[Federal Register Volume 79, Number 45 (Friday, March 7, 2014)]
[Rules and Regulations]
[Pages 13100-13183]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-04675]



[[Page 13099]]

Vol. 79

Friday,

No. 45

March 7, 2014

Part II





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; Final Rule

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

[[Page 13100]]


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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: Final rule.

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

DATES: This rule is effective May 6, 2014.

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

SUPPLEMENTARY INFORMATION:

I. Abbreviations

ANPRM Advance Notice of Proposed Rulemaking
ASR Administrative Stay of Removal
BJS Bureau of Justice Statistics
BOP Bureau of Prisons
CBP U.S. Customs and Border Protection
CDF Contract Detention Facility
CFR Code of Federal Regulations
CMD Custody Management Division
CRCL DHS Office for Civil Rights and Civil Liberties
DHS Department of Homeland Security
DOJ Department of Justice
DSM Detention Service Manager
ERO ICE Enforcement and Removal Operations
FOD ICE Field Office Director
FR Federal Register
FOJC ICE Field Office Juvenile Coordinator
FSA Flores v. Reno Settlement Agreement
HHS Department of Health and Human Services
HSI ICE Homeland Security Investigations
ICE U.S. Immigration and Customs Enforcement
IGA Intergovernmental Agreement
IGSA Intergovernmental Service Agreement
INA Immigration and Nationality Act
IRFA Initial Regulatory Flexibility Analysis
IRIA Initial Regulatory Impact Analysis
JIC Joint Intake Center
LEP Limited English Proficient/Proficiency
LGBTI Lesbian, Gay, Bisexual, Transgender, Intersex
LGBTIGNC Lesbian, Gay, Bisexual, Transgender, Intersex, Gender Non-
conforming
MOU Memorandum of Understanding
NAICS North American Industry Classification System
NDS National Detention Standards
NPREC National Prison Rape Elimination Commission
NPRM Notice of Proposed Rulemaking
ODO ICE Office of Detention Oversight
OIG DHS Office of the Inspector General
OMB Office of Management and Budget
OPR ICE Office of Professional Responsibility
ORR HHS Office of Refugee Resettlement
PBNDS Performance Based National Detention Standards
PRA Paperwork Reduction Act of 1995
PREA Prison Rape Elimination Act of 2003
PSA Prevention of Sexual Assault
QAT Quality Assurance Team
RCA Risk Classification Assessment
RFA Regulatory Flexibility Act
RIA Regulatory Impact Analysis
SAAPID Sexual Abuse and Assault Prevention and Intervention 
Directive
SAFE Sexual Assault Forensic Examiner
SANE Sexual Assault Nurse Examiner
SBA Small Business Administration
SIJ Special Immigrant Juvenile
SPC Service Processing Center
TVPRA Trafficking Victims Protection Reauthorization Act
UMRA Unfunded Mandate Reform Act of 1995
U.S.C. United States Code
USCIS U.S. Citizenship and Immigration Services
USMS U.S. Marshals Service
VAWA Reauthorization Violence Against Women Reauthorization Act of 
2013

II. Executive Summary

A. Purpose of the Regulatory Action

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

    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.
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    DHS is committed to preventing, detecting, and responding to sexual 
abuse in facilities used to detain individuals for civil immigration 
purposes. Sexual abuse is not an inevitable feature of detention, and 
with DHS's strong commitment, DHS immigration detention and holding 
facilities have a culture that promotes safety and refuses to tolerate 
abuse. DHS is fully committed to its zero-tolerance policy against 
sexual abuse in its confinement facilities, and these standards will 
strengthen that policy across DHS confinement facilities. DHS is also 
fully committed to the full implementation of the standards in DHS 
confinement facilities, and to robust oversight of these facilities to 
ensure this implementation.
    The standards build on current U.S. Immigration and Customs 
Enforcement (ICE) Performance Based National Detention Standards 
(PBNDS) and other DHS detention policies. The standards also respond to 
the President's May 17, 2012 Memorandum, ``Implementing the Prison Rape 
Elimination Act,'' which directs all agencies with Federal confinement 
facilities to work with the Attorney General to create rules or 
procedures setting standards to prevent, detect, and respond to sexual 
abuse in confinement facilities, and to the Violence Against Women 
Reauthorization Act of 2013 (VAWA Reauthorization), which directs DHS 
to publish a final rule adopting national standards for the detection, 
prevention, reduction, and punishment of rape and sexual assault in 
facilities that maintain custody of aliens detained for a violation of 
U.S. immigrations laws. See Public Law 113-4 (Mar. 7, 2013).

B. Summary of the Provisions of the Regulatory Action

    The DHS provisions span eleven categories that were originally used 
by the NPREC to discuss and evaluate prison rape elimination standards: 
Prevention planning, responsive planning, training and education, 
assessment for risk of sexual victimization and abusiveness, reporting, 
official response following a detainee \3\ report, investigations, 
discipline, medical and mental care, data collection and review, and 
audits and compliance. Each provision under these categories reflects 
the context of DHS confinement of individuals and draws upon the 
particular experiences

[[Page 13101]]

and requirements DHS faces in fulfilling its missions.
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    \3\ 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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    For example, DHS has broken down the standards to cover two 
distinct types of facilities: (1) Immigration detention facilities, 
which are overseen by ICE and used for longer-term detention of aliens 
in immigration proceedings or awaiting removal from the United States; 
and (2) holding facilities, which are used by ICE and U.S. Customs and 
Border Protection (CBP) for temporary administrative detention of 
individuals pending release from custody or transfer to a court, jail, 
prison, other agency or other unit of the facility or agency.
    In addition, the standards reflect the characteristics of the 
population encountered by DHS in carrying out its border security and 
immigration enforcement missions by providing, for example, language 
assistance services for limited English proficient (LEP) detainees, 
safe detention of family units, and other provisions specific to DHS's 
needs. A more detailed discussion of all of the provisions in the 
rulemaking is included below in Section V of this preamble, 
``Discussion of PREA Standards,'' including a section-by-section 
analysis of the DHS rule.
    In this final rule, DHS has modified the proposed regulatory text 
in multiple areas, including the following:
     In addition to implementing these standards at both DHS 
facilities and at non-DHS facilities whenever there is a new contract 
or contract renewal, DHS will also implement the standards at non-DHS 
facilities whenever there is a substantive contract modification.
     In addition to requiring that assessments for risk of 
victimization or abusiveness include an evaluation of whether the 
detainee has been incarcerated previously, DHS is now also requiring 
consideration of whether the detainee has been detained previously.
     DHS now requires immigration detention facilities to 
notify a regional ICE supervisor no later than 72 hours after the 
initial placement into segregation whenever a detainee has been held in 
administrative segregation on the basis of a vulnerability to sexual 
abuse or assault. Upon receipt of such notification, the official must 
conduct a review of the placement to consider whether continued 
segregation is warranted, whether any less restrictive housing or 
custodial alternatives may exist (such as placing the detainee in a 
less restrictive housing option at another facility or other 
appropriate custodial options), and whether the placement is only as a 
last resort and when no other viable housing options exist.
     DHS now requires immigration detention facilities to 
notify a regional ICE supervisor whenever a detainee victim has been 
held in administrative segregation for longer than 72 hours. Upon 
receipt of such notification, the official must conduct a review of the 
placement to consider whether placement is only as a last resort and 
when no other viable housing options exist, and, in cases where the 
detainee victim has been held in segregation for longer than five days, 
whether the placement is justified by extraordinary circumstances or is 
at the request of the detainee.
     DHS is now requiring immigration detention facilities to 
complete sexual abuse incident reviews within 30 days of the completion 
of the investigation, and is requiring that the review include 
consideration of whether the incident or allegation was motivated by, 
among other things, sexual orientation or gender identity.
     DHS is now requiring explicitly that facilities keep data 
collected on sexual abuse and assault incidents in a secure location.
     DHS is now requiring that the agency maintain sexual abuse 
data for at least 10 years after the date of the initial collection 
unless Federal, State, or local law requires otherwise.

DHS has also modified the regulatory text and clarified its 
interpretation of the rule in a number of ways, as explained more fully 
below.

C. Costs and Benefits

    The anticipated costs of full nationwide compliance with the rule 
as well as the benefits of reducing the prevalence of sexual abuse in 
DHS immigration detention facilities and holding facilities, are 
discussed at length in section VI, entitled ``Statutory and Regulatory 
Requirements--Executive Orders 12866 and 13563'' and in the 
accompanying Regulatory Impact Analysis (RIA), which is found in the 
docket for this rulemaking.
    As shown in the Summary Table below, DHS estimates that the full 
cost of compliance with these standards at all covered DHS confinement 
facilities would be approximately $57.4 million over the period 2013-
2022, discounted at 7 percent, or $8.2 million per year when annualized 
at a 7 percent discount rate. This is the estimated cost of compliance 
if all facilities adopt and implement the standards within the first 
year after the rule is finalized. This is an accurate reflection of 
implementation of these standards in holding facilities, which are 
fully owned and operated by DHS agencies. However, the annual cost for 
implementation at immigration detention facilities, most of which are 
governed by a contract with another entity, will likely be less, 
because it depends on the pace of contract renewals and substantive 
modifications which are unlikely to be universally completed in the 
first year after the rule is finalized. DHS has not endeavored in the 
RIA to project the actual pace of implementation.
    With respect to benefits, DHS conducts what is known as a ``break 
even analysis,'' by first estimating the monetary value of preventing 
various types of sexual abuse (incidents involving violence, 
inappropriate touching, or a range of other behaviors) and then, using 
those values, calculating the reduction in the annual number of victims 
that would need to occur for the benefits of the rule to equal the cost 
of compliance. This analysis begins by estimating the recent levels of 
sexual abuse in covered facilities using data from 2010, 2011, and 
2012. In 2010, ICE had four substantiated sexual abuse allegations in 
immigration detention facilities, two in 2011, and one in 2012. There 
were no substantiated allegations by individuals detained in a DHS 
holding facility. (This does not include allegations involved in still-
open investigations or allegations outside the scope of these 
regulations.) In the RIA, DHS extrapolates the number of substantiated 
and unsubstantiated allegations at immigration detention facilities 
based on the premise that there may be additional detainees who may 
have experienced sexual abuse, but did not report it.
    Next, DHS estimates how much monetary benefit (to the victim and to 
society) accrues from reducing the annual number of victims of sexual 
abuse. This is, of course, an imperfect endeavor, given the inherent 
difficulty in assigning a dollar figure to the cost of such an event. 
Executive Order 13563 recognizes that some benefits and costs are 
difficult to quantify, and directs agencies to use the best available 
techniques to quantify benefits and costs. Executive Order 13563 also 
states that agencies ``may consider (and discuss qualitatively) values 
that are difficult or impossible to quantify, including equity, human 
dignity, fairness, and distributive impacts.'' Each of these values is 
relevant here, including human dignity, which is offended by acts of 
sexual abuse.
    DHS uses the Department of Justice (DOJ) estimates of unit 
avoidance values for sexual abuse, which DOJ extrapolated from the 
existing economic and criminological literature regarding

[[Page 13102]]

rape in the community.\4\ The RIA concludes that when all facilities 
and costs are phased into the rulemaking, the breakeven point would be 
reached if the standards reduced the annual number of incidents of 
sexual abuse by 122 from the estimated benchmark levels, which is 147 
percent of the total number of assumed incidents in ICE confinement 
facilities, including an estimated number of those who may not have 
reported an incident.\5\
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    \4\ Department of Justice, National Standards to Prevent, 
Detect, and Respond to Prison Rape, Final Rule, Final Regulatory 
Impact Analysis, Docket No. DOJ-OAG-2011-0002, available at 
www.regulations.gov.
    \5\ As discussed in Chapter 1, and shown in Table 17 of the RIA, 
the benchmark level of sexual abuse includes all types of sexual 
abuse, including offensive touching (for instance, during a pat-down 
search), voyeurism, harassment, and verbal abuse.
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    There are additional benefits of the rule that DHS is unable to 
monetize or quantify. Not only will victims benefit from a potential 
reduction in sexual abuse in facilities, so too will DHS agencies and 
staff, other detainees, and society as a whole. As noted by Congress, 
sexual abuse increases the levels of violence within facilities. Both 
staff and other detainees will benefit from a potential reduction in 
levels of violence and other negative factors. 42 U.S.C. 15601(14). 
This will improve the safety of the environment for other detainees and 
workplace for facility staff. In addition, long-term trauma from sexual 
abuse in confinement may diminish a victim's ability to reenter society 
resulting in unstable employment. Preventing these incidents will 
decrease the cost of health care, spread of disease, and the amount of 
public assistance benefits required for victims upon reentry into 
society, whether such reentry is in the United States or a detainee's 
home country.
    Chapter 3 of the RIA presents detailed descriptions of the 
monetized benefits and break-even results. The Summary Table, below, 
presents a summary of the benefits and costs of the final rule. The 
costs are discounted at seven percent.

                            Summary Table--Estimated Costs and Benefits of Final Rule
                                                   [$Millions]
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                                                          Immigration
                                                           detention      Holding facilities    Total DHS PREA
                                                          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                    N/A                 N/A               *147%
 With Monetized 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........................................     As explained above, we did not estimate the number of
                                                         incidents or victims of sexual abuse this rule would
                                                         prevent. Instead, we conducted a breakeven analysis.
                                                        Therefore, we did not estimate the net benefits of this
                                                                                 rule.
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* For ICE confinement facilities.

III. Background

    Rape is violent, destructive, and a crime, no matter where it takes 
place. In response to concerns related to incidents of rape of 
prisoners in Federal, State, and local prisons and jails, as well as 
the lack of data available about such incidents, the Prison Rape 
Elimination Act (PREA) was enacted in September 2003. See Public Law 
108-79 (Sept. 4, 2003). Some of the key purposes of the statute were to 
``develop and implement national standards for the detection, 
prevention, reduction, and punishment of prison rape,'' and to 
``increase the available data and information on the incidence of 
prison rape.'' 42 U.S.C. 15602(3), (4).
    To accomplish these ends, PREA established the National Prison Rape 
Elimination Commission (NPREC) to conduct a ``comprehensive legal and 
factual study of the penalogical, physical, mental, medical, social, 
and economic impacts of prison rape in the United States,'' and to 
recommend national standards for the reduction of prison rape. 42 
U.S.C. 15606(d). PREA charged the Attorney General, within one year of 
NPREC issuing its report, to ``publish a final rule adopting national 
standards for the detection, prevention, reduction, and punishment of 
prison rape . . . based upon the independent judgment of the Attorney 
General, after giving due consideration to the recommended national 
standards provided by [NPREC] . . . and being informed by such data, 
opinions, and proposals that the Attorney General determines to be 
appropriate to consider.'' 42 U.S.C. 15607(a)(1)-(2).
    The NPREC released its findings and recommended national standards 
in a report (the NPREC report) dated June 23, 2009. The report is 
available at http://www.ncjrs.gov/pdffiles1/226680.pdf. In that report, 
NPREC set forth four sets of recommended national standards for 
eliminating prison rape and other forms of sexual abuse. Each set was 
applicable to one of four confinement settings: (1) Adult prisons and 
jails; (2) lockups; (3) juvenile facilities; and (4) community 
corrections facilities. NPREC report at 215-235. The NPREC report 
recommends supplemental standards for facilities with immigration 
detainees. Id. at 219-220. Specifically, and of particular interest to 
DHS, the NPREC made eleven recommendations for supplemental standards 
for facilities with immigration detainees and four recommendations for 
supplemental standards for family facilities. NPREC asserted that 
standards for facilities with immigrant detainees must be enforced in 
any facility that is run by ICE or through an ICE contract.

A. Department of Justice Rulemaking

    In response to the NPREC report, a DOJ PREA Working Group reviewed 
the NPREC's proposed standards to assist in the rulemaking process. DOJ 
published an advance notice of proposed rulemaking (ANPRM) on March 10, 
2010 (75 FR 11077). Commenters on the ANPRM generally supported the 
broad goals of PREA and the overall intent of the NPREC's 
recommendations, with some division over the merits of a number of the 
NPREC's recommended national standards.

[[Page 13103]]

    DOJ then issued a notice of proposed rulemaking (NPRM) on February 
3, 2011, setting forth proposed national PREA standards. 76 FR 6248 
(Feb. 3, 2011). In response to the NPRM, DOJ received over 1,300 
comments that provided general assessments of DOJ's efforts as well as 
specific and detailed recommendations regarding each standard. 
Pertinent to DHS, there was specific concern expressed by the 
commenters with respect to NPREC's recommended supplemental standards 
for immigration detention number six, which proposed to mandate that 
immigration detainees be housed separately from criminal detainees. The 
DOJ NPRM noted that several comments to the DOJ ANPRM raised a concern 
that this requirement would impose a significant burden on jails and 
prisons, which often do not have the capacity to house immigration 
detainees and criminal detainees separately. Id. The DOJ NPRM also 
noted DOJ's concern about other proposed supplemental standards, such 
as imposing separate training requirements and requiring agencies to 
attempt to enter into separate memoranda of understanding with 
immigration-specific community service providers. Id. Furthermore, 
comments to the DOJ NPRM addressed whether the proposed standards 
should cover immigration detention facilities, prompting DOJ to examine 
the application of PREA to other Federal confinement facilities, which 
is discussed further below.
    Following the public comment period for its NPRM, DOJ issued a 
final rule setting a national framework of standards to prevent, 
detect, and respond to prison rape at DOJ confinement facilities, as 
well as State prisons and local jails. 77 FR 37106 (June 20, 2012).

B. Application of PREA Standards to Other Federal Confinement 
Facilities

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

C. The Presidential Memorandum on Implementing the Prison Rape 
Elimination Act and the Violence Against Women Reauthorization Act of 
2013

    On May 17, 2012, the same day DOJ released its final rule, 
President Obama issued a Presidential Memorandum reiterating the goals 
of PREA and directing Federal agencies with confinement facilities that 
are not already subject to the DOJ final rule to propose rules or 
procedures necessary to satisfy the requirements of PREA within 120 
days of the Memorandum. In the Memorandum, the President firmly 
establishes that sexual violence, against any victim, is an assault on 
human dignity and an affront to American values, and that PREA 
established a ``zero-tolerance standard'' for rape in prisons in the 
United States. The Memorandum further expresses the Administration's 
conclusion that PREA encompasses all Federal confinement facilities, 
including those operated by executive departments and agencies other 
than DOJ, whether administered by the Federal Government or by an 
organization on behalf of the Federal Government, and that each agency 
is responsible for, and must be accountable for, the operations of its 
own confinement facilities. The President charged each agency, within 
the agency's own expertise, to determine how to implement the Federal 
laws and rules that govern its own operations, but to ensure that all 
agencies that operate confinement facilities adopt high standards to 
prevent, detect, and respond to sexual abuse. The President directed 
all agencies with Federal confinement facilities that are not already 
subject to the DOJ final rule, such as DHS, to work with the Attorney 
General to propose rules or procedures that will satisfy the 
requirements of PREA.
    Additionally, on March 7, 2013, the VAWA Reauthorization was 
enacted, which included a section addressing sexual abuse in custodial 
settings. See Public Law 113-4 (Mar. 7, 2013). Among requirements 
addressing certain Federal agencies, the law directs DHS to publish a 
final rule adopting national standards for the detection, prevention, 
reduction, and punishment of rape and sexual assault in facilities that 
maintain custody of aliens detained for a violation of U.S. 
immigrations laws. Id. The standards are to apply to DHS-operated 
detention facilities and to detention facilities operated under 
contract with DHS, including contract detention facilities (CDFs) and 
detention facilities operated through an intergovernmental service 
agreement (IGSA) with DHS. Id. The statute requires that the DHS 
standards give due consideration to the recommended national standards 
provided by NPREC. Id.
    Sexual abuse in custodial environments is a serious concern with 
dire consequences for victims. DHS is firmly committed to protecting 
detainees from all forms of sexual abuse. By this regulation, DHS 
responds to and fulfills the President's directive and the requirements 
of the VAWA Reauthorization by creating comprehensive, national 
regulations for the detection, prevention, and reduction of sexual 
abuse at DHS immigration detention facilities and at DHS holding 
facilities that maintain custody of aliens detained for violating U.S. 
immigration laws.

D. DHS Proposed Rule and Public Comments

    On December 19, 2012, DHS published an NPRM entitled Standards To 
Prevent, Detect, and Respond to Sexual Abuse and Assault in Confinement 
Facilities; Proposed Rule. 77 FR 75300. On January 2, 2013 DHS 
published an Initial Regulatory Impact Analysis (IRIA), which presented 
a comprehensive assessment of the benefits and costs of DHS's proposed 
standards in both quantitative and qualitative terms. The IRIA was 
summarized in the proposed rule and was published in full in the docket 
(ICEB-2012-003) on the regulations.gov Web site. The public comment 
period on the NPRM originally was scheduled to end on February 19, 
2013. Due to scheduled maintenance to the Federal

[[Page 13104]]

eRulemaking Portal, DHS extended the comment period by one week until 
February 26, 2013. 78 FR 8987. DHS received a total of 1,724 comments 
on the proposed rule. No public meeting was requested, and none was 
held.
    Commenters included private citizens, professional organizations, 
social service providers, and advocacy organizations concerned with 
issues involving detainee safety and rights, sexual violence, 
discrimination, and the mental health of both the detainees and the 
facility employees. In general, commenters supported the goals of PREA 
and DHS's proposed rule. However, some commenters, particularly 
advocacy groups concerned with protecting the health and safety of the 
detainees, expressed concern that the proposed rule did not go far 
enough towards achieving the goals that PREA set forth. Some comments 
were outside the scope of the proposed rule, and therefore have not 
been included in the DHS responses and changes in the final rule below. 
DHS thanks the public for its interest and participation.
    Members of Congress and others have also expressed interest in this 
rulemaking. In describing the potential positive impacts of the VAWA 
Reauthorization, Senator Richard Durbin--both a PREA and VAWA 
Reauthorization legislative co-sponsor--referred to the importance of 
the bill's provision regarding implementation of PREA standards by DHS. 
Specifically, Senator Durbin applauded DHS's efforts, through its 
proposed rule, to implement rules consistent with PREA's goals. 159 
Cong. Rec. S503 (daily ed. Feb. 7, 2013) (statement of Sen. Durbin). 
Senator Durbin noted that, ``It was critical . . . to have a provision 
in this VAWA Reauthorization that clarifies that standards to prevent 
custodial rape must apply to immigration detainees--all immigration 
detainees--a provision that codifies the good work DHS is now doing and 
ensures strong regulations pertaining to immigration will remain in 
place in the future.'' Id. DHS appreciates this strong statement of 
confidence in DHS's proposed rule, by a legislator who advocated for 
the original PREA legislation.
    When the public comment period closed, DHS carefully reviewed each 
comment and deliberated internally on the revisions that the commenters 
proposed.

E. Types of DHS Confinement Facilities

    This rule applies to just two types of confinement facilities: (1) 
Immigration detention facilities and (2) holding facilities.
    Section 115.5 defines an immigration detention facility as a 
``confinement facility operated by or pursuant to contract with [ICE] 
that routinely holds persons for over 24 hours pending resolution or 
completion of immigration removal operations or processes, including 
facilities that are operated by ICE, facilities that provide detention 
services under a contract awarded by ICE, or facilities used by ICE 
pursuant to an Intergovernmental Service Agreement.'' These facilities 
are designed for long-term detention (more than 24 hours) and house the 
largest number of DHS detainees. ICE is the only DHS component agency 
with immigration detention facilities, and it has several types of such 
facilities: Service processing center (SPC) facilities are ICE-owned 
facilities staffed by a combination of Federal employees and contract 
staff; CDFs are owned by private companies and contracted directly with 
ICE; and detention services at IGSA facilities are provided to ICE by 
States or local governments through agreements and may be owned by the 
State or local government, or a private entity.\6\ There are two types 
of IGSA facilities: Dedicated IGSA facilities, which house detained 
aliens only, and non-dedicated (i.e., shared) IGSA facilities, which 
may house a variety of detainees and inmates.
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    \6\ In the preamble of the proposed rule, DHS listed 
Intergovernmental Agreement (IGA) facilities among the types of 
immigration detention facilities. Upon further review, DHS has 
determined that ICE does not contract with state or local 
governments using IGAs, and therefore has no immigration detention 
facilities that qualify as IGAs (as opposed to IGSAs). As discussed 
in greater detail below, although ICE is an authorized user of USMS 
IGA facilities, the facilities and their immigration detainees would 
be covered by the DOJ PREA standards and not the provisions within 
Subpart A of these proposed rules.
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    The standards set forth in Subpart A of these proposed regulations 
are meant ultimately to apply to all of these various types of 
immigration detention facilities--but not, notably, to facilities 
authorized for use by ICE pursuant to agreements with BOP or pursuant 
to agreements between DOJ and state or local governments or private 
entities (e.g., USMS IGA facilities). Those facilities and their 
immigration detainees are covered by the DOJ PREA standards and not the 
provisions within Subpart A of these proposed rules.
    These regulations do not apply to CDF and IGSA facilities directly; 
rather, standards for these facilities will be phased in through new 
contracts, contract renewals, or substantive contract modifications. 
Specifically, the regulations require that when contracting for the 
confinement of detainees in immigration detention facilities operated 
by non-DHS private or public agencies or other entities, DHS component 
agencies include in any new contracts, contract renewals, or 
substantive contract modifications the obligation to adopt and comply 
with these standards. (Covered substantive contract modifications would 
include, for example, changes to the bed/day rate or the implementation 
of stricter standards, but not the designation of a new Contracting 
Officer.) In other words, DHS intends to enforce the standards though 
terms in its contracts with facilities.
    Section 115.5 defines a holding facility similarly to DOJ's 
definition of ``lockup.'' A ``holding facility'' is a facility that 
contains holding cells, cell blocks, or other secure enclosures that 
are: (1) Under the control of the agency; and (2) primarily used for 
the short-term confinement of individuals who have recently been 
detained pending release or transfer to or from a court, jail, prison, 
or other agency. These facilities, which are operated by ICE, CBP, or 
other DHS components, are designed for confinement that is short-term 
in nature, but are permanent structures intended primarily for the 
purpose of such confinement. Temporary-use hold rooms and other types 
of short-term confinement areas not primarily used for confinement are 
not amenable to compliance with these standards, but are covered by 
other DHS policies and procedures. We discuss the distinctions between 
these facilities in more detail later in this rule.
1. ICE Detention Facilities
    As stated above, the NPREC report contained eleven recommended 
standards for facilities with immigration detainees and four 
recommended standards specifically addressing family facilities. ICE 
oversees immigration detention facilities nationwide. The vast majority 
of facilities are operated through government contracts, State and 
local entities, private entities, or other Federal agencies. ICE 
Enforcement and Removal Operations (ERO) is the program within ICE that 
manages ICE operations related to the immigration detention system.
    ERO is responsible for providing adequate and appropriate custody 
management to support the immigration removal process. This includes 
providing traditional and alternative custody arrangements for those in 
removal proceedings, providing aliens access to legal resources and 
representatives of advocacy groups, and facilitating the appearance of 
detained aliens at immigration court hearings.

[[Page 13105]]

Through various immigration detention reform initiatives, ERO is 
committed to providing and maintaining appropriate conditions of 
confinement, providing required medical and mental healthcare, housing 
detainees in the least restrictive setting commensurate with their 
criminal background, ensuring appropriate conditions for all detainees, 
employing fiscal accountability, increasing transparency, and 
strengthening critical oversight, including efforts to ensure 
compliance with applicable detention standards through inspection 
programs.
    The ERO Custody Management Division (CMD) provides policy and 
oversight for the administrative custody of immigration detainees, a 
highly transient population and one of the most diverse of any 
correctional or detention system in the world. CMD's mission is to 
manage ICE detention operations efficiently and effectively to provide 
for the safety, security and care of aliens in ERO custody.
    As of spring 2012, ERO was responsible for providing custody 
management to approximately 158 authorized immigration detention 
facilities, consisting of 6 SPCs, 7 CDFs, 9 dedicated IGSA facilities, 
and 136 non-dedicated IGSA facilities (of which 64 are covered by the 
DOJ PREA rule, not this rule, because they are USMS IGA facilities). 
ERO has 91 other authorized immigration detention facilities that 
typically hold detainees for more than 24 hours and less than 72 hours, 
including 55 USMS IGA facilities and 36 non-dedicated IGSA facilities. 
In addition, ICE has 149 holding facilities that hold detainees for 
less than 24 hours. These holding facilities are nationwide and are 
located within ICE ERO Field and Sub-Field Offices.\7\
---------------------------------------------------------------------------

    \7\ Facilities ICE used as of spring 2012, and the sexual abuse 
and assault standards to which facilities were held accountable or 
planned to be held accountable at that time, serve as the baseline 
for the cost estimates for this rulemaking.
---------------------------------------------------------------------------

2. ICE Sexual Abuse and Assault Policies
    These regulations for immigration detention facilities and holding 
facilities support existing sexual abuse policies promulgated by ICE, 
including ICE's PBNDS 2011 and its 2012 Sexual Abuse and Assault 
Prevention and Intervention Directive (SAAPID),\8\ which provide strong 
safeguards against all sexual abuse of individuals within its custody, 
consistent with the goals of PREA.
---------------------------------------------------------------------------

    \8\ ICE, Performance-Based National Detention Standards (2011), 
http://www.ice.gov/doclib/detention-standards/2011/pbnds2011.pdf; 
ICE, Directive No. 11062.1: Sexual Abuse and Assault Prevention and 
Intervention (2012), http://www.ice.gov/doclib/foia/dro_policy_memos/sexual-abuse-assault-prevention-intervention-policy.pdf. These 
documents are available, redacted as appropriate, in the docket for 
this rule where indicated under ADDRESSES.
---------------------------------------------------------------------------

    ICE's PBNDS 2011 standard on ``Sexual Abuse and Assault Prevention 
and Intervention'' was developed in order to enhance protections for 
immigration detainees as well as ensure a swift and effective response 
to allegations of sexual abuse. This standard derived in significant 
part from earlier policies contained in ICE's PBNDS 2008, promulgated 
in response to the passage of PREA, and took into consideration the 
subsequently released recommendations of the NPREC (including those for 
facilities housing immigration detainees) in June 2009 and ensuing 
draft standards later issued by DOJ in its ANPRM in March 2010. In 
drafting the PBNDS 2011, ICE also incorporated the input of the DHS 
Office for Civil Rights and Civil Liberties (CRCL), local and national 
advocacy organizations, and representatives of DOJ (including 
correctional experts from BOP) on methods for accomplishing the 
objectives of PREA in ICE's operational context, and closely consulted 
information and best practices reflected in policies of international 
corrections systems, statistical data on sexual violence collected by 
the DOJ Bureau of Justice Statistics (BJS), and reports published by 
the United Nations High Commissioner for Refugees and the Inter-
American Commission on Human Rights of the Organization of American 
States regarding sexual abuse and other issues affecting vulnerable 
populations in U.S. correctional systems. The PBNDS 2011 establish 
responsibilities of all immigration detention facility staff with 
respect to preventative measures such as screening, staff training, and 
detainee education, as well as effective response to all incidents of 
sexual abuse, including timely reporting and notification, protection 
of victims, provision of medical and mental health care, investigation, 
and monitoring of incident data.
    The PBNDS 2008 standard on Sexual Abuse and Assault Prevention and 
Intervention and the Family Residential Standards also contain robust 
safeguards against sexual abuse of ICE detainees, establishing similar 
requirements with respect to each of the issues covered by the PBNDS 
2011 Sexual Abuse standard. In addition, ICE has made great strides in 
incorporating standards specific to sexual abuse and assault in NDS 
facilities. In fact, since the publication of the NPRM a substantial 
number of NDS facilities with which ICE maintains IGSAs have agreed to 
implement the PBNDS 2011's Sexual Abuse and Assault Prevention and 
Intervention standard. Excluding those detainees who are held in DOJ-
contracted facilities (and are therefore covered by the DOJ rule), as 
of July 2013 approximately 94% of ICE detainees, on average, are housed 
in facilities that have adopted a sexual abuse and assault standard 
under PBNDS 2011, PBNDS 2008, or Family Residential Standards.\9\
---------------------------------------------------------------------------

    \9\ Less than one-third of ICE's average detainee population is 
currently housed in facilities governed by the agency's 2000 
National Detention Standards (NDS), which does not contain a 
standard specific to sexual abuse prevention and intervention--and 
nearly half of those detainees are in USMS IGA facilities. A 
substantial number of NDS facilities with which ICE maintains an 
IGSA have agreed to implement the PBNDS 2011's Sexual Abuse and 
Assault Prevention and Intervention standard. Again excluding 
detainees who are held in DOJ-contracted facilities (and are 
therefore covered by the DOJ PREA rule), as of July 2013, nearly 
three quarters of ICE detainees housed in NDS IGSA facilities are 
covered by the PBNDS 2011 sexual abuse and assault standard. For 
more information on the standards applicable to DOJ facilities, see 
the discussion infra.
---------------------------------------------------------------------------

    The 2012 ICE SAAPID complements the requirements established by the 
detention standards by delineating ICE-wide policy and procedures and 
corresponding duties of employees for reporting, responding to, 
investigating, and monitoring incidents of sexual abuse. Regardless of 
the standards applicable to a particular facility, ICE personnel are 
required under this Directive to ensure that the substantive response 
requirements of PBNDS 2011 are met, and that incidents receive timely 
and coordinated agency follow-up. In conjunction with the PBNDS, the 
SAAPID ensures an integrated and comprehensive system of preventing and 
responding to all incidents or allegations of sexual abuse of 
individuals in ICE custody.
    On September 4, 2013, ICE issued a directive entitled ``Review of 
the Use of Segregation for ICE Detainees.'' The directive establishes 
policy and procedures for ICE review of detainees placed into 
segregated housing. It is intended to complement the requirements of 
the 2011 PBNDS, the 2008 PBNDS, NDS and other applicable policies. The 
directive states that placement in segregation should occur only when 
necessary and in compliance with applicable detention standards, and 
includes a notification requirement whenever a detainee has been held 
continuously in segregation for 14 days out of any 21 day period and a 
72-hour notification requirement for detainees placed in segregation 
due to a special vulnerability, including for detainees susceptible to 
harm due to sexual orientation or gender identity, and detainees who 
have been victims--in or

[[Page 13106]]

out of ICE custody--of sexual assault, torture, trafficking, or abuse.
    ICE's combined policies prescribe a comprehensive range of 
protections against sexual abuse, addressing prevention planning, 
reporting, response and intervention, investigation, and oversight, 
including: Articulation of facility zero-tolerance policies; 
designation of facility and component sexual assault coordinators; 
screening and classification of detainees; staff training; detainee 
education; detainee reporting methods; staff reporting and 
notification; first responder duties following incidents or allegations 
of sexual abuse (including to protect victims and preserve evidence); 
emergency and ongoing medical and mental health services; investigation 
procedures and coordination; discipline of assailants; and sexual abuse 
incident data collection and review.
    These policies are tailored to the particular operational and 
logistical circumstances encountered in the DHS confinement system in 
order to maximize the effective achievement of the goals of PREA within 
the immigration detention context. To further improve transparency and 
enforcement, DHS has decided to issue this regulation and adopt the 
overall structure of the DOJ standards, as well as the wholesale text 
of various individual DOJ standards where DHS has deemed them 
appropriate and efficacious, to meet the President's goal of setting 
high standards, government-wide, consistent with the goals of PREA and 
Congress's expressed intent that DHS adopt national standards for the 
detection, prevention, reduction, and punishment of rape and sexual 
assault in immigration confinement settings. Where appropriate, DHS 
also has used the results of DOJ research and considered public 
comments submitted in response to the DOJ ANPRM and NPRM in formulating 
the DHS standards.
3. U.S. Customs and Border Protection Holding Facilities
    CBP has a priority mission of keeping terrorists and their weapons 
out of the United States. CBP also is responsible for securing and 
facilitating trade and travel while enforcing hundreds of U.S. statutes 
and regulations, including immigration and drug laws. All persons, 
baggage, and other merchandise arriving in or leaving the United States 
are subject to inspection and search by CBP officials for a number of 
reasons relating to its immigration, customs, and other law enforcement 
activities.
    CBP detains individuals in a wide range of facilities. CBP detains 
some individuals in secured detention areas, while others are detained 
in open seating areas where agents or officers interact with the 
detainee. CBP uses ``hold rooms'' in its facilities for case processing 
and to search, detain, or interview persons who are being processed. 
CBP does not currently contract for law enforcement staff within its 
holding facilities; CBP employees oversee detainees directly.
    CBP generally detains individuals for only the short time necessary 
for inspection and processing, including pending release or transfer of 
custody to appropriate agencies. Some examples of situations in which 
CBP detains individuals prior to transferring them to other agencies 
are: (1) Persons processed for administrative immigration violations 
may, for example, be repatriated to a contiguous territory or 
transferred to ICE pending removal from the United States or removal 
proceedings with the Executive Office of Immigration Review; (2) 
unaccompanied alien children placed in removal proceedings under Sec.  
240 of the Immigration and Nationality Act (INA), 8 U.S.C. 1229a, are 
transferred, in coordination with ICE, to the Department of Health and 
Human Services (HHS), Office of Refugee Resettlement (ORR); and (3) 
persons detained for criminal prosecution are temporarily held pending 
case processing and transfer to other Federal, State, local or tribal 
law enforcement agencies. CBP policies and directives currently cover 
these and other detention scenarios.
4. CBP Detention Directives and Guidance
    The various CBP policies and directives containing guidance on the 
topics addressed in these regulations include, but are not limited to:
    Personal Search Handbook, Office of Field Operations, CIS HB 3300-
04B, July 2004--describes in detail the procedures for personal 
searches. The handbook further explains the procedures for 
transportation and detention of, and reporting procedures for, persons 
detained for prolonged medical examinations as well as detentions 
lasting more than two hours.
    CBP Directive No. 3340-030B, Secure Detention, Transport and Escort 
Procedures at Ports of Entry--establishes CBP's policy for the 
temporary detention, transport, and escort of persons by the Office of 
Field Operations. The policy also provides guidance on issues regarding 
the detention of juveniles, medical situations, meals, water, 
restrooms, phone notifications, sanitation of the hold room, 
restraining procedures, classification of detainees, 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 at www.regulations.gov.

IV. Discussion of PREA Standards

A. DHS's PREA Standards

    With this final rule, DHS reiterates that 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 viewed by some as an inevitable aspect 
of detention within the United States. This view is not only incorrect 
but incompatible with American values.
    As noted in the NPRM, DHS keeps records of any known or alleged 
sexual abuse incidents in its facilities. DHS reiterates that the 
allegations that have been tracked are unacceptable, both to DHS and 
the Administration, which has articulated a ``zero-tolerance'' standard 
for sexual abuse in confinement facilities. Accordingly, DHS continues 
to work to achieve its mandate to eliminate all such incidents.
    With respect to this rule, 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 confinement facilities, including DHS confinement 
facilities. DHS applauds these efforts, and views them as an excellent 
first step. However, as noted in the NPRM, DHS has decided to 
promulgate regulations 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.

[[Page 13107]]

    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 the NPRM and this 
final rule, but has tailored individual provisions to maximize their 
efficacy in DHS confinement facilities.
    DHS also reemphasizes that these 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 due to the need to 
adopt standards applicable to a wide range of facilities while 
accounting for costs of implementation, the standards do not 
incorporate every promising avenue of combating sexual abuse. The 
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 rule follows the DOJ rule in devising separate sets of 
standards tailored to different types of confinement facilities 
utilized by 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.

General Definitions (Sec.  115.5)

    Sections 115.5 and 115.6 provide definitions for key terms used in 
the 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 standards or whose meaning is 
sufficiently clear so as not to need defining.
    Facility, holding facility--transportation. Numerous commenters, 
including advocacy groups and former Commissioners of NPREC, questioned 
this definition of facility, noting that it did not extend to custodial 
transport, when detainees are in transit between facilities. An 
advocacy group stated that the transfer of detainees, either between 
facilities or to facilitate removal, is a common aspect of immigration 
detention, necessitating clear inclusion of PREA protections during 
these situations. Another advocacy group stated that detainees are 
vulnerable when being transported and that, unlike within the DOJ 
system, facility staff regularly transport immigration detainees. One 
organization stated that definitions for both facility and holding 
facility should explicitly include transportation settings to provide 
for zero tolerance of abuse in such situations, with some groups 
stating that such definitions should include the language in PBNDS 
Sec.  1.3 that addresses transportation.
    DHS has considered these comments and decided to adopt the scope of 
the proposed rule--immigration detention facilities and holding 
facilities. DHS notes that some standards indirectly cover custodial 
transport. For example, the DHS standards cover all staff conduct, 
including staff and employee conduct while transporting detainees.
    In addition, DHS has addressed custodial transport in numerous 
other contexts. The written zero tolerance policy applies to all forms 
of sexual abuse and assault by agency employees and contractors. This 
policy applies to transport of detainees in DHS custody to and from 
holding facilities and immigration detention facilities, between a 
holding facility and a detention facility, and to custodial transport 
for the purposes of removal. Moreover, the ICE SAAPID provides 
protection for all detainees when they are in ICE custody, including 
custodial transport. And whenever DHS is alerted to an alleged incident 
of sexual abuse and assault during DHS transport to or from a holding 
facility or immigration detention facility or during DHS custodial 
transport for the purposes of removal, such allegations are required to 
be documented and promptly reported to the Joint Intake Center (JIC) 
and the PSA Coordinator, and will promptly receive appropriate follow-
up, including a sexual abuse incident review at the conclusion of the 
investigation by the appropriate investigative authorities. In 
situations involving transportation between a holding facility 
maintained by one DHS component and an immigration detention facility 
maintained by another component, the Prevention of Sexual Assault (PSA) 
Coordinators at each component will be responsible for addressing the 
allegation in their respective annual reports.
    By including explicit references to such custodial transportation 
in its policies, DHS reaffirms its commitment to preventing, detecting, 
and responding to sexual abuse and assault against individuals detained 
in DHS custody. Consistent with DOJ's approach, however, DHS declines 
to include additional separate standards on transportation.
    One advocacy group, basing its comment on ICE standards under 
PBNDS, suggested a separate section in the final rule addressing 
transportation that would require that two transportation staff members 
be assigned to transport a single detainee, including at least one 
staff member of the same gender as the detainee, except in exigent 
circumstances. The suggested standards would specify similar 
requirements for multiple-detainee transit, provide detailed 
timekeeping accountability guidelines for exigent circumstances 
situations, provide documentation requirements when aberrations from 
the above suggestions occur, and provide separate rules for conduct and 
documentation requirements of pat-downs during transportation. The 
group also suggested the standards require minors to be separated from 
unrelated adults at all times during transport, seated in an area of 
the vehicle near officers, and remain under their close supervision. 
Additionally, the commenter suggested detainees of different genders be 
transported separately--or, if in one vehicle, in separately 
partitioned areas--with transgender detainees being transported in a 
manner corresponding to their gender identity.
    As noted above, DHS recognizes the importance of protecting 
detainees in all custodial settings, including during transport. For 
this reason, and as noted by the commenters, ICE has promulgated, and 
is currently in the process of implementing, 2011 PBNDS, which provides 
greater protection for

[[Page 13108]]

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

[[Page 13109]]

Family Detention and Intake Guidance remains in the regulatory text. 
The revised definition also permits the agency to maintain needed 
flexibility to ensure the safety of juveniles in DHS custody.
    Revising the ``family unit'' definition as applied in Subpart A to 
allow all individuals with a non-violent criminal history to stay with 
minors, and to expand the definition of family to include non-parental 
family members or family friends, as recommended by commenters, 
potentially could conflict with the intent behind ICE's Family 
Detention and Intake Guidance, which seeks to protect children from 
abuse and human trafficking. DHS therefore declines to incorporate that 
specific recommendation into the revised definition.
    One commenter suggested revising the definition of family unit to 
include not only non-U.S. citizen juvenile(s) accompanied by their 
parents or legal guardians, but also non-U.S. citizen juveniles 
accompanied by ``a sponsor approved by'' HHS/ORR. The commenter stated 
that ``[i]n the context of apprehension and enforcement, a family unit 
should be broadened to include ORR-approved sponsors because they have 
the authority to release unaccompanied children to a `suitable family 
member' per 8 U.S.C. 1232(c).''
    The definition of ``family unit'' relates to placement in the ICE 
Family Residential Program. An unaccompanied alien child without a 
parent or legal guardian would not meet the criteria set forth in the 
definition of a ``family unit'' for these purposes. An unaccompanied 
alien child would not be accompanied by a sponsor approved by HHS/ORR 
until after they are transferred from DHS to HHS/ORR. Once an 
unaccompanied alien child is transferred to HHS/ORR, they are no longer 
within DHS's jurisdiction. Furthermore, because the purpose of this 
final rule is to prevent, detect, and respond to sexual abuse and 
assault in confinement facilities, addressing the treatment of a family 
unit during apprehension and enforcement is outside the scope of this 
rule.
    Gay, lesbian, bisexual. One immigration advocacy group requested 
that the final rule define these terms, in addition to already included 
definitions of transgender, intersex, and gender nonconforming. The 
group suggested first looking to the U.S. Citizenship and Immigration 
Services (USCIS) Lesbian, Gay, Bisexual, Transgender, Intersex (LGBTI) 
Asylum Module's definitions regarding sexual orientation, gay, lesbian, 
heterosexual/straight, and bisexual.
    After considering the comment to include these terms in the final 
rule, DHS decided not to add them to the definitions section for 
several reasons. First, DHS used the DOJ PREA final rule--which does 
not define gay, lesbian, and bisexual--as a general guide when 
determining which definitions should be included. Second, as a general 
matter, the regulation currently relies on self-identification for 
classification and protective purposes.
    Security staff, law enforcement staff. A collection of advocacy 
groups suggested that the proposed definitions' distinction between 
security staff who operate at immigration detention facilities, and law 
enforcement staff who operate in a holding facility, should be 
eliminated and consolidated under one ``security staff'' definition so 
that security personnel at each type of facility are labeled in the 
same way. The groups contended that DHS does not need to differentiate 
like the DOJ standards, and suggests consolidating by adding ``or 
holding facility'' to the conclusion of the ``security staff'' 
definition.
    DHS notes that under the final rule, there is a meaningful 
difference between security staff and law enforcement staff. Unlike 
holding facilities, which are staffed by law enforcement officers from 
either ICE or CBP, immigration detention facilities use a wide range of 
staffing, including personnel from private companies who are not law 
enforcement officers. The general definitions of ``law enforcement 
staff'' and ``security staff'' recognize this distinction and allow DHS 
to tailor its rule to the specific contexts at issue.

Definitions Related to Sexual Abuse and Assault (Sec.  115.6)

    Sexual abuse. One commenter stated that the current definition 
should include language from the definition implemented by DOJ, 
including unwelcome sexual advances, requests for sexual favors, or 
verbal comments, gestures or actions of a derogatory or offensive 
sexual nature. The commenter encouraged DHS to add this language 
because the actions that are described in DOJ's definition seem more 
likely to occur than the proposed rule's description of sexual abuse. A 
number of advocacy groups commented that the part of the proposed 
sexual abuse definition addressing threats, intimidation, harassment, 
profane or abusive language, or other actions or communications 
coercing or pressuring into a sexual act, should include ``requests'' 
and should also encompass ``encouraging'' detainees to engage in such 
an act.
    It appears that the commenters are comparing the DHS definition of 
sexual abuse to the definition of sexual harassment in DOJ's standards. 
DHS has not added this language because the DHS standards already 
include a similar definition of sexual harassment within the current 
DHS definition of sexual abuse. Specifically, the DHS definition of 
sexual abuse in Sec.  115.6 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.'' DHS believes 
that this coverage under the definition of sexual abuse is sufficient 
and accomplishes the objective sought by the commenter. DHS also notes 
that the standards include sexual harassment in the definition of staff 
on detainee sexual abuse.
    Regarding the proposed rule's provision on inappropriate visual 
surveillance, certain advocacy groups requested that the standards 
specifically include within the definition of sexual abuse acts of 
voyeurism by staff members, contractors, or volunteers. The commenters 
suggested that explicitly incorporating voyeurism into the definition 
was necessary in order to capture the complete scope of prohibited 
behavior. The suggested more expansive definition would include 
unnecessary or inappropriate visual surveillance of a detainee, 
including requiring a detainee to expose his or her buttocks, genitals, 
or breasts, or unnecessarily viewing or taking images of all or part of 
a detainee's naked body or of a detainee performing bodily functions.
    DHS has considered this suggested addition to the standards and the 
DHS final rule now expressly includes voyeurism by a staff member, 
contractor, or volunteer as a type of sexual abuse. Voyeurism is 
defined as ``inappropriate visual surveillance of a detainee for 
reasons unrelated to official duties. Where not conducted for reasons 
relating to official duties, the following are examples of voyeurism: 
Staring at a detainee who is using a toilet in his or her cell to 
perform bodily functions; requiring an inmate detainee to expose his or 
her buttocks, genitals, or breasts; or taking images of all or part of 
a detainee's naked body or of a detainee performing bodily functions.''
    One commenter suggested that the sexual abuse definition account 
for a detained child's legal inability to consent to sex with an adult. 
DHS recognizes the extreme importance of protecting minors while in 
custody and remains fully committed to that end.

[[Page 13110]]

DHS notes that existing Federal and State laws legally preclude the 
possibility of consent by a detainee to sexual relations with a staff 
member while in custody, and moreover provide that any such sexual acts 
be criminalized, regardless of the age of the detainee. DHS considers 
the existence of these legal prohibitions outside the context of the 
regulation to authoritatively establish the legal inability of a child 
to consent to sex with an adult while in detention. For this reason, 
DHS declines to incorporate additional language to the regulation in 
response to the comment.

Coverage of DHS Immigration Detention Facilities (Sec.  115.10); 
Coverage of DHS Holding Facilities (Sec.  115.110)

Summary of Proposed Rule

    The standards contained in the proposed rule clarified that ICE 
immigration detention facilities are governed by Subpart A of the rule. 
DHS holding facilities are governed by Subpart B. DHS recognizes that 
to effectively prevent, detect, and respond to sexual abuse in its 
facilities, DHS must have strong standards appropriate to each unique 
context. 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.

Changes in Final Rule

    DHS is adopting the regulation as proposed.

Comments and Responses

    Comment. Regarding coverage, one organization expressed concern 
that agency policies should include zero tolerance of sexual abuse 
during transportation of detainees in DHS custody, as well as in 
detention facilities. The group suggested stating in Subpart B's 
coverage standard that the standard covers transportation to or from 
DHS holding facilities in addition to holding facilities themselves.
    Response. Please see DHS's response in the discussion of Sec.  
115.5 above.

Zero Tolerance; PSA Coordinator (Sec. Sec.  115.11, 15.111)

Summary of Proposed Rule

    The standards in the proposed rule required that each covered 
agency have a written zero-tolerance policy toward sexual abuse, 
outlining the agency's approach to preventing, detecting, and 
responding to such conduct. DHS also proposed that each covered agency 
appoint an upper-level, agency-wide PSA Coordinator to oversee agency 
efforts to comply with the DHS standards and that each immigration 
detention facility covered by Subpart A have its own written zero-
tolerance policy and appoint a Prevention of Sexual Assault (PSA) 
Compliance Manager to oversee facility efforts in this regard.

Changes in Final Rule

    DHS is adopting the regulation as proposed, with one technical 
revision to the PSA Coordinator's title.

Comments and Responses

    Comment. The organization that suggested changes regarding covering 
transportation in Sec.  115.110 also recommended revising paragraph (b) 
to include in the PSA Coordinator's responsibilities for protecting 
detainees in the agency's custody, including detainees being 
transported to or from its holding facilities while in DHS custody, in 
addition to those held in all of its holding facilities.
    Response. As previously stated, DHS has zero tolerance for all 
forms of sexual abuse and assault of individuals in custody. This 
applies to DHS custodial transport to and from holding facilities and 
immigration detention facilities, between a holding facility and a 
detention facility, and for the purposes of removal. The PSA 
Coordinators will oversee all component efforts to comply with the 
standards, including zero tolerance. It is not necessary to revise the 
rule to include a reference to transportation.
    Comment. Former NPREC Commissioners noted that under the proposed 
standards, facilities have considerable discretion to determine their 
sexual abuse policies; therefore, prior to permitting detainees to be 
confined in a facility, DHS should ensure its policies are consistent 
with PREA standards.
    Response. DHS concurs that it is important to ensure that facility 
policies are consistent with PREA standards. Section 115.11(c) already 
requires DHS to review each facility's sexual abuse and assault policy, 
as required by subsection (c). Therefore, no additional changes are 
required.
    Comment. An advocacy group commented generally that DHS should 
allocate sufficient staff and provide them with the authority and time 
to continually monitor the policies enacted by the facilities to 
reflect the zero-tolerance goal.
    Response. DHS recognizes the importance of dedicating personnel to 
implement, monitor, and oversee these efforts and has employed a full-
time PSA Coordinator. Section 115.11(b) already provides that the PSA 
Coordinator shall have sufficient time and authority to monitor 
implementation.

Contracting With Non-DHS Entities for Confinement of Detainees 
(Sec. Sec.  115.12, 115.112)

Summary of Proposed Rule

    The standards contained in the proposed rule required that covered 
agencies that contract for the confinement of detainees include in new 
contracts or contract renewals the other party's obligation to comply 
with the DHS sexual abuse standards.

Changes in Final Rule

    DHS revised Sec. Sec.  115.12 and 115.112 to require the agency to 
include the entity's obligation to adopt and comply with these 
standards in all substantive contract modifications.

Comments and Responses

    Comment. Multiple commenters suggested that contract facilities or 
IGSA facilities housing detainees should be required to adopt DHS 
sexual abuse standards within a specified timeframe, with some urging 
no delay in application and others urging compliance within 90 days or 
a year after the standards' effective date. The commenters believe that 
without a specific timeframe, or compliance schedule similar to that 
applicable to DHS's own facilities, contract facilities could delay 
implementing these standards. Commenters expressed concern over the 
potential lag between the standards' effective date and their 
implementation at non-DHS facilities.
    Among the commenters that recommended requiring adoption of the 
standards during any contract modification, some commenters suggested a 
set timeline of 90 days after the standards' effective date for DHS to 
proactively initiate contract modification or modification-related 
negotiations with any existing non-DHS facility. One such commenter 
suggested eliminating ``contact renewals'' as a scenario for when 
compliance with the standards would be triggered. The commenters also 
proposed that any such negotiations conclude within 270 days of the 
standards' effective date. Additionally the commenters, in paragraph 
(b), would also include ``contract modifications'' in the monitoring 
process, to allow DHS to monitor compliance for modified contracts. 
Commenters also recommended that DHS create a new requirement that any 
failure to adopt the changes via contract in the specified

[[Page 13111]]

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

[[Page 13112]]

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

[[Page 13113]]

respond to certain complaints by conducting investigations. The OIG 
will refer certain complaints to ERO.

Detainee Supervision and Monitoring (Sec. Sec.  115.13, 115.113)

Summary of Proposed Rule

    The standards contained in the proposed rule required the agency or 
the facility to make its own comprehensive assessment of adequate 
supervision levels, taking into account its use, if any, of video 
monitoring or other technology. The agency or facility must reassess 
such adequate supervision and monitoring at least annually and the 
assessment will include an examination of the adequacy of resources it 
has available to ensure adequate levels of detainee supervision and 
monitoring. Each immigration detention facility must also conduct 
frequent unannounced security inspections to identify and deter sexual 
abuse of detainees.

Changes in Final Rule

    DHS added two factors for the facility to consider when determining 
adequate levels of detainee supervision and determining the need for 
video monitoring. These factors are (1) generally accepted detention 
and correctional practices and (2) any judicial findings of inadequacy.
    DHS also made a minor change to Sec.  115.13(d). Instead of 
prohibiting staff from alerting others that ``supervisory rounds'' are 
occurring, DHS prohibits staff from alerting others about the 
``security inspections.'' The purpose of this change is to make the 
provision more consistent with the rest of the paragraph, which refers 
to such checks as security inspections rather than supervisory rounds.

Comments and Responses

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

[[Page 13114]]

composition of the detainee population, and each facility's track 
record in detainee protection.
    Currently, NDS relies on performance-based inspections to determine 
whether a facility has adequate supervision and monitoring. ICE's 2008 
PBNDS and 2011 PBNDS require that facility administrators determine the 
security needs based on a comprehensive staffing analysis and staffing 
plan that is reviewed and updated at least annually. Section 115.13 
enhances ICE's detention standards by requiring that facilities develop 
and document comprehensive detainee supervision guidelines which will 
be reviewed annually. Unlike the facilities that fall under DOJ's final 
rule, ICE has direct oversight over immigration detention facilities 
and can, through its well-established inspection process, effectively 
determine whether a facility's detainee supervision guidelines are 
inadequate and whether a facility is not providing adequate supervision 
and monitoring.
    Furthermore, requiring every facility to adopt specific staffing 
ratios under this regulation could significantly increase contract 
costs without commensurate benefits. In short, DHS has determined that 
it can make more effective use of limited resources by mandating 
comprehensive guidelines that each facility will review annually and 
auditors will examine on a regular basis.
    DHS declines to require facilities to document deviations from 
supervision guidelines because we do not believe this additional 
documentation would materially assist ICE monitoring of conditions 
generally and compliance with the supervision guidelines in particular. 
Through its comprehensive facility oversight and inspection programs, 
ICE has sufficient tools to ensure that facilities effectively 
supervise detainees and comply with these regulations. And if ICE 
determines after an inspection that a facility has failed to meet the 
standards set forth in Sec.  115.13 or failed adequately justify 
deviations from supervision guidelines, ICE has direct authority to 
remove detainees from the facility. DHS has therefore elected to 
proceed with the proposed rule's approach.
    Comment. One group suggested that, in regard to the standard on 
determining adequate levels of detainee supervision and video 
monitoring in paragraph (c), an annual review should assess 
effectiveness and identify changes that may be necessary to improve 
effectiveness and allow implementation.
    Response. As discussed above, staffing levels, detainee 
supervision, and video monitoring are inspected on a regular basis. 
Once a facility adopts these standards, it also will be subject to 
regular auditing by an outside entity pursuant to the audit requirement 
in this regulation. Under section 115.203, such audits must include an 
evaluation of (1) whether facility policies and procedures comply with 
relevant detainee supervision and monitoring standards and (2) whether 
the facility's implementation of such policies and procedures does not 
meet, meets, or exceeds the relevant standards. 6 CFR 115.203(b)-(c).

Juvenile and Family Detainees (Sec. Sec.  115.14, 115.114)

Summary of Proposed Rule

    The standards contained in the proposed rule required juveniles to 
be detained in the least restrictive setting appropriate to the 
juvenile. The Subpart A standard required immigration detention 
facilities to 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. That standard 
further required that facilities provide priority attention to 
unaccompanied alien children, as defined by 6 U.S.C. 279, who would be 
transferred to an HHS/ORR facility.

Changes in Final Rule

    DHS made minor changes to Sec.  115.14(a), (d), and (e) of the 
final rule. The ``in general'' and ``should'' language that was 
suggested in the NPRM was removed in paragraph (a) to ensure a clear 
requirement that 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.
    DHS made a technical change to paragraph (d) to maintain 
consistency between this regulation and the statutory provision at 8 
U.S.C. 1232(b)(3). DHS clarified that paragraph (e) does not apply if 
the juvenile described in the paragraph is not also an unaccompanied 
alien child.
    Regarding the Subpart B standard at Sec.  115.114, DHS added the 
same change in paragraph (a) as in Sec.  115.14(a) for consistency. DHS 
also added more specific language in paragraph (b) to require that 
unaccompanied juveniles generally be held separately from adult 
detainees. The final standard also clarifies that a juvenile may 
temporarily remain with a non-parental adult family member if the 
family relationship has been vetted to the extent feasible, and the 
agency determines that remaining with the non-parental adult family 
member is appropriate, under the totality of the circumstances.

Comments and Responses

    Comment. Commenters expressed concern that the standards should not 
allow for housing of juveniles in adult facilities, particularly if not 
held with adult family members. One human rights advocacy group stated 
that as proposed, the standard on separating juveniles does not set 
forth specific steps to prevent unsupervised contact with adults.
    Response. It is DHS policy to keep children separate from unrelated 
adults whenever possible. To take into account, in part, the resulting 
settlement agreement between the legacy INS and plaintiffs from class 
action litigation, known as the Flores v. Reno Settlement Agreement 
(FSA), INS--and subsequently DHS--have put in place policies covering 
detention, release, and treatment of minors in the immigration system 
nationwide. Both the FSA and the William Wilberforce Trafficking 
Victims Protection Reauthorization Act of 2008 (TVPRA) inform DHS 
policies regarding juveniles. There are sometimes instances in which 
ICE personnel reasonably believe the juvenile to be an adult because 
the juvenile has falsely represented himself or herself as an adult and 
there is no available contrary information or reason to question the 
representation. Under existing policy, ICE officers must base age 
determinations upon all available evidence regarding an alien's age, 
including the statement of the alien.
    In promulgating these PREA standards, DHS attempted to codify the 
fundamental features of its policy in regulation, while maintaining a 
certain amount of flexibility for situations such as brief confinement 
in temporary holding facilities. Additionally, DHS, through ICE, must 
and does enforce the Juvenile Justice and Delinquency Prevention Act, 
which requires that alien juveniles not charged with any offense not be 
placed in secure detention facilities or secure correctional facilities 
and not be detained or confined in any institution in which they have 
contact with adult inmates. See 42 U.S.C. 5633.
    Comment. Former Commissioners of NPREC and other groups recommended 
that both the Subpart A and B standards require all sight and sound 
separation from non-familial adults, as DOJ's standard does. Some 
members of Congress commented generally that the

[[Page 13115]]

standards on housing of juveniles should be revisited to be in line 
with DOJ's standard. For the Subpart A standard, comments suggested 
more explicit language requiring facilities to separate juveniles by 
sight, sound, and physical contact to clarify the degree of separation 
required; they recommended that DHS eliminate the language of 
``minimizing'' such situations.
    Regarding the Subpart B standard, a commenter suggested physical 
contact, sight, and sound restrictions be in place particularly for 
shared dayrooms, common spaces, shower areas, and sleeping quarters. 
Similarly, one group comment suggested adding language to define the 
meaning of ``separately'' in Subpart B's unaccompanied alien children 
provision to ensure placement outside of the sight and sound of, and to 
prevent physical contact with, adult detainees to the greatest degree 
possible.
    Response. Regarding Subpart A, DHS does not believe the suggested 
changes are appropriate, as the DHS standard is tailored to the unique 
characteristics of immigration detention and the variances among 
confinement facilities for DHS detainees. With respect to the Subpart A 
standard for immigration detention facilities, juveniles are primarily 
held in such facilities under the family residential program. (Rarely, 
DHS must detain a minor who is not unaccompanied but who is, for 
example, a lawful permanent resident who has committed a serious crime. 
In this rare circumstance, DHS uses an appropriate juvenile detention 
facility which is subject to regular inspection by ICE.) Under the 
family residential program, juveniles are held with adult family 
members--not solely with other juveniles as would be the case in the 
context of DOJ's traditional juvenile settings. Juveniles in the family 
residential setting for immigration detention may have some contact 
with adults; however, an adult family member will be present. Given the 
unique nature of the family detention setting, maintaining the 
standard's language as proposed is the best and most straightforward 
way to meet PREA's goals.
    The burden of inserting additional specific restrictions would be 
particularly high because unaccompanied alien children are generally 
transferred to an HHS/ORR facility within a short period of time--72 
hours at most--after determining that he or she is an unaccompanied 
alien child, except in exceptional circumstances.\10\ DHS does not 
believe the best approach is to wholly transfer DOJ's standard, which 
fits the correctional system rather than immigration juvenile detention 
system, to the DHS context in the manner described by the commenters.
---------------------------------------------------------------------------

    \10\ ICE will occasionally and for short periods of time house 
unaccompanied alien children whose transfer to HHS/ORR is pending in 
IGSA juvenile detention facilities. These facilities are subject to 
inspection and oversight by ICE.
---------------------------------------------------------------------------

    Regarding the Subpart B standard, DHS notes that its standard is 
consistent with, and in some ways more detailed than, the analogous DOJ 
standard. Finally, DHS intends that the word ``separately'' be 
understood according to the plain meaning of the word. To keep the 
standards straightforward and easily administrable, DHS declines to 
create a separate definition of the term for purposes of these 
standards.
    Comment. One commenter suggested adding requirements for separation 
outside of housing units to mirror the DOJ standard's requirement of 
sight and sound separation. The commenter also recommended adding 
requirements for direct staff supervision when not separated.
    Response. Consistent with the reasoning above, DHS does not believe 
changes to conform with the DOJ standard in this manner are 
appropriate, as the DHS standard is tailored to the unique 
characteristics of immigration detention and the variances among 
confinement facilities for DHS detainees.
    Comment. An immigration advocacy group commented that it had 
received preliminary data as a result of a request under the Freedom of 
Information Act, and that data show thousands of children, including 
many under the age of 14, have been housed in adult facilities. The 
commenter wrote that such a practice would violate the terms and 
conditions of the FSA, which sets forth a policy for the detention, 
release, and treatment of minors in the custody of then-INS and 
requires that unaccompanied minors be generally separated from 
unrelated adults. The commenter also wrote that PREA regulations that 
discourage but do not prohibit this practice are insufficient to 
protect this exceptionally vulnerable population from potential sexual 
abuse.
    Response. DHS has examined available data on this subject, and 
determined that the commenter's conclusions do not reflect ICE 
practices. DHS assures the commenter as follows:
     Any individual who claims to be a juvenile during 
processing or while in detention is immediately separated from the 
general adult population pending the results of an investigation into 
the claim;
     All unaccompanied alien children are required to be 
transferred to an HHS/ORR facility within 72 hours after determining 
that the child is an unaccompanied alien child, except in exceptional 
circumstances;
     As stated in Sec.  115.14(b), juveniles will be held with 
adult members of the family unit only when there are no safety or 
security concerns with the arrangement; and
     As indicated in Sec.  115.114, if juveniles are detained 
in holding facilities, they shall generally be held separately from 
adult detainees. Where, after vetting the familial relationship to the 
extent feasible, the agency determines it is appropriate, under the 
totality of the circumstances, the juvenile may temporarily remain with 
a non-parental family member.
    Comment. Some commenters suggested that more explicit language be 
incorporated in the standards to prevent abusive use of restrictive 
confinement in all types of facilities. Multiple groups expressed 
concern that administrative segregation for juveniles must be limited. 
One group stated that any separation of juveniles from adult 
facilities, which it supported, should not subject them to harmful 
segregation or solitary confinement. Others suggested strict limits, 
including for all forms of protective custody, with a collection of 
groups suggesting an explicit prohibition on administrative segregation 
and solitary confinement if needed to comply with the juvenile and 
family detainee requirements. The groups suggested removing the phrase 
``[in] general'' in paragraph (a) of the Subpart A and B standards 
regarding making juvenile detention as least restrictive as possible. 
One organization suggested requirements for when isolation is necessary 
to protect a juvenile, including documenting the reason therefor, 
reviewing the need daily, and ensuring daily monitoring by a medical or 
mental health professional.
    Response. Upon reconsideration based upon these comments, DHS has 
concluded that in the interest of clarity removing the introductory 
words ``[in] general'' from paragraph (a) is appropriate. However, DHS 
does not see a need for an explicit regulatory prohibition on 
administrative segregation, solitary confinement, and the like in this 
context; concerns about overly restrictive confinement for juveniles 
should be alleviated by the strong standards in both subparts--further 
strengthened in this final rule--requiring juveniles to be detained in 
the least restrictive setting appropriate to the juvenile's age and 
special needs, taking into account safety concerns,

[[Page 13116]]

laws, regulations, and legal requirements. Administrative segregation 
and solitary confinement clearly do not comply with the requirement 
that juveniles be detained in the ``least restrictive setting 
appropriate.''
    Additionally, the TVPRA mandates that, except in exceptional 
circumstances, DHS turn over any unaccompanied child to HHS/ORR within 
72 hours of determining that the child is an unaccompanied alien child 
and that ORR promptly place the child in the least restrictive setting 
that is in the child's best interest. See 8 U.S.C. 1232(b)(3), 
(c)(2)(A).\11\ Therefore, the types of segregation described by the 
commenters are generally neither feasible nor permissible for such 
children.
---------------------------------------------------------------------------

    \11\ In addition, under 8 U.S.C. 1232(c)(2)(B), if an 
unaccompanied alien child reaches 18 years of age and is transferred 
to DHS custody, DHS must consider placement in the least restrictive 
setting available after taking into account the alien's danger to 
self, danger to the community, and risk of flight. Such aliens are 
eligible to participate in alternative to detention programs, 
utilizing a continuum of alternatives based on the alien's need for 
supervision, which may include placement of the alien with an 
individual or an organizational sponsor, or in a supervised group 
home.
---------------------------------------------------------------------------

    These concerns appear even further diminished when taking into 
account that under ICE policy juveniles are to be supervised in an 
alternate setting which would generally not include administrative 
segregation. Because Subpart A of these standards implements safeguards 
that will allow a juvenile to be in the presence of an adult member of 
the family unit when no safety or security concerns exist, accompanied 
children remaining in immigration detention will not present situations 
of serious concern either. For these same reasons, DHS declines to 
adopt the additional suggested requirements regarding isolation.
    Comment. Multiple commenters recommended that when possible and in 
the best interest of the juvenile, family units should remain intact 
during detention. Some commenters suggested that DHS include this 
principle in the regulation. Some commenters also recommended expanding 
the definition of family unit to account for more expansive 
understandings of parentage and guardianship in many countries of 
origin. They suggested that if there are concerns about a child's 
safety with a family member, other than a parent or legal guardian, DHS 
assess the relationship and safety and make appropriate placements, 
including admitting such a family unit while providing separate housing 
for the child in the same facility.
    Response. For immigration detention facilities, DHS has set a 
regulatory ``floor'' in Sec.  115.14 and in the regulatory definition 
of family unit. This suite of requirements provide that facilities do 
not hold juveniles apart from adults if the adult is a member of the 
family unit, provided there are no safety or security concerns with the 
arrangement. DHS holds immigration detention facilities and holding 
facilities accountable for complying with a range of policy, and now 
regulatory, requirements.
    With respect to the suggestion that DHS add regulatory language 
addressing intact family unit detention, DHS declines to adopt such a 
standard. ICE has found that the PREA standards' definition of family 
unit and current ICE policy, specifically ICE's Family Detention and 
Intake Guidance, has worked well, and to the extent that deficiencies 
might exist, DHS does not believe that addressing them in regulation 
would be beneficial to the affected population.
    With respect to expanding the regulation's treatment of the family 
unit beyond the parent or legal guardian, DHS declines to expand the 
``family unit'' definition, given the legal requirement for DHS to 
transfer unaccompanied alien children to HHS, generally within 72 hours 
of determining that the child is an unaccompanied alien child. See 8 
U.S.C. 1232(b)(3). Under the Homeland Security Act of 2002, adopted by 
the TVPRA, an ``unaccompanied alien child'' is defined, in part, as a 
child for whom ``there is no parent or legal guardian'' either in the 
United States or available in the United States to provide care and 
custody. 6 U.S.C. 279(g)(2); see also 8 U.S.C. 1232(g). DHS's 
definition of ``family unit'' takes these provisions on unaccompanied 
alien children into account.
    However, for Subpart B, as indicated above, DHS has revised Sec.  
115.114 to provide that where the agency determines that it is 
appropriate, under the totality of the circumstances and after vetting 
the familial relationship to the extent feasible, the juvenile may 
temporarily remain with a non-parental adult family member.
    Comment. One organization suggested a more bright line mandate 
regarding the proposed standard's paragraph (d) by requiring the 
transfer of unaccompanied alien children to HHS/ORR within the 
timeframe proposed. Another advocacy group emphasized the importance of 
adequate training and procedures for meeting the timeframe for 
transfer.
    Response. DHS has considered these comments; however, the standard 
as proposed, which mandates the transfer of unaccompanied alien 
children within the 72-hour timeframe except in exceptional 
circumstances, is consistent with the TVPRA requirements. DHS is 
confident that the transfer of unaccompanied alien children to ORR will 
continue to be carried forth expeditiously. DHS will strictly enforce 
this regulatory provision, as it will all PREA standards. With respect 
to the observation on the importance of adequate training and internal 
procedures to support timely transfer to ORR, DHS takes the comments 
under advisement for purposes of developing its training curriculum.
    Comment. An advocacy group recommended ensuring adequate training 
regarding the enforcement of the standards in general and procedures to 
avoid sexual abuse or assault of minors in DHS custody. The group 
suggested that DHS regularly update and implement field guidance 
regarding age determinations and related custody decisions, consistent 
with HHS/ORR program instructions.
    Response. DHS makes changes to existing guidance on issues such as 
age determinations and custody to reflect new laws, policies, or 
practices, or as otherwise needed.
    Comment. A number of comments recommended additional protection for 
unaccompanied children and families in family facilities specifically. 
The former NPREC Commissioners recommended that DHS separate provisions 
dealing with unaccompanied minors from provisions dealing with 
families. Similarly, one advocacy group stated that, because in its 
view detaining juveniles in family facilities does not eliminate sexual 
assault risk and may create a greater risk, DHS should include 
additional standards specific to the family unit setting.
    The former NPREC Commissioners specifically suggested DHS adopt 
additional standards that would apply to the family facility setting 
specifically. Proposed provisions included screening/vetting of 
immigration detainees in family facilities, reporting of sexual abuse 
in family facilities, investigations in family facilities, and access 
to medical and mental health care in family facilities. The former 
Commissioners believe that these additional measures would improve 
protections in family settings.
    Response. DHS has considered these comments and declines to make 
the suggested changes to the proposed standard. DHS grouped the 
provisions specific to all juvenile detention and

[[Page 13117]]

family detention in one section in order to account for current 
immigration detention and holding facility practice and policy. Under 
current practice and policy, a single facility might detain individuals 
as well as families. (In other words, families detained while 
travelling or living together may be detained together, even if the 
facility usually holds detainees as individuals only.) Given this 
context, DHS believes that streamlining juvenile-specific regulatory 
standards in a single location strengthens protections, as responsible 
officials are able to refer to a ``one-stop shop'' in Sec. Sec.  115.14 
and 115.114. DHS believes that its decision to streamline the standards 
will not decrease the level of protection to young detainees. DHS will 
carefully monitor policies and the implementation of this approach and 
make future policy or regulatory changes if necessary.
    With respect to the former NPREC Commissioners' specific proposals 
for family unit detention and/or family facilities, ICE already has 
strong policies in place regarding these matters. These standards and 
ICE policies include detailed provisions on screening/vetting of 
immigration detainees, reporting of sexual abuse, investigations, and 
access to medical and mental health care. Again, in addition to the 
PREA regulatory standards that address these topics generally for all 
detainees, the 2007 Residential Standard addressing Sexual Abuse and 
Assault Prevention and Intervention ensures that individuals in family 
and residential settings are protected by measures relating to these 
precise topics.
    Comment. One commenter recommended that DHS promulgate a separate 
set of standards to prevent abuse in facilities that detain children. 
The group expressed that a significantly improved accounting for the 
needs of and special risks faced by such youth is necessary.
    Response. DHS has considered this comment and, as a policy matter, 
declines to set forth differing abuse-prevention standards depending on 
whether a specific detainee population happens to be present at a 
specific point in time. Because DOJ's standards address juvenile-only 
facilities through either the juvenile justice system or the criminal 
justice system, DOJ's standards specifically included a definition of a 
juvenile facility. See 77 FR 37105, at 37115. But immigration detention 
facilities and temporary holding facilities are not so easily 
characterized. For example, family unit detention includes juveniles as 
well as adults. PREA protections apply to a family unit detention 
facility in the same manner that they apply to other immigration 
detention facilities. The potential benefits of creating a separate set 
of standards for this context are not apparent, especially in light of 
the fact that the applicable standards in Part A are robust.
    With respect to juveniles detained outside of family units, as 
noted above, unaccompanied alien children are generally placed with ORR 
almost immediately; ORR is responsible for making decisions related to 
the care and custody of such children in their charge. For the 72-hour 
intervening period up to which DHS may generally maintain custody, 
concerns about abuse should be alleviated by the strong requirements in 
both subparts that generally prohibit juveniles from being held with 
adult detainees in non-familial situations. DHS believes that the final 
standards on juvenile and family detainees, with the revisions noted 
above, sufficiently protect juveniles in immigration detention and 
holding facilities. Due to these factors, DHS has declined to 
promulgate a wholly separate set of standards for facilities that house 
juveniles.
    Comment. One comment suggested explicit requirements that, absent 
exigent circumstances, juveniles have access to daily outdoor 
recreation; a number of groups suggested the same standard for large 
muscle exercise, legally required special education services, and--to 
the extent possible--other programs.
    Response. Except to the extent affected by standards designed to 
prevent, detect, and respond to sexual abuse and assault in detention 
facilities, access to activities and other services is outside the 
scope of this rulemaking. Therefore, it is not necessary to include a 
list of specific kinds of juvenile detainee activities and access in 
these standards.
    Comment. One advocacy group suggested a requirement that children 
have meaningful access to their attorneys during interactions with DHS 
officials, including such interactions after transfer to HHS/ORR.
    Response. This comment is outside the scope of this rulemaking. DHS 
therefore declines to address it here.

Limits to Cross-Gender Viewing and Searches (Sec. Sec.  115.15, 
115.115)

Summary of Proposed Rule

    The standards contained in the proposed rule required 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 standards also required 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 proposed rule prohibited 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.
    In Subpart A, the proposed rule generally prohibited cross-gender 
pat-down searches of female detainees, unless in exigent circumstances. 
The proposed rule permitted cross-gender male detainee pat-down 
searches when, after reasonable diligence, staff of the same gender was 
not available at the time the search or in exigent circumstances. The 
proposed rule required that any cross-gender pat-down search conducted 
pursuant to these exceptions be documented. The proposed rule required 
these policies and procedures to be implemented at the same time as all 
other requirements placed on facilities resulting from this rulemaking. 
The proposed rule did not prohibit cross-gender pat-down searches in 
Sec.  115.115 of Subpart B because of the exigencies encountered in the 
holding facility environment and the staffing and timing constraints in 
those small and short-term facilities.
    In both immigration detention facilities and holding facilities the 
proposed rule prohibited examinations of detainees for the sole purpose 
of determining the detainee's gender. The proposed rule further 
required that all security and law enforcement staff be trained in 
proper procedures for conducting all pat-down searches.

Changes in Final Rule

    In paragraph (i) of Sec.  115.15, DHS changed the text to prohibit 
a facility from searching or physically examining a detainee for the 
sole purpose of determining the detainee's genital characteristics. The 
previous language used the phrase ``gender'' instead of ``genital 
characteristics.'' The final rule also revises paragraph (i) to allow a 
detainee's gender to be determined as part of a standard medical 
examination that is routine for all detainees during intake or other 
processing procedures. The final rule also revises Sec. Sec.  115.15(j)

[[Page 13118]]

and 115.115(f) to clarify that pat-down searches must be conducted 
consistent with all agency policy.

Comments and Responses

    Comment. A number of commenters believed the same prohibition on 
cross-gender pat-down searches should apply to all detainees. Two sets 
of advocacy groups and another organization suggested eliminating 
paragraph (b), which allows cross-gender searches of males in limited 
circumstances. A number of these and other groups suggested changing 
paragraph (c) to prohibit all cross-gender pat-down searches, not just 
for female detainees, except in exigent circumstances; some members of 
Congress commented in favor of doing so in order to meet ``civil 
confinement standards.''
    Multiple commenters, including the NPREC Commissioners, criticized 
the inclusion of ``exigent circumstances'' as an exception to cross-
gender searches. These commenters perceived the exception to be overly 
broad. One commenter expressed dissatisfaction with the term 
``reasonable diligence'' for similar reasons. The commenter suggested a 
standard that would require facilities to have sufficient male and 
female staff to sharply limit cross-gender pat-down searching of men. 
Another commenter recommended narrowing the circumstances under which 
cross-gender pat downs of males are permitted.
    A number of advocacy groups suggested explicitly requiring that 
facilities cannot restrict a detainee's access to regularly available 
programming or other opportunities in order to comply with the 
restrictions on cross-gender viewing and searches.
    Response. DHS adopted a standard that generally prohibits, with 
limited exceptions, cross-gender pat-down searches of female and male 
detainees in order to further PREA's mandate of preventing sexual abuse 
without compromising security in detention, or infringing impermissibly 
on the employment rights of officers.
    DHS declines to incorporate the commenters' suggestion to extend 
the same coverage for both male and female pat-down searches. Female 
detainees are especially vulnerable to sexual abuse during a pat-down 
search because of their disproportionate likelihood of having 
previously suffered abuse. According to studies, women with sexual 
abuse histories are particularly traumatized by subsequent abuse.\12\ 
For detainees who have experienced past sexual abuse, even 
professionally conducted cross-gender pat-down searches may be 
traumatic and perceived as abusive. See Jordan v. Gardner, 986 F.2d 
1521, 1526 (9th Cir. 1993) (en banc) (striking down cross-gender pat 
downs of female inmates as unconstitutional ``infliction of pain'' when 
there was evidence that a high percentage of female inmates had a 
history of traumatic sexual abuse by men and were being traumatized by 
the cross-gender pat-down searches).
---------------------------------------------------------------------------

    \12\ See Barbara Bloom, Barbara Owen, and Stephanie Covington, 
Gender-Responsive Strategies: Research, Practice, and Guiding 
Principles for Women Offenders, at 37, NIC (2003) (``In addition, 
standard policies and procedures in correctional settings can have 
profound effects on women with histories of trauma and abuse, and 
often act as triggers to retraumatize women who have post-traumatic 
stress disorder (PTSD).''); Danielle Dirks, Sexual Revictimization 
and Retraumatization of Women in Prison, 32 Women's Stud. Q. 102, 
102 (2004) (``For women with previous histories of abuse, prison 
life is apt to simulate the abuse dynamics already established in 
these women's lives, thus perpetuating women's further 
revictimization and retraumatization while serving time.'').
---------------------------------------------------------------------------

    Because females are disproportionately vulnerable to sexual abuse 
and trauma in the cross-gender pat down context, the prohibition of 
such pat downs unless there are exigent circumstances is a crucial 
protection in furtherance of PREA. DHS goes a step further than DOJ by 
also prohibiting cross-gender pat downs of male detainees, but allows 
for two exceptions--exigent circumstances, and circumstances where 
staff of the same gender are not available. The slightly different 
standard reflects the fact that men are less likely to be abused by 
cross-gender pat-down searches.
    A categorical prohibition on cross-gender pat-down searches of male 
detainees except in exigent circumstances may not be operationally 
possible at facilities that detain males but have higher proportions of 
female staff. Such facilities could not guarantee the availability of 
adequate numbers of male staff without engaging in potential employment 
discrimination as a result of attempts to inflate staffing of one 
gender. Likewise, DHS declines to require facilities to maintain male 
and female staff sufficient to avoid cross-gender pat-down searches in 
all cases. Such a mandate could result in the unintended consequence of 
employment discrimination in facilities.
    In response to commenters concerned that prohibiting cross-gender 
pat downs will lead to a restriction of detainees' access to 
programming, DHS notes that any restriction based on a lack of 
appropriate staffing for pat downs is unacceptable and is not standard 
practice. DHS will ensure that immigration detention facilities are 
allowing detainees equal access to programming without regard to 
detainee gender or staffing limitations.
    Comment. Multiple commenters and other groups expressed concerns 
with the phrase ``incidental to routine cell checks'' and suggested it 
be removed as an exception allowing cross-gender viewing, a sentiment 
with which former NPREC Commissioners commented they agreed. One 
commenter suggested the phrase could allow a facility to not take 
needed steps and then simply claim staff viewing is exempted as 
incidental.
    Response. DHS respectfully disagrees with the commenters that 
viewing incidental to routine cell checks is a gateway for abuse in 
detention. The final rule provides adequate protection by requiring 
each facility to have policies and procedures that oblige 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.
    Comment. Two comments suggested removing the provisions that allow 
cross-gender searches when safety, security, and related interests are 
at stake, out of apparent concern that the provision's breadth would 
allow facilities to ``mask abusive use of searches.''
    Response. Maintaining safety, security and other related interests 
in detention in order to protect detainees, staff, contractors, 
volunteers, and visitors is the highest priority for DHS. Searches are 
an effective and proven tool to ensure the safety of every person in 
the detention environment. As such, the final standard maintains 
paragraph (a), which explains why searches are a necessary part of 
detention.
    Comment. Two comments suggested that the provision in paragraph (i) 
regarding preventing searches for the sole purpose of determining 
``gender'' be revised to instead prevent searching solely for 
determining ``genital characteristics.'' In the following sentence of 
the provision, the groups also suggest that ``genital status'' replace 
``gender'' for when employees can take other steps to determine. 
Another advocacy group suggested clear standards for classifying as 
male or female based on a range of issues including self-identification 
and a medical assessment, and not based solely on external genitalia or 
identity documents.
    Regarding the same provision, another commenter suggested removing 
``as part of a broader medical examination conducted in private, by a 
medical practitioner'' as a means for making the

[[Page 13119]]

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

Accommodating Detainees With Disabilities and Detainees With Limited 
English Proficiency (Sec. Sec.  115.16, 115.116)

Summary of Proposed Rule

    The standards in the proposed rule required each agency and 
immigration detention facility to develop methods to ensure that 
inmates who are LEP or disabled are able to report sexual abuse and 
assault to staff directly, and that facilities make accommodations to 
convey sexual abuse policies orally to inmates with limited reading 
skills or who are visually impaired. The proposed standards required 
each agency and immigration detention facility to provide in-person or 
telephonic interpretation services in matters relating to allegations 
of sexual abuse, unless the detainee expresses a preference for a 
detainee interpreter and the agency determines that is appropriate.

Changes in Final Rule

    In response to a comment received regarding another section of the 
standards, DHS is modifying this language by clarifying that a detainee 
may use another detainee to provide interpretation where the agency 
determines that it is both appropriate and consistent with DHS policy.

[[Page 13120]]

Comments and Responses

    Comment. One commenter expressed concern that further explanation, 
outside of ``literature describing the protection'' for detainees, is 
necessary.
    Response. DHS recognizes the importance of ensuring that all 
detainees, regardless of disability or LEP status, can communicate 
effectively with staff without having to rely on detainee interpreters, 
in order to facilitate reporting of sexual abuse as accurately and 
discreetly as possible and to provide meaningful access to the agency's 
sexual abuse and assault prevention efforts. As a result, this standard 
includes other methods of communication aside from written materials to 
ensure that every detainee is educated on all aspects of the agency's 
efforts to prevent, detect, and respond to sexual abuse. Such methods 
include in-person, telephonic, or video interpretive services, as well 
as written materials that are provided in formats or through methods 
that ensure effective communication with detainees who may have 
disabilities that result in limited literate and vision abilities.
    The final standard, in conjunction with Federal statutes and 
regulations protecting the rights of individuals with disabilities and 
LEP individuals, protects all inmates while providing agencies with 
discretion in how to provide requisite information and interpretation 
services. The final standard does not go beyond that which is required 
by statute, but clarifies the agencies' specific responsibilities with 
regard to PREA related matters and individuals who are LEP or who have 
disabilities.

Hiring and Promotion Decisions (Sec. Sec.  115.17, 115.117)

Summary of Proposed Rule

    The standards in the proposed rule prohibited the hiring of an 
individual that may have contact with detainees and who previously 
engaged in sexual abuse in an institutional setting; who has been 
convicted of engaging in sexual activity in the community facilitated 
by force, the threat of force, or coercion; or who has been civilly or 
administratively adjudicated to have engaged in such activity. The 
standards also required that any substantiated allegation of sexual 
abuse made against staff be taken into consideration when making 
promotion decisions. The standards in the proposed rule also required a 
background investigation before the agency or facility hires employees, 
contractors, or staff who may have contact with detainees. The 
standards further required updated background investigations every five 
years for agency employees and for facility staff who may have contact 
with detainees and who work in immigration-only facilities.

Changes in Final Rule

    DHS is adopting the regulation as proposed.

Comments and Responses

    Comment. Commenters suggested changing the background investigation 
standard's language to include making the investigation a requirement 
for staff that work in facilities that house a mix of residents, 
including non-immigration inmates, but may have contact with detainees. 
The commenters suggest separating this requirement out from the 
investigation requirement for all facility staff who work in 
immigration-only detention facilities for purposes of clarity.
    Response. DHS recognizes the critical importance of performing 
thorough background investigations as part of the hiring and promotion 
process. DHS remains committed to ensuring such background 
investigations are conducted prior to hiring new staff that may have 
contact with detainees, or before enlisting the services of any 
contractor who may have contact with detainees. However, DHS declines 
to expand the requirement for background investigations to include 
staff that work in facilities with non-immigration inmates and do not 
have contact with detainees due to the lack of DHS authority.
    Comment. Commenters suggested requiring that background 
investigations for all employees who may have contact with juveniles 
must include records related to child abuse, domestic violence 
registries and civil protection orders. One commenter also suggested 
these background requirements be explicit for all new staff that may 
have contact with female detainees.
    Response. DHS agrees that criminal records related to allegations 
that a potential employee has engaged in child abuse, domestic violence 
registries and civil protection orders are an important component of 
the background investigation. The standard background investigation 
process for employees and staff already includes the search of such 
records. Therefore, no additional changes are required.
    Comment. A commenter recommended that DHS investigate to discover 
if border officers themselves have been hurt as children or adults 
because of the commenter's belief that if it is in their history, they 
will be more apt to abuse others.
    Response. DHS declines to implement a per se rule that a past 
history as a victim of abuse will serve as an automatic disqualifier 
for employment. Past victimization is not necessarily a useful 
indicator of future likelihood to engage in abuse. Moreover, DHS 
believes that any blanket rule disqualifying past victims of abuse from 
employment would be discriminatory and cannot be accepted.
    Comment. Regarding the Subpart A standard on hiring and promotion, 
a commenter stated that it is unclear why paragraph (g)--applying the 
requirements of the section otherwise applicable to the agency also to 
contract facilities and staff--only appears in this section on hiring 
and promotion issues, rather than in all standards.
    Response. DHS included Sec.  115.17(g) to clarify that any 
standards applicable to the agency also extend to any contracted 
facilities and staff, as well. By its terms, much of the rest of the 
regulation also applies to non-DHS facilities, to the extent that they 
meet the definition of immigration detention facility under Subpart A. 
Although paragraph (g) may be redundant, DHS is retaining it for 
clarity nonetheless.

Upgrades to Facilities and Technologies (Sec. Sec.  115.18, 115.118)

Summary of Proposed Rule

    The standards in the proposed rule required agencies and facilities 
to take into account how best to combat sexual abuse when designing or 
expanding facilities and when installing or updating video monitoring 
systems or other technology.

Changes in Final Rule

    DHS is adopting the regulation as proposed.

Comments and Responses

    DHS did not receive any public comments on this provision during 
the public comment period.

Evidence Protocols and Forensic Medical Examinations (Sec. Sec.  
115.21, 115.121)

Summary of Proposed Rule

    The standards contained in the proposed rule required agencies and 
facilities responsible for investigating allegations of sexual abuse to 
adopt a protocol for the preservation of usable physical evidence as 
well as to provide detainee victims access to a forensic medical 
examination at no cost to the detainee. The standard further required 
that such developed protocols be appropriate for juveniles, where 
applicable, and that outside victim

[[Page 13121]]

services be available after incidents of sexual abuse to the extent 
possible.
    In situations when the component agency or facility is not 
responsible for investigating alleged sexual abuse within their 
facilities, the proposed standards required them to request that the 
investigating entity follow the relevant investigatory requirements set 
out in the standard.

Changes in Final Rule

    DHS made one change to this provision, providing that a Sexual 
Assault Forensic Examiner (SAFE) or a Sexual Assault Nurse Examiner 
(SANE) should be used where practicable.

Comments and Responses

    Comment. With respect to forensic medical examinations, some 
advocacy groups commented that before a child undergoes such an 
examination or interview, facility officials should contact and provide 
advance notice to the juvenile's legal guardian or other appropriate 
person or entity. For unaccompanied alien children, the groups suggest 
requiring the agency to immediately notify and consult with HHS/ORR 
regarding the forensic examination and facilitate the immediate 
transfer upon request of ORR and the juvenile. One commenter suggested 
adding a provision in case a legal guardian is an alleged perpetrator, 
in which case the agency should be required to notify a designated 
state or local services agency under applicable mandatory reporting 
laws.
    Response. DHS declines to make the suggested revisions because they 
would have no practical application in this context. First, it would 
not be appropriate to immediately transfer a juvenile who was sexually 
assaulted, even if requested by ORR and the juvenile, as the juvenile 
should first be referred to an appropriate medical care professional 
and local law enforcement agency, potentially in conjunction with the 
appropriate child welfare authority. Responsibility for determining who 
has legal authority to make decisions on behalf of the juvenile would 
lie with the investigating law enforcement agency and the medical 
provider because the juvenile would be a victim involved in a criminal 
investigation.
    Second, juveniles in the family residential program would be 
present as a member of a family unit and therefore would be with an 
individual who possesses authority for making legal determinations for 
the juvenile present at the facility.
    With respect to the comment about reporting abuse by a parent or 
guardian, DHS notes that agencies are already required by applicable 
state laws to report all incidents of child sexual abuse or assault, 
including incidents where the parent or legal guardian is the 
perpetrator, to designated law enforcement agencies. The law 
enforcement official is then responsible for ensuring that child 
welfare services are notified where appropriate. Therefore, the 
inclusion of this provision in these standards is not necessary.
    Comment. A commenter recommended that DHS provide a means for 
protection from removal--including withholding of removal, 
prosecutorial discretion, or deferred action--while an investigation 
into a report of abuse is ongoing, and also require facilities to 
provide application information to detainee victims and, if applicable, 
parents, guardians, or legal representatives.
    Response. DHS recognizes that in some cases, it may be appropriate 
for ICE not to remove certain detainee victims.\13\ However, DHS does 
not believe that every detainee who reports an allegation should 
necessarily receive some type of relief or stay of removal. OPR has the 
authority to approve deferred action for victimized detainees when it 
is legally appropriate.
---------------------------------------------------------------------------

    \13\ See U.S. Immigration and Customs Enforcement, Policy No. 
10076.1, Prosecutorial Discretion: Certain Victims, Witnesses, and 
Plaintiffs (2011), available at http://www.ice.gov/doclib/secure-communities/pdf/domestic-violence.pdf and U.S. Immigration and 
Customs Enforcement, Policy No. 10075.1, Exercising Prosecutorial 
Discretion Consistent with Civil Immigration Enforcement Priorities 
of the Agency for the Apprehension, Detention, and Removal of Aliens 
(2011), available at http://www.ice.gov/doclib/secure-communities/pdf/prosecutorial-discretion-memo.pdf.
---------------------------------------------------------------------------

    As mandated in Sec. Sec.  115.22(h) and 115.122(e), all alleged 
detainee victims of sexual abuse that is criminal in nature will be 
provided U nonimmigrant status (also known as ``U visa'') information. 
OPR and Homeland Security Investigations (HSI) have the delegated 
authority for ICE to certify USCIS Form I-918, Supplement B for victims 
of qualifying criminal activity that ICE is investigating where the 
victim seeks to petition for U nonimmigrant status.
    Because these are routine agency practices and subject to agency 
discretion, DHS has declined to make changes in the final rule to 
specifically address the various prosecutorial discretion methods that 
may be used. ICE can and will use these prosecutorial discretion 
methods for detainees with substantiated sexual abuse and assault 
claims.
    Comment. One commenter recommended that facilities make updated 
lists of resources and referrals to appropriate professionals available 
if and when assault happens.
    Response. DHS declines to make this recommended edit to the current 
provision because it is outside the scope of the provision. Section 
115.53 currently requires facilities to have access for detainees to 
current community resources and services and should satisfy the 
commenter's request.
    Comment. One collective comment from advocacy groups suggested a 
number of added provisions for proposed paragraph (c)'s forensic 
medical examination requirement. The groups suggested that the facility 
arrange for the examination ``when developmentally appropriate'' and 
that another requirement be added that the examination is performed by 
a SAFE or a SANE, with other qualified medical practitioners only being 
allowed to examine if a SAFE or SANE cannot be made available. The 
agency or facility would then have to document efforts to provide a 
SAFE or SANE. Regarding such examinations for juveniles, the groups 
suggested requiring that, except in exigent circumstances, the 
evaluations be conducted by a qualified professional with expertise in 
child forensic interviewing techniques.
    Response. It is not necessary for a medical practitioner to be a 
SAFE or SANE to be qualified to perform a complete forensic 
examination. Many detention facilities are located in rural communities 
where there are healthcare professionals who are qualified to perform 
forensic exams, but may not have a SAFE or SANE designation. Adding a 
SAFE or SANE requirement to the provision could in some circumstances 
lead to delayed treatment, as there might not be a SAFE or SANE nearby 
to the facility. As a result, DHS declines to absolutely require use of 
a SAFE or SANE. DHS, however, has added to the standard that 
examinations should be performed by a SAFE or SANE where practicable. 
With respect to the comment about developmentally appropriate 
evaluations, DHS notes that under Sec. Sec.  115.21(a) and 115.121(a), 
uniform evidence protocols must be developmentally appropriate.

Policies To Ensure Investigation of Allegations and Appropriate Agency 
Oversight (Sec. Sec.  115.22, 115.122)

Summary of Proposed Rule

    The standards contained in the proposed rule mandated that each 
allegation of sexual abuse have a

[[Page 13122]]

completed investigation by the appropriate investigative authority. 
Each agency and immigration detention facility would establish and 
publish a protocol for investigation for investigating or referring 
allegations of sexual abuse. All allegations received by the facility 
would be promptly referred to the agency and, unless the allegation did 
not involve potential criminal behavior, promptly referred for 
investigation to an appropriate law enforcement agency. Finally, when 
an allegation of detainee abuse that is criminal in nature is being 
investigated, each agency would ensure that any alleged detainee victim 
of criminal abuse is provided access to relevant information regarding 
the U nonimmigrant visa process.

Changes in Final Rule

    DHS made one clarification to both subparts, in paragraphs (h) and 
(e), respectively, that replaces the term ``U nonimmigrant visa 
information'' with ``U nonimmigrant status information.'' This change 
is consistent with the term used in the Form I-918 (Petition for U 
Nonimmigrant Status). DHS also changed both paragraphs to make clear 
its intention that the information be timely provided.

Comments and Responses

    Comment. In connection with the proposed requirement that each 
facility ensure allegations are reported to an appropriate law 
enforcement agency for criminal investigation, several commenters 
recommended that DHS remove the exception for allegations that do not 
involve potentially criminal behavior. One group stated that any 
allegation of sexual abuse as defined in proposed Sec.  115.6 is 
potentially criminal.
    Response. DHS agrees with the commenter that both appropriate 
agency oversight and criminal referrals are essential components of DHS 
efforts in this context. DHS is therefore implementing standards that 
require strong and transparent agency and facility protocols for 
reporting and referring allegations of sexual abuse. Under the 
regulation, covered agencies and facilities must promptly report all 
sexual abuse allegations to the appropriate administrative offices, 
without exception. Also under the regulation, covered agencies and 
facilities must promptly refer all potentially criminal sexual abuse 
allegations to a law enforcement agency with the legal authority to 
conduct criminal investigations.
    DHS agrees that acts of sexual abuse, as defined in this 
regulation, most often involve ``potentially criminal behavior.'' DHS 
anticipates, however, that covered agencies and facilities may at times 
receive complaints that are framed as sexual abuse allegations, but do 
not rise to the level of potentially criminal behavior. For consistency 
with the DOJ standards, and to ensure that mandatory referrals do not 
deplete scarce criminal investigative resources, DHS declines to 
require referral to a criminal investigative entity in all cases.
    Comment. Commenters also recommended that DHS insert a requirement 
that the facility head or an assignee must request the law enforcement 
investigation, and that the facility's own investigation must not 
supplant or impede a criminal one.
    Response. DHS declines to require the facility head to request the 
law enforcement investigation and declines to incorporate a requirement 
that the facility's own investigation must not supplant or impede a 
criminal one. These revisions are not necessary because under this 
regulation, PBNDS 2011, and the SAAPID, all investigations into alleged 
sexual assault must be prompt, thorough, objective, fair, and conducted 
by qualified investigators. Furthermore, facilities are required to 
coordinate and assist outside law enforcement agencies during their 
investigations and therefore not impede those investigations. DHS 
declines to add the suggested language because it does not strengthen 
the investigative mandates that are currently in place.
    Comment. A commenter suggested, regarding the requirement that the 
facility ensure incidents be promptly reported to the JIC, ICE's OPR, 
or the DHS OIG, as well as the appropriate ICE Field Office Director 
(FOD), that the language ``ensure that the incident is promptly 
reported'' be replaced with ``report.''
    Response. In some cases, the incident will be reported by an ERO 
officer and not an employee of the facility or the facility 
administrator. In such cases, the facility will have met the standards 
of the provision by ensuring that the incident was reported while not 
doing the reporting itself. Therefore, DHS declines making this 
addition as it does not believe this change will make the provision 
more effective.
    Comment. Multiple commenters suggested a requirement that the 
detainee victim not be removed while an investigation is pending, 
unless the detainee victim specifically and expressly waives this 
prohibition in writing. In the case of a family unit, the 
recommendation would require that no non-abuser family members be 
removed during the pending investigation. The groups also suggested the 
standard prevent the victim from being transferred to another facility 
in a way that materially interferes with the investigation of the 
allegation unless essential to the protection of the victim, in which 
case the agency must ensure that the victim continues to be available 
to cooperate with the investigation.
    Several advocacy groups, including a number of collective advocate 
comments, suggested a further provision be added to require that the 
agency ensure the victim is not removed from the United States if the 
victim indicates a wish to petition for U nonimmigrant status and moves 
to file such a petition within a reasonable period, so long as the 
victim cooperates with the investigation and the allegations are not 
found to be unfounded. In such a case, one group suggested the agency 
should be required to ensure the victim is not removed before obtaining 
necessary certified documents to apply for such status; others 
suggested a bar on removal unless the U nonimmigrant petition is denied 
by USCIS.
    Response. DHS recognizes that in some cases, it may be appropriate 
for ICE not to remove certain detainee victims.\14\ However, DHS does 
not believe that every detainee who reports an allegation should 
receive some type of stay of removal. OPR has the authority to approve 
deferred action for victimized detainees when it is legally 
appropriate. As mandated in Sec. Sec.  115.22 (h) and 115.122 (e), all 
alleged detainee victims of sexual abuse that is criminal in nature 
will be provided U nonimmigrant status information. OPR and HSI have 
the delegated authority for ICE to certify USCIS Form I-918, Supplement 
B for victims of qualifying criminal activity that ICE is investigating 
where the victim seeks to petition for U nonimmigrant status. Because 
these are routine agency practices and subject to agency discretion, 
DHS has declined to make changes in the final rule to specifically 
address the various prosecutorial discretion methods that may be used. 
ICE can and will use these prosecutorial discretion methods for 
detainees with

[[Page 13123]]

substantiated sexual abuse and assault claims.
---------------------------------------------------------------------------

    \14\ See U.S. Immigration and Customs Enforcement, Policy No. 
10076.1, Prosecutorial Discretion: Certain Victims, Witnesses, and 
Plaintiffs (2011), available at http://www.ice.gov/doclib/secure-communities/pdf/domestic-violence.pdf and U.S. Immigration and 
Customs Enforcement, Policy No. 10075.1, Exercising Prosecutorial 
Discretion Consistent with Civil Immigration Enforcement Priorities 
of the Agency for the Apprehension, Detention, and Removal of Aliens 
(2011), available at http://www.ice.gov/doclib/secure-communities/pdf/prosecutorial-discretion-memo.pdf.
---------------------------------------------------------------------------

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

[[Page 13124]]

certifying agency would be local law enforcement. With respect to the 
specific request that DHS prevent qualified agency personnel from 
declining to assist a detainee with a U nonimmigrant petition, DHS 
declines to set such policy in this context. DHS has clearly delegated 
authority to select officers who may certify a U nonimmigrant petition. 
These officers receive appropriate training with regard to this process 
and must use their professional judgment when deciding whether to 
certify petitions. DHS does not believe it is necessary or appropriate 
to require additional involvement in the certification process for U 
nonimmigrant petitions.
    Comment. One commenter suggested that DHS extend the visa 
information provisions to include a requirement that an alleged 
detainee victim of sexual abuse receive notification and assistance for 
Special Immigrant Juvenile status and T nonimmigrant status (commonly 
known as the ``T visa'').
    Response. DHS declines to accept the suggested language, as T 
nonimmigrant status and Special Immigrant Juvenile (SIJ) status are 
outside the scope of this rulemaking. Whereas an alleged incident of 
sexual assault of a detainee may constitute a qualifying criminal 
activity for U nonimmigrant status, this rulemaking is not germane to T 
nonimmigrant status, which is for certain victims of a severe form of 
human trafficking. SIJ status is applicable to an alien child who must 
meet certain criteria including: (1) Having been declared dependent on 
a juvenile court, or legally committed to or placed under the custody 
of a state agency, individual, or entity; (2) that the child cannot be 
reunified with a parent because of abuse, abandonment, neglect, or a 
similar reason under state law; and (3) that it is not within the best 
interest of the child to return to his/her home country. See 8 U.S.C. 
1101(a)(27)(J). For those unaccompanied alien children who may seek SIJ 
status, DHS's custody of the unaccompanied alien child would generally 
be limited to 72 hours after determining that the child is an 
unaccompanied alien child, after which the child would be transferred 
from DHS custody to HHS/ORR custody. As a result, DHS would no longer 
have jurisdiction over the unaccompanied alien child, making 
notification and assistance for SIJ status outside the scope of this 
rule.
    Comment. Two comments suggested standards be added--in accordance 
with what a comment described as standard child welfare practices when 
juveniles are survivors of sexual abuse--to require that if the alleged 
detainee victim is an ``unaccompanied alien child in removal,'' the PSA 
Compliance Manager or his or her assignee notify ORR immediately and 
facilitate the immediate transfer of the juvenile to ORR, so long as 
the detainee victim wishes to remain in the United States while the 
investigation is pending. Additionally, the groups suggest that if the 
detainee victim is a juvenile in a family unit and the sole parent or 
legal guardian in that unit has allegedly victimized any juvenile, the 
PSA Compliance Manager or its assignee be required to consult with the 
designated state or local mandatory reporting agency regarding the 
release and placement of all juvenile(s) in the family unit with a 
state or local social services agency. The group suggests that if the 
state or local social services agency refrains from assuming custody 
but a criminal or administrative investigation results in ``a 
finding,'' the juveniles must be deemed unaccompanied and ORR must be 
notified for the transfer.
    Response. DHS declines to add the suggested language concerning 
this population. Unaccompanied alien children are generally transferred 
to an HHS/ORR facility within 72 hours. Moreover, taken together, 
various provisions in the regulations appropriately address the concern 
raised by the comment. Section 115.14 addresses issues relating to 
juvenile detainees. If an alleged victim is under the age of 18, 
Sec. Sec.  115.61(d) and 115.161(d) require the agency to report the 
allegation to the designated state or local services agency under 
applicable mandatory reporting laws. Per Sec. Sec.  115.64 and 115.116, 
upon learning of an allegation that a detainee was sexually abused, the 
first responder must separate the alleged victim and abuser. DHS 
believes the requirements in these referenced sections provide 
sufficient protections that adequately meet the goals of the comments' 
suggested changes.

Staff Training (Sec. Sec.  115.31, 115.131)

Summary of Proposed Rule

    The standards in the proposed rule required all employees that have 
contact with detainees as well as all facility staff receive training 
concerning sexual abuse, with refresher training provided as 
appropriate. The standards mandated that current staff complete the 
training 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.

Changes in Final Rule

    DHS is adopting the regulation as proposed.

Comments and Responses

    Comment. A number of advocacy group commenters objected to the 
timeframe for initial training. With respect to Subpart A's requirement 
that the agency train, or require the training of, all facility staff 
and agency employees who may have contact with immigration detention 
facility detainees within one year, one advocacy group suggested that 
the standard require training completion within a shorter time period 
of six months. With respect to Subpart B, commenters suggested that all 
training pertaining to holding facilities be completed within one year 
of this publication.
    Response. DHS has considered these comments and determined that the 
proposed standard still provides the most aggressive timeframe 
appropriate for training in immigration detention facilities. DHS's 
timeframe is in line with the DOJ standard's one-year period for 
employees who may have contact with inmates. DHS declines to shorten 
the timeframe for training in holding facilities, in light of the large 
number of CBP personnel who will receive the training.
    Comment. Commenters suggested that training be ongoing, with a 
number of groups suggesting adopting DOJ's language on mandatory 
refresher training every two years and refresher information on current 
sexual abuse and harassment policies in years when training is not 
required. According to some advocacy groups, the intent of the ongoing 
training rather than one-time training would be to ensure that staffs 
focus on zero tolerance and appreciation of an abuse-free environment, 
to allow staff to share experiences about implementation of the 
standards, and to increase the likelihood that training themes are 
internalized in daily staff-detainee interactions.
    Response. With respect to Subpart A, the proposed rule stated that 
the agency or facility shall provide refresher information every two 
years. With respect to Subpart B, the proposed rule stated that the 
agency shall provide refresher information, as appropriate. DHS 
proposed these refresher requirements to foster a culture of awareness, 
without denying its component agencies the flexibility necessary to 
adjust refresher training requirements to respond to operational 
realities. Considerations include the time and cost of developing 
adequate training that is sufficiently tailored to

[[Page 13125]]

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

[[Page 13126]]

facilities designated for juvenile occupancy, and all ERO officers 
undergo basic training that includes a juvenile component. FOJCs are 
trained in the demeanor, tone and simple type of language to use when 
speaking to all minors and on the importance of building rapport with 
them to reinforce a feeling of safety. Maintaining flexibility to adapt 
these training requirements through policy will ensure employees in 
contact with juveniles are trained based upon the most current 
developments relating to juvenile interaction and protection.
    Comment. One group suggested adding a requirement that training be 
tailored to the gender of the detainees at the employee's facility, 
with the employee receiving additional training if reassigned from a 
facility that houses detainees of only one sex to a facility housing 
only detainees of the opposite sex.
    Response. As with the comment immediately above, DHS intends that 
all detainees be protected from sexual abuse and assault through 
implementation of comparable measures across the board for all 
detainees in covered facilities. Additionally, DHS has considered 
general concerns about employee transfer and is confident that the 
training standard's requirement for refresher information, both in 
Subpart A and in Subpart B, will address the potential for any changes 
in training needs over time or between facilities.
    Comment. An advocacy group expressed concern about the provision in 
paragraph (a)(7) regarding training on effectively and professionally 
communicating with detainees, including lesbian, gay, bisexual, 
transgender, intersex, and gender non-conforming (LGBTIGNC) detainees, 
stating that the standard should extend further to include sensitivity 
training. Another group suggested this provision also explicitly 
include detainees who do not speak English, and detainees who may have 
survived trauma in their countries of origin.
    Response. DHS has considered these suggestions; however, the 2012 
SAAPID--which requires training for all ICE personnel who may have 
contact with individuals in ICE custody--provides for training on 
vulnerable populations, including ensuring professional, effective 
communication with LGBTIGNC detainees and other vulnerable individuals. 
The 2012 SAAPID also includes training on accommodating LEP 
individuals. DHS believes these training requirements to be sufficient 
to address the concerns regarding sensitivity for LGBTIGNC, LEP, and 
trauma survivor detainees. For the same reasons expressed above, DHS 
declines to incorporate these requirements into the regulation.
    Comment. One group suggested replacing the training provision in 
paragraph (a)(8) regarding procedures for reporting knowledge or 
suspicion of sexual abuse with training on ``how to fulfill their 
responsibilities under agency sexual abuse and sexual harassment 
prevention, detection, reporting, and response policies and 
procedures.''
    Response. DHS believes it is not necessary to broaden proposed 
paragraph (a)(8) in this way. The intent of the enumerated requirements 
in paragraph (a) was to designate specific elements of sexual abuse 
training which are mandated for all employees who have contact with 
detainees and for all facility staff. Additionally, paragraph (a) of 
each provision already requires generally that training for facility 
staff as well as employees, contractors, and volunteers, respectively, 
address fulfilling the responsibilities under each Subpart's standards. 
The proposed revision would be redundant and potentially confusing.
    Comment. A group suggested adding a training provision on complying 
with relevant law related to mandatory reporting of sexual abuse to 
outside authorities.
    Response. DHS has considered this comment and determined that 
proposed paragraphs (8) and (9) requiring training on various aspects 
of reporting sexual abuse or suspicion of abuse are sufficient to cover 
this and other aspects of reporting.

Other Training; Notification to Detainees of the Agency's Zero-
Tolerance Policy (Sec. Sec.  115.32, 115.132)

Summary of Proposed Rule

    The standard in Sec.  115.32 of the proposed rule required all 
volunteers and contractors at immigration detention facilities that 
have contact with detainees receive training concerning sexual abuse. 
The standard in Sec.  115.132 of the proposed rule required the agency 
to make public its zero-tolerance policy regarding sexual abuse and 
ensure that key information regarding the policy is available for 
detainees.

Changes in Final Rule

    DHS clarified that the training requirements in the Subpart A 
standard apply to contractors who provide services to the facility on a 
non-recurring basis. DHS also revised the title of the standard for 
clarity and consistency. As noted above, contractors who provide 
services to the facility on a recurring basis are covered by Sec.  
115.31.
    DHS also removed the word ``may'' from paragraph (c) of the same 
standard, for consistency with paragraph (a). Prior to the change, the 
substantive training requirement in this section applied to those ``who 
have contact with detainees,'' but the documentation requirement 
applied to those ``who may have contact with immigration detention 
facility detainees.''

Comments and Responses

    Comment. One advocacy group was concerned that the training 
requirements applicable to contractors and volunteers should be the 
same as described in proposed Sec.  115.31(a) for employees, with 
additional training being provided based on the services the 
individuals provide and level of contact they have with detainees.
    Response. DHS has considered this suggestion; however, because 
immigration detention facilities host a wide range of volunteers and 
specialized contractors who provide valuable services to facilities and 
detainees, requiring the same training level for these individuals may 
result in a reduction or delay in services. The proposed separate 
unique standard in Subpart A allowing for areas of flexibility for 
volunteers and other contractors who provide services on a non-
recurring basis was determined to be more sufficient to accomplish the 
core education goal without unintended impact. The standard sets a 
``floor'' for basic training under the regulation, but also directs 
additional training for volunteers and other contractors based on the 
services they provide and level of contact they have with detainees.
    Comment. A comment from an advocacy group raised the same concerns 
with this standard regarding the timeframe prior to initial training, 
the lack of mandatory refresher training, and lack of an examination to 
test each trainee's comprehension.
    Response. DHS declines to make any changes to Sec.  115.32 for the 
same reasons described regarding these suggested changes to Sec. Sec.  
115.31 and 115.131.
    Comment. Some commenters were concerned that there should be a 
requirement that these types of facility workers receive comprehensive 
training, including LGBTI-related training. An advocacy group suggested 
training for volunteers and contractors include child-specific modules 
and prevent re-victimization of children who are victims of sexual 
abuse.
    Response. DHS appreciates the commenter's input, and will consider

[[Page 13127]]

including this information in future curricula. For purposes of this 
rulemaking, however, DHS is satisfied that the current list of training 
requirements in regulation is sufficiently detailed to accomplish the 
core goal, while leaving the agency flexibility to prioritize and 
develop training on additional topics over time. As noted above, the 
current list of topics is consistent with existing detention standards.
    Comment. A group suggested the standard should include a time limit 
in which volunteers or contractors must be trained to prevent ambiguity 
over the timing for these types of individuals to come into compliance 
before contact with detainees would be forbidden.
    Response. The final rule is effective May 6, 2014. Covered 
facilities must meet the requirements of Sec.  115.32 by the date that 
any new contract, contract renewal, or substantive contract 
modification takes effect.
    Comment. One advocacy group suggested that DHS develop 
comprehensive training materials, including information about 
conducting appropriate, culturally-sensitive communication with 
immigration detainees and how staff can fulfill their responsibilities 
under the PREA standards.
    Response. DHS agrees with this suggestion, but does not believe 
additional rule revisions are necessary. Paragraph (a) of the Subpart A 
standard already requires a facility to 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. DHS will take reasonable steps to ensure that staff, 
contractors, and volunteers are familiar with and comfortable using 
appropriate terms and concepts when discussing sexual abuse with a 
diverse population, and equipped to interact with immigration detainees 
who may have experienced trauma.

Detainee Education (Sec.  115.33)

Summary of Proposed Rule

    The standard in the proposed rule mandated that upon custody 
intake, each facility provide detainees information about the agency's 
and the facility's zero-tolerance policies with respect to all forms of 
sexual abuse, including instruction on a number of specified topics.

Changes in Final Rule

    DHS is adopting the regulation as proposed.

Comments and Responses

    Comment. One commenter stated that the standards should contain 
additional explanation to detainees regarding the PREA standards beyond 
the explanations, information, notification, and orientation 
descriptions in the proposed standard. The commenter was concerned that 
detainees fear reporting seemingly based upon potential retaliation.
    Response. Paragraph (a) of the proposed standard already required 
that, at a minimum, the intake process at orientation contain 
instruction on, among other areas, ``Prohibition against retaliation, 
including an explanation that reporting sexual abuse shall not 
negatively impact the detainee's immigration proceedings.'' DHS 
believes this explicitly enumerated content requirement, along with the 
other five minimum requirements, are sufficient to address the 
commenter's concern.
    Comment. One advocacy group expressed concerns that the proposed 
standard failed to address the education of current detainees who will 
not receive the information at the time of their intake; the commenting 
group suggested such detainees be required to complete the education 
within a relatively short specified period of the effective date of the 
DHS standards, such as one month.
    Some commenters expressed concerns over the potentially 
overwhelming nature of the amount of information contained in an up-
front education requirement and the possibility that detainees may not 
fully understand DHS's multi-faceted initiative upon intake, a 
potentially stressful time.
    A number of advocacy groups suggested adding a 30-day time period 
following intake for completion of instruction on all the areas that 
were to be addressed upon intake in the proposed standard; within this 
period, the agency would provide comprehensive education to detainees 
either in person or through video.
    One group suggested requiring facilities to repeat PREA education 
programs every 30 days, of which the detainee could opt out.
    Response. The average length of stay in immigration detention 
facilities is approximately 30 days, and the median length of stay is 
shorter still--8 days. Thus it is common that a detainee will be 
confined in a facility for less than one month, and it would not be 
practical or effective to place a one-month-from-effective date 
requirement for education for those detainees who have already gone 
through intake prior to the effective date of the final rule.
    Likewise, there would not be a practical need to provide refresher 
education after 30 days from intake; this negates the need for any 
opting-out of such refresher education. Providing the information up-
front to detainees is not only the most practical solution given the 
nature of immigration detention, but also ensures the detainee is 
informed at the earliest point possible to maximize prevention of 
sexual abuse and assault.
    After the intake education and in cases where intake has taken 
place prior to the effective date of this final rule, detainees can 
refer back to aids such as the Detainee Handbook and posters with 
sexual abuse prevention information, as needed.
    Comment. Some commenters suggested that additional information 
should be conveyed to detainees, including information regarding their 
legal rights. One advocacy group suggested revising the provision on 
the Detainee Handbook to require that the Handbook contain more 
comprehensive information, including detainees' rights and 
responsibilities related to sexual abuse, how to contact the DHS OIG 
and CRCL, the zero-tolerance policy, and other policies related to 
sexual abuse prevention and response.
    Response. DHS agrees that the information described is important 
for protecting detainees. Accordingly, DHS has already required public 
posting and distribution of similar information under paragraphs (d) 
and (e) of the proposed standard. ICE's Detainee Handbook contains 
detailed information about sexual abuse and assault, including 
definitions for detainee-on-detainee and staff-on-detainee sexual abuse 
and assault; information about prohibited acts and confidentiality; 
instructions on how to report assaults to the facility, the FOD, DHS, 
or ICE; next steps after a sexual assault is reported; what to expect 
in a medical exam; understanding the investigative process; and the 
emotional consequences of sexual assault. DHS believes that in addition 
to the paragraphs (d) and (e), the information provided in the Detainee 
Handbook provides sufficient protection to address the commenters' 
concerns. ICE will review and update the Detainee Handbook as necessary 
or useful.
    Comment. One group suggested requiring that upon a detainee's 
transfer to another facility, the detainee receive a refresher of the 
facility's sexual abuse prevention, detection, and response standards.
    Response. A general orientation process that includes the 
information

[[Page 13128]]

described in this standard is a requirement each time a detainee enters 
a new facility, including when transferred from another facility; 
therefore, it is not necessary to create a separate standard regarding 
refresher information upon an immigration detainee's transfer.
    Comment. Regarding the proposed standard to ensure education 
materials are accessible to all detainees, one advocacy group suggests 
adding a requirement that if a detainee cannot read or does not 
understand the language of the orientation and/or Handbook, the 
facility administrator would provide the material using audio or video 
recordings in a language the detainee understands, arrange for the 
orientation materials to be read to the detainee, or provide a 
translator or interpreter within seven days.
    Response. DHS understands the concern expressed by this comment; 
however, the standards found in Sec. Sec.  115.16 and 115.116 regarding 
accommodating LEP detainees are adequate to address any problems with 
accessibility with respect to orientation materials. Under those 
provisions, the agency and each facility must ensure meaningful access 
to all aspects of the agency's and facility's efforts to prevent, 
detect, and respond to sexual abuse--which would include the education 
requirements at orientation. Moreover, DHS policy addresses DHS-wide 
efforts to provide meaningful access to people with limited English 
proficiency. Information regarding these efforts is publicly available 
at the following link: http://www.dhs.gov/department-homeland-security-language-access-plan. To further strengthen Sec. Sec.  115.16 and 
115.116, DHS revised the language to require the component and each 
facility to 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 another detainee to provide interpretation and the 
agency determines that such interpretation is appropriate and 
consistent with DHS policy.
    Comment. Some members of Congress commented generally that the 
standard regarding detainee education should be revised to be in line 
with DOJ's standard.
    Response. DHS's detainee education provision is detailed and 
comprehensive. It is also tailored to the unique characteristics of 
immigration detention and the variances among confinement facilities 
for DHS detainees. DHS believes that merely repeating the DOJ standard 
would be inappropriate in this context. The major difference between 
the two Departments' standards is that DOJ is responsible for ensuring 
that current inmates receive the PREA education within one year of the 
rule's implementation. DHS's detainee population has an average length 
of stay of 30 days, resulting in a much more transient population. To 
ensure that all current detainees receive the PREA-related information, 
DHS relies on several material sources posted throughout the 
facilities, such as handbooks, pamphlets, notices, local organization 
information, PSA Compliance Manager information, etc. For those 
detainees that are LEP, visually impaired, or otherwise disabled, DHS 
provides the necessary resources, such as interpreters, for those 
detainees to still obtain the knowledge that is provided by the posted 
visuals.

Specialized Training: Investigations (Sec. Sec.  115.34, 115.134)

Summary of Proposed Rule

    The standards in the proposed rule required that the agency or 
facility provide specialized training to investigators that conduct 
investigations into allegations of sexual abuse at confinement 
facilities and that all such investigations be conducted by qualified 
investigators.

Changes in Final Rule

    DHS is adopting the regulation as proposed, with a minor technical 
change clarifying the scope of the documentation requirement.

Comments and Responses

    Comment. Some commenters suggested additional details of the 
specialized investigative training be expressly required by the 
standard, including techniques for interviewing sexual abuse victims, 
proper use of Miranda and Garrity warnings, sexual abuse evidence 
collection in confinement settings, and the criteria and evidence 
required for administrative action or prosecution referral. One group 
suggested the standard expressly require this specialized training to 
be separate from staff training.
    Response. DOJ's final rule regarding specialized training 
standardizes training for a broad spectrum of federal, state and local 
investigators. DHS is not faced with the same challenges and maintains 
direct control over investigators and their training. DHS believes that 
its current policies and procedures effectively govern specialized 
training for investigators. General training on investigation 
techniques is included in OPR Special Agent Training and is covered in 
OPR's Investigative Guidebook and other internal policies and training. 
In addition, ICE's 2012 SAAPID prescribes more detailed requirements 
for the content of specialized investigator training, requiring that 
such training for agency investigators cover, at a minimum, 
interviewing sexual abuse and assault victims, sexual abuse and assault 
evidence collection in confinement settings, the criteria and evidence 
required for administrative action or prosecutorial referral, and 
information about effective cross-agency coordination in the 
investigation process. DHS believes that this standard maintains a 
proper focus on PREA implementation--training tailored for sexual abuse 
detection and response through the investigative process.
    DHS declines to require the specialized training provision to state 
that such training be provided separately from staff training. The fact 
that the PREA standards differentiate between staff training and 
specialized training and specifically denote the types of agency 
employees and facility staff who must participate demonstrate DHS's 
commitment to ensuring that additional higher-level training will be 
provided to those who require it.
    Comment. One group requested clarification in the standard as to 
whether DHS intends the specialized training apply to persons 
responsible for investigations in state, local, or private facilities, 
in addition to training for ICE and CBP personnel.
    Response. To clarify, while the agency is responsible for and will 
be directly training its own personnel in this manner, the standard 
also requires each facility to train their own personnel that will be 
working on the investigations addressed in the standard. Any criminal 
investigations will continue to be handled by the relevant outside law 
enforcement personnel.
    Comment. One group suggested a provision be added expressly 
requiring that investigators receive the training mandated for 
employees and for contractors and volunteers under Sec. Sec.  115.31 
and 115.32, respectively.
    Response. Paragraph (a) of this section makes clear that 
investigators must receive the general training mandated for employees 
and facility staff under Sec.  115.31, in addition to the specialized 
training outlined by Sec.  115.34.

[[Page 13129]]

Specialized Training: Medical and Mental Health Care (Sec.  115.35)

Summary of Proposed Rule

    The standard in the proposed rule required that the agency provide 
specialized training to DHS employees who serve as medical and mental 
health practitioners in immigration detention facilities where such 
care is provided.

Changes in Final Rule

    DHS is adopting the regulation as proposed.

Comments and Responses

    Comment. Commenters suggested that the standard be expanded for 
medical and mental health practitioners. These commenters made the 
following recommendations:
    1. Practitioners who are not DHS or agency employees but who work 
in the facilities should receive similar specialized training, and any 
facility that does not use DHS medical practitioners should provide 
training for its own medical providers;
    2. Such practitioners should receive the training mandated for 
employees and for contractors and volunteers under Sec. Sec.  115.31 
and 115.32, respectively, depending upon the practitioner's status at 
the agency;
    3. The agency should maintain documentation that medical and mental 
health practitioners have received and understand the training, either 
from the agency or elsewhere;
    4. The practitioners should receive special training for 
sensitivity to culturally diverse populations, including appropriate 
terms and concepts to use when discussing sex and sexual abuse, and 
sensitivity and awareness regarding past trauma that may have been 
experienced by immigration detainees;
    5. The training be universally implemented and ingrained into the 
work of all employees, contractors, and volunteers coming into detainee 
contact; and
    6. A number of groups suggested that the standard contain training 
specifically on LGBTI issues, including training to ensure competent, 
appropriate communications with LGBTIGNC detainees.
    Response. With respect to the first recommendation, DHS believes 
that adding standards requiring facility medical staff to receive 
training to ensure that victims of sexual abuse are examined and 
treated thoroughly and effectively is redundant. The staff are already 
receiving the necessary training provided through Sec.  115.35(c). 
Adding more specific criteria in this section concerning specialized 
training to medical providers would make the regulations redundant and 
cumbersome. DHS declines to make this revision.
    With respect to the second and third recommendations, DHS believes 
that adding standards mandating that practitioners receive the training 
under Sec. Sec.  115.31 and 115.32, respectively, would also be 
redundant. The medical and mental health practitioners would already be 
obligated to receive the training required under Sec. Sec.  115.31 and 
115.32, as the positions fall under the definitions of staff, 
contractor, and volunteer listed in Sec.  115.5 of this final rule. 
Under Sec. Sec.  115.31 and 115.32 the training the practitioners 
receive would then be documented; as such DHS declines to make this 
revision.
    With respect to the fourth recommendation, DHS believes that adding 
standards for sensitivity to culturally diverse populations, including 
appropriate terms and concepts to use when discussing sex and sexual 
abuse, and sensitivity awareness regarding past trauma that may have 
been experienced by immigration detainees, would be superfluous and 
potentially beyond DHS's relative expertise when compared to the 
extensive training on medical and mental health care already received 
by certified medical health care professionals. Furthermore, any new or 
additional terms or concepts will likely be taught during the required 
training described in Sec.  115.35(c). Adding this specific requirement 
to this standard would also be redundant and therefore, not add to the 
goal or integrity of the rule. DHS declines to make this revision.
    With respect to the fifth recommendation, DHS believes that 
additional revisions are unnecessary to ensure that training is 
universally implemented and ingrained into the work of all employees, 
contractors, and volunteers coming into detainee contact. The portions 
of this regulation on training and education are designed to ensure 
that all employees, contractors, and volunteers are trained and 
educated to prevent, detect and respond to sexual abuse of detainees 
while in DHS custody. Inserting additional explicit requirements would 
be redundant. DHS therefore declines to revise the proposed rule in 
response to this comment.
    With respect to the sixth recommendation, DHS believes that adding 
a standard requiring training specifically on LGBTI issues, including 
training to ensure competent, appropriate communications with LGBTI 
detainees, would be redundant to current ICE practice and policy, as 
well as provisions of the proposed rule. The 2012 SAAPID--required to 
have been already completed for all ICE personnel who may have contact 
with individuals in ICE custody and required for newly hired officers 
and agents--provides training on vulnerable populations, including 
ensuring professional, effective communication with LGBTI detainees. 
Furthermore, under Sec. Sec.  115.31 and 115.131, practitioners will 
already be required to receive training relating to this population of 
detainees. Section 115.32 requires practitioner volunteers and 
contractors to receive similar training as well, due to their close 
level of contact to most if not all detainees. DHS therefore declines 
to revise the proposed rule in response to this comment.
    Comment. One advocacy group suggested that in paragraph (a), the 
basic specialized training provision of the standard, the qualifier 
``where medical and mental health care is provided'' be removed to 
clarify in the agency's detention standard that all immigration 
detention facilities should provide access to medical and mental health 
care.
    Response. Views on the general structure of immigration detention 
facility medical and mental care are outside the scope of this 
rulemaking.

Assessment for Risk of Victimization and Abusiveness (Sec. Sec.  
115.41, 115.141)

Summary of Proposed Rule

    The standards in the proposed rule mandated that the facility 
assess all detainees on intake to identify those likely to be sexual 
aggressors or sexual victims and required that the detainees be housed 
to prevent potential sexual abuse. The standard for immigration 
detention facilities further required that the facility reassess each 
detainee's risk of victimization or abusiveness between 60 and 90 days 
from the date of initial assessment as well as any other time when 
warranted to avoid incidents of abuse or victimization.

Changes in Final Rule

    Sections 115.41 and 115.141 of the final rule have been revised to 
require that assessments for risk of victimization or abusiveness 
include an evaluation of whether the detainee has been previously 
detained in addition to previously incarcerated. A technical revision 
also is incorporated into Sec.  115.41(a) to clarify that the victims 
that the provision describes are sexual abuse victims.

Comments and Responses

    Comment. A number of advocacy groups suggested that among the risk

[[Page 13130]]

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

[[Page 13131]]

and sound.'' Given the many facilities that fall within the definition 
of holding facilities, separate spaces are not always available. 
Finally, DHS notes that unaccompanied alien children, as defined by 6 
U.S.C. 279, are generally transferred to an HHS/ORR facility within 72 
hours.

Use of Assessment Information (Sec.  115.42)

Summary of Proposed Rule

    The standard in the proposed rule required the facilities to use 
the information obtained in the risk assessment process to separate 
detainees who are at risk of abuse from those at risk of being sexually 
abusive. The proposed standard provided that facilities shall make 
individualized determinations about how to ensure the safety of each 
detainee, and required that, in placing transgender or intersex 
detainees, the agency consider on a case-by-case basis whether a 
placement would ensure the detainee's health and safety, and whether 
the placement would present management or security problems. The 
proposed standard also provided that transgender and intersex detainee 
placement be reassessed at least twice each year, and that such 
detainee's own views as to their safety be given serious consideration.

Changes in Final Rule

    DHS is adopting the regulation as proposed.

Comments and Responses

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

[[Page 13132]]

grooming and dress requirements are generally outside the scope of this 
rule. Neither the NPREC Commission Report nor the DOJ final rule 
included standards on this issue, and DHS did not raise this issue for 
comment in its NPRM. Although DHS declines to include in this final 
rule a provision on this issue, we note that as a matter of practice, 
ICE generally does not accept or have dress or appearance restrictions 
based on gender. NDS and PBNDS 2008 and 2011 reaffirm detainees' right 
to nondiscrimination based on gender and sexual orientation.
    Comment. In paragraph (c), two comments suggested that the 
qualifying phrase ``[w]hen operationally feasible'' be removed to 
ensure that facilities always provide transgender and intersex 
detainees with the ability to shower privately.
    Response. DHS declines to make the proposed change, based on 
infrastructural limitations of housing and showering capacities at many 
facilities. While some immigration detention facilities may have the 
infrastructural capacity to permit transgender and intersex detainees 
to shower privately, this cannot be guaranteed at all facilities. DHS 
therefore requires the flexibility in Sec.  115.42 to accommodate 
facilities where only open shower areas exist for detainee use.
    Comment. One commenter suggested that detainees with no criminal 
record should not be housed alongside criminal detainees.
    Response. DHS believes that existing ICE classification processes 
and related requirements for detention facilities sufficiently address 
this concern, ensuring that housing decisions are based on an objective 
and standardized assessment of each detainee's criminal background and 
likely security risks.
    Comment. A human rights advocacy group and former Commissioners of 
NPREC recommended that immigration detainees be housed separately from 
inmates; the advocacy group suggested that if cohabitation is in fact 
necessary, the detainees should be assigned to cells or areas that 
allow for no unsupervised contact between detainees and inmates. The 
former Commissioners stated there should be heightened protection for 
those immigration detainees identified as abuse-vulnerable during the 
screening process.
    Response. ICE contracts with detention facilities generally require 
that immigration detainees be housed separately from any criminal 
inmates that may also be present at the facility. DHS notes that a 
categorical prohibition on commingling of immigration and criminal 
detainees may not yield sufficient benefits to justify the cost, 
because detention facilities generally use a classification system, 
like the system employed by ICE, to govern the housing and programming 
activities of its inmates to ensure safety.

Protective Custody (Sec.  115.43)

Summary of Proposed Rule

    The proposed standard provided that vulnerable detainees may be 
placed in involuntary segregated housing only after an assessment of 
all available alternatives has been made--and only until an alternative 
housing arrangement can be implemented. The standard also provided that 
segregation shall not ordinarily exceed 30 days. In addition, the 
proposed standard provided that, to the extent possible, involuntary 
protective custody should not limit access to programming.

Changes in Final Rule

    The final standard adds a requirement for facilities to notify the 
appropriate ICE FOD no later than 72 hours after the initial placement 
into segregation, whenever a detainee has been placed in administrative 
segregation on the basis of a vulnerability to sexual abuse or assault.
    Upon receiving such notification, the ICE FOD must review the 
placement to consider its continued necessity, whether any less 
restrictive housing or custodial alternatives may be appropriate and 
available, and whether the placement is only as a last resort and when 
no other viable housing options exist.
    The final standard clarifies that it applies to administrative 
segregation of vulnerable detainees for a reason connected to sexual 
abuse or assault. As noted below, ICE has issued a segregation review 
policy directive which establishes policy and procedures for ICE review 
and oversight of segregated housing decisions. The final standard also 
makes technical changes in paragraphs (a) and (b) for the purpose of 
clarity.

Comments and Responses

    Comment. Numerous groups, including a collection of advocacy groups 
and former Commissioners of NPREC, criticized the language regarding 
the ``ordinarily'' 30-day limit on protective housing as providing too 
much leeway for facilities to maintain that no better alternatives were 
available. The groups suggested restricting more narrowly any 
extensions, with some groups stating there should be no exceptions to 
the 30-day limit, instead substituting either release and potential 
alternatives to detention thereafter if the detainee cannot be safely 
housed in a detention facility, or more appropriate housing away from 
the problematic facility. Another human rights group suggested 
requiring any facility housing detainees in administrative segregation 
for more than 30 days to notify the appropriate agency supervisor, to 
conduct a prompt review of the continuing necessity for the 
segregation--also recommended by the former Commissioners--and to work 
with the facility to establish an alternative housing situation. Some 
other groups suggested specific processes regarding notification of the 
FOD after various periods of days of administrative segregation, with 
one group suggesting further official notification and consideration of 
detainee transfer to general population in an alternate facility or 
placement in an alternative to the detention program.
    Some groups suggested DHS consider altogether releasing victim-
detainees anytime a facility cannot safely separate them without 
resorting to protective custody, with such custody being reserved for 
only limited, emergency, or exigent situations.
    Response. A categorical 30-day limitation on the use of 
administrative segregation to protect detainees may not be possible 
depending on available alternative housing and custodial options for 
ensuring the safe placement of vulnerable detainees. However, DHS 
agrees that agency oversight over cases of administrative segregation 
would assist in effectuating the spirit of the standard, and has 
amended the standard to require agency review of such cases in order to 
ensure the continued appropriateness of segregation and to evaluate 
whether any less restrictive custodial alternatives may be appropriate 
and available.
    Furthermore, ICE has finalized a segregation review policy 
directive which establishes policy and procedures for ICE review and 
oversight of segregated housing decisions. The ICE segregation review 
directive is intended to complement the requirements of PBNDS 2011, 
PBNDS 2008, NDS, and other applicable ICE policies. Proceeding by 
policy in this area is consistent with Sec.  115.95 of the regulation, 
which authorizes both agencies and facilities to implement policies 
that include additional requirements. The directive would also be 
consistent with Sec.  115.43(e) of the final rule, which requires 
facilities to notify the appropriate FOD no later than 72 hours after 
initial placement into segregation whenever a detainee has

[[Page 13133]]

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

[[Page 13134]]

including recreation, visitation, legal counsel and materials, health 
services, meals, correspondence, religious services, and personal 
hygiene items, among others. DHS does not believe that this level of 
specificity is necessary to additionally include in this regulation.

Detainee Reporting (Sec. Sec.  115.51, 115.151)

Summary of Proposed Rule

    Sections 115.51 and 115.151 of the proposed rule required agencies 
to enable detainees to privately report sexual abuse, prohibit 
retaliation for reporting the abuse, and related misconduct. The 
proposed standards required DHS to provide instruction to detainees on 
how to confidentially report such misconduct. The proposed standards 
also required that DHS provide and facilities inform detainees of at 
least one way to report sexual abuse to an outside public or private 
entity that is not affiliated with the agency, and that is able to 
receive and immediately forward the detainee's reports of sexual abuse 
to agency officials, while allowing the detainee to remain anonymous, 
upon request.

Changes in Final Rule

    DHS is adopting the regulation as proposed.

Comments and Responses

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

[[Page 13135]]

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

Grievances (Sec.  115.52)

Summary of Proposed Rule

    The standard contained in the proposed rule prohibited the facility 
from imposing any deadline on the submission of a grievance regarding 
sexual abuse incidents. The standard mandated that facilities allow 
detainees to file a formal grievance at any time before, during, after, 
or in lieu of lodging an informal complaint related to sexual abuse. 
The standard further required the facility to issue a decision on the 
grievance within five days of receipt.

Changes in Final Rule

    DHS is modifying paragraph (e) by adding a requirement that the 
facility respond to an appeal of the grievance decision within 30 days 
and by requiring facilities to send all grievances related to sexual 
abuse to the appropriate ICE Field Office Director at the end of the 
grievance process.

Comments and Responses

    Comment. Some commenters suggested that DHS provide additional 
processes and procedures for emergency grievances. One advocacy group 
suggested that proposed paragraph (c)'s requirement for protocol on 
time-sensitive, immediate-threat grievances is too open-ended, as it 
should set out criteria or guidance as to what facilities'

[[Page 13136]]

procedures should accomplish and require agency approval of the 
procedures. Another organization stated the filing process itself for 
an emergency at-risk grievance should be explicitly included in the 
standard, for when a detainee alleges he or she is subject to a 
substantial risk or imminent sexual abuse.
    Response. The final standard is meant to enhance existing agency 
policies and detention standards that seek to prevent, detect, and 
respond to sexual abuse incidents by establishing general regulatory 
requirements for immigration detention facilities. ICE's detention 
standards provide detailed grievance procedures, including requirements 
for individual facility emergency grievance processes. Common elements 
of these procedures have been included in the regulatory language. 
However, the agency believes that its longstanding grievance procedures 
are comprehensive and adequately address the public's concerns. 
Furthermore, each facility's grievance procedures are inspected to 
ensure that they are being properly executed.
    Comment. An advocacy group suggested that proposed paragraph (e)'s 
grievance-response timeframe should also include a provision adding a 
30-day maximum time limit for the agency's response to an appeal of an 
agency's decision on a grievance.
    Response. DHS accepts the suggested revision to the grievance 
appeal process described in paragraph (e) by including a requirement to 
respond to an appeal of the grievance decision within 30 days.
    Comment. Regarding the substance of the grievance itself, a group 
suggested that the standard should require that no sexual abuse-related 
grievance should be denied based upon any detainee failure to properly 
fill out and submit a formal grievance; the substance of the grievance 
should be sufficient to trigger the facility's response on the merits.
    Response. Any allegation of sexual assault is thoroughly 
investigated by the agency or by local law enforcement, if appropriate. 
The fact that a grievance form was not properly filled out or submitted 
would never be grounds to not investigate a detainee's abuse claim.
    Comment. A commenter expressed concern that the standard should 
require facilities to provide DHS with a copy of each grievance and 
disposition so DHS can effectively monitor the facilities.
    Response. DHS has revised the regulatory text to require facilities 
to send all grievances related to sexual abuse and the facility's 
decisions with respect to such grievances to the appropriate ICE Field 
Office Director at the end of the grievance process. In addition, 
facilities are required under Sec. Sec.  115.89 and 115.189 to keep all 
grievances on file. Each facility is inspected under Sec. Sec.  115.88 
and 115.188 to ensure that it is following the grievance process and 
handling each grievance properly.

Detainee Access to Outside Confidential Support Services (Sec.  115.53)

Summary of Proposed Rule

    The standard contained in the proposed rule required agencies to 
provide detainees with access to outside confidential support services 
and that the information about these services will be provided to them. 
The standard further required that detainees and these confidential 
support services will have reasonable communication in as private a 
manner as possible.

Changes in Final Rule

    DHS is adding paragraph (d) requiring facilities to inform 
detainees, prior to giving them access to outside resources, of the 
extent to which such communications will be monitored and to which 
reports of abuse will be forwarded to authorities in accordance with 
mandatory reporting laws.

Comments and Responses

    Comment. One commenter suggested that when an assault occurs, 
facilities should make available to detainees updated lists of 
resources and referrals to professionals.
    Response. DHS agrees that detainees should have access to resources 
and referrals to professionals when appropriate. The final standards 
adequately address these needs in this section and also in Sec. Sec.  
115.21, 115.81-83. This section provides that each facility use 
available community resources and services to provide support to 
detainees. In addition, Sec.  115.53 requires facilities to maintain or 
attempt to enter into agreements with community service providers or 
national organizations that provide legal advocacy and emotional 
support. Section 115.33 also requires facilities to provide detainees 
with information about local organizations that can assist detainees. A 
detainee does not have to wait for his or her allegation to be 
substantiated before being able to use these services; the facility 
must make the services available much earlier on.
    Section 115.21, which covers forensic medical examinations, 
requires facilities to make use of outside victim services following 
sexual abuse incidents. These services include rape crisis center 
information, a qualified staff member from a community-based 
organization, or a qualified agency staff member. Section 115.21 also 
provides that a forensic medical examination shall be arranged when 
appropriate for medical or evidentiary reasons and at no cost to the 
detainee.
    Sections 115.81-115.83 require referrals for medical follow-up, 
unimpeded access to emergency medical treatment and crisis intervention 
services, medical and mental health evaluations, and follow-up 
services.
    Comment. Commenters expressed concerns over confidentiality 
provisions in this standard. Regarding the outside support services, an 
advocacy group stated that all communications between detainees--
particularly LGBTI detainees--and such organizations should remain 
confidential, with a detainee being notified when confidentiality of a 
communication is not guaranteed. Two collections of advocacy groups 
expressed similar concern, calling for replacing ``in as confidential a 
manner as possible'' with complete confidentiality, and adding 
requirements for an exception that--when such confidentiality is not 
possible--the facility document the reason(s) therefor and inform the 
detainee of the extent of monitoring and the extent of any forwarding 
of reports of abuse to authorities under mandatory reporting laws. Some 
members of Congress also stated that full confidentiality is necessary 
in communications with service providers like rape crisis counselors. 
Another advocacy group as well as a collection of youth, immigration 
and disability groups and a human rights group focused, respectively, 
on the specific needs for confidentiality in regard to medical and 
mental health care records and also trauma and support services.
    Response. DHS agrees that it is important for all victims, 
regardless of their sexual orientation, to have access to confidential 
services. The standard requires agencies to ``enable reasonable 
communication between detainees and these organizations and agencies, 
in as confidential a manner as possible.'' Unfortunately, DHS cannot 
guarantee complete confidentiality in all situations, because it may be 
difficult for agencies to ensure complete confidentiality with all 
forms of communication due to factors such as the physical layout of 
the facility or the use of automatic phone monitoring systems, which 
may be difficult to suspend for support calls without requiring the 
detainee to make a specific request. As a result of confidentiality

[[Page 13137]]

concerns, DHS added paragraph (d), which will require facilities to 
inform detainees prior to giving them access to outside resources, of 
the extent to which such communications will be monitored and the 
extent to which reports of abuse will be forwarded to authorities in 
accordance with mandatory reporting laws.
    As ICE's Detainee Handbook explains, communications between 
detainees and investigators are private and detainees' medical and 
administrative files are locked in secure areas to ensure 
confidentiality.
    DHS encourages facilities to establish multiple procedures for 
detainee victims of sexual abuse to contact external advocacy and 
support groups. While not ensuring ideal privacy, phones may provide 
the best opportunity for detainees to ask for assistance in a timely 
manner. Privacy concerns may be addressed through other means of 
contacting outside organizations, such as allowing confidential 
correspondence, opportunities for phone contact in more private 
settings, or the ability of the detainee to make a request to contact 
an outside advocate through a chaplain, clinician, or other service 
provider.

Third-Party Reporting (Sec. Sec.  115.54, 115.154)

Summary of Proposed Rule

    Standards 115.54 and 115.154 in the proposed rule required 
facilities to 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.

Changes in Final Rule

    DHS is adopting the regulation as proposed.

Comments and Responses

    DHS did not receive any public comments on this provision during 
the public comment period.

Staff Reporting Duties (Sec. Sec.  115.61, 115.161)

Summary of Proposed Rule

    The standards in the proposed rule required that staff immediately 
report: (1) Any knowledge, suspicion, or information regarding an 
incident of sexual abuse that occurred in a 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 proposed standards 
prohibited 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.

Changes in Final Rule

    DHS now explicitly requires covered staff to report retaliation 
against detainees or staff who participated in an investigation of an 
incident of sexual abuse that occurred in a facility. Previously, the 
reporting requirement in these standards did not explicitly cover such 
retaliation (although it did cover retaliation against detainees or 
staff who reported an incident of sexual abuse). Otherwise, DHS is 
adopting the regulation as proposed.

Comments and Responses

    Comment. A commenter suggested expanding paragraph (a) to require 
staff to report not only ``any knowledge, suspicion, or information 
regarding . . . retaliation against detainees or staff who reported'' 
an incident of sexual abuse, but also any knowledge, suspicion, or 
information regarding retaliation against detainees or staff that 
provided information pertaining to such an incident.
    Response. DHS agrees that anti-retaliation measures are of 
paramount importance in this context, and has therefore included a 
range of measures, including Sec. Sec.  115.67 and 115.167, intended to 
deter retaliatory conduct. Under these provisions, agency employees 
(and others) may not retaliate against any person, including a 
detainee, for, inter alia, reporting, complaining about, or 
participating in an investigation into an allegation of sexual abuse.
    With respect to staff reporting specifically and in response to the 
comment, DHS revised Sec. Sec.  115.61(a) and 115.161(a) to require all 
staff to immediately report retaliation against detainees or staff who 
reported or participated in an investigation about sexual abuse 
incidents. Prior to this revision, the reporting requirement did 
require reporting about retaliation against detainees or staff who 
reported an incident of sexual abuse, but did not explicitly cover 
reports of retaliation against individuals who participated in 
investigations.
    Comment. An advocacy group suggested adding language to paragraph 
(a) that would allow staff to anonymously report sexual abuse and 
harassment of detainees.
    Response. DHS agrees that it is essential for staff to have 
anonymous methods of reporting sexual abuse and assault incidents. 
Under 2006 agency policy and the SAAPID, agency staff is required to 
ensure immediate reporting of any incident of sexual abuse or assault 
by the facility to the local ICE personnel, who must then notify the 
ICE JIC telephonically within two hours and in writing within 24 hours. 
Reporting directly to the JIC allows staff to report incidents 
anonymously without having to report up through their chain of command. 
DHS believes that the allowance of anonymous reporting is adequately 
addressed between these policies and paragraph (a) of this standard 
which allows for ``methods by which staff can report outside of the 
chain of command.'' Because an express regulatory provision would be 
redundant to a number of measures that are currently in place, and 
because DHS believes that the anonymous reporting option must be 
carefully controlled to ensure that staff also meet their mandatory 
reporting duties properly and effectively, DHS does not believe that 
the recommended added language is necessary.

Protection Duties (Sec. Sec.  115.62, 115.162)

Summary of Proposed Rule

    The standards contained in the proposed rule required that when an 
agency employee or facility staff has a reasonable belief that a 
detainee is subject to a substantial risk of imminent sexual abuse, he 
or she must take immediate action to protect the detainee.

Changes in Final Rule

    DHS is adopting the regulation as proposed.

Comments and Responses

    DHS did not receive any public comments on this provision during 
the public comment period.

Reporting to Other Confinement Facilities (Sec. Sec.  115.63, 115.163)

Summary of Proposed Rule

    The standards contained in the proposed rule mandated that upon 
receiving an allegation that a detainee was sexually abused while 
confined at another facility, the facility receiving the allegation 
must (1) notify the appropriate office of the facility where the sexual 
abuse is alleged to have occurred as soon as possible, but no later 
than 72 hours after receiving the allegation; and (2) document the 
efforts taken under this section. The agency office that receives such 
notification, to the extent covered by the regulation, must ensure the 
allegation is referred for investigation.

[[Page 13138]]

Changes in Final Rule

    DHS is modifying the notification language in paragraph (a) for 
both Sec.  116.63 and Sec.  115.163 to require agencies and facilities 
that receive allegations of abuse at a different facility to notify the 
appropriate office of the agency or the administrator of the facility 
where the alleged abuse occurred.

Comments and Responses

    Comment. The former Commissioners of NPREC recommended that DHS 
define who specifically in the agency or facility is required to notify 
another facility, upon receiving an allegation of detainee sexual abuse 
in another facility. The group suggested following the DOJ PREA final 
rule by using the term ``facility head.''
    Response. DHS understands the concern of confusion as to who is 
responsible for reporting allegations to other confinement facilities 
and has subsequently revised Sec.  115.63. With regard to Subpart A, 
the SAAPID requires that when an alleged assault is reported at another 
facility, the facility receiving the allegation report it to the 
administrator of the facility where the alleged sexual abuse or assault 
occurred. DHS revised Sec.  115.63, which complements the SAAPID, and 
also revised Sec.  115.163 to now require notification to ``the 
appropriate office of the agency or the administrator of the facility 
where the alleged abuse occurred.'' The provision allows notification 
to the appropriate office of the agency because in some cases the 
allegations may concern ICE or CBP holding facilities for which 
notification to the JIC would be more appropriate, for any of a range 
of reasons. Under the DHS standard as well as the DOJ standard, if a 
covered facility learns of sexual abuse in another facility, the 
covered facility will notify the other facility, and document such 
notification in writing. DHS believes that as currently written the 
provision satisfies the concern for facility to facility reporting and 
does not believe that adding ``facility head'' will strengthen the 
provision as currently written.
    For Subpart B facilities, where detention is relatively brief, and 
in order to minimize delay, the agency official responsible for 
notifying another confinement facility of an allegation of sexual abuse 
will depend on which office receives the allegation. DHS believes that 
specifying ``facility head'' within this section will limit which 
office can either notify or be notified and may therefore postpone the 
communication between facilities which would not be in the best 
interest of the victim. For this reason, DHS believes that the 
provision will be most effective as currently written and declines to 
adopt the ``facility head'' language.

Responder Duties (Sec. Sec.  115.64, 115.164)

Summary of Proposed Rule

    The standards contained in the proposed rule required that the 
first employee or staff member that responds to the sexual abuse report 
separate the alleged victim and abuser and preserve and protect the 
crime scene until evidence can be collected.

Changes in Final Rule

    DHS is adopting the regulation as proposed.

Comments and Responses

    DHS did not receive any public comments on this provision during 
the public comment period.

Coordinated Response (Sec. Sec.  115.65, 115.165)

Summary of Proposed Rule

    Sections 115.65 and 115.165 in the proposed rule required a 
multidisciplinary team approach in the response to an incident of 
sexual abuse.

Changes in Final Rule

    DHS revised each standard to clarify that notification requirements 
related to the transfer of detainee victims of sexual abuse will differ 
depending on whether or not the receiving facility is covered by these 
standards. As in the proposed rule, when the receiving facility is not 
covered by these standards, the sending facility must inform the 
receiving facility of the incident and the victim's potential need for 
medical or social services, unless the victim requests otherwise. 
Otherwise, DHS is adopting the regulation as proposed.

Comments and Responses

    DHS did not receive any public comments on this provision during 
the public comment period.

Protection of Detainees From Contact With Alleged Abusers (Sec. Sec.  
115.66, 115.166)

Summary of Proposed Rule

    The standard in the proposed rule with respect to immigration 
detention facilities required the agency or facility to remove from all 
duties requiring detainee contact, pending the outcome of an 
investigation, staff, contractors, and volunteers suspected of 
perpetrating sexual abuse. The standard with respect to holding 
facilities required agency management to consider such removal for each 
allegation of sexual abuse, and to do so if the seriousness and 
plausibility of the allegation make removal appropriate.

Changes in Final Rule

    DHS is adopting the regulation as proposed.

Comments and Responses

    Comment. Some commenters suggested that as with immigration 
detention facilities, holding facilities that have staff, contractors, 
or volunteers that are suspected of sexual abuse should remove such 
persons from all duties requiring detainee contact pending the outcome 
of an investigation. They believe that requiring removal is important 
for the protection of the victim as well as others in the facilities. 
An advocacy group commented that leaving Sec.  115.166(a) unrevised 
will leave open the possibility for a perpetrator to continue to have 
access to the detainees during the reporting and investigating 
processes.
    Response. DHS believes that the language used in Sec.  115.166 is 
the appropriate approach to protect detainees while an investigation is 
pending in a holding facility. DHS recognizes the desire for 
consistency between Subpart A and Subpart B of the regulation. However, 
DHS believes that Sec.  115.166, as proposed and in final form, 
appropriately addresses the unique needs associated with holding 
facilities, including limited staffing resources. Furthermore, Sec.  
115.166 requires supervisors to affirmatively consider removing staff 
pending the completion of an investigation, and to remove them if the 
seriousness and plausibility of the allegation make such removal 
appropriate (as opposed to automatically placing employees on 
administrative duties even where, for example, the allegations are not 
plausible because the subject of the allegation was not on duty at the 
time of the alleged incident).
    With respect to ICE holding facilities, the SAAPID reinforces the 
regulation by requiring the removal of an ICE employee, facility 
employee, contractor, or volunteer suspected of perpetrating sexual 
abuse or assault to be removed from all duties requiring detainee 
contact pending the outcome of an investigation. The term ``suspected 
of'' is intended to allow the agency or facility a modest exercise of 
discretion with respect to whether any suspicion exists. By requiring 
that the individual be ``suspected of'' perpetrating sexual abuse and 
assault, DHS intends to

[[Page 13139]]

ensure that staff, contractors, and volunteers are not removed for 
plainly implausible or plainly erroneous allegations (e.g., a detainee 
may claim that a specific staff member assault him when, in fact, that 
staff member was not at the facility during the alleged incident).
    DHS believes that by assigning staff, contractors, and volunteers 
to duties away from detainees when necessary, DHS will provide 
sufficient protection to detainees.
    Comment. Some commenters suggested adding the same language that is 
currently in DOJ's PREA final rule concerning collective bargaining 
agreements. The DOJ standard prevents an agency or governmental entity 
responsible for collective bargaining on the agency's behalf from 
entering into or renewing any collective bargaining agreement or other 
agreement that limits the agency's ability to remove staff suspected of 
perpetuating sexual abuse from contact with any inmates pending the 
outcome of an investigation. The commenters believe that this 
adjustment will prevent DHS from entering into collective bargaining 
agreements that frustrate the objective of the standard.
    Response. DHS respectfully declines to add the language concerning 
collective bargaining agreements. DHS believes adding the language 
suggested by the commenters is unnecessary. The DHS rule requires 
affirmative steps in response to an allegation of sexual abuse. Removal 
from detainee interaction during the investigation process is required 
for staff, contractors, and volunteers suspected of perpetrating sexual 
abuse in immigration detention facilities. In response to an allegation 
of sexual abuse in a holding facility, agency management shall remove 
any staff, contractor, or volunteer from duties requiring detainee 
contact pending the outcome of an investigation, where the seriousness 
and plausibility of the allegation make removal appropriate. This 
provides a greater level of protection and requires more significant 
affirmative action than a limitation on collective bargaining 
agreements.
    Comment. Some commenters suggested changing Sec.  115.66 to apply 
not to staff, contractors, or volunteers that are ``suspected of 
perpetrating'' sexual abuse, but to staff, contractors, or volunteers 
that are ``alleged to have perpetrated'' sexual abuse.
    Response. PBNDS 2011 uses the term, ``suspected of perpetrating.'' 
The use of conflicting terms could pose bargaining issues. ``Suspected 
of perpetrating'' allows for a modest exercise of discretion to 
determine whether an allegation has any reasonable basis in fact. DHS 
believes that the use of the term ``suspected of perpetrating'' as 
opposed to ``alleged to have perpetrated'' will adequately ensure the 
safety and security of detainees.

Agency Protection Against Retaliation (Sec. Sec.  115.67, 115.167)

Summary of Proposed Rule

    The standards contained in the proposed rule required that agency 
and facility staff and employees 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.

Changes in Final Rule

    DHS added a new paragraph (b) to Subpart A of the final rule which 
requires the agency or facility to ``employ multiple protection 
measures, such as housing changes, removal of alleged staff or detainee 
abusers from contact with victims, and emotional support services for 
detainees or staff that fear retaliation for reporting sexual abuse or 
for cooperating with investigations.''

Comments and Responses

    Comment. Many commenters suggested adding language that will 
protect from retaliatory deportation any detainees who report, complain 
about, or participate in an investigation into an allegation of sexual 
abuse, or for participating in sexual activity as a result of force.
    Response. DHS agrees that removal should never be used solely to 
retaliate against a detainee who reports sexual abuse. To address this 
concern, Sec. Sec.  115.67 and 115.167 explicitly prohibit any 
retaliatory behavior, which is a broader form of protection and is 
therefore adequate to address this risk.
    Comment. Multiple commenters suggested that the standards in 
Sec. Sec.  115.67 and 115.167 should be replaced with the corresponding 
DOJ PREA standards. Some members of Congress commented generally that 
the retaliation standard should be revisited to be in line with DOJ's 
standard. One commenter notes that the DOJ PREA standards detail 
specific protection measures that the agency must take to ensure 
retaliation does not occur.
    Response. In response to comments about aligning DHS's Sec.  115.67 
standards with DOJ's, DHS again reviewed the DOJ final rule and added a 
new paragraph to Subpart A of the final rule, which requires the agency 
to use multiple measures to protect detainees who fear reporting sexual 
abuse or fear cooperating with investigations.
    DHS did not incorporate the language used in DOJ's paragraph (a) 
because DHS's language provides greater protection by prohibiting 
retaliation immediately, instead of relying on a policy to be drafted 
in the future. Given ICE's more direct oversight over its immigration 
detention facilities, the agency is in a better position to prohibit 
and take action against acts of retaliation by detainees or staff. 
DOJ's paragraph (d) was not incorporated for the same reason, and 
because status checks are redundant--for 90 days following a report of 
sexual abuse, the agency or facility must 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. DHS believes that 
its final rule is tailored effectively to immigration detention and 
therefore, does not need to mirror the DOJ rule to provide adequate 
protection to detainees.
    DHS chose not to include proposed language about employing multiple 
protection measures in Subpart B. Given the relatively short time of 
detention in holding facilities, housing assignments are not 
applicable. Section 115.164, Responder Duties, includes a requirement 
to separate the alleged victim and abuser. With respect to the comment 
regarding providing emotional support services to staff, note that CBP 
offers a full range of assistance to agency employees through the 
WorkLife4You Program and the Employee Assistance Program.
    Comment. One commenter suggested the addition of a paragraph in 
Sec.  115.67 that would require the facility's PSA Compliance Manager, 
or assignee, to make sure the mandates of Sec.  115.22 are fulfilled.
    Response. Sections 115.11(d) and 115.111(d) already serve this 
function by ensuring the PSA Compliance Manager has ``sufficient time 
and authority to oversee facility efforts to comply with facility 
sexual abuse prevention and intervention policies and procedures.''
    Comment. One commenter suggested that this standard explicitly 
address transferring victims as a form of retaliation or as a means of 
protection from alleged perpetrators.
    Response. DHS recognizes the need to eliminate unnecessary detainee 
transfers. Eliminating unwarranted transfers of sexual assault victims 
for retaliatory reasons are a high priority for the agency. ICE Policy 
11022.11,

[[Page 13140]]

entitled Detainee Transfers, was developed and implemented to reduce 
detainee transfers and specifically notes that transfers should not be 
conducted unless certain articulated factors are considered by the FOD 
or his or her designee. DHS believes that the protections afforded by 
ICE's transfer policy apply to all detainees, not just those who have 
made sexual assault allegations or those participating in 
investigations. Section 115.67 of these standards also includes an 
explicit prohibition against any form of agency retaliation against 
victims of sexual abuse or assault, including retaliatory housing 
changes.

Post-Allegation Protective Custody (Sec.  115.68)

Summary of Proposed Rule

    The standard contained in the proposed rule required the facility 
to place detainee victims of sexual abuse in a supportive environment 
that is the least restrictive housing option possible. The standard 
provided that detainee victims shall not be returned to the general 
population until proper re-assessment is completed. The standard 
further required that detainee victims are not to be held for longer 
than five days in any type of administrative segregation, except in 
unusual circumstances or at the request of the detainee.

Changes in Final Rule

    The final rule adds a requirement for facilities to notify the 
appropriate ICE FOD whenever a detainee victim has been held in 
administrative segregation for 72 hours.
    Upon receipt of such notification, the final rule also requires 
that the ICE FOD conduct a review of the placement to consider whether 
the placement is only as a last resort and when no other viable housing 
options exist, and whether--in the case of a detainee victim held in 
administrative segregation for longer than five days--whether the 
placement is justified by extraordinary circumstances or is at the 
detainee's request.

Comments and Responses

    Comment. One advocacy group suggested adding a statement in 
paragraph (b) requiring the facility to report to the agency within 24 
hours the placement of suspected sexual abuse victims in protective 
custody.
    Response. As noted above, the final rule adds a requirement for 
facilities to notify the appropriate ICE FOD whenever a detainee victim 
has been held in administrative segregation for 72 hours. ICE notes 
that it has also chosen to proceed by policy in this area, as noted 
above in the discussion relating to Sec.  115.43.
    Comment. Some commenters suggested further defining the term 
``unusual circumstances'' in paragraph (b) to include the actual 
circumstances in which prolonged protective custody might be warranted. 
Commenters wrote that vulnerable detainees may request protective 
custody for a prolonged period of time because they are unaware of 
their rights.
    An advocacy group suggested that the agency supervisor be notified 
when a detainee is placed in administrative custody for more than five 
days. Once the agency supervisor is notified, this person should be 
tasked with conducting a review of the segregation as well as looking 
for other placements for the detainee as long as the detainee is not 
subject to mandatory detention.
    Response. The final standard includes new requirements for agency 
notification whenever an individual has been held in administrative 
segregation for 72 hours, and agency review of such cases to determine 
whether the placement is only as a last resort and when no other viable 
housing options exist. Where a detainee victim has been held in 
administrative segregation for longer than five days, the agency must 
also review whether the placement is justified by extraordinary 
circumstances, or is at the detainee's own request. DHS does not 
believe that further definition of the term ``unusual circumstances'' 
is necessary based on any concern that detainees' lack of awareness of 
their rights will lead them to request prolonged protective custody. In 
ICE's experience, detainees are not likely to affirmatively request 
continued protective custody unless they desire to remain segregated. 
This final rule includes strong provisions on detainee education in 
this context.
    Comment. One commenter stated that protective custody should only 
be used as a last resort.
    Response. Section 115.68 has been revised to require the FOD to 
determine whether the placement in segregation is used only as a last 
resort and when no other viable housing options exist.
    Comment. One commenter recommended that paragraph (c) have a 
defined timeline for reassessments.
    Response. Paragraph (b) of this standard imposes a 5-day limitation 
on the continuous segregation of detainee victims in protective 
custody, inclusive of any time necessary to complete a re-assessment. 
The final rule also requires facilities to notify the ICE FOD whenever 
a detainee victim has been held in administrative segregation for 72 
hours.
    Comment. Multiple commenters suggested that, for alleged victims 
who have been placed in post-allegation protective custody, DHS should 
incorporate a strong presumption of full release from custody, 
potentially under programs that provide alternatives to detention.
    Response. Under the regulation, the facility shall place detainee 
victims of sexual abuse in a supportive environment that is the least 
restrictive housing option possible. A detainee who is in post-
allegation protective custody shall not be returned to the general 
population until completion of a proper re-assessment, taking into 
consideration any increased vulnerability of the detainee as a result 
of the sexual abuse. In light of the strong protections required under 
this standard, and because alternatives to detention programs continue 
to be available under the regulation, DHS declines to incorporate a 
presumption in favor of release. In addition to the detainee's personal 
vulnerability, DHS will continue to make release decisions based upon 
other generally applicable factors, including, inter alia, individual 
security considerations, applicable statutory detention mandates, and 
available custodial options in each case.

Criminal and Administrative Investigations (Sec. Sec.  115.71, 115.171)

Summary of Proposed Rule

    The standards contained in the proposed rule required 
investigations by the agency or the facility with the responsibility 
for investigating the allegation(s) of sexual abuse be prompt, 
thorough, objective, and conducted by specially trained, qualified 
investigators. The proposed standard also required agencies and 
facilities to conduct an administrative investigation of (1) any 
substantiated allegation and (2) any unsubstantiated allegation that, 
upon review, the agency deems appropriate for further administrative 
investigation.

Changes in Final Rule

    DHS made minor revisions to the Subpart B provision, to clarify 
that responsibility for conducting criminal and administrative 
investigations or referring allegations to the appropriate 
investigative authorities ultimately lies with the agency, and not the 
facility. Otherwise, DHS is adopting the regulation as proposed.

Comments and Responses

    Comment. Commenters suggested that all allegations of sexual abuse 
be

[[Page 13141]]

investigated, including third party and anonymous reports. There was a 
recommendation that DHS cross-reference this standard with Sec.  115.34 
with regard to the requisite qualifications of the investigator.
    Response. Section 115.22 requires that all allegations of sexual 
abuse be investigated. The purpose of Sec.  115.71(a) is to clarify 
investigative responsibility (e.g., the division of responsibility 
between the agency/facility/state/local law enforcement) and to require 
that investigators be properly trained and qualified. Allegations may 
be made directly by a detainee or by a third party such as an attorney, 
a family member, another detainee, a staff member, or an anonymous 
party. The source of the allegation does not affect the requirement 
that all allegations of sexual abuse be investigated. DHS clarifies 
here that specialized training for investigators is addressed in Sec.  
115.34.
    Comment. There were several advocacy groups that suggested that 
prosecutorial discretion be exercised with regard to victims and 
witnesses of sexual abuse and assault, especially young survivors of 
sexual abuse and assault. Other commenters suggested that victims be 
given the option of release on their own recognizance during the 
investigation process with the understanding that they would remain in 
the United States lawfully. A similar suggestion was made by another 
commenter in that victims should be given the ability to be released on 
their own recognizance, on bond, or through an alternative detention 
program and the ability to stay in the United States while the 
investigation is carried out.
    Response. Tools for prosecutorial discretion already are available 
for victims of sexual abuse and assault.\15\ Deferred action refers to 
the decision-making authority of ICE, among other entities, to allocate 
resources in the best possible manner to focus on high priority cases, 
potentially deferring action on cases with a lower priority. Deferred 
action can be used by ICE for any alien victim, including a victim in 
detention, due to the victim's status as an important witness in an 
ongoing investigation or prosecution.
---------------------------------------------------------------------------

    \15\ See generally id.
---------------------------------------------------------------------------

    Administrative Stay of Removal (ASR) is another discretionary tool 
that permits ICE to temporarily delay the removal of an alien. Any 
alien, or law enforcement agency on behalf of an alien, who is the 
subject of a final order of removal may request ASR from ICE. An ASR 
may be granted after the completion of removal proceedings up to the 
moment of physical removal.
    Longer term immigration relief may be available, including in the 
form of U nonimmigrant status. U nonimmigrant status protects victims 
of qualifying crimes (including sexual assault and felonious assault) 
who have suffered substantial mental or physical abuse as a result of 
the crime and are willing to assist law enforcement authorities in the 
investigation or prosecution of the criminal activity. U nonimmigrant 
status is self-petitioning and requires a law enforcement 
certification.
    DHS also routinely considers whether detainees may be suitable 
candidates for release on their own recognizance or on bond, or 
participation in an alternative to detention program.

Evidentiary Standard for Administrative Investigations (Sec. Sec.  
115.72, 115.172)

Summary of Proposed Rule

    The standards contained in the proposed rule required that agencies 
not impose a standard higher than a preponderance of the evidence in 
determining whether allegations of sexual abuse are substantiated.

Changes in Final Rule

    DHS is adopting the regulation as proposed.

Comments and Responses

    DHS did not receive any public comments on this provision during 
the public comment period.

Reporting to Detainees (Sec.  115.73)

Summary of Proposed Rule

    The standard found in Sec.  115.73 in the proposed rule required 
the agency to notify the detainee of the result of the investigation 
when the detainee is still in immigration detention, as well as where 
otherwise feasible.

Changes in Final Rule

    DHS is adopting the regulation as proposed.

Comments and Responses

    Comment. One advocacy group suggested that holding facilities have 
a comparable provision with what is currently proposed for immigration 
detention facilities. They further suggested that there be an attempt 
for DHS to forward the outcome of the investigation to the detainee, 
especially when the detainee is still in detention due to their belief 
that if there is a lack of incident follow-up there will be a lack of 
accountability within the holding facility.
    Response. DHS notes that DOJ did not apply its standards regarding 
reporting to inmates in the context of lockups, due to the short-term 
nature of lockup detention. Similarly, due to the short-term nature of 
detention in holding facilities, DHS declines to accept the suggestion 
to include a provision on detainee notification of investigative 
outcomes for allegations made in holding facilities.
    Comment. Some commenters suggested that DHS's proposed standard 
should follow the DOJ standard. The DOJ standard describes what type of 
notification will be delivered to the inmate concerning their abuser 
and the investigation, that such notifications will be documented, and 
that notifications will no longer be required when the inmate/victim is 
released from custody. A commenter wrote that failure to provide 
updates on the agency's response to an allegation of sexual abuse 
increases the survivor's anxiety about future abuse and decreases the 
survivor's belief that his or her report is being taken seriously.
    Response. DHS does not believe it is necessary to adopt the DOJ 
standard on notifications. ICE already has the responsibility to inform 
detainees of the outcome of any investigation as well as any responsive 
action taken. In instances in which the detainee has been moved to 
another facility, coordination between facilities is required, in part 
to ensure that the investigative outcome can be shared with the 
detainee.
    With regard to notifying the detainee of actions taken against an 
employee, DHS agrees that agency follow-up can be of great importance 
to victims, and therefore requires the agency to notify the detainee as 
to the result of the investigation and any responsive action taken. In 
the immigration detention facility context, DHS has also undertaken to 
perform this follow-up whenever feasible, even after the detainee has 
been released from custody. As DHS noted in its proposal, DHS believes 
that its approach strikes the proper balance between staff members' 
privacy and the detainee's right to know the outcome of the 
investigation.
    In light of the breadth of the DHS provision, DHS notes that in its 
experience, state privacy laws and union guidelines may prohibit 
sharing certain information about disciplinary actions taken against 
employees. Releasing details about an employee's punishment could be in 
violation of these privacy laws or policies. DHS cannot require that 
specific information about sanctions taken against an

[[Page 13142]]

employee be included in post-investigation follow-up with the detainee. 
However, consistent with the regulatory text, where the information is 
available to the agency and can be provided in accordance with law, it 
will be provided.

Disciplinary Sanctions for Staff (Sec. Sec.  115.76, 115.176)

Summary of Proposed Rule

    The standards contained in the proposed rule provided that staff 
shall be subject to disciplinary actions up to and including 
termination for violating agency sexual abuse policies, and that 
termination shall be the presumptive disciplinary sanction for staff 
that engaged in or threatened to engage in sexual abuse, as defined in 
the regulation. The proposed standards further provided that if a staff 
member is terminated for violating such policies, or if a staff member 
resigns in lieu of termination, a report must be made to law 
enforcement agencies (unless the activity was not criminal) and to any 
relevant licensing bodies, to the extent known.

Changes in Final Rule

    DHS is adopting the regulation as proposed.

Comments and Responses

    Comment. One commenter suggested that repeat offenders should be 
subjected to criminal and civil sanctions, and facilities that have 
recurrences of sexual abuse and assault claims (paying specific 
attention to juvenile facilities) should be penalized and closely 
monitored. Another commenter suggested that if multiple substantiated 
cases of sexual abuse have been found in a facility, the facility 
should be closed or lose its contract with DHS.
    Response. DHS declines to make the requested revision to the 
standard. DHS does not have criminal prosecution authority. 
Furthermore, the PREA statute itself does not provide for civil 
penalties, as suggested by the comment. DHS takes extremely seriously 
any allegations or substantiated incidents of sexual abuse. All 
facilities will be closely monitored for how they respond to sexual 
abuse and assault reports; address safety, medical, and victim services 
issues; and coordinate criminal and administrative investigative 
efforts. While monitoring is recognized as a crucial element, DHS does 
not concur with the suggestion that facilities with recurring 
allegations or a higher number of allegations should always be 
penalized, as the subsequent investigation may or may not substantiate 
an allegation. In addition, detainee population size must be taken into 
account when assessing the number of allegations at a given facility 
over a period of time. However, when investigations or audits reveal a 
policy, procedural, or systemic issue at the facility that has 
contributed to sexual abuse or assault, DHS will use its authority to 
ensure that corrective actions are promptly taken. DHS emphasizes the 
importance of working with the facility to take corrective and 
preventive action as the appropriate response.
    DHS recognizes that detainees who are minors have special 
vulnerabilities. With the exception of juveniles in the Family 
Residential Program, and rare cases where minors with criminal records 
are held in juvenile detention facilities, most juveniles are in the 
care and custody of HHS/ORR, other than the brief period of time that 
such unaccompanied juveniles are in ICE custody prior to transfer to 
ORR. The monitoring of those facilities is within the purview of HHS 
and outside the scope of DHS authority.
    Comment. One commenter recommended that any person(s) regardless of 
whether they are staff, contractors, or volunteers, and regardless of 
whether they work in a DHS facility or contract facility, should be 
removed from their position at a detention facility for violating 
agency sexual abuse or sexual harassment policies.
    Response. DHS agrees that violation of agency sexual abuse and 
assault policies merits discipline of employees and contractors, up to 
and including removal. However, DHS does not have authority to require 
contract facilities to remove employees from employment entirely, but 
only to require reassignment to a position where there will not be 
contact with detainees. As such, the comment cannot be implemented as 
recommended.

Corrective Action for Contractors and Volunteers (Sec. Sec.  115.77, 
115.177)

Summary of Proposed Rule

    The standards contained in the proposed rule required that any 
contractor or volunteer who has engaged in sexual abuse be prohibited 
from contact with detainees. The proposed rule further required 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.

Changes in Final Rule

    DHS is adopting the regulation as proposed.

Comments and Responses

    Comment. One commenter suggested that entities that have repeat 
offenses be subject to both criminal and civil sanctions by the agency. 
The commenter further suggested that contracted parties be subject to 
the same standards as non-contracted parties and should have further 
repercussions for their actions other than employee dismissal. The 
commenter suggested that a facility found to have repeat incidents 
should be subject to harsher penalties and be monitored more closely.
    Response. Similar to the response regarding Sec. Sec.  115.76 and 
115.176, DHS believes that a change is not warranted or appropriate to 
prescribe both criminal and civil sanctions. DHS does not have criminal 
prosecution authority and the PREA statute similarly does not provide 
for civil penalties. Nevertheless, DHS takes extremely seriously any 
allegations or substantiated incidents of sexual abuse.
    Contract employees are subject to the same standards as agency 
employees and investigations into allegations made against contractors 
are no less thorough than those made against agency employees. All 
facilities will be closely monitored for how they respond to sexual 
abuse and assault reports; address safety, medical, and victim services 
issues; and coordinate criminal and administrative investigative 
efforts. DHS believes that the best approach to remedy a situation of 
recurring sexual abuse and assault claims varies with the 
circumstances, and may include disciplining or removing individual 
employees involved in the abuse, working with the facility to take 
corrective and preventive action, regular facility monitoring, as well 
as terminating a contract with a facility in its entirety.
    Comment. One commenter recommended that any person(s) violating 
agency sexual abuse or sexual harassment policies be removed from their 
position at the detention facility regardless of whether the employee 
is staff, a contractor, or a volunteer and regardless of whether the 
person works in a DHS facility or contract facility.
    Response. As discussed above in response to the comment received on 
Sec. Sec.  115.76 and 115.176, DHS agrees that violation of agency 
sexual abuse and assault policies merits discipline of employees and 
contractors, up to and including removal. However, DHS does not have 
authority to require contract

[[Page 13143]]

facilities to remove employees from employment entirely, but only to 
require reassignment to a position where there will not be contact with 
detainees. Accordingly, the comment cannot be implemented as 
recommended.

Disciplinary Sanctions for Detainees (Sec.  115.78)

Summary of Proposed Rule

    The standard contained in the proposed rule mandated that detainees 
be subject to disciplinary sanctions after they have been found to have 
engaged in sexual abuse. The standard mandates that discipline be 
commensurate with the severity of the committed prohibited act and 
pursuant to a formal process that considers the detainee's mental 
disabilities or mental illness, if any, when subjecting the detainee to 
disciplinary actions.

Changes in Final Rule

    DHS is adopting the regulation as proposed.

Comments and Responses

    Comment. One commenter suggested that paragraph (a) specify that 
detainees will only face disciplinary action for detainee-on-detainee 
sexual abuse because the language in paragraph (e). Paragraph (e) 
prohibits the facility from disciplining a detainee for sexual contact 
with staff unless there is a finding that the staff member did not 
consent to such contact.
    Response. DHS declines to make the proposed change to paragraph (a) 
because this modification would preclude DHS from disciplining a 
detainee found to have engaged in sexual contact with a non-consenting 
staff member (pursuant to paragraph (e) of this standard). DHS believes 
it is important to retain the authority to discipline a detainee for 
engaging in sexual abuse of a staff member.
    Comment. One commenter suggested that two provisions from the DOJ 
PREA standard be adopted by DHS. One provision in the DOJ rule allows 
for the facility to require the abuser to participate in mental health 
interventions as a condition of access to programming or other 
benefits. The other provision in the DOJ rule allows for an agency to 
prohibit, in its discretion, all sexual activity between inmates and if 
such activity occurs, the agency may discipline the inmates for this 
activity. It further specifies that the agency is not able to deem such 
activity to be sexual abuse if it determines that the activity is not 
coerced.
    Response. DHS declines to accept either of the proposed changes 
from this comment. Whereas the purpose of incarceration by DOJ includes 
punishment and rehabilitation--thus making therapy and counseling more 
widely appropriate--the purpose of immigration detention is to 
facilitate appearance at immigration proceedings and removal. 
Accordingly, mandating therapy or counseling as a condition of access 
to programming or other benefits would not be appropriate in this 
context.
    DHS notes, however, that Sec.  115.83 of the regulation includes 
provisions for voluntary access to ongoing medical and mental health 
care for sexual abuse victims and abusers, when deemed appropriate by 
mental health practitioners. With regard to the second proposal, DHS 
also rejects the recommendation to prohibit a finding of sexual abuse 
when there is no element of coercion in sexual activity between 
detainees. This clarification is unnecessary as the standards define 
detainee-on-detainee sexual abuse to exclude incidents of consensual 
sexual conduct between detainees. A provision explicitly authorizing 
the agency to prohibit all sexual activity between detainees (including 
consensual sexual activity) is similarly unnecessary, as ICE's 
detention standards already contain such a prohibition.
    Comments. A few advocacy groups suggested specifying in paragraph 
(b) that the circumstances of the prohibited act, the detainee's 
disciplinary history, and the sanctions imposed for comparable offenses 
by other detainees with similar histories should be taken into 
consideration when determining the appropriate disciplinary action. 
These advocacy groups stated that it is important that the sanctions 
against detainees be appropriate and fair for the offense. One 
commenter stated that adding this additional language will help prevent 
the misuse of the regulations to inappropriately punish LGBTI 
detainees.
    Response. DHS concurs with the commenters that disciplinary 
sanctions must be fair and appropriate. With this very objective in 
mind, the regulation provides that each facility holding detainees in 
custody shall have a detainee disciplinary system with progressive 
levels of reviews, appeals, procedures, and documentation procedure, 
which imposes sanctions in an objective manner commensurate with the 
severity of the disciplinary infraction. In addition, the regulation 
requires the disciplinary process to 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 on the detainee. DHS believes that these protections are 
sufficient to ensure that disciplinary sanctions are fair and 
appropriate, and therefore DHS does not adopt the changes requested by 
the commenters on this point.
    Comments. An advocacy group suggested that there be a new Sec.  
115.178 in Subpart B applicable to holding facilities. This recommended 
standard would include a provision in which when there is probable 
cause that a detainee has sexually abused another detainee, the issue 
shall be referred from the agency to the proper prosecuting authority. 
This provision would further require the agency to inform any third-
party investigating entity of this policy. The advocacy group believed 
that it was an oversight that DHS did not include this section in 
Subpart B of the proposed rule.
    Response. DHS appreciates the comment recommending addition of a 
new Sec.  115.178 applicable to holding facilities only. However, DHS 
declines to make this change because DHS does not discipline detainees 
in holding facilities. 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. In general, the appropriate investigative authority is 
responsible for making referrals for prosecution. Accordingly, DHS 
declines to add a new Sec.  115.178 as suggested.

Medical and Mental Health Assessments; History of Sexual Abuse (Sec.  
115.81)

Summary of Proposed Rule

    The standard contained in the proposed rule required that pursuant 
to the assessment for risk of victimization and abusiveness in Sec.  
115.41, facility staff will ensure immediate referral to a qualified 
medical or mental health practitioner, as appropriate, for detainees 
found to have experienced prior sexual victimization or perpetrated 
sexual abuse. For medical referrals, the medical professional was 
required to provide a follow-up health evaluation within two working 
days from the date of the initial assessment. For mental health 
referrals, the mental health professional was required to provide a 
follow-up mental health evaluation within 72 hours from the date of the 
referral.

Changes in Final Rule

    The final rule includes minor changes to paragraph (a). The phrase 
``subject to

[[Page 13144]]

the circumstances surrounding the indication'' was removed and the term 
``as appropriate'' was moved within the paragraph.

Comments and Responses

    Comment. One commenter suggested that there should be specific 
provisions within the standard concerning the follow-up mental health 
services after the initial evaluation.
    Response. Section 115.81 requires that detainees who have 
experienced prior sexual victimization or perpetrated sexual abuse 
receive referrals for follow-up medical and/or mental health care as 
appropriate. In addition, ICE's detention standards provide 
comprehensive requirements for the mental health care of all detainees, 
including follow-up mental health evaluations as appropriate, and 
referral to external specialized providers as necessary. Because ICE 
detention standards outline these requirements, adding a provision 
specifically targeted to sexual abuse and assault victims is not 
necessary.
    Comment. A human rights group suggested that paragraph (a) be 
written more clearly and specifically about what the circumstances 
might be concerning when a staff member would make a referral for a 
detainee to seek a follow-up with a medical or mental health 
practitioner. The commenter suggested that if DHS does not choose to 
clarify this language, DHS should remove the language altogether.
    Response. DHS agrees with the comment. Upon consideration, DHS 
decided to strike the phrase ``subject to the circumstances surrounding 
the indication'' from Sec.  115.81(a).
    Comment. Multiple commenters suggested adding the confidentiality 
provision that is currently in the DOJ PREA rule. The statement would 
ensure that the information relating to a sexual abuse or assault 
incident will remain limited to medical and mental health practitioners 
and other staff, as necessary. Access to information would be as 
necessary to inform treatment plans and security and management 
decisions, such as housing, bed placement, work, education, and program 
assignments, or as otherwise required by Federal, State, or local law.
    Response. Section 115.61 of the standards requires that information 
related to a sexual abuse incident be limited to those needed to 
protect the safety of the victim, provide medical treatment, 
investigate the incident, or make other pertinent security and 
management decisions. DHS believes that this provision adequately 
addresses the concern expressed by these commenters.
    Comment. An advocacy group recommended adding a statement that is 
in the DOJ final rule concerning detainee consent. The DOJ rule states 
that if a detainee confirms prior sexual victimization, unless the 
detainee is less than 18 years of age, the medical and mental health 
practitioners must obtain consent from the detainee before reporting 
the information.
    Response. Again, Sec.  115.61 of the standards requires that 
information related to a sexual abuse incident be limited to the 
information needed to protect the safety of the victim, provide medical 
treatment, investigate the incident, or make other pertinent security 
and management decisions. DHS believes that this provision adequately 
addresses the concern expressed by these commenters.
    Comment. A commenter suggested that a provision be added for women 
and girls to be screened, assessed, and provided with treatment during 
confinement. The commenter urged for this provision to be mandated for 
minors.
    Response. The proposed and final rules clearly require that female 
detainees and minors be afforded each of the protections outlined by 
the standards, including with regard to screening, assessment, and 
treatment.

Access to Emergency Medical and Mental Health Services (Sec. Sec.  
115.82, 115.182)

Summary of Proposed Rule

    The standards in the proposed rule required detainee victims of 
sexual abuse to have timely, unimpeded access to emergency medical 
treatment at no financial cost to them.

Changes in Final Rule

    DHS made a minor change to the final rule by deleting the phrase 
``where appropriate under medical or mental health professional 
standards'' in Sec.  115.82(a) because the phrase was superfluous. DHS 
revised Sec.  115.182 to clarify that for holding facilities as well as 
immigration detention facilities, emergency medical treatment and 
crisis intervention services will be provided in accordance with 
professionally accepted standards of care. The relevant portion of 
Sec.  115.182 now mirrors the language in Sec.  115.82. DHS also 
deleted the phrases ``in immigration detention facilities'' and ``in 
holding facilities'' from Sec.  115.82(a) and Sec.  115.182(a) 
respectively, to clarify the scope of the provision.

Comments and Responses

    Comment. Multiple commenters suggested that DHS include in Sec.  
115.182 specific provisions concerning the types of treatment available 
to detainees from emergency medical providers. Under Sec.  115.82, 
these treatments include emergency contraception and sexually 
transmitted infections prophylaxis, which are particularly time-
sensitive. One of the legal associations further suggested that Sec.  
115.182 also contain a provision that would allow for referrals for 
follow-up services and continued care by the agency or facility for 
detainees to continue treatment upon transfer to another facility or 
release from custody.
    Response. DHS has considered the comments, and has revised Sec.  
115.182 to mirror Sec.  115.82 by adding that detainee victims of 
sexual abuse in holding facilities shall have timely access not only to 
emergency medical treatment, but also to crisis intervention services, 
including emergency contraception and sexually transmitted infections 
prophylaxis in accordance with professionally accepted standards of 
care. DHS disagrees that detainee victims in holding facilities should 
receive referrals for follow-up care because the short-term nature of 
the detention makes this impracticable.
    Comment. Multiple commenters suggested that this section be 
modified to ensure that victimized detainees receive expedited access 
to emergency contraception. This access should be provided as quickly 
as possible after the incident. The commenters believe this is an 
appropriate provision to include because emergency contraception can 
prevent pregnancy within five days of intercourse but it is more 
effective if it is taken within three days.
    Response. The final rule clearly states that victims of sexual 
abuse ``shall have timely unimpeded access to emergency medical 
treatment and crisis intervention services, including emergency 
contraception . . . in accordance with professionally accepted 
standards of care.'' The medical professionals who provide care to 
detainees are in the best position to administer emergency 
contraception. Mandating a specific timeline is not appropriate for 
this regulation. DHS believes that the final rule, as written, will 
ensure that victims have timely access to emergency contraception.
    Comment. Multiple commenters expressed concern about the lack of 
correct information and education about transmission of sexually 
transmitted diseases and infections. Commenters suggested expanding 
relevant provisions in this section to explicitly refer to all forms of 
sexual abuse. The language proposed would specifically include victims 
of oral, anal, or vaginal sexual

[[Page 13145]]

abuse due to non-consensual oral, anal, and vaginal touching or 
penetration. One of these commenters also suggested the removal of the 
phrase ``where appropriate under medical or mental health professional 
standards,'' written in paragraph (a) of this section.
    Response. The final rule contains a thorough definition of sexual 
abuse and assault in Sec.  115.6, which includes the specific areas of 
abuse as noted by the commenters. DHS declines to add to the definition 
of sexual abuse in this provision because it would be redundant and 
could potentially conflict with the final rule's definition of sexual 
abuse and assault.
    After considering the comments to Sec.  115.82(a), DHS decided not 
to include the phrase ``where appropriate under medical or mental 
health standards'' in the final rule.

Ongoing Medical and Mental Health Care for Sexual Abuse Victims and 
Abusers (Sec.  115.83)

Summary of Proposed Rule

    The standard in the proposed rule required that victims of sexual 
abuse in detention receive access to ongoing medical and mental health 
care as necessary without financial cost to the victim. The standard 
also requires that this care be consistent with the community level of 
care for as long as such care is needed.

Changes in Final Rule

    DHS made one minor change to the final rule by replacing the word 
``incarcerated'' with ``detained'' in Sec.  115.83(d).

Comments and Responses

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

[[Page 13146]]

no way mitigates a female victim's right to care if the abuser is 
female. The remaining provisions in Sec.  115.83 apply to all incidents 
of detainee sexual abuse and are not limited by gender.
    Comment. A commenter suggested that full confidential rape 
counseling or mental health care be provided to a sexual abuse victim. 
Another commenter suggested that the language be improved to include 
unmonitored telephone calls from detainee victims to non-governmental 
organizations or rape crisis organizations as opposed to the OIG or 
other offices affiliated with ICE or DHS. This commenter also stated 
that detainees do not always have phone access to call the JIC because 
some facilities may have the number blocked on their telephone system.
    Response. While DHS appreciates the commenters' concern about the 
benefits of confidential rape counseling, mental health care, and 
unmonitored phone calls to lodge complaints or seek help, DHS believes 
that provisions relating to access to outside confidential support 
services set forth in Sec.  115.53 are adequate to address these 
concerns.
    Comment. Multiple commenters suggested that DHS clarify the 
regulations to include treatment for sexually transmitted infections, 
including HIV-related post-exposure prophylaxis for victims of sexual 
abuse. Commenters observed that paragraph (e) calls for access to 
testing, but not treatment. Commenters expressed concern that without 
treatment, sexually transmitted infections can lead to more serious and 
possibly permanent complications. They suggested that the regulation 
state explicitly that victims will receive ongoing regular treatment.
    Response. DHS recognizes the importance of providing testing for 
sexually transmitted infections, and included paragraph (e) in the 
proposed rule which requires facilities to offer such tests, as 
medically appropriate to victims of sexual abuse while detained. DHS 
clarifies that paragraph (a) requires that all detainees who have been 
victimized by sexual abuse have access to treatment. Paragraph (b) 
requires that the evaluation and treatment include, as appropriate, 
follow-up services, treatment plans, and, when necessary, referrals for 
continued care following their transfer to or placement in another 
facility or release from custody. DHS trusts that medical practitioners 
administering such tests will adhere to professionally accepted 
standards for pre- and post-test counseling and treatment.

Sexual Abuse Incident Reviews (Sec. Sec.  115.86, 115.186)

Summary of Proposed Rule

    The standards in the proposed rule set forth requirements for 
sexual abuse incident reviews, including when reviews should take place 
and who should participate. The standards also required the facility to 
forward all reports and responses to the agency PSA Coordinator. The 
proposed rule further required an annual review of all sexual abuse 
investigations, in order to assess and improve sexual abuse 
intervention, prevention, and response efforts.

Changes in Final Rule

    Section 115.86(a) now includes a requirement that facilities must 
conclude incident reviews within 30 days of the completion of the 
investigation. Section 115.186(a) now includes a requirement that the 
agency review shall ordinarily occur within 30 days of the agency 
receiving the investigation results from the investigative authority. 
The slightly different formulation for Subpart B reflects the fact that 
frequently the agency that oversees a holding facility is not the 
investigative authority.
    Section 115.86(b) now requires facility incident review teams to 
(1) consider whether the incident or allegation was motivated by race, 
ethnicity, gender identity, or lesbian, gay, bisexual, transgender, or 
intersex identification status (or perceived status); and (2) consider 
whether the incident or allegation was motivated by gang affiliation or 
other group affiliation.
    Section 115.86(c) now requires facility incident review teams to 
prepare a report of their findings and any recommendations for 
improvement and submit such report to the facility administrator, the 
FOD or his or her designee, and the agency PSA Coordinator. If no 
allegations were made at a facility during the annual reporting period, 
a negative report is required.

Comments and Responses

    Comment. One comment suggested that DHS track whether the victims 
are LGBTIGNC. A commenter suggested that this would be a way to track 
whether the regulations are effective.
    Response. DHS does not fully concur with the commenter's suggestion 
to track LGBTIGNC status in the incident review context. Many detainees 
choose to not disclose to staff or others in the detention setting that 
they identify as lesbian, gay, bisexual, transgender, or intersex. In 
the event that a detainee does not affirmatively disclose this 
information in the context of making a report or otherwise, DHS 
believes it might be inappropriate to require staff to question the 
detainee about his or her sexual orientation and gender identity for 
these purposes. DHS believes that this could constitute a breach of 
detainees' privacy, especially detainees who prefer to not share this 
information openly.
    DHS agrees, however, that LGBTIGNC status can contribute to 
vulnerability. DHS is therefore revising the Subpart A standard to 
require facilities to take into account whether the incident or 
allegation was motivated by race, ethnicity, gender identity, or 
lesbian, gay, bisexual, transgender, or intersex identification status 
(or perceived status); or gang affiliation; or was motivated or 
otherwise caused by other group dynamics at the facility. In practice, 
this requires the facility to affirmatively consider the possibility 
that these factors motivated the incident or allegation, and to record 
this information if known. It does not, however, require facilities to 
affirmatively inquire as to the victim's sexual orientation and gender 
identity. DHS also is adding a requirement to Sec. Sec.  115.87(d)(2) 
and 115.187(b)(2) that the agency PSA Coordinator must aggregate 
information regarding whether the victim or perpetrator has self-
identified as gay, lesbian, bisexual, transgender, intersex, or gender 
nonconforming.
    Comment. Multiple commenters suggested matching DHS's proposed 
Sec. Sec.  115.86 and 115.186 to DOJ's corresponding sections in their 
PREA rule. The relevant provisions of DOJ's rule include the following:
    1. The review must be concluded within 30 days of the conclusion of 
the investigation.
    2. The review team must include upper-level management officials, 
with input from line supervisors, investigators, and medical or mental 
health practitioners.
    3. The review team must consider whether the incident or allegation 
was motivated by race; ethnicity; gender identity; lesbian, gay, 
bisexual, transgender, or intersex identification, status, or perceived 
status; or gang affiliation; or was motivated or otherwise caused by 
other group dynamics at the facility.
    4. The review team must examine the area in the facility where the 
incident allegedly occurred to assess whether physical barriers in the 
area may enable abuse.
    5. The review team must assess the adequacy of staffing levels in 
that area during different shifts.

[[Page 13147]]

    6. The review team must assess whether monitoring technology should 
be deployed or augmented to supplement supervision by staff.
    7. The review team must submit its report to both the facility head 
and the agency PREA compliance manager.

The commenters stated that the additional language would better protect 
detainees and encourage the overall goal of eliminating sexual abuse in 
facilities by helping facilities identify and fill gaps in current 
policies and procedures.
    Response. DHS has considered each of these recommendations 
carefully, and has revised its proposal to incorporate provisions 
implementing items 1 and 3, as noted above. DHS understands the 
importance of reviewing reported incidents to better protect detainees 
and help facilities identify and fill gaps in current policies and 
procedures. To achieve this, Sec. Sec.  115.87 and 115.187 require the 
collection of all case records associated with claims of sexual abuse, 
including incident reports. The data collected is required to be shared 
with the PSA Compliance Manager and DHS entities, including ICE 
leadership and, upon request, CRCL.
    Under Sec.  115.88, after this data is reviewed by agency 
leadership, the agency will issue a report that will identify problem 
areas and patterns to be improved upon, potentially including items 4-6 
in the list above. In short, DHS believes that the final regulation 
sufficiently accounts for the considerations raised by the commenters.
    Comment. One commenter suggested that DHS require that the PSA 
Compliance Manager be an upper-level facility official.
    Response. DHS rejects the suggestion to require that the PSA 
Compliance Manager be an upper-level facility official, as facilities 
should have some discretion about whom they choose for this role. 
Smaller facilities may not always have an upper-level official 
available to fulfill the role of PSA Compliance Manager.
    Comment. Commenters suggested that DHS require that all incident 
reviews be conducted by a team of upper-level management officials.
    Response. DHS does not concur with the suggestion to require that 
all incident reviews be conducted by a team of upper-level officials as 
smaller facilities may not have the staffing resources and may elect to 
have an individual, the PSA Compliance Manager, conduct the review.
    Comment. One commenter suggested that a paragraph be added stating 
that if a facility's annual review finds that there has been no report 
of sexual abuse or assault then the report should reflect that 
information. Another commenter suggested that each facility's annual 
reviews be available to the public on their Web site as well as the 
agency's Web site.
    Response. DHS agrees with the suggestion to require that facilities 
that do not have any sexual abuse or assault allegations in the 
reporting period still be required to submit a negative report. 
Facilities are required to provide results and findings of the annual 
review to the agency PSA coordinator. The PSA coordinator will use 
these reviews to develop the agency's annual report, which will be made 
available to the public through the agency's Web site. DHS does not 
believe, however, it is appropriate or necessary to mandate individual 
facilities post the annual review on their Web site, as the reviews can 
be accessed more easily through the single portal of the agency Web 
site.
    Comment. A commenter suggested that DHS require all immigration 
detention facilities to comply with this standard immediately.
    Response. DHS does not concur with the suggestion to add a 
different implementation timeline for incident reviews than the rest of 
the standards.

Data Collection (Sec. Sec.  115.87, 115.187)

Summary of Proposed Rule

    The standards contained in the proposed rule required the facility 
(in Subpart A) or agency (in Subpart B) to maintain case records 
associated with claims of sexual abuse. The standards required the 
agency to aggregate the incident-based data at least annually. The 
standards further mandated that upon request the agency would be 
required to provide all such data from the previous calendar year to 
CRCL.

Changes in Final Rule

    Sections 115.87(a) and 115.187(a) now include a requirement that 
facilities keep data collected on sexual abuse and assault incidents in 
a secure location. Sections 115.87(d)(2) and 115.187(b)(2) have been 
revised to also require the PSA Coordinator to aggregate information 
about whether the victim or perpetrator has self-identified as 
LGBTIGNC. The requirement under Subpart B for the agency to provide all 
data collected under Sec.  115.187 to the PSA Coordinator was removed 
in order to ensure that the requirements in both subparts were 
consistent. Such a requirement is not necessary and was not originally 
included under Subpart A because the PSA Coordinator has been 
designated as the agency point of contact to aggregate relevant data 
pursuant to this regulation.

Comments and Responses

    Comment. One commenter suggested that the data collected be kept in 
a secure area to which unauthorized individuals would not have access.
    Response. DHS concurs with this concern and accepts the change 
suggested by the commenter.
    Comment. One commenter suggested that paragraph (a) take effect 
immediately and require all facilities to begin acquiring and 
maintaining the necessary data.
    Response. Currently facilities report all allegations through the 
agency Field Office, which is responsible for issuing a Significant 
Incident Report. The PSA Coordinator has access to all Significant 
Incident Reports as well as the electronic investigative case files of 
ICE's OPR. Therefore, it is not necessary to make the provision 
applicable immediately as a process is already in place. In any case, 
DHS does not concur with the suggestion to add a different 
implementation timeline for data collection than the rest of the 
standards.
    Comment. A few commenters suggested that data be collected, 
analyzed, and maintained for all facilities, including contract 
facilities.
    Response. The standard applies to all facilities, including 
contract facilities. Therefore the requirements in these sections 
regarding data collection also apply to all facilities.

Data Review for Corrective Action (Sec. Sec.  115.88, 118.188)

Summary of Proposed Rule

    The standards contained in the proposed rule described how the 
collected data would be analyzed and reported. The standards mandated 
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 standards mandated that this report be made public 
through the agency's Web site or other means to help promote agency 
accountability.

Changes in Final Rule

    DHS is adopting the regulation as proposed.

Comments and Responses

    Comment. An advocacy group suggested that data be reviewed from all 
facilities in which immigration detainees are confined.
    Response. The standard, including data review, applies to all 
facilities.

[[Page 13148]]

    Comment. An advocacy group suggested that the reports that are 
published on the public Web site be updated at least annually.
    Response. Annual reports will include assessments and information 
about progress and corrective actions from prior years.

Data Storage, Publication, and Destruction (Sec. Sec.  115.89, 115.189)

Summary of Proposed Rule

    The standards in the proposed rule described how to store, publish, 
and retain data collected pursuant to Sec. Sec.  115.87 and 115.187. 
The standard required that the agency make the aggregated data publicly 
available at least annually on its Web site and shall remove all 
personal identifiers.

Changes in Final Rule

    The final rule adds a requirement in both subparts that the agency 
maintain sexual abuse data collected pursuant to the above-described 
standard on data collection (Sec. Sec.  115.87 and 115.187) for at 
least 10 years after the date of the initial collection unless Federal, 
State, or local law requires otherwise.

Comments and Responses

    Comment. Multiple commenters suggested that data be securely 
retained under agency record retention policies and procedures, 
including a requirement to retain the collected data for a minimum 
period of time, preferably 10 years as contained in the DOJ standard.
    Response. DHS has considered this comment and concurs that data 
collected must be retained for an adequate length of time. Given the 
interests involved and the possibility for legal action based on an 
incident, a longer period--such as 10 years--would more appropriately 
account for such interests. DHS agrees with the commenters, and the 
final rule adds a paragraph requiring the agency to maintain the 
collected data for a minimum of 10 years after the date of initial 
collection, unless otherwise prohibited by law.
    Comment. A commenter suggested that data from state and local 
public facilities in which immigration detainees are confined should 
also be made publicly available.
    Response. The data retention requirement applies to all data 
collected by facilities covered by the standards or by the agency. All 
facilities are required to provide sexual abuse and assault data to the 
agency PSA coordinator. The PSA coordinator will use this data to 
develop the agency's annual report, which will be made available to the 
public through the agency's Web site.
    Comment. One commenter suggested replacing the Subpart B provision 
with materially identical language, except that the commenter removed 
part of an internal cross-reference.
    Response. DHS declines to incorporate this revision, in the 
interest of ensuring clarity and consistency purposes with the parallel 
provision in Subpart A.

Audits of Standards (Sec. Sec.  115.93, 115.193)

Summary of Proposed Rule

    The proposed rule mandated that audits under these sections shall 
be conducted pursuant to Sec. Sec.  115.201 through 115.205 of Subpart 
C. In Subpart A, the standard required audits of each immigration 
detention facility at least once every three years. The proposed rule 
allowed for expedited audits if the agency has reason to believe that a 
particular facility is experiencing problems related to sexual abuse. 
The Subpart B standard required, within three years, an initial round 
of audits of each holding facility that houses detainees overnight. 
Following the initial audit, the Subpart B standard required follow-up 
audits every five years for low-risk facilities and every three years 
for facilities not identified as low risk. All audits were required to 
be coordinated by the agency with CRCL.

Changes in Final Rule

    Section 115.93 previously required the agency to ensure that ``each 
of its immigration detention facilities'' is audited at least once 
during the initial three-year period. Due to confusion expressed by 
some commenters, DHS now requires the agency to ensure that ``each 
immigration detention facility'' is audited at least once during the 
initial three-year period. In the interest of clarity, DHS modified 
Sec.  115.93(b) to allow the agency to ``require'' rather than 
``request'' an expedited audit and allows the agency to provide 
resource referrals to facilities to assist with PREA-related issues. 
DHS also revised Sec. Sec.  115.93 and 115.193 to allow CRCL to request 
expedited audits if it has reason to believe that such an audit is 
appropriate.

Comments and Responses

    Comment. Some commenters, including advocacy groups, expressed 
concern regarding whether contract facilities would be subject to 
auditing. Commenters advised clarifying that audit standards in their 
entirety would be a requirement for all facilities, including 
facilities run by non-DHS private or public entities, and that they all 
be audited on the same timeframe. One advocacy group suggested adding 
clarifying language that describes auditing of ``each facility operated 
by the agency, or by a private organization on behalf of the agency.'' 
It was also recommended that the standards clarify the point at which 
the audit requirement is triggered based upon the standards, 
particularly with regard to contract facilities. Former NPREC 
Commissioners also recommended the standards clarify that it is 
prohibited to hold detainees in any custodial setting where external 
audits are not applicable.
    Response. Under the standards as proposed and in final form, DHS 
must ensure that each covered immigration detention facility and 
holding facility, as defined in Sec. Sec.  115.5, 115.12, and 115.112, 
undergoes an audit. DHS has revised Sec.  115.93(a) as indicated above 
for clarity.
    Regarding the timeframe for implementation of audits, both subparts 
include a clear standard that for covered facilities established prior 
to July 6, 2015, ICE and CBP coordinate audits within the timeframe 
specified. Additionally, under Sec.  115.193, CBP will ensure holding 
facilities that hold detainees overnight and established after July 6, 
2015 are audited within three years.
    DHS clarifies that in the immigration detention facility context, a 
facility will not be audited until it has adopted the PREA standards. 
However, DHS notes that immigration detention facilities are subject to 
regular inspections under current contracts and detention standards 
regardless of whether they are considered a covered facility pursuant 
to this regulation or whether they have adopted the PREA standards. 
DHS, through ICE, is committed to endeavoring to ensure that SPCs, 
CDFs, and dedicated IGSAs adopt the standards set forth in this final 
rule within 18 months of the effective date. Additionally, DHS, through 
ICE, will make serious efforts to initiate the renegotiation process so 
the remaining covered facilities adopt the standards and become subject 
to auditing as quickly as operational and budgetary constraints will 
allow. As noted previously, ICE can remove detainees from facilities 
that do not uphold adopted sexual abuse and assault practices.
    Comment. Commenters suggested that a paragraph be added to the 
Subpart A standard requiring CRCL to create a process by which a member 
of the public is able to recommend an

[[Page 13149]]

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

Additional Provisions in Agency Policies (Sec.  115.95, 115.195)

Summary of Proposed Rule

    The standards in the proposed rule provided that the regulations in 
both Subparts A and B establish minimum requirements for agencies and 
facilities. Additional requirements from the agencies and facilities 
may be included.

Changes in Final Rule

    DHS is adopting the regulation as proposed.

Comments and Responses

    DHS did not receive any public comments on this provision during 
the public comment period.

Scope of Audits (Sec.  115.201)

Summary of Proposed Rule

    The standard contained in the proposed rule mandated the 
coordination with CRCL on the conduct and contents of the audit as well 
as how the audits are to be conducted.

Changes in Final Rule

    DHS is adopting the regulation as proposed.

Comments and Responses

    Comment. A commenter suggested that an audit committee make 
appropriate recommendations to Congress, which the commenter believed 
would ensure PREA compliance.
    Response. DHS has considered this comment but believes sufficient 
protections are in place under the auditing standards and other 
standards to reasonably ensure sexual abuse prevention is maximized. 
Recommendations from audits are best addressed by the agency and the 
facility in coordination. Furthermore, because DHS is accountable to 
Congress and the public, the agency will provide information about 
audits as required by Congressional and/or FOIA requests, as well as 
pursuant to the proactive disclosure requirement of 115.203(f).
    Comment. A commenter recommended that facility audit

[[Page 13150]]

mechanisms currently in place incorporate questions and checklists 
relating to compliance with the PREA standards. Some examples of 
current mechanisms that the commenter provided were detention service 
monitors, external facility audits, and CRCL investigations.
    Response. Due to implementation of these PREA standards, external 
auditing will be required for all covered confinement settings, to be 
carried out in the manner in which the auditing requirements are most 
effectively and functionally implemented. DHS declines to prescribe in 
regulations a specific form or process for this independent oversight.
    Comment. A commenter suggested that ICE and contract employee 
``whistleblowers'' should be protected, encouraged, and should have 
direct access to auditors.
    Response. DHS agrees that reporting any information concerning a 
sexual abuse or assault incident occurring in a detention or holding 
facility is vital in the fight against sexual abuse and assault in DHS 
confinement facilities. This reporting includes whistleblowing on any 
corruption or wrongdoing in an agency or facility setting. DHS believes 
that this concern is addressed through the ICE Sexual Assault training 
and by the publication of this regulation in that both of these 
mechanisms will encourage whistleblowing by anyone with sexual abuse or 
assault incident information.

Auditor Qualifications (Sec.  115.202)

Summary of Proposed Rule

    The standard in the proposed rule required an auditor to attain 
specific qualifications before being eligible for employment by the 
agency to perform the required audits.

Changes in Final Rule

    DHS revised the auditor certification provision in paragraph (b), 
to make explicit agencies' responsibility to certify auditors in 
coordination with DHS. Otherwise, DHS is adopting the regulation as 
proposed.

Comments and Responses

    Comment. A commenter recommended that the auditor be given 
authority to transfer an alleged victimized detainee during the 
investigation process.
    Response. The ICE policy on Detainee Transfers, referred to 
previously as governing the transfer of all aliens in ICE custody, 
discourages transfers unless a FOD or his or her designee deems the 
transfer necessary for the reasons previously enumerated. ICE's 
transfer policy is designed to limit transfers for all aliens and 
provides adequate protection for aliens who have sexual abuse 
complaints or grievances. Providing regulatory authority for outside 
auditors lacking direct accountability to the ICE policy in place to 
protect detainees would not be appropriate. All auditors will have the 
ability, however, to make such recommendations to the FOD or his or her 
designee.
    Comment. A commenter suggested that the auditor's standards and 
contact information be provided to every detainee and for the detainee 
to have the ability to confidentially contact the auditor for free.
    Response. DHS agrees that detainees must have access to multiple 
ways to report abuse. This regulation includes multiple standards that 
ensure such access. In this case, however, DHS has determined that it 
is more appropriate to provide an auditor with discretion to conduct 
each investigation as it best sees fit, within the bounds of the PREA 
standards and consistent with other DHS policies. Additionally, 
paragraphs (i) and (j) of Sec.  115.201 should provide reasonably 
sufficient avenues for detainee-auditor interaction by, respectively, 
requiring the agency and facilities to allow the auditor to conduct 
private interviews with detainees, and allowing detainees to send 
confidential information or correspondence to the auditor.

Audit Contents and Findings (Sec.  115.203)

Summary of Proposed Rule

    The standard contained in the proposed rule mandated specific 
information that the auditor is required to include in its report to 
DHS.

Changes in Final Rule

    DHS is adopting the regulation as proposed.

Comments and Responses

    Comment. A commenter suggested that the facility bear the burden of 
demonstrating compliance with the PREA standards. It was recommended 
that this requirement be added to paragraph (b).
    Response. Under the regulation, covered facilities bear the burden 
of compliance with all relevant provisions of the regulations; the 
audit will be directed to determining the facility's success or failure 
in that regard.

Audit Corrective Action Plan (Sec.  115.204)

Summary of Proposed Rule

    The standard contained in the proposed rule required that when a 
facility ``Does Not Meet Standard'' after an audit, a 180-day 
corrective action plan is to be developed and implemented.

Changes in Final Rule

    The final rule revises paragraph (b)'s description of the roles of 
the various entities regarding development of the corrective action 
plan in order to more clearly delineate responsibilities and to ensure 
the independence of the auditor is not compromised.

Comments and Responses

    Comment. An advocacy group suggested the removal of the phrase ``if 
practicable'' written in paragraph (b). This change would require that 
in all cases the auditor, agency, and the facility jointly develop a 
corrective action plan to achieve compliance.
    Response. DHS has considered the comment and agrees with the 
concerns expressed. By removing the notion that the facility need not 
be involved in development of the corrective action plan if 
impracticable, DHS clarifies in the final rule that the agency and the 
facility must develop the plan jointly. Additionally, DHS has 
determined that including the auditor as a party responsible for 
jointly developing the plan with the agency and the facility is not 
appropriate. Because of the auditor's unique role as an outside, 
independent analyst, and because the auditor may have further 
involvement in ensuring the agency and facility meets the standards in 
the future, removing the auditor from development of the corrective 
action plan ensures that the auditor's independent judgment is not 
compromised at any point. Under the final rule, the agency and the 
facility (if the facility is not operated by the agency) will develop 
the plan. The auditor can then effectively and independently make the 
determination as to whether the agency and facility have achieved 
compliance after the plan is implemented.
    Comment. Several commenters suggested stating specific criteria 
that a facility must meet following a finding of ``Does Not Meet 
Standard.'' One group suggested creating a remediation plan for these 
facilities and another advocacy group suggested providing a specified 
period of time (suggested 180 days) for facilities to meet the 
requirements in the plan. One commenter suggested a similar 6-month 
probationary period. If

[[Page 13151]]

after this given period of time the facility does not meet the 
requirements given in the remediation plan, the facility would be 
terminated for an extended period of time (one commenter suggested 
three years) from housing any DHS detainees. One commenter suggested 
that this termination clause should also be listed in the agency/
facility contract. An advocacy group generally suggested that DHS adopt 
a standard to prevent the housing of detainees in facilities that do 
not comply with the majority of the PREA standards and that fail to 
successfully implement a corrective action plan for those standards.
    Response. The standards in the final rule and other DHS policies 
have been developed to ensure that noncompliance is not tolerated. Even 
prior to establishing these standards, ICE could withhold paying a 
contract facility's invoice or could remove detainees from a 
noncomplying facility. Facility contracts have already included and 
will continue to include the option to terminate or discontinue holding 
detainees if the facility does not meet standards after periods of 
remediation.
    With respect to the specific proposals at issue, DHS has concerns 
that the suggested 180-day period of time to meet the requirements of a 
corrective action plan and similar 6-month probationary period may not 
be sufficiently long for many corrective actions, including, for 
example, actions that require construction or other physical 
renovation. Corrective action plans themselves are intended to create a 
process that will lead to full compliance. Therefore, DHS does not 
believe it is necessary to make changes to this standard.

Audit Appeals (Sec.  115.205)

Summary of Proposed Rule

    The standard contained in the proposed rule allowed facilities to 
appeal the findings from an audit.

Changes in Final Rule

    DHS is adopting the regulation as proposed.

Comments and Responses

    DHS did not receive any public comments on this provision during 
the public comment period.

Additional Comments and Responses

    The proposed rule posed several questions specifically regarding 
audits. The following contains a summary of comments received regarding 
the questions addressing these standards and the DHS response.

Question 1: 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 the 
proposed rule?

    Commenters were nearly unanimous that auditing through random 
sampling would not be sufficient. A collective comment of advocacy 
groups stated that random sampling requires some consistency among 
facilities in the broader sample; because of the variety of facilities 
at issue, sampling could not be conducted accurately. Commenters also 
pointed out that the degree of discretion vested in individual facility 
heads, the differences among the populations being held, and the 
differences in physical layout make use of random sampling insufficient 
for measuring compliance across facilities.
    Former NPREC Commissioners stated that no rational basis for random 
sampling existed, as the only way to ensure detainees' safety from 
abuse is regular audits of all facilities without exception, citing DOJ 
final rule findings in support of a triennial cycle.
    One human rights advocacy group found audits for cause acceptable, 
but only if in addition to regular, periodic audits, with auditing 
every three years being sufficient. The group stated that random audits 
or audits only for cause would not meet objectives such as providing 
oversight, transparency, accountability, and feedback in every 
facility. The group agreed with requiring every agency to have a full 
audit within the first three years after PREA's implementation, and if 
a facility receives an extremely high audit score, such as 90%, then 
the standard could allow a subsequent audit three years later to be a 
more streamlined version. The group expressed concerns with audits 
based on cause only, because it was unclear who would determine whether 
cause existed and when and on what basis that decision would be made.
    Response. DHS agrees with the commenters that external audits of 
immigration detention facilities and holding facilities should not be 
conducted through random sampling. Audits selected by random sampling 
would not sufficiently assess the scope of compliance with PREA 
standards. Therefore, the agency maintains the final rule language in 
Sec. Sec.  115.93 and 115.193 setting forth the definitive audit 
schedule for immigration detention facilities and holding facilities.

Question 2: 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?

    DHS received conflicting comments in response to this question. A 
collection of various advocacy groups responded negatively to the idea 
of auditing a random selection of low-risk holding facilities instead 
of re-auditing each periodically. The groups, rejecting any use of 
random sampling, stated that any designation of a facility as low risk 
would be a mistake that does not account for the scope of the culture 
of change necessary to end the crisis of sexual abuse in confinement 
facilities.
    Response. DHS agrees with the commenters that audits of immigration 
detention facilities and holding facilities should not be conducted 
through random sampling. Audits selected by random sampling would not 
sufficiently assess the scope of compliance with PREA standards. 
Therefore, the agency maintains the final rule language in Sec. Sec.  
115.93 and 115.193 setting forth the definitive audit schedule for 
immigration detention facilities and holding facilities.

Question 3: Would the potential benefits associated with requiring 
external audits outweigh the potential costs?

    A commenter agreed that the benefits would outweigh the costs, 
stating that a realistic, cost-effective monitoring system is critical 
to the standards' overall effectiveness and impact. Commenters 
suggested that the external scrutiny, oversight, transparency, 
accountability, and credible assessment of safety that a qualified 
independent entity would bring are vitally important for confinement 
facilities, could identify systemic problems and could offer solutions. 
Commenters believed that thorough audits will help prevent abuse, 
improve facility safety, lead to more effective management, and, 
ultimately, lower fiscal and human costs to the community.
    The groups also noted that it seemed DHS cost projections did not 
account for contract facilities already auditing under DOJ PREA 
standards, but that--as a cost-related measure--the two audits could be 
conducted simultaneously if the auditor were properly trained in 
differences between the standards and wrote separate, but related, 
reports for each set of standards. The group suggested that DHS 
consider

[[Page 13152]]

offering an abbreviated auditor training and certification process for 
auditors already certified by DOJ, focusing on the differences between 
the two sets of standards, the principles of civil confinement, and the 
unique features of DHS detainees.
    Response. After reviewing the comments regarding Question 3, DHS 
decided to maintain the audit provisions set forth in Subpart C despite 
the fact that external auditing does incur financial costs to the 
agency. DHS agrees that external audits will be a valuable tool in 
assessing the standards' overall effectiveness and impact as well as 
help to prevent abuse, improve facility safety, and lead to more 
effective detention and custody management.
    While DHS appreciates that some commenters acknowledged that 
external audits are required by both DOJ and DHS and that the agencies 
could be seen as conducting and financing redundant external audits, 
DHS believes that the unique detention missions of each agency warrant 
a separate audit process. If in the future DHS finds that an expedited 
certification process is preferable, DHS can implement such a process 
under Sec.  115.202(b).

Question 4: Is there a better approach to external audits other than 
the approaches discussed in the proposed rule?

    A commenter stated affirmatively that a better approach may exist, 
acknowledging it may include additional but reasonable costs. The 
groups expressed the following various changes that they believe would 
be improvements: (1) Audits could be conducted on an unannounced basis 
to ensure they are reviewing typical conditions; (2) facilities which 
have been required to take corrective action after an initial audit 
could be required to undergo a follow-up audit 18 months later to 
assess improvement; (3) auditors could be required to work in teams 
that include advocates and/or former detainees to increase 
comprehensiveness of inspection; (4) such teams could be required to 
meet with a certain percentage of current and former detainees and 
employees, contractors, and volunteers to accrue information; and (5) 
DHS could require that all facilities submit to expedited audits when 
requested by CRCL.
    The collection of groups expressed that they believed DHS could 
amend its PREA auditing standards at a later date if, for example, 
after two complete three-year audit cycles under the groups' suggested 
standard, DHS could then better determine which facilities could 
appropriately be audited on a less-frequent basis; the data from the 
two cycles could also allow advocates to have concrete data to comment 
on such a revised plan.
    Response. DHS appreciates the constructive comments provided by 
advocacy groups regarding the audit process. DHS is not substantively 
revising the audit provision in the final rule because the agency 
believes that the final rule provides an effective and efficient 
framework for external audits.
    In response to the specific comments, DHS notes that unannounced 
audits would be overly burdensome for the facility and for agency 
personnel. Section 115.204 requires facilities with a finding of ``Does 
Not Meet Standards'' with one or more standards have 180 days to 
develop a corrective action plan. After the 180-day corrective action 
period, the auditor will issue a final determination as to whether the 
facility has achieved compliance. The agency will use this assessment 
to determine what steps are necessary to bring the facility into 
compliance or to determine that the facility is not safe for detainees 
and therefore, whether detainees must be transferred to other 
facilities. This process is an effective safeguard and therefore, an 
automatic 18-month follow-up audit is not necessary. DHS does not 
mandate the exact composition of the audit team, but rather requires 
that the audit be conducted by entities or individuals outside of the 
agency that have relevant audit experience. Paragraph (g) of Sec.  
115.201 already requires that the auditor interview a representative 
sample of detainees and staff. Finally, the agency does not believe 
that the agency's resources would be maximized if CRCL could 
automatically trigger expedited audits. CRCL already has the authority 
to conduct reviews related to civil rights and civil liberties issues 
at any facility that houses detainees. However, DHS acknowledges that 
CRCL will play an important role in developing audit procedures and 
guidelines. In light of this, Sec. Sec.  115.93 and 115.193 have been 
revised to allow CRCL to request expedited audits if it has reason to 
believe that such an audit is appropriate.

Question 5: In an external auditing process, what types of entities or 
individuals should qualify as external auditors?

    Some commenters described specific types of individuals who would 
or would not qualify as external auditors, while one set of advocates 
described typical characteristics contributing to a quality auditor. 
One commenter stated that such external auditors should consist of 
members of non-governmental organizations, attorneys, community 
members, media, and former detainees. Another organization stated that 
auditors should simply not be employees of DHS or the detention center, 
seemingly meaning the facility being audited; yet another set of groups 
stated that prior corrections or detention official experience alone 
would not suffice. Another commenter suggested that auditing requires a 
well-founded individual or team with prior expertise and/or training in 
both sexual violence dynamics and detention environments, with state 
certification in rape crisis counseling being a strongly-preferred 
qualification. Commenters wrote that requirements must include 
demonstrable skills in gathering information from traumatized 
individuals and ability to ascertain clues of possible concerns that 
detainees and others may not feel comfortable sharing.
    Response. The agency in conjunction with CRCL is required by this 
rule to develop and issue guidance on the conduct of and contents of 
the audit. The agency must also certify all auditors and develop and 
issue procedures regarding the certification process, which must 
include training requirements.
    Finally, DHS received a number of generalized comments relevant to 
the rulemaking but which did not specifically fall within any 
particular standard as embodied in the proposed rule.
    Comment. Numerous comments were supportive of the standards, 
stating it is a good idea to promulgate a rule to prevent such assault 
and abuse.
    Response. DHS agrees that this rule is an important tool for the 
agency to prevent, detect, and respond to sexual abuse and assault in 
confinement facilities.
    Comment. Former Commissioners of NPREC suggested that DHS engage 
BJS to work to collect data on the prevalence of sexual abuse in DHS 
facilities, with the results of such surveys being available to the 
public. The former Commissioners believed the data to be necessary both 
for DHS and for the public to be able to understand the scope of abuse 
and to monitor the impact and success of the standards.
    Response. DHS has considered the suggested approach in this 
comment; however, given the current budgetary environment, DHS does not 
have the resources to expend personnel and/or funds to develop and 
execute a separate additional survey and accompanying interagency 
agreement at this time. DHS

[[Page 13153]]

notes that BJS recently conducted a survey that included ICE 
facilities.\16\
---------------------------------------------------------------------------

    \16\ BJS, Sexual Victimization in Prisons and Jails Reported by 
Inmates, 2011-12: Nat'l Inmate Survey, 2011-12 (May 2013), http://www.bjs.gov/content/pub/pdf/svpjri1112.pdf.
---------------------------------------------------------------------------

    In addition, the need for such a survey is negated by the fact that 
DHS itself, through ICE, has conducted surveys of the detainee 
population. The surveys have focused on conditions of detention, 
including the grievance process, staff retaliation, intake education--
including regarding how to contact ICE personnel--posting of legal 
assistance information, and the Detainee Handbook, with space to add 
other information that the detainee may wish to share. DHS may consider 
conducting similar surveys in the future for comparison purposes.
    Several commenters generally suggested that various standards 
should include ``critical protections'' for LGBTI detainees, in 
addition to the specific areas where LGBTI-related comments are listed 
above. Areas where commenters believed these protections are needed 
include in Sec. Sec.  115.15, 115.115, Limits to cross-gender viewing 
and searches; Sec.  115.42, Use of assessment information; Sec.  
115.43, Protective custody; Sec. Sec.  115.62, 115.162, (Agency) 
Protection duties; Sec.  115.53, Detainee access to outside 
confidential support services; and Sec.  115.78, Disciplinary sanctions 
for detainees.
    Response. As noted elsewhere that the issue has specifically 
arisen, DHS generally provides safety and security measures for all 
populations, including all those that may be vulnerable; DHS declines 
to make specific changes for the standards referred to in these 
comments, as the standards are intended to be flexible enough to fit 
many situations.

V. Regulatory Analysis

    We developed this rule after considering numerous statues and 
executive orders related to rulemaking. Below we summarize our analyses 
based on a number of these statues or executive orders.

A. Executive Orders 12866 and 13563

    Executive Orders 13563 and 12866 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 emphasizes the importance of quantifying both the costs and 
benefits of reducing costs of harmonizing rules, and of promoting 
flexibility. This rule is a ``significant regulatory action,'' although 
not an economically significant regulatory action, under Sec.  3(f) of 
Executive Order 12866. Accordingly, the Office of Management and Budget 
(OMB) has reviewed this regulation.
1. Synopsis
    Sexual violence against any victim is an assault on human dignity 
and an affront to American values. Many victims report persistent, even 
lifelong mental and physical suffering. As the National Prison Rape 
Elimination Commission (NPREC) explained in its 2009 report:

    Until recently . . . the public viewed sexual abuse as an 
inevitable feature of confinement. Even as courts and human rights 
standards increasingly confirmed that prisoners have the same 
fundamental rights to safety, dignity, and justice as individuals 
living at liberty in the community, vulnerable men, women, and 
children continued to be sexually victimized by other prisoners and 
corrections staff. Tolerance of sexual abuse of prisoners in the 
government's custody is totally incompatible with American 
values.\17\
---------------------------------------------------------------------------

    \17\ National Prison Rape Elimination Commission Report 1 
(2009), http://www.ncjrs.gov/pdffiles1/226680.pdf.

    As discussed in the accompanying RIA, ICE keeps records of any 
sexual abuse allegation made by detainees at all facilities in which it 
holds detainees in its Joint Integrity Case Management System (JICMS). 
In estimating the current level of sexual abuse for purposes of this 
analysis, DHS relies on facility-reported data in ICE's JICMS database. 
In 2010, ICE had four substantiated sexual abuse allegations in 
immigration detention facilities, two in 2011, and one in 2012. There 
were no substantiated allegations by individuals detained in a DHS 
holding facility.\18\ In the RIA, DHS extrapolates the number of 
substantiated and unsubstantiated allegations at immigration detention 
facilities based on the premise that there may be additional detainees 
who may have experienced sexual abuse but did not report it. Table 1 
below summarizes the estimated number of sexual abuse allegations at 
ICE confinement facilities.
---------------------------------------------------------------------------

    \18\ This does not include allegations involved in still-open 
investigations or allegations outside the scope of these 
regulations.

 Table 1--Estimated Benchmark Level of Adult Sexual Abuse at ICE Confinement Facilities, by Approach and Type of
                                                   Allegation
----------------------------------------------------------------------------------------------------------------
                                                                    Lower bound                      Adjusted
              Class code                         Subject             approach         Primary        approach
----------------------------------------------------------------------------------------------------------------
1: Nonconsensual Acts--High...........  Detainee-on-Detainee....             0.0             4.9             9.9
                                        Staff-on Detainee.......             0.0             3.8             7.7
                                        Unknown.................             0.0             0.0             0.0
                                                                 -----------------------------------------------
    Subtotal..........................  ........................             0.0             8.8            17.6
----------------------------------------------------------------------------------------------------------------
2: Nonconsensual Acts--Low............  Detainee-on-Detainee....             0.0             4.9             9.9
                                        Staff-on-Detainee.......             1.8             5.7             9.6
                                        Unknown.................             0.0             0.8             1.6
                                                                 -----------------------------------------------
    Subtotal..........................  ........................             1.8            10.6            19.5
----------------------------------------------------------------------------------------------------------------
3: ``Willing'' Sex with Staff.........  Detainee-on-Detainee....             0.0             0.0             0.0
                                        Staff-on-Detainee.......             0.0             1.0             1.9
                                        Unknown.................             0.0             0.0             0.0
                                                                 -----------------------------------------------
    Subtotal..........................  ........................             0.0             1.0             1.9
----------------------------------------------------------------------------------------------------------------

[[Page 13154]]

 
4: Abusive Sexual Contacts--High......  Detainee-on-Detainee....             2.6             5.5             8.4
                                        Staff-on-Detainee.......             0.0             0.0             0.0
                                        Unknown.................             0.0             0.0             0.0
                                                                 -----------------------------------------------
    Subtotal..........................  ........................             2.6             5.5             8.4
----------------------------------------------------------------------------------------------------------------
5: Abusive Sexual Contacts--Low.......  Detainee-on-Detainee....             2.6            18.2            33.8
                                        Staff-on-Detainee.......             0.0             0.0             0.0
                                        Unknown.................             0.0             0.0             0.0
                                                                 -----------------------------------------------
    Subtotal..........................  ........................             2.6            18.2            33.8
----------------------------------------------------------------------------------------------------------------
6: Staff Sexual Misconduct Touching     Detainee-on-Detainee....             0.0             0.0             0.0
 Only.                                  Staff-on-Detainee.......             0.0            20.2            40.4
                                        Unknown.................             0.0             0.0             0.0
                                                                 -----------------------------------------------
    Subtotal..........................  ........................             0.0            20.2            40.4
----------------------------------------------------------------------------------------------------------------
Sexual Harassment Not Involving         Detainee-on-Detainee....             0.0             5.6            11.3
 Touching.                              Staff-on-Detainee.......             3.5            13.3            23.1
                                        Unknown.................             0.0             0.0             0.0
                                                                 -----------------------------------------------
    Subtotal..........................  ........................             3.5            18.9            34.4
                                                                 -----------------------------------------------
        Total.........................  ........................            10.4            83.2           156.0
----------------------------------------------------------------------------------------------------------------
Note: Details may not sum to total due to rounding for shown values.

    In order to address the allegations of sexual abuse at DHS 
immigration detention and holding facilities, the final rule sets 
minimum requirements for the prevention, detection, and response to 
sexual abuse. Specifically, the rule establishes standards for 
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. DHS 
estimates that the full cost of compliance with these standards at all 
covered DHS confinement facilities will be approximately $57.4 million 
over the period 2013-2022, discounted at 7 percent, or $8.2 million per 
year when annualized at a 7 percent discount rate.
    With respect to benefits, DHS conducts what is known as a ``break 
even analysis,'' by first estimating the monetary value of preventing 
various types of sexual abuse (incidents involving violence, 
inappropriate touching, or a range of other behaviors) and then, using 
those values, calculating the reduction in the annual number of victims 
that would need to occur for the benefits of the rule to equal the cost 
of compliance. 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 122 from the 
estimated benchmark levels, which is 147 percent of the total number of 
assumed incidents in ICE confinement facilities, including an estimated 
number of those who may not have reported an incident.\19\
---------------------------------------------------------------------------

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

    There are additional benefits of the rule that DHS is unable to 
monetize or quantify. Not only will victims benefit from a potential 
reduction in sexual abuse in facilities, so too will DHS agencies and 
staff, other detainees, and society as a whole. As noted by Congress, 
sexual abuse increases the levels of violence within facilities. Both 
staff and other detainees will benefit from a potential reduction in 
levels of violence and other negative factors. 42 U.S.C. 15601(14). 
This will improve the safety of the environment for other detainees and 
workplace for facility staff. In addition, long-term trauma from sexual 
abuse in confinement may diminish a victim's ability to reenter society 
resulting in unstable employment. Preventing these incidents will 
decrease the cost of health care, spread of disease, and the amount of 
public assistance benefits required for victims upon reentry into 
society, whether such reentry is in the United States or a detainee's 
home country.
    Table 2, below, presents a summary of the benefits and costs of the 
final rule. The costs are discounted at seven percent.

                               Table 2--Estimated Costs and Benefits of Final Rule
                                                   [$millions]
----------------------------------------------------------------------------------------------------------------
                                                                    Immigration
                                                                     detention        Holding     Total DHS PREA
                                                                    facilities      facilities      rulemaking
----------------------------------------------------------------------------------------------------------------
10-Year Cost Annualized at 7% Discount Rate.....................            $4.9            $3.3            $8.2

[[Page 13155]]

 
% Reduction of Sexual Abuse Victims to Break Even with Monetized             N/A             N/A           147%*
 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....................................................    As explained above, we did not estimate the
                                                                  number of incidents or victims of sexual abuse
                                                                  this rule would prevent. Instead, we conducted
                                                                    a breakeven analysis. Therefore, we did not
                                                                      estimate the net benefits of this rule.
----------------------------------------------------------------------------------------------------------------
* For ICE confinement facilities.

2. Summary of Affected Population
    This rule covers 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 rule directly regulates the Federal Government, notably any 
DHS agency with immigration detention facilities or holding facilities. 
This rule also affects private and public entities that operate 
confinement facilities under contracts or agreements with DHS. The 
sections below describe and quantify, where possible, the number of 
affected immigration detention facilities and 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 directly regulates the Federal Government, 
it requires 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:
     Service Processing Center (SPC)--full service immigration 
facilities owned by the government and staffed by a combination of 
Federal and contract staff;
     Contract Detention Facility (CDF)--owned by a private 
company and contracted directly with the government; and
     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 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 less than 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.
    ICE owns or has contracts with approximately 158 authorized 
immigration detention facilities that hold detainees for more than 72 
hours.\20\ The 158 facilities consist of 6 SPCs, 7 CDFs, 9 dedicated 
IGSA facilities, and 136 non-dedicated IGSA facilities. Sixty four of 
the non-dedicated IGSA facilities are covered by the DOJ PREA, not this 
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.
---------------------------------------------------------------------------

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

    ICE additionally has 91 authorized immigration detention facilities 
that are contracted to hold detainees for less than 72 hours.\21\ All 
91 facilities are non-dedicated IGSA facilities, but 55 of them are 
covered by the DOJ PREA rule, not this 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.
---------------------------------------------------------------------------

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

    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

[[Page 13156]]

summarizes the facilities included in this analysis.

                       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
                                                                 -----------------------------------------------
    Total Covered by Rule.......................................              94              36               2
                                                                 -----------------------------------------------
USMS IGA \a\....................................................              64              55               0
                                                                 ===============================================
        Total Authorized Facilities.............................             158              91               2
----------------------------------------------------------------------------------------------------------------
\a\ Not within the scope of the rulemaking. USMS confinement facilities are covered by DOJ's PREA regulations.

b. Subpart B--Holding Facilities
    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.
i. 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 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 rule. ICE 
has 149 holding facilities that are covered under Subpart B of the 
rule.
ii. 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.
    The number of detainees in CBP custody fluctuates. Consequently, at 
times CBP is unable to accommodate its short-term detention needs 
through its facilities. Similar to ICE, CBP has entered into 
approximately 14 contracts with State, local, and/or private entity 
facilities on a rider to a USMS contract that provides for a consistent 
arrangement with particular facilities to cover instances in which CBP 
has insufficient space to detain individuals. Because CBP entered into 
these contracts via a rider to a USMS contract, the impacts to these 
facilities have been accounted for in the DOJ's PREA rule and to 
consider them again here would double count any costs and/or benefits 
associated with these facilities. As such, these facilities are 
excluded from this analysis.
3. Costs of Rule
    This rule covers DHS immigration detention facilities and holding 
facilities. Table 3 summarizes the number of facilities covered by the 
rulemaking over 10 years.

                                 Table 3--Estimated Population Summary for Rule
----------------------------------------------------------------------------------------------------------------
                                                    Immigration         Holding facilities
                                                     detention   --------------------------------
                      Year                          facilities                                         Total
                                                 ----------------       ICE             CBP
                                                        ICE
----------------------------------------------------------------------------------------------------------------
1...............................................             132             149             768           1,049
2...............................................             134             149             768           1,051
3...............................................             136             149             768           1,053
4...............................................             138             149             768           1,055
5...............................................             140             149             768           1,057
6...............................................             142             149             768           1,059
7...............................................             144             149             768           1,061
8...............................................             146             149             768           1,063
9...............................................             148             149             768           1,065
10..............................................             150             149             768           1,067
----------------------------------------------------------------------------------------------------------------

    The cost estimates set forth in this analysis represent the costs 
of compliance with, and implementation of, the standards in facilities 
within the scope of the rulemaking.\22\ This final rule implements many 
of the proposed

[[Page 13157]]

standards in the NPRM. In addition, DHS made a number of changes to 
provisions set forth in the NPRM based on public comments. These 
changes are discussed previously in the preamble. DHS received no 
public comments on the estimates in the economic analysis.
---------------------------------------------------------------------------

    \22\ The baseline for these cost estimates is the sexual abuse 
and assault standards to which facilities were held accountable or 
planned to be held accountable at the time of writing the NPRM. 
Since the NPRM, ICE has made great strides in implementing sexual 
abuse and assault standards in facilities. As a result, the baseline 
of the rule from which the costs and benefits of the rulemaking were 
estimated, differ from the current sexual abuse and assault 
standards at some facilities.
---------------------------------------------------------------------------

    After analyzing the changes made in this final rule, DHS concludes 
the only cost change from the NPRM with more than a de minimis impact 
results from expanding the scope of training requirements for personnel 
that have contact with detainees under Sec.  115.32. This change 
resulted in an increase in estimated cost of approximately $16,000 per 
year. DHS also fixed a mistake in estimating the year audits would 
begin for facilities. Thus, this analysis estimates that compliance 
with the standards, in the aggregate, will be approximately $57.4 
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 4 
below, presents a 10-year summary of the estimated benefits and costs 
of the final rule.

                                        Table 4--Total Cost of Final Rule
                                                   [$millions]
----------------------------------------------------------------------------------------------------------------
                                       Immigration detention       Holding facilities  subpart B
                                       facilities  subpart A     --------------------------------
              Year               --------------------------------                                      Total
                                   Over 72 hours  Under 72 hours        ICE             CBP
----------------------------------------------------------------------------------------------------------------
1...............................            $3.9            $1.2            $0.0            $5.6           $10.7
2...............................             3.6             1.1             0.0             5.5            10.1
3...............................             3.6             1.1             0.0             3.6             8.3
4...............................             3.7             1.1             0.0             2.4             7.1
5...............................             3.7             1.1             0.0             2.4             7.2
6...............................             3.7             1.1             0.0             2.3             7.2
7...............................             3.8             1.1             0.0             2.3             7.2
8...............................             3.8             1.1             0.0             2.3             7.2
9...............................             3.8             1.1             0.0             2.3             7.2
10..............................             3.8             1.2             0.0             2.3             7.2
                                 -------------------------------------------------------------------------------
    Total.......................            37.4            11.3             0.0            31.0            79.6
                                 -------------------------------------------------------------------------------
    1Total (7%).................            26.2             7.9             0.0            23.2            57.4
                                 -------------------------------------------------------------------------------
    Total (3%)..................            31.9             9.6             0.0            27.2            68.7
                                 -------------------------------------------------------------------------------
    Annualized (7%).............             3.7             1.1             0.0             3.3             8.2
                                 -------------------------------------------------------------------------------
    Annualized (3%).............             3.7             1.1             0.0             3.2             8.0
----------------------------------------------------------------------------------------------------------------

    The total cost, discounted at 7 percent, consists of $34.1 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 PSA Compliance Manager, and 
audit requirements. DHS estimates zero compliance costs for ICE holding 
facilities under this rule as the requirements of ICE's SAAPID and 
other ICE policies are commensurate with the requirements of the rule. 
The largest costs for CBP holding facilities are staff training, 
audits, and facility design modifications and monitoring technology 
upgrades.
4. Benefits of the Rule
    DHS has not estimated the anticipated monetized benefits of this 
rule or how many incidents or victims of sexual abuse DHS anticipates 
will be avoided by this 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 NPRM estimated the benefits based on sexual abuse data 
from 2011, the most recent full year of data at that time. DHS has 
included sexual abuse data from 2010, 2011, and 2012 in this final 
analysis. In addition, since the publication of the NPRM, ICE's PSA 
Coordinator has reviewed the individual reports and data from these 
years and assigned a level of sexual victimization to each based on the 
levels used in the DOJ PREA RIA.\23\ This has allowed DHS to provide a 
more comprehensive assessment of sexual abuse in ICE confinement 
facilities, and the estimated avoidance value of preventing such abuse. 
The DHS RIA concludes that when all facilities and costs are phased 
into the rulemaking, the breakeven point will be reached if the 
standards reduced the annual number of incidents of sexual abuse by 122 
from the estimated benchmark level, which is 147 percent of the total 
number of assumed incidents in ICE confinement facilities, including 
those who may not have reported an incident.
---------------------------------------------------------------------------

    \23\ Department of Justice, Regulatory Impact Analysis for the 
National Standards to Prevent, Detect, and Respond to Prison Rape 
under PREA, Table 1.1 on page 24 of 168, available at http://www.ojp.usdoj.gov/programs/pdfs/prea_ria.pdf.
---------------------------------------------------------------------------

    There are additional benefits of the rule that DHS is unable to 
monetize or quantify. Not only will victims benefit from a potential 
reduction in sexual abuse in facilities, so too will DHS agencies and 
staff, other detainees, and society as a whole. As noted by Congress, 
sexual abuse increases the levels of violence within facilities. Both 
staff and other detainees will benefit from a potential reduction in 
levels of violence and other negative factors. 42 U.S.C. 15601(14). 
This will improve the safety of the environment for other detainees and 
workplace for facility staff. In addition, long-term trauma from sexual 
abuse in confinement may diminish a victim's ability to reenter society 
resulting in unstable

[[Page 13158]]

employment. Preventing these incidents will decrease the cost of health 
care, spread of disease, and the amount of public assistance benefits 
required for victims upon reentry into society, whether such reentry is 
in the United States or a detainee's home country.
5. Alternatives
    As alternatives to the regulatory regime discussed in this rule, 
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, sexual abuse 
standards for ICE's under 72-hour immigration detention facilities and 
DHS's 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 standards for holding facilities under Subpart B, 
rather than the standards for immigration detention in Subpart A, as 
discussed in the final rule. The standards 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 under 
Sec. Sec.  115.93 and 115.193. Immigration detention facilities 
currently undergo several layers of inspections for compliance with 
ICE's detention standards. This alternative would allow ICE to 
incorporate the audit requirements for the 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 three audits by CRCL be conducted annually. The following 
table presents the 10-year costs of the alternatives compared to the 
costs of the final rule. These costs of these alternatives are 
discussed in detail in Chapter 2 of the Final RIA.

                      Table 5--Cost Comparison of Regulatory Alternatives to the Final Rule
                                                   [$millions]
----------------------------------------------------------------------------------------------------------------
               10-Year total costs by alternative                      Total        Total  (7%)     Total  (3%)
----------------------------------------------------------------------------------------------------------------
Alternative 1--No Action........................................              $0              $0              $0
Alternative 2--Under 72-Hour....................................            77.4            55.7            66.7
Alternative 3--Final Rule.......................................            79.6            57.4            68.7
Alternative 4--Audit Requirements...............................            70.1            50.5            60.4
----------------------------------------------------------------------------------------------------------------

B. Executive Order 13132--Federalism

    This final rule does 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 rule implements the Presidential 
Memorandum of May 17, 2012 ``Implementing the Prison Rape Elimination 
Act'' and the requirements found in the recently enacted VAWA 
Reauthorization (Mar. 7, 2013) by setting forth 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 and Congress's intent while also minimizing 
conflicts between State law and Federal interests.
    Insofar, however, as the rule sets forth standards that might apply 
to immigration detention facilities and holding facilities operated by 
State and local governments and private entities, this 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. However, 
in line with Congress's and the President's statutory direction in the 
VAWA Reauthorization that the standards are to apply to DHS-operated 
detention facilities and to detention facilities operated under 
contract with DHS, including CDFs and detention facilities operated 
through an IGSA with DHS, these standards impact State, local, and 
private entities to the extent that such entities make voluntary 
decisions to contract with DHS for the confinement of immigration 
detainees or that such entities and DHS agree to enter into a 
modification or renewal of such contracts. 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 final 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 welcomed 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 
Sec. Sec.  3(a) and 3(b)(2) of Executive Order 12988.

D. Unfunded Mandates Reform Act of 1995

    Section 202 of the Unfunded Mandates 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 
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

[[Page 13159]]

assistance.'' 2 U.S.C. 658(5)(A)(i)(I). Compliance with these standards 
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, section 1101 of the VAWA 
Reauthorization, 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 (RFA) 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 issued these final regulations DHS:
    (1) Provided notice of these requirements to potentially affected 
small governments by publishing the NPRM, and by other activities;
    (2) Enabled officials of affected small governments to provide 
meaningful and timely input, via the methods listed above; and
    (3) Worked to inform, educate, and advise small governments on 
compliance with the requirements.
     As discussed above in the RIA 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 rule so that they can better evaluate 
its effects on them and participate in the rulemaking. If the 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 final rule so as to minimize its impact on small 
entities, in accordance with the 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 
rule will not have any effect on small entities of the type described 
in 5 U.S.C. 601(3). Accordingly, DHS has prepared a Final Regulatory 
Flexibility Impact Analysis in accordance with 5 U.S.C. 604.
1. A Statement of the Need for, and Objectives of, the Rule
    In 2003 Congress enacted PREA, Public Law 108-79 (Sept. 4, 2003). 
PREA directs the Attorney General to promulgate national standards for 
enhancing the prevention, detection, reduction, and punishment of 
prison rape. On May 17, 2012, DOJ released a final rule setting 
national standards to prevent, detect, and respond to prison rape for 
facilities operated by BOP and 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. On March 7, 2013, 
Congress enacted a statutory mandate in the VAWA Reauthorization 
directing DHS to publish, within 180 days of enactment, a final rule 
adopting national standards for the detection, prevention, reduction, 
and punishment of rape and sexual assault in immigration confinement 
settings. See Public Law 113-4 (Mar. 7, 2013). This regulation responds 
to and fulfills the President's direction and the VAWA Reauthorization 
statutory mandate by creating comprehensive, national regulations for 
the detection, prevention, and reduction of prison rape at DHS 
confinement facilities.
    DHS uses a variety of legal authorities, which are listed below in 
the ``Authority'' provision preceding the 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 Sec.  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 Sec.  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 rule is to create minimum requirements for DHS 
immigration detention and holding facilities for the prevention, 
detection, and response to sexual abuse. The rule will 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.
2. A Statement of the Significant Issues Raised by the Public Comments 
in Response to the Initial Regulatory Flexibility Analysis (IRFA), a 
Statement of the Assessment of the Agency of Such Issues, and a 
Statement of Any Changes Made in the Proposed Rule as a Result of Such 
Comments
    DHS did not receive any public comments in response to the initial 
regulatory flexibility analysis.
3. The Response of the Agency to Any Comments Filed by the Chief 
Counsel for Advocacy of the Small Business Administration (SBA) in 
Response to the Proposed Rule, and a Detailed Statement of Any Change 
Made to the Proposed Rule in the Final Rule as a Result of the Comments
    DHS did not receive comments from the Chief Counsel for Advocacy of 
the

[[Page 13160]]

Small Business Administration in response to the proposed rule.
4. A Description of and an Estimate of the Number of Small Entities To 
Which the Rule Will Apply or an Explanation of Why No Such Estimate Is 
Available
    This rule will 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. SPC facilities are ICE-owned facilities and staffed by a 
combination of Federal and contract staff. CDFs are owned by a private 
company and contracted directly with ICE. Detention services at 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 IGA 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 are 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 RFA. An additional 64 are covered not by this 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 
\24\ 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 the SBA size standards, 
within its primary line of business.
---------------------------------------------------------------------------

    \24\ 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, one small business, and one 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 are small entities. 
Therefore, DHS estimates there are a total of 33 small entities to 
which this rule applies. The table below shows the number of small 
entities by type for which data are available.

    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 less than 72 hours for various reasons. 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 are located in rural 
areas that only occasionally have immigration detainees.
    At the time of writing, ICE has 91 immigration detention facilities 
which are used to detain individuals for less than 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 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

[[Page 13161]]

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 two 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 are considered small governmental jurisdictions as 
defined by the RFA.
    In summary, DHS estimates the number of small entities covered by 
this rulemaking is 33 over 72-hour immigration detention facilities, 10 
under 72-hour facilities, and 2 family residential facilities, for a 
total of 45 small entities.
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 are covered under the rule. None of these 
facilities are considered small entities under the RFA.
5. A Description of the Projected Reporting, Recordkeeping, and Other 
Compliance Requirements of the Rule, Including an Estimate of the 
Classes of Small Entities Which 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 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 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 paid in the form of increased bed 
rates for facilities. Therefore, for the purposes of this analysis, DHS 
assumes all costs associated with the rule will be borne by the 
facility. Of the 45 small entities, 37 operate under the NDS. The 
following discussion addresses the standards that may create 
implementation costs for facilities that are currently operating under 
the ICE NDS.
i. Contracting With Other Non-DHS Entities for the Confinement of 
Detainees, Sec.  115.12
    The rule requires that any new contracts or contract renewals 
comply with the 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 standard may cost a facility 
approximately $1,488 (20 hours x $74.41) in the first year.\25\
---------------------------------------------------------------------------

    \25\ 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 Assault 
Coordinator, Sec.  115.11
    The rule requires immigration detention facilities to have a 
written zero-tolerance policy for sexual abuse and establish a 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 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 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 
standards and requirements DHS assumes are the responsibility of the 
PSA Compliance Manager, and are included in the costs estimated for 
this standard.

  Table 7--Assumed PSA Compliance Manager Duties--Immigration Detention
                               Facilities
------------------------------------------------------------------------
                                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.

[[Page 13162]]

 
115.93 * Audits.
------------------------------------------------------------------------
* Indicates new requirement for facilities under 2011 PBNDS or Family
  Residential Standards.

    DHS spoke with some SPCs and CDFs who had Sexual Abuse and Assault 
Prevention Intervention Coordinators 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 standard may cost a facility 
approximately $5,330 (114 hours x $46.75) in the first year.\26\
---------------------------------------------------------------------------

    \26\ 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 = $27.91/0.597
---------------------------------------------------------------------------

iii. Limits to Cross-Gender Viewing and Searches, Sec.  115.15
    The requirement prohibits 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 bans cross-gender strip or body cavity searches except in 
exigent circumstances; requires documentation of all strip and body 
cavity searches and cross-gender pat-down searches; prohibits physical 
examinations for the sole purpose of determining genital 
characteristics; requires training of law enforcement staff on proper 
procedures for conducting pat-down searches, including transgender and 
intersex detainees; and, implements policies on staff viewing of 
showering, performing bodily functions, and changing clothes.
    The restrictions placed on cross-gender pat-down searches will be a 
new requirement for facilities operating under the NDS or 2008 PBNDS, 
and a modified requirement for facilities operating under the 2011 
PBNDS.\27\ ICE's detention population is 10 percent female, and 90 
percent male. In comparison, 13 percent of correctional officers at 
Federal confinement facilities \28\ and 28 percent at jails are 
female.\29\ Though there may be disproportionate gender ratios of staff 
to detainees at some individual facilities, the overall national 
statistics do not indicate that there will 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.
---------------------------------------------------------------------------

    \27\ 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.
    \28\ 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.
    \29\ 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 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. In the IRFA, DHS requested 
comments from facilities on this conclusion. No comments were received 
in response to this request.
    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 Sec.  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 
is 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 will occur rarely, as the rule 
allows them in exigent circumstances only. However, cross-gender pat-
down searches of male detainees may happen more frequently. DHS 
believes this requirement may 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 estimates 
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. In the IRFA DHS requested comment from facilities on the 
number of cross-gender pat-down searches conducted. No comments were 
received in response to this request.
    Because DHS believes this may be a noticeable burden on facilities, 
DHS includes a rough estimate using assumptions. DHS also requested 
comment on these assumptions in the IRFA. No comments were received in 
response to this request. Detainees may receive a pat-down for a number 
of reasons. All detainees receive a pat- down upon intake at 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 will 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 five minutes of staff for documentation. DHS 
estimates

[[Page 13163]]

this standard may cost a facility approximately $5,435 (5 minutes x 
$32.61 per hour), annually.
    The total estimate per small entity for Sec.  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 rule requires 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 standard may cost a facility approximately 
$1,488 (20 hours x $74.41).
v. Staff Training, Sec.  115.31
    Under Sec.  115.31 the rule requires that any facility staff who 
may have contact with immigration detention facilities have training on 
specific items related to prevention, detection, and response to sexual 
abuse. It also requires facilities to maintain documentation that all 
staff have completed the training requirements. Staff includes any 
employees or contractors of the agency or facility, including any 
entity that operates within the facility. Contractor means a person who 
or entity that provides services on a recurring basis pursuant to a 
contractual agreement with the agency or facility.
    DHS uses the National Institute of Corrections Information Center 
2-hour training timeframe as an approximation for the length of the 
training course to fulfill the proposed requirements. DHS estimates 
this standard may cost a facility approximately $18,914 (2 hours x 290 
staff x $32.61), annually.30 31
---------------------------------------------------------------------------

    \30\ ICE does not keep record of the number of staff at contract 
facilities. The estimates represent the results from a small sample, 
stratified by facility type. ICE estimates approximately 290 staff 
per facility.
    \31\ Though there may be other types of staff that will 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.
---------------------------------------------------------------------------

vi. Other Training, Sec.  115.32
    In the NPRM, Sec.  115.32 required 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. In the final rule this was 
changed to volunteers and other contractors. Other contractors are 
those that do not have training requirements under Sec.  115.31, but 
who have contact with detainees and provide services on a non-recurring 
basis to the facility pursuant to a contractual agreement. The standard 
also requires the agency or facility to maintain documentation that all 
volunteers and other contractors have completed the training 
requirements.
    The provisions in this standard allow the level and type of 
training required of volunteers and other contractors to be based upon 
the services they provide and the level of contact they have with 
detainees, but sets a minimum level requiring notification of the zero-
tolerance policy and reporting responsibilities and procedures. Because 
of the regular nature of volunteers and the types of duties they 
perform, DHS uses the same assumptions as staff for the frequency and 
hours of training required of volunteers. DHS estimates this standard 
for volunteers may cost approximately $2,008 per facility (2 hours x 30 
volunteers x $33.47).32 33
---------------------------------------------------------------------------

    \32\ ICE does not keep record of the number of volunteers at 
contract facilities. The estimates represent the results from a 
small sample, stratified by facility type. ICE estimates 
approximately 30 volunteers per facility.
    \33\ 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.
---------------------------------------------------------------------------

    To provide flexibility to facilities to determine the appropriate 
level of training necessary, the NPRM included training for contractors 
under Sec.  115.31 and Sec.  115.32 recognizing there are different 
types of contractors ranging from guards to those that come weekly to 
service vending machines. In this final rule, DHS proposes to address 
this flexibility in a different manner. DHS has removed from Sec.  
115.32 contractors, as defined under Sec.  115.5 as a ``person or 
entity that provides services on a recurring basis pursuant to a 
contractual agreement with the agency or facility.'' The final rule 
includes these types of recurring contractors solely under the training 
requirements of Sec.  115.31. In recognition that there may be other 
non-recurring contractors with access to detainees, DHS has included a 
requirement for these other contractors to also undergo training 
appropriate for the services they provide and level of contact they 
have with detainees, under Sec.  115.32. This expands the training 
requirements to a population that was not previously covered under the 
NPRM. DHS estimates this standard for other contractors may cost 
approximately $121 per facility (15 minutes x 20 other contractors x 
$24.24).\34\
---------------------------------------------------------------------------

    \34\ Bureau of Labor Statistics, Occupational Employment 
Statistics (OES), May 2011, National, Weighted Average Median Wage 
Rate for SOC 37-0000 Building Grounds Cleaning and Maintenance 
Occupations; 47-0000 Construction and Extraction Occupations; and 
49-0000 Installation, Maintenance, and Repair Occupations, retrieved 
on June 13 2012 from http://www.bls.gov/oes/2011/may/oes_nat.htm. 
Loaded for benefits.
    Bureau of Labor Statistics, Employer Cost for Employee 
Compensation, June 2011, Table 1: Employer Costs per hour worked for 
employee compensation and costs as a percent of total compensation: 
Civilian workers, by major occupational and industry group, 
Management, professional, and related, Salary and Compensation 
Percent of Total Compensation, retrieved on October 15, 2012 from 
http://www.bls.gov/news.release/archives/ecec_09082011.pdf. $24.24 
= $16.86/0.694.
---------------------------------------------------------------------------

    The total estimated cost per facility for volunteer and other 
contractor training is $2,129 ($2,008 for volunteers + $121 for other 
contractors).
vii. Specialized Training: Investigations, Sec. Sec.  115.34, 115.134
    The rule requires 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. Facilities may also conduct their own investigations. However, 
because ICE conducts investigations into the allegations, training for 
facility investigators will 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 one hour. DHS estimates this standard may cost a facility 
approximately $468 (1 hour x 10 investigators x 
$46.75).35 36
---------------------------------------------------------------------------

    \35\ 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. ICE estimates 10 
investigators per facility.
    \36\ 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.

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

[[Page 13164]]

viii. Specialized Training: Medical and Mental Health Care, Sec.  
115.35
    The rule requires specialized training to DHS medical and mental 
health care staff. In addition, it requires 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.\37\
---------------------------------------------------------------------------

    \37\ 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. ICE estimates 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 standard may cost a facility approximately $1,957 (30 
medical and mental health care practitioners x ($50.23 x 1 hr + 
$15)).\38\
---------------------------------------------------------------------------

    \38\ 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
---------------------------------------------------------------------------

ix. Detainee Access to Outside Confidential Support Services, Sec.  
115.53
    The rule requires 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 standard may cost a facility 
approximately $1,488 (20 hours x $74.41).
x. 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 will be borne by the facility; however, the request 
for these re-audits is at the discretion of the facility.
xi. 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 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 Sec.  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 Sec.  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 standards with start-up costs, such as entering into 
MOUs, rather than standards with action or on-going costs, such as 
training. DHS estimates additional implementation costs as 10 percent 
of the total costs of standards with a start-up cost. DHS requests 
comment on this assumption. The tables below present the estimates for 
additional implementation costs. DHS estimates this standard may cost a 
facility approximately $1,579 in the first year (10% x ($1,488 for 
Sec.  115.12 + $5,330 for Sec.  115.11 + $5,996 for Sec.  115.15 + 
$1,488 for Sec.  115.21 + $1,488 for Sec.  115.53)).
xii. Total Cost per Facility
    DHS estimates the total cost per immigration detention facility 
under the NDS for compliance with the standards is approximately 
$40,837 for the first year. In subsequent years, DHS estimates the 
costs drop to approximately $31,033. The following table summarizes the 
preceding discussion.

     Table 8--Estimated Cost per Small Entity under NDS--Immigration
                          Detention Facilities
------------------------------------------------------------------------
            Standard                Cost in year 1       On-going cost
------------------------------------------------------------------------
115.12 Consulting with non-DHS                $1,488                  $0
 entities for the confinement of
 detainees......................
115.11 Zero tolerance of sexual                5,330               3,647
 abuse; PSA Coordinator *.......
115.15 Limits to cross-gender                  5,996               5,435
 viewing and searches *.........
115.21 Evidence protocols and                  1,488                   0
 forensic medical examinations..
115.31 Staff training *.........              18,914              18,914
115.327 Other training *........               2,129               2,129
115.34 Specialized training:                     468                   0
 Investigations.................
115.35 Specialized training:                   1,957                   0
 Medical and mental health care.
115.53 Detainee access to                      1,488                   0
 outside confidential support
 Services.......................
 Additional Implementation                     1,579                 908
 Costs*.........................
                                 ---------------------------------------
    Total.......................              40,837              31,033
------------------------------------------------------------------------
* Standards for which DHS estimates there may be on-going costs.


[[Page 13165]]

6. A Description of the Steps the Agency Has Taken to Minimize Any 
Significant Economic Impact on Small Entities Consistent With the 
Stated Objectives of Applicable Statutes, Including A Statement of the 
Factual, Policy, and Legal Reasons for Selecting the Alternative 
Adopted in the Final Rule, and Why Each One of the Other Significant 
Alternatives to the Rule Considered by the Agency Which Affected the 
Impact on Small Entities Was Rejected
    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 require 
that facilities 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 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. In the IRFA DHS requested 
comment on additional alternatives that might help reduce the impact on 
small entities. No comments were received in response to this request.

G. Paperwork Reduction Act

    DHS is setting 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 
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. As stated in the NPRM, DHS believes that most of the 
information collection requirements placed on facilities are already 
requirements derived from existing contracts with immigration detention 
facilities. However, DHS included these requirements as part of an 
information collection request associated with the proposed rule, 
pursuant to the Paperwork Reduction Act of 1995 (PRA), so as to ensure 
clarity of requirements associated with this rulemaking.
    This final rule contains a new collection of information covered by 
the PRA. The information collection described by DHS in the proposed 
rule garnered no comments from the public, and thus no changes were 
necessitated based upon any comments pertaining to the PRA aspects of 
the rule. However, changes to the PREA standards made in response to 
substantive comments on the NPRM and due to additional analysis 
resulted in the total PRA burden hours being greater than those 
estimated in DHS's initial information collection request.
    DHS has submitted a revised information collection request to OMB 
for review and clearance in accordance with the review procedures of 
the PRA.

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 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.
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 Assault 
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 Other 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.

[[Page 13166]]

Prevention Planning

115.111 Zero tolerance of sexual abuse; Prevention of Sexual Assault 
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.
115.152-115.153 [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.
    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), whom the agency will evaluate for 
safety purposes to protect juveniles from sexual abuse and violence.
    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, and 
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

[[Page 13167]]

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 paragraph (1), 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 paragraph (1), 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) Voyeurism, which is defined as the inappropriate visual 
surveillance of a detainee for reasons unrelated to official duties. 
Where not conducted for reasons relating to official duties, the 
following are examples of voyeurism: staring at a detainee who is using 
a toilet in his or her cell to perform bodily functions; requiring an 
inmate detainee to expose his or her buttocks, genitals, or breasts; or 
taking images of all or part of a detainee's naked body or of a 
detainee performing bodily functions.

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 this 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 
Assault 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 Assault 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 
Assault 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, contract renewals, or 
substantive contract modifications the entity's obligation to adopt and 
comply with these standards.
    (b) Any new contracts, contract renewals, or substantive contract 
modifications 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.

[[Page 13168]]

    (c) In determining adequate levels of detainee supervision and 
determining the need for video monitoring, the facility shall take into 
consideration generally accepted detention and correctional practices, 
any judicial findings of inadequacy, 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 security 
inspections are occurring, unless such announcement is related to the 
legitimate operational functions of the facility.


Sec.  115.14  Juvenile and family detainees.

    (a) 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) 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 who is an unaccompanied alien child has been 
convicted as an adult of a 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 detainee's genital 
characteristics. 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 
standard medical examination that all detainees must undergo as part of 
intake or other processing procedure 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 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

[[Page 13169]]

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 another detainee to provide interpretation and the 
agency determines that such interpretation is appropriate and 
consistent with DHS policy. 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.

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, including a Sexual 
Assault Forensic Examiner (SAFE) or Sexual Assault Nurse Examiner 
(SANE) where practicable. If SAFEs or SANEs cannot be made available, 
the examination can be performed by other 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.

[[Page 13170]]

    (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 timely access to U 
nonimmigrant status 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 May 6, 2014, 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.


Sec.  115.32  Other training.

    (a) The facility shall ensure that all volunteers and other 
contractors (as defined in paragraph (d) of this section) 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 other 
contractors shall be based on the services they provide and level of 
contact they have with detainees, but all volunteers and other 
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 volunteers and other contractors who have contact with immigration 
facility detainees have completed the training.
    (d) In this section, the term other contractor means a person who 
provides services on a non-recurring basis to the facility pursuant to 
a contractual agreement with the agency or facility.


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.

[[Page 13171]]

    (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 section.


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 abuse 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 or 
detained;
    (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 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 for

[[Page 13172]]

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 
Office Director having jurisdiction for the facility, must document 
detailed reasons for placement of an individual in administrative 
segregation on the basis of a vulnerability to sexual abuse or assault.
    (b) Use of administrative segregation by facilities to protect 
detainees vulnerable to sexual abuse or assault 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 detainees vulnerable to sexual abuse 
or assault to administrative segregation for their protection 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 vulnerable 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 vulnerable detainees placed in administrative segregation 
for their protection, 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.
    (e) Facilities shall notify the appropriate ICE Field Office 
Director no later than 72 hours after the initial placement into 
segregation, whenever a detainee has been placed in administrative 
segregation on the basis of a vulnerability to sexual abuse or assault.
    (f) Upon receiving notification pursuant to paragraph (e) of this 
section, the ICE Field Office Director shall review the placement and 
consider:
    (1) Whether continued placement in administrative segregation is 
warranted;
    (2) Whether any alternatives are available and appropriate, such as 
placing the detainee in a less restrictive housing option at another 
facility or other appropriate custodial options; and
    (3) Whether the placement is only as a last resort and when no 
other viable housing options exist.

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 and shall respond to an appeal of the grievance 
decision within 30 days. Facilities shall send all grievances related 
to sexual abuse and the facility's decisions with respect to such 
grievances to the appropriate ICE Field Office Director at the end of 
the grievance process.
    (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 information about national organizations. The facility shall 
enable reasonable communication between detainees and these 
organizations and agencies, in as confidential a manner as possible.
    (d) Each facility shall inform detainees, prior to giving them 
access to outside resources, of the extent to which such communications 
will be monitored and the extent to which reports of abuse will be 
forwarded to authorities in accordance with mandatory reporting laws.


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.

[[Page 13173]]

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 or 
participated in an investigation about 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, or 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.  115.62  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 agency or the administrator 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 facilities 
covered by subpart A or B of this part, 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 facility not covered by paragraph (c) of this section, 
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.

    (a) 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.
    (b) The agency shall employ multiple protection measures, such as 
housing changes, removal of alleged staff or detainee abusers from 
contact with victims, and emotional support services for detainees or 
staff who fear retaliation for reporting sexual abuse or for 
cooperating with investigations.
    (c) 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 highly 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 completion of a proper re-assessment, taking into 
consideration any increased vulnerability of the detainee as a result 
of the sexual abuse.
    (d) Facilities shall notify the appropriate ICE Field Office 
Director

[[Page 13174]]

whenever a detainee victim has been held in administrative segregation 
for 72 hours.
    (e) Upon receiving notification that a detainee victim has been 
held in administrative segregation, the ICE Field Office Director shall 
review the placement and consider:
    (1) Whether the placement is only as a last resort and when no 
other viable housing options exist; and
    (2) In cases where the detainee has been held in administrative 
segregation for longer than 5 days, whether the placement is justified 
by highly unusual circumstances or at the detainee's request.

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 the definition 
of sexual abuse of a detainee by a staff member, contractor, or 
volunteer, paragraphs (1)-(4) and (7)-(8) of the definition of ``sexual 
abuse of a detainee by a staff member, contractor, or volunteer'' in 
Sec.  115.6.
    (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

[[Page 13175]]

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 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 indicates that a 
detainee has experienced prior sexual victimization or perpetrated 
sexual abuse, staff shall, as appropriate, ensure 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 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.
    (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 
within 30 days of the conclusion of the investigation 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) The review team shall consider whether the incident or 
allegation was motivated by race; ethnicity; gender identity; lesbian, 
gay, bisexual, transgender, or intersex identification, status, or 
perceived status; or gang affiliation; or was motivated or otherwise 
caused by other group dynamics at the facility.
    (c) 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. If 
the facility has not had any reports of sexual abuse during the annual 
reporting period, then the facility shall prepare a negative report. 
The results and findings of the annual review shall be provided to the 
facility administrator, Field Office Director or his or her designee, 
and the agency PSA Coordinator.


Sec.  115.87  Data collection.

    (a) Each facility shall maintain in a secure area 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;

[[Page 13176]]

    (2) The demographic background of the victim and perpetrator 
(including citizenship, age, gender, and whether either has self-
identified as gay, lesbian, bisexual, transgender, intersex, or gender 
nonconforming);
    (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 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 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.
    (d) The agency shall maintain sexual abuse data collected pursuant 
to Sec.  115.87 for at least 10 years after the date of the initial 
collection unless Federal, State, or local law requires otherwise.

Audits and Compliance


Sec.  115.93  Audits of standards.

    (a) During the three-year period starting on July 6. 2015, and 
during each three-year period thereafter, the agency shall ensure that 
each immigration detention facility that has adopted these standards is 
audited at least once.
    (b) The agency may require an expedited audit if the agency has 
reason to believe that a particular facility may be experiencing 
problems relating to sexual abuse. The agency may also include 
referrals to resources that may assist the facility with PREA-related 
issues.
    (c) Audits under this section shall be conducted pursuant to 
Sec. Sec.  115.201 through 115.205.
    (d) Audits under this section shall be coordinated by the agency 
with the DHS Office for Civil Rights and Civil Liberties, which may 
request an expedited audit if it has reason to believe that an 
expedited audit is appropriate.

Additional Provisions in Agency Policies


Sec.  115.95  Additional provisions in agency policies.

    The regulations in this 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.

    This 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 
Assault 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, contract renewals, or substantive contract 
modifications the entity's obligation to adopt and comply with these 
standards.
    (b) Any new contracts, contract renewals, or substantive contract 
modifications 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

[[Page 13177]]

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) 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 generally be held separately from 
adult detainees. The juvenile may temporarily remain with a non-
parental adult family member where:
    (1) The family relationship has been vetted to the extent feasible, 
and
    (2) The agency determines that remaining with the non-parental 
adult family member is appropriate, under the totality of the 
circumstances.


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, 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 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 another detainee to provide interpretation, and the agency 
determines that such interpretation is appropriate and consistent with 
DHS policy. 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

[[Page 13178]]

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 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, including a Sexual Assault 
Forensic Examiner (SAFE) or Sexual Assault Nurse Examiner (SANE) where 
practicable. If SAFEs or SANEs cannot be made available, the 
examination can be performed by other qualified health care personnel.
    (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 timely access to U 
nonimmigrant status 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

[[Page 13179]]

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 
section.

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 or 
detained;
    (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.
    (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.  115.152-115.153  [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 or participated in 
an investigation about 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 help protect the safety of the victim 
or prevent further victimization of other detainees or staff in the 
facility, or 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 of the agency or the 
administrator 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 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;

[[Page 13180]]

    (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 facilities 
covered by subpart A or B of this part, 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 
facility not covered by paragraph (b) of this section, 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.

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 agency 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 agency 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, 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 the definition of sexual abuse of a detainee by a 
staff member, contractor, or volunteer, paragraphs (1)-(4) and (7)-(8) 
of the definition of ``sexual abuse of a detainee by a staff member, 
contractor, or volunteer'' in Sec.  115.6.
    (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

[[Page 13181]]

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 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.
    (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. Such review shall ordinarily occur within 30 days of 
the agency receiving the investigation results from the investigative 
authority. 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 in a secure area all agency case 
records associated with claims of sexual abuse, 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 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, gender, and whether either has self-
identified as gay, lesbian, bisexual, transgender, intersex, or gender 
nonconforming);
    (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 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 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 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.
    (d) The agency shall maintain sexual abuse data collected pursuant 
to Sec.  115.187 for at least 10 years after the date of the initial 
collection unless Federal, State, or local law requires otherwise.

Audits and Compliance


Sec.  115.193  Audits of standards.

    (a) Within three years of July 6, 2015, the agency shall ensure 
that each of its immigration holding facilities that houses detainees 
overnight and has adopted these standards is audited. For any such 
holding facility established after July 6, 2015, 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.

[[Page 13182]]

    (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, 
and
    (iii) Be coordinated by the agency with the DHS Office for Civil 
Rights and Civil Liberties, which may request an expedited audit if it 
has reason to believe that an expedited audit is appropriate.
    (2) [Reserved]
    (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, 
and
    (iii) Be coordinated by the agency with the DHS Office for Civil 
Rights and Civil Liberties, which may request an expedited audit if it 
has reason to believe that an expedited audit is appropriate.
    (2) [Reserved]
    (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, 
and
    (iii) Be coordinated by the agency with the DHS Office for Civil 
Rights and Civil Liberties, which may request an expedited audit if it 
has reason to believe that an expedited audit is appropriate.
    (2) [Reserved]

Additional Provisions in Agency Policies


Sec.  115.195  Additional provisions in agency policies.

    The regulations in this 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 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.
    (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 and outside of DHS that have relevant audit experience.
    (b) All auditors shall be certified by the agency, in coordination 
with DHS. The agency, in coordination with DHS, 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

[[Page 13183]]

(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 agency and the facility shall 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.

Jeh Charles Johnson,
Secretary.
[FR Doc. 2014-04675 Filed 3-6-14; 8:45 am]
BILLING CODE 9110-9B-P