized vocabulary.
    (c) In matters relating to allegations of sexual abuse, the agency 
shall provide in-person or telephonic interpretation services that 
enable effective, accurate, and impartial interpretation, by someone 
other than another detainee, unless the detainee expresses a preference 
for a detainee interpreter, and the agency determines that such 
interpretation is appropriate. The provision of interpreter services by 
minors, alleged abusers, detainees who witnessed the alleged abuse, and 
detainees who have a significant relationship with the alleged abuser 
is not appropriate in matters relating to allegations of sexual abuse 
is not appropriate in matters relating to allegations of sexual abuse.


Sec.  115.117  Hiring and promotion decisions.

    (a) The agency shall not hire or promote anyone who may have 
contact with detainees, and shall not enlist the services of any 
contractor or volunteer who may have contact with detainees, who has 
engaged in sexual abuse in a prison, jail, holding facility, community 
confinement facility, juvenile facility, or other institution (as 
defined in 42 U.S.C. 1997); who has been convicted of engaging or 
attempting to engage in sexual activity facilitated by force, overt or 
implied threats of force, or coercion, or if the victim did not consent 
or was unable to consent or refuse; or who has been civilly or 
administratively adjudicated to have engaged in such activity.
    (b) When the agency is considering hiring or promoting staff, it 
shall ask all applicants who may have contact with detainees directly 
about previous misconduct described in paragraph (a) of this section, 
in written applications or interviews for hiring or promotions and in 
any interviews or written self-evaluations conducted as part of reviews 
of current employees. The agency shall also impose upon employees a 
continuing affirmative duty to disclose any such misconduct.
    (c) Before hiring new employees who may have contact with 
detainees, the agency shall require a background investigation to 
determine whether the candidate for hire is suitable for employment 
with the agency. The agency shall conduct an updated background 
investigation for agency employees every five years.
    (d) The agency shall also perform a background investigation before 
enlisting the services of any contractor who may have contact with 
detainees.
    (e) Material omissions regarding such misconduct, or the provision 
of materially false information, shall be grounds for termination or 
withdrawal of an offer of employment, as appropriate.
    (f) Unless prohibited by law, the agency shall provide information 
on substantiated allegations of sexual abuse involving a former 
employee upon receiving a request from an institutional employer for 
whom such employee has applied to work.
    (g) In the event the agency contracts with a facility for the 
confinement of detainees, the requirements of this section otherwise 
applicable to the agency also apply to the facility.


Sec.  115.118  Upgrades to facilities and technologies.

    (a) When designing or acquiring any new holding facility and in 
planning any substantial expansion or modification of existing holding 
facilities, the agency shall consider the effect of the design, 
acquisition, expansion, or modification upon the agency's ability to 
protect detainees from sexual abuse.
    (b) When installing or updating a video monitoring system, 
electronic surveillance system, or other monitoring technology in a 
holding facility, the agency shall consider how such technology may 
enhance the agency's ability to protect detainees from sexual abuse.

Responsive Planning


Sec.  115.121  Evidence protocols and forensic medical examinations.

    (a) To the extent that the agency is responsible for investigating 
allegations of sexual abuse in its holding facilities, the agency shall 
follow a uniform evidence protocol that maximizes the potential for 
obtaining usable physical evidence for administrative proceedings and 
criminal prosecutions. The protocol shall be developed in coordination 
with DHS and shall be developmentally

[[Page 75343]]

appropriate for juveniles, where applicable.
    (b) In developing the protocol referred to in paragraph (a) of this 
section, the agency shall consider how best to utilize available 
community resources and services to provide valuable expertise and 
support in the areas of crisis intervention and counseling to most 
appropriately address victims' needs.
    (c) Where evidentiarily or medically appropriate, at no cost to the 
detainee, and only with the detainee's consent, the agency shall 
arrange for or refer the alleged victim detainee to a medical facility 
to undergo a forensic medical examination.
    (d) If, in connection with an allegation of sexual abuse, the 
detainee is transported for a forensic examination to an outside 
hospital that offers victim advocacy services, the detainee shall be 
permitted to use such services to the extent available, consistent with 
security needs. (e) To the extent that the agency is not responsible 
for investigating allegations of sexual abuse, the agency shall request 
that the investigating agency follow the requirements of paragraphs (a) 
through (d) of this section.


Sec.  115.122  Policies to ensure investigation of allegations and 
appropriate agency oversight.

    (a) The agency shall establish a protocol to ensure that each 
allegation of sexual abuse is investigated by the agency, or referred 
to an appropriate investigative authority.
    (b) The agency protocol shall be developed in coordination with DHS 
investigative entities; shall include a description of the 
responsibilities of both the agency and the investigative entities; and 
shall require the documentation and maintenance, for at least five 
years, of all reports and referrals of allegations of sexual abuse. The 
agency shall post its protocol on its Web site, redacted if 
appropriate.
    (c) The agency protocol shall ensure that each allegation is 
promptly reported to the Joint Intake Center and, unless the allegation 
does not involve potentially criminal behavior, promptly referred for 
investigation to an appropriate law enforcement agency with the legal 
authority to conduct criminal investigations. The agency may 
separately, and in addition to the above reports and referrals, conduct 
its own investigation.
    (d) The agency shall ensure that all allegations of detainee sexual 
abuse are promptly reported to the PSA Coordinator, and to the 
appropriate offices within the agency and within DHS to ensure 
appropriate oversight of the investigation.
    (e) The agency shall ensure that any alleged detainee victim of 
sexual abuse that is criminal in nature is provided access to U 
nonimmigrant visa information.

Training and Education


Sec.  115.131  Employee, contractor, and volunteer training.

    (a) The agency shall train, or require the training of all 
employees, contractors, and volunteers who may have contact with 
holding facility detainees, to be able to fulfill their 
responsibilities under these standards, including training on:
    (1) The agency's zero-tolerance policies for all forms of sexual 
abuse;
    (2) The right of detainees and employees to be free from sexual 
abuse, and from retaliation for reporting sexual abuse;
    (3) Definitions and examples of prohibited and illegal sexual 
behavior;
    (4) Recognition of situations where sexual abuse may occur;
    (5) Recognition of physical, behavioral, and emotional signs of 
sexual abuse, and methods of preventing such occurrences;
    (6) Procedures for reporting knowledge or suspicion of sexual 
abuse;
    (7) How to communicate effectively and professionally with 
detainees, including lesbian, gay, bisexual, transgender, intersex, or 
gender nonconforming detainees; and
    (8) The requirement to limit reporting of sexual abuse to personnel 
with a need-to-know in order to make decisions concerning the victim's 
welfare and for law enforcement or investigative purposes.
    (b) All current employees, contractors and volunteers who may have 
contact with holding facility detainees shall be trained within two 
years of the effective date of these standards, and the agency shall 
provide refresher information, as appropriate.
    (c) The agency shall document those employees who may have contact 
with detainees have completed the training and receive and maintain for 
at least five years confirmation that contractors and volunteers have 
completed the training.


Sec.  115.132  Notification to detainees of the agency's zero-tolerance 
policy.

    The agency shall make public its zero-tolerance policy regarding 
sexual abuse and ensure that key information regarding the agency's 
zero-tolerance policy is visible or continuously and readily available 
to detainees, for example, through posters, detainee handbooks, or 
other written formats.


Sec.  115.133  [Reserved]


Sec.  115.134  Specialized training: Investigations.

    (a) In addition to the training provided to employees, DHS agencies 
with responsibility for holding facilities shall provide specialized 
training on sexual abuse and effective cross-agency coordination to 
agency investigators who conduct investigations into allegations of 
sexual abuse at holding facilities. All investigations into alleged 
sexual abuse must be conducted by qualified investigators.
    (b) The agency must maintain written documentation verifying 
specialized training provided to agency investigators pursuant to this 
subsection.

Assessment for Risk of Sexual Victimization and Abusiveness


Sec.  115.141  Assessment for risk of victimization and abusiveness.

    (a) Before placing any detainees together in a holding facility, 
agency staff shall consider whether, based on the information before 
them, a detainee may be at a high risk of being sexually abused and, 
when appropriate, shall take necessary steps to mitigate any such 
danger to the detainee.
    (b) All detainees who may be held overnight with other detainees 
shall be assessed to determine their risk of being sexually abused by 
other detainees or sexually abusive toward other detainees; staff shall 
ask each such detainee about his or her own concerns about his or her 
physical safety.
    (c) The agency shall also consider, to the extent that the 
information is available, the following criteria to assess detainees 
for risk of sexual victimization:
    (1) Whether the detainee has a mental, physical, or developmental 
disability;
    (2) The age of the detainee;
    (3) The physical build and appearance of the detainee;
    (4) Whether the detainee has previously been incarcerated;
    (5) The nature of the detainee's criminal history; and
    (6) Whether the detainee has any convictions for sex offenses 
against an adult or child;
    (7) Whether the detainee has self-identified as gay, lesbian, 
bisexual, transgender, intersex, or gender nonconforming;
    (8) Whether the detainee has self-identified as having previously 
experienced sexual victimization; and
    (9) The detainee's own concerns about his or her physical safety.

[[Page 75344]]

    (d) If detainees are identified pursuant to the assessment under 
this section to be at high risk of victimization, staff shall provide 
such detainees with heightened protection, to include continuous direct 
sight and sound supervision, single-cell housing, or placement in a 
cell actively monitored on video by a staff member sufficiently 
proximate to intervene, unless no such option is determined to be 
feasible.
    (e) The facility shall implement appropriate controls on the 
dissemination of sensitive information provided by detainees under this 
section.

Reporting


Sec.  115.151  Detainee reporting.

    (a) The agency shall develop policies and procedures to ensure that 
the detainees have multiple ways to privately report sexual abuse, 
retaliation for reporting sexual abuse, or staff neglect or violations 
of responsibilities that may have contributed to such incidents, and 
shall provide instructions on how detainees may contact the DHS Office 
of the Inspector General or, as appropriate, another designated office, 
to confidentially and, if desired, anonymously, report these incidents.
    (b) The agency shall also provide, and shall inform the detainees 
of, at least one way for detainees to report sexual abuse to a public 
or private entity or office that is not part of the agency, and that is 
able to receive and immediately forward detainee reports of sexual 
abuse to agency officials, allowing the detainee to remain anonymous 
upon request.
    (c) Agency policies and procedures shall include provisions for 
staff to accept reports made verbally, in writing, anonymously, and 
from third parties and to promptly document any verbal reports.


Sec.  115.152  [Reserved]


Sec.  115.153  [Reserved]


Sec.  115.154  Third-party reporting.

    The agency shall establish a method to receive third-party reports 
of sexual abuse in its holding facilities. The agency shall make 
available to the public information on how to report sexual abuse on 
behalf of a detainee.

Official Response Following a Detainee Report


Sec.  115.161  Staff reporting duties.

    (a) The agency shall require all staff to report immediately and 
according to agency policy any knowledge, suspicion, or information 
regarding an incident of sexual abuse that occurred to any detainee; 
retaliation against detainees or staff who reported such an incident; 
and any staff neglect or violation of responsibilities that may have 
contributed to an incident or retaliation. Agency policy shall include 
methods by which staff can report misconduct outside of their chain of 
command.
    (b) Staff members who become aware of alleged sexual abuse shall 
immediately follow the reporting requirements set forth in the agency's 
written policies and procedures.
    (c) Apart from such reporting, the agency and staff shall not 
reveal any information related to a sexual abuse report to anyone other 
than to the extent necessary to make medical treatment, investigation, 
law enforcement, or other security and management decisions.
    (d) If the alleged victim is under the age of 18 or considered a 
vulnerable adult under a State or local vulnerable persons statute, the 
agency shall report the allegation to the designated State or local 
services agency under applicable mandatory reporting laws.


Sec.  115.162  Agency protection duties.

    When an agency employee has a reasonable belief that a detainee is 
subject to a substantial risk of imminent sexual abuse, he or she shall 
take immediate action to protect the detainee.


Sec.  115.163  Reporting to other confinement facilities.

    (a) Upon receiving an allegation that a detainee was sexually 
abused while confined at another facility, the agency that received the 
allegation shall notify the appropriate office or the agency where the 
alleged abuse occurred.
    (b) The notification provided in paragraph (a) shall be provided as 
soon as possible, but no later than 72 hours after receiving the 
allegation.
    (c) The agency shall document that it has provided such 
notification.
    (d) The agency office that receives such notification, to the 
extent the facility is covered by this subpart, shall ensure that the 
allegation is referred for investigation in accordance with these 
standards.


Sec.  115.164  Responder duties.

    (a) Upon learning of an allegation that a detainee was sexually 
abused, the first law enforcement staff member to respond to the 
report, or his or her supervisor, shall be required to:
    (1) Separate the alleged victim and abuser;
    (2) Preserve and protect, to the greatest extent possible, any 
crime scene until appropriate steps can be taken to collect any 
evidence;
    (3) If the sexual abuse occurred within a time period that still 
allows for the collection of physical evidence, request the alleged 
victim not to take any actions that could destroy physical evidence, 
including, as appropriate, washing, brushing teeth, changing clothes, 
urinating, defecating, smoking, drinking, or eating; and
    (4) If the abuse occurred within a time period that still allows 
for the collection of physical evidence, ensure that the alleged abuser 
does not take any actions that could destroy physical evidence, 
including, as appropriate, washing, brushing teeth, changing clothes, 
urinating, defecating, smoking, drinking, or eating.
    (b) If the first staff responder is not a law enforcement staff 
member, the responder shall be required to request that the alleged 
victim not take any actions that could destroy physical evidence and 
then notify law enforcement staff.


Sec.  115.165  Coordinated response.

    (a) The agency shall develop a written institutional plan and use a 
coordinated, multidisciplinary team approach to responding to sexual 
abuse.
    (b) If a victim of sexual abuse is transferred between DHS holding 
facilities, the agency shall, as permitted by law, inform the receiving 
facility of the incident and the victim's potential need for medical or 
social services.
    (c) If a victim is transferred from a DHS holding facility to a 
non-DHS facility, the agency shall, as permitted by law, inform the 
receiving facility of the incident and the victim's potential need for 
medical or social services, unless the victim requests otherwise.


Sec.  115.166  Protection of detainees from contact with alleged 
abusers.

    Agency management shall consider whether any staff, contractor, or 
volunteer alleged to have perpetrated sexual abuse should be removed 
from duties requiring detainee contact pending the outcome of an 
investigation, and shall do so if the seriousness and plausibility of 
the allegation make removal appropriate.


Sec.  115.167  Agency protection against retaliation.

    Agency employees shall not retaliate against any person, including 
a detainee, who reports, complains about, or participates in an 
investigation into an allegation of sexual abuse, or for participating 
in sexual activity as a result of force, coercion, threats, or fear of 
force.

[[Page 75345]]

Investigations


Sec.  115.171  Criminal and administrative investigations.

    (a) If the agency has responsibility for investigating allegations 
of sexual abuse, all investigations into alleged sexual abuse must be 
prompt, thorough, objective, and conducted by specially trained, 
qualified investigators.
    (b) Upon conclusion of a criminal investigation where the 
allegation was substantiated, an administrative investigation shall be 
conducted. Upon conclusion of a criminal investigation where the 
allegation was unsubstantiated, the facility shall review any available 
completed criminal investigation reports to determine whether an 
administrative investigation is necessary or appropriate. 
Administrative investigations shall be conducted after consultation 
with the appropriate investigative office within DHS and the assigned 
criminal investigative entity.
    (c) The facility shall develop written procedures for 
administrative investigations, including provisions requiring:
    (1) Preservation of direct and circumstantial evidence, including 
any available physical and DNA evidence and any available electronic 
monitoring data;
    (2) Interviewing alleged victims, suspected perpetrators, and 
witnesses;
    (3) Reviewing prior complaints and reports of sexual abuse 
involving the suspected perpetrator;
    (4) Assessment of the credibility of an alleged victim, suspect, or 
witness, without regard to the individual's status as detainee, staff, 
or employee, and without requiring any detainee who alleges sexual 
abuse to submit to a polygraph;
    (5) Documentation of each investigation by written report, which 
shall include a description of the physical and testimonial evidence, 
the reasoning behind credibility assessments, and investigative facts 
and findings; and
    (6) Retention of such reports for as long as the alleged abuser is 
detained or employed by the agency or facility, plus five years. Such 
procedures shall establish the coordination and sequencing of the two 
types of investigations, in accordance with paragraph (b) of this 
section, to ensure that the criminal investigation is not compromised 
by an internal administrative investigation.
    (d) The departure of the alleged abuser or victim from the 
employment or control of the agency shall not provide a basis for 
terminating an investigation.
    (e) When outside agencies investigate sexual abuse, the agency 
shall cooperate with outside investigators and shall endeavor to remain 
informed about the progress of the investigation.


Sec.  115.172  Evidentiary standard for administrative investigations.

    When an administrative investigation is undertaken, the agency 
shall impose no standard higher than a preponderance of the evidence in 
determining whether allegations of sexual abuse are substantiated.

Discipline


Sec.  115.176  Disciplinary sanctions for staff.

    (a) Staff shall be subject to disciplinary or adverse action up to 
and including removal from their position and the Federal service for 
substantiated allegations of sexual abuse or violating agency sexual 
abuse policies.
    (b) The agency shall review and approve policy and procedures 
regarding disciplinary or adverse action for staff and shall ensure 
that the policy and procedures specify disciplinary or adverse actions 
for staff, up to and including removal from their position and from the 
Federal service, when there is a substantiated allegation of sexual 
abuse, or when there has been a violation of agency sexual abuse rules, 
policies, or standards. Removal from their position and from the 
Federal service is the presumptive disciplinary sanction for staff who 
have engaged in or attempted or threatened to engage in sexual abuse, 
as defined under paragraphs (1) through (4), (7), and (8) of the 
definition of sexual abuse of a detained by a staff member, contractor, 
or volunteer in Sec.  115.6 of this part.
    (c) Each facility shall report all removals or resignations in lieu 
of removal for violations of agency or facility sexual abuse policies 
to appropriate law enforcement agencies, unless the activity was 
clearly not criminal.
    (d) Each agency shall make reasonable efforts to report removals or 
resignations in lieu of removal for violations of agency or facility 
sexual abuse policies to any relevant licensing bodies, to the extent 
known.


Sec.  115.177  Corrective action for contractors and volunteers.

    (a) Any contractor or volunteer suspected of perpetrating sexual 
abuse shall be prohibited from contact with detainees. The agency shall 
also consider whether to prohibit further contact with detainees by 
contractors or volunteers who have not engaged in sexual abuse, but 
have violated other provisions within these standards. The agency shall 
be responsible for promptly reporting sexual abuse allegations and 
incidents involving alleged contractor or volunteer perpetrators to an 
appropriate law enforcement agency as well as to the Joint Intake 
Center or another appropriate DHS investigative office in accordance 
with DHS policies and procedures. The agency shall make reasonable 
efforts to report to any relevant licensing body, to the extent known, 
incidents of substantiated sexual abuse by a contractor or volunteer.
    (b) Contractors and volunteers suspected of perpetrating sexual 
abuse may be removed from all duties requiring detainee contact pending 
the outcome of an investigation, as appropriate.

Medical and Mental Care


Sec.  115.181  [Reserved]


Sec.  115.182  Access to emergency medical services.

    (a) Detainee victims of sexual abuse in holding facilities shall 
have timely, unimpeded access to emergency medical treatment.
    (b) Emergency medical treatment services provided to the victim 
shall be without financial cost and regardless of whether the victim 
names the abuser or cooperates with any investigation arising out of 
the incident.

Data Collection and Review


Sec.  115.186  Sexual abuse incident reviews.

    (a) The agency shall conduct a sexual abuse incident review at the 
conclusion of every investigation of sexual abuse and, where the 
allegation was not determined to be unfounded, prepare a written report 
recommending whether the allegation or investigation indicates that a 
change in policy or practice could better prevent, detect, or respond 
to sexual abuse. The agency shall implement the recommendations for 
improvement, or shall document its reasons for not doing so in a 
written response. Both the report and response shall be forwarded to 
the agency PSA Coordinator.
    (b) The agency shall conduct an annual review of all sexual abuse 
investigations and resulting incident reviews to assess and improve 
sexual abuse intervention, prevention and response efforts.


Sec.  115.187  Data collection.

    (a) The agency shall maintain all agency case records associated 
with claims of sexual abuse, in accordance with these standards and 
applicable

[[Page 75346]]

agency policies, and in accordance with established schedules. The DHS 
Office of Inspector General shall maintain the official investigative 
file related to claims of sexual abuse investigated by the DHS Office 
of Inspector General.
    (b) On an annual basis, the PSA Coordinator shall aggregate, in a 
manner that will facilitate the agency's ability to detect possible 
patterns and help prevent future incidents, the incident-based sexual 
abuse data available, including the number of reported sexual abuse 
allegations determined to be substantiated, unsubstantiated, or 
unfounded, or for which investigation is ongoing, and for each incident 
found to be substantiated, such information as is available to the PSA 
Coordinator concerning:
    (1) The date, time, location, and nature of the incident;
    (2) The demographic background of the victim and perpetrator 
(including citizenship, age, and gender);
    (3) The reporting timeline for the incident (including the name of 
individual who reported the incident, and the date and time the report 
was received);
    (4) Any injuries sustained by the victim;
    (5) Post-report follow up responses and action taken by the agency 
(e.g., supervision, referral for medical or mental health services, 
etc.); and
    (6) Any sanctions imposed on the perpetrator.
    (c) The agency shall maintain, review, and collect data as needed 
from all available agency records.
    (d) Upon request, the agency shall provide all such data from the 
previous calendar year to the PSA Coordinator and to the Office for 
Civil Rights and Civil Liberties no later than June 30.


Sec.  115.188  Data review for corrective action.

    (a) The agency shall review data collected and aggregated pursuant 
to Sec.  115.187 of this part in order to assess and improve the 
effectiveness of its sexual abuse prevention, detection, and response 
policies, practices, and training, including by:
    (1) Identifying problem areas;
    (2) Taking corrective action on an ongoing basis; and
    (3) Preparing an annual report of its findings and corrective 
actions for the agency as a whole.
    (b) Such report shall include a comparison of the current year's 
data and corrective actions with those from prior years and shall 
provide an assessment of the agency's progress in preventing, 
detecting, and responding to sexual abuse.
    (c) The agency's report shall be approved by the agency head and 
made readily available to the public through its Web site.
    (d) The agency may redact specific material from the reports, when 
appropriate for safety or security, but must indicate the nature of the 
material redacted.


Sec.  115.189  Data storage, publication, and destruction.

    (a) The agency shall ensure that data collected pursuant to Sec.  
115.187 of this part are securely retained in accordance with agency 
record retention policies and the agency protocol regarding 
investigation of allegations.
    (b) The agency shall make all aggregated sexual abuse data from 
holding facilities under its direct control and from any private 
agencies with which it contracts available to the public at least 
annually on its Web site consistent with agency information disclosure 
policies and processes.
    (c) Before making aggregated sexual abuse data publicly available, 
the agency shall remove all personal identifiers.

Audits and Compliance


Sec.  115.193  Audits of standards.

    (a) Within three years of [DATE ONE YEAR PLUS 60 DAYS AFTER 
EFFECTIVE DATE OF FINAL RULE], the agency shall ensure that each of its 
immigration holding facilities that houses detainees overnight is 
audited. For any such holding facility established after [DATE ONE YEAR 
PLUS 60 DAYS AFTER EFFECTIVE DATE OF FINAL RULE], the agency shall 
ensure that the facility is audited within three years . Audits of new 
holding facilities as well as holding facilities that have previously 
failed to meet the standards shall occur as soon as practicable within 
the three-year cycle; however, where it is necessary to prioritize, 
priority shall be given to facilities that have previously failed to 
meet the standards.
    (1) Audits required under this paragraph (a) shall:
    (i) Include a determination whether the holding facility is low-
risk based on its physical characteristics and whether it passes the 
audit conducted pursuant to paragraph (a)(1)(ii) of this section,
    (ii) Be conducted pursuant to Sec. Sec.  115.201 through 115.205 of 
Subpart C, and
    (iii) Be coordinated by the agency with the DHS Office for Civil 
Rights and Civil Liberties.
    (b) Following an audit, the agency shall ensure that any 
immigration holding facility that houses detainees overnight and is 
determined to be low-risk, based on its physical characteristics and 
passing its most recent audit, is audited at least once every five 
years.
    (1) Audits required under this paragraph (b) shall:
    (i) Include a determination whether the holding facility is low-
risk based on its physical characteristics and whether it passes the 
audit conducted pursuant to paragraph (b)(1)(ii) of this section,
    (ii) Be conducted pursuant to Sec. Sec.  115.201 through 115.205 of 
Subpart C, and
    (iii) Be coordinated by the agency with the DHS Office for Civil 
Rights and Civil Liberties.
    (c) Following an audit, the agency shall ensure that any 
immigration holding facility that houses detainees overnight and is 
determined to not be low-risk, based on its physical characteristics or 
not passing its most recent audit, is audited at least once every three 
years.
    (1) Audits required under this paragraph (c) shall:
    (i) Include a determination whether the holding facility is low-
risk based on its physical characteristics and whether it passes the 
audit conducted by paragraph (c)(1)(ii) of this section,
    (ii) Be conducted pursuant to Sec. Sec.  115.201 through 115.205 of 
Subpart C, and
    (iii) Be coordinated by the agency with the DHS Office for Civil 
Rights and Civil Liberties.

Additional Provisions in Agency Policies


Sec.  115.195  Additional provisions in agency policies.

    The regulations in Subpart B establish minimum requirements for 
agencies. Agency policies may include additional requirements.

Subpart C--External Auditing and Corrective Action


Sec.  115.201  Scope of audits.

    (a) The agency shall develop and issue an instrument that is 
coordinated with the DHS Office for Civil Rights and Civil Liberties, 
which will provide guidance on the conduct of and contents of the 
audit;
    (b) The auditor shall review all relevant agency-wide policies, 
procedures, reports, internal and external audits, and accreditations 
for each facility type.
    (c) The audits shall review, at a minimum, a sampling of relevant 
documents and other records and information for the most recent one-
year period.

[[Page 75347]]

    (d) The auditor shall have access to, and shall observe, all areas 
of the audited facilities.
    (e) The agency shall provide the auditor with relevant 
documentation to complete a thorough audit of the facility.
    (f) The auditor shall retain and preserve all documentation 
(including, e.g., videotapes and interview notes) relied upon in making 
audit determinations. Such documentation shall be provided to the 
agency upon request.
    (g) The auditor shall interview a representative sample of 
detainees and of staff, and the facility shall make space available 
suitable for such interviews.
    (h) The auditor shall review a sampling of any available videotapes 
and other electronically available data that may be relevant to the 
provisions being audited.
    (i) The auditor shall be permitted to conduct private interviews 
with detainees.
    (j) Detainees shall be permitted to send confidential information 
or correspondence to the auditor.
    (k) Auditors shall attempt to solicit input from community-based or 
victim advocates who may have insight into relevant conditions in the 
facility.
    (l) All sensitive but unclassified information provided to auditors 
will include appropriate designations and limitations on further 
dissemination. Auditors will be required to follow all appropriate 
procedures for handling and safeguarding such information.


Sec.  115.202  Auditor qualifications.

    (a) An audit shall be conducted by entities or individuals outside 
of the agency that have relevant audit experience.
    (b) All auditors shall be certified by the agency and the agency 
shall develop and issue procedures regarding the certification process, 
which shall include training requirements.
    (c) No audit may be conducted by an auditor who has received 
financial compensation from the agency being audited (except for 
compensation received for conducting other audits, or other consulting 
related to detention reform) within the three years prior to the 
agency's retention of the auditor.
    (d) The agency shall not employ, contract with, or otherwise 
financially compensate the auditor for three years subsequent to the 
agency's retention of the auditor, with the exception of contracting 
for subsequent audits or other consulting related to detention reform.


Sec.  115.203  Audit contents and findings.

    (a) Each audit shall include a certification by the auditor that no 
conflict of interest exists with respect to his or her ability to 
conduct an audit of the facility under review.
    (b) Audit reports shall state whether facility policies and 
procedures comply with relevant standards.
    (c) For each of these standards, the auditor shall determine 
whether the audited facility reaches one of the following findings: 
Exceeds Standard (substantially exceeds requirement of standard); Meets 
Standard (substantial compliance; complies in all material ways with 
the standard for the relevant review period); Does Not Meet Standard 
(requires corrective action). The audit summary shall indicate, among 
other things, the number of provisions the facility has achieved at 
each grade level.
    (d) Audit reports shall describe the methodology, sampling sizes, 
and basis for the auditor's conclusions with regard to each standard 
provision for each audited facility, and shall include recommendations 
for any required corrective action.
    (e) Auditors shall redact any personally identifiable detainee or 
staff information from their reports, but shall provide such 
information to the agency upon request.
    (f) The agency shall ensure that the auditor's final report is 
published on the agency's Web site if it has one, or is otherwise made 
readily available to the public. The agency shall redact any sensitive 
but unclassified information (including law enforcement sensitive 
information) prior to providing such reports publicly.


Sec.  115.204  Audit corrective action plan.

    (a) A finding of ``Does Not Meet Standard'' with one or more 
standards shall trigger a 180-day corrective action period.
    (b) The auditor and the agency, with the facility if practicable, 
shall jointly develop a corrective action plan to achieve compliance.
    (c) The auditor shall take necessary and appropriate steps to 
verify implementation of the corrective action plan, such as reviewing 
updated policies and procedures or re-inspecting portions of a 
facility.
    (d) After the 180-day corrective action period ends, the auditor 
shall issue a final determination as to whether the facility has 
achieved compliance with those standards requiring corrective action.
    (e) If the facility does not achieve compliance with each standard, 
it may (at its discretion and cost) request a subsequent audit once it 
believes that is has achieved compliance.


Sec.  115.205  Audit appeals.

    (a) A facility may lodge an appeal with the agency regarding any 
specific audit finding that it believes to be incorrect. Such appeal 
must be lodged within 90 days of the auditor's final determination.
    (b) If the agency determines that the facility has stated good 
cause for a re-evaluation, the facility may commission a re-audit by an 
auditor mutually agreed upon by the agency and the facility. The 
facility shall bear the costs of this re-audit.
    (c) The findings of the re-audit shall be considered final.

Janet Napolitano,
Secretary of Homeland Security.
[FR Doc. 2012-29916 Filed 12-18-12; 8:45 am]
BILLING CODE 9110-9B-P