[Federal Register Volume 61, Number 128 (Tuesday, July 2, 1996)]
[Rules and Regulations]
[Pages 34371-34375]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-16042]


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DEPARTMENT OF THE INTERIOR

Bureau of Indian Affairs

25 CFR Part 10

RIN 1076-AD77


Indian Country Detention Facilities and Programs

AGENCY: Bureau of Indian Affairs, Interior.

ACTION: Final rule.

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SUMMARY: The Bureau of Indian Affairs (Bureau) is establishing 
regulations to ensure that all Bureau and tribal entities that receive 
Federal funding for the operation, maintenance, design and 
construction, or renovation of detention facilities are operated and 
maintained in a constitutionally sound manner and comply with the 
Indian Law Enforcement Reform Act of 1990, Public Law 101-379 (25 
U.S.C. 2801 et seq.). These regulations define the policies, standards 
and guidelines for detention and rehabilitation programs within Indian 
country.

EFFECTIVE DATE: These regulations take effect on August 1, 1996.

FOR FURTHER INFORMATION CONTACT: Theodore R. Quasula, 202-208-5786.

SUPPLEMENTARY INFORMATION:

Background

    The authority to issue rules and regulations is vested in the 
Secretary of the Interior by 5 U.S.C. 301 and sections 463 and 465 of 
the Revised Statutes, 25 U.S.C. 2 and 9. The proposed rule was 
published August 5, 1994, (59 FR 40086). Comments received during the 
comment period ending November 3, 1994, were considered in the drafting 
this final rule.
    What is the purpose of this rule? The purpose of this rule is to 
provide standards and procedures for the operation of detention 
facilities funded under the Indian Alcohol and Substance Abuse 
Prevention and Treatment Act, Pub. L. 99-570, (25 U.S.C. Sec. 2453).
    Who must follow these regulations? Every BIA and tribal law 
enforcement program receiving Federal funding or performing duties 
during the operation of detention or rehabilitation facilities or 
functions must follow these minimum standards. These programs and 
functions are high risk activities that subject the Federal Government 
to the risk of liability for tort claims. Self-governance tribes and 
tribes with limited jurisdiction are encouraged to use this rule, 
Chapter 69 Bureau of Indian Affairs Manual (BIAM), and handbooks for 
detention and rehabilitation programs under their administration.
    How will these regulations be enforced? All programs will be 
subject to periodic inspections or evaluations during which the BIA 
will provide technical assistance, will ensure compliance with the 
standards and procedures contained in this rule, and will identify 
necessary corrective actions or improvements to policies and 
procedures. The Bureau adopted a voluntary accreditation process with 
an audit and evaluation system.
    Why were regulations rewritten and moved? Detention standards were 
published in 25 CFR Sec. 11.305 and later moved to Section 12.104. The 
regulations had not been modified for sixteen years. They did not 
address current detention problems and were inconsistent with current 
acceptable detention practices and procedures. The regulations also 
failed to address code compliance and related physical plant issues, 
and lacked options to allow for alternative types of detention 
programs. The need for more detailed and contemporary standards was 
intensified by the provision of funding for detention programs under 
Indian Alcohol and Substance Abuse Prevention and Treatment Act.
    Are all the standards and procedures applicable to adult and 
juvenile detention facilities, Inmate Handbook

[[Page 34372]]

facilities, and holding facilities and programs published in this rule? 
No. Although Part 10 is reserved entirely for Indian country detention 
and rehabilitation programs, Chapter 69 BIAM, and handbooks for 
detention and rehabilitation programs detail the standards and 
procedures.
    How were the rules or regulations revised and updated? A multi-
agency task force was assembled to develop the first draft of these 
standards. The task force included representatives from the Office of 
Law Enforcement Services, Area Office Supervisory Criminal 
Investigators, Agency Criminal Investigators, detention staff, and 
Indian Health Service program specialists. The task force also included 
individuals with experience working in tribal detention programs. 
Additional internal reviews were conducted at the Bureau area and 
agency level. Interested parties and professionals submitted written 
comments, suggestions or objections to the proposed rules.

Review of Public Comments

Building and Safety Code Compliance.

    The Bureau of Indian Affairs, Facilities Management & Construction 
Center recommended the standards relating to building and safety code 
compliance be revised to reflect current requirements. If the facility 
is owned by the BIA, it must comply with the codes and standards 
adopted by the BIA in the Chapter 25 Bureau of Indian Affairs Manual 
(BIAM) Supplements 18 and 19. If the facility is owned by a tribe, it 
must comply with either tribally adopted building codes, tribally 
adopted state or municipal building codes, or the Chapter 25 BIAM 
Supplements 18 and 19. This change has been incorporated into each 
applicable standard.

Mississippi Band of Choctaw Indians

    The Mississippi Band of Choctaw Indians expressed numerous concerns 
and recommendations. Each of the Tribe's concerns has been addressed:
    (1) Development of requirements that are applicable to all facility 
types. As directed of the Department of the Interior, Office of 
Regulatory Affairs, the format for the rule must be general in nature. 
Specific requirements are published in the policy and standards 
manuals, rather than as rules. The recommendation will not be 
incorporated in this rule.
    (2) Publication of an accreditation process prior to the approval 
of the final rule. An accreditation process has been drafted. A 
standards compliance information packet, corrective action plan 
workbook, self-audit workbook, and standard accreditation workbook have 
been developed. This process will be field tested and adopted by the 
BIA.
    (3) Reduction of the levels of Bureau approval required for 
standard compliance--operational descriptions. Standards have been 
developed for Bureau operated detention/correctional facilities and 
programs. Through the contracting programs of the Indian Self-
Determination and Education Assistance Act, The tribe can develop a 
facility specific line of authority and approval process of their own 
when contracting detention/correction programs under the Indian Self-
Determination and Education Assistance Act.
    (4) Involvement of the Indian Health Service and tribes in the 
drafting of these standards. The Bureau established a task force to 
draft these standards. The task force was comprised of representatives 
from the Office of Law Enforcement Services, Area Office Supervisory 
Criminal Investigators, Agency Criminal Investigators, detention staff, 
and Indian Health Service program specialists and tribes. They provided 
Indian Health Services and the tribes many opportunities to review the 
standards, including the publication of the proposed rule in the 
Federal Register on August 5, 1994.
    (5) Incorporation of the numbering changes for various tables and 
charts for Mandatory Standards, Separation of Adults and Juveniles, and 
Suicide Screening. This has been done.
    (6) Modification of accreditation requirements and the minimum 
qualifications for new recruits. The minimum standards are critical to 
a quantified accreditation process in order to evaluate compliance and 
performance. The recommendation will not be incorporated in this rule.
    (7) Addition of Detention Officer to the definitions section. The 
definition section for this rule and the definition has been added.
    (8) Provision of funds to train detention staff in the operation of 
new generation jails. The BIA Indian Police Academy offers detention 
officer training and is revamping its detention officers' curriculum to 
incorporate direct supervision methodologies and philosophies.
    (9) Incorporation of the rate of facility capacity as a mandatory 
standard. During drafting of the rule, BIA agreed that mandatory 
standards would be limited to those areas that create a potential 
danger to the life, health, and safety of inmates, staff, and/or the 
community, and those areas in which there are other statutes, 
regulations, or directives that mandate compliance. The recommendation 
will not be incorporated in this rule.
    (10) Inclusion and/or clarification of the following definitions: 
(a) Protective Holding Cell--a specialized cell or room that is 
utilized to detain or isolate an incapacitated or combative 
individual(s) for a short period of time, in the standards. The 
protective holding cell may be equipped with specialized security and/
or medical equipment to control and manage individuals detained in 
these areas in a safe, secure, and humane environment. (b) Special 
Management--confinement of a detainee in an individual cell that is 
separated from the remainder of the population for the purpose of 
disciplinary, administrative segregation, protective custody, or 
medical segregation, in standards. The exceptions to house an inmate in 
special management must coincide with this criteria. (c) Multiple 
Occupancy Cells or Rooms--an area, room or cell housing more than two 
and less than fifty persons. These recommendations were incorporated in 
the standards or rule.
    (11) Addition of Designated Security Post to clarify staffing 
requirements.
    (12) Addition of Adult Holding Facility and Mass Arrest to the 
definitions for this rule. The Department of the Interior, Office of 
Regulatory Affairs established the definitions section for this rule. 
The recommendation will not be incorporated in this rule.
    (13) Inclusion of square footage requirements as a mandatory 
standard. During drafting of the rule, BIA agreed that mandatory 
standards would be limited to those areas that create a potential 
danger to the life, health, and safety of inmates, staff, and/or the 
community, and those areas in which there are other statutes, 
regulations, or directives that mandate compliance. The recommendation 
will not be incorporated in this rule.
    (14) Addition of a transition program for accepting, moving into, 
and operating a new facility beginning one year prior to the completion 
of a facility. The Planning of New Institutions (PONI) is the Bureau's 
process for constructing and operating new facilities in Indian 
country. The Bureau has determined that this transition must begin when 
the construction phase starts. The recommendation will not be 
incorporated in this rule.
    (15) Consolidation of limitations on inmate correspondence and 
inspection of letters and packages. Upon review, it was decided that no 
change would be made. The limitations on inmate correspondence 
addresses the volume of lawful correspondence an inmate may

[[Page 34373]]

send or receive. The standard dealing with the inspection of letters 
and packages addresses the search of inmate mail for contraband. The 
recommendation will not be incorporated in this rule.
    (16) Removal of the requirement that a governing board or advisory 
committee oversee the operation of a residential facility. The 
structure of these programs will be the responsibility of the tribe. 
Oversight of these facilities should include representation from the 
community and the overall Tribal government. The recommendation will 
not be incorporated in this rule.
    (17) Removal of the designated staff position for recreational and 
leisure activities, would not be realistic due to the limited staff 
resources. A position must be specified for accountability purposes, 
however, the administrator will have the latitude to designate 
collateral duties where staff is limited. The recommendation will not 
be incorporated in this rule.
    (18) Amendment of Staffing Requirements to Administrative Review of 
Staff Requirement to include institutional operations dealing with 
staff requirements. The staffing requirement in the Administration and 
Management section is an institutional requirement that staff be on 
board at all times to operate the facility, rather than the 
administrative process to review staffing patterns within the 
institution. The recommendation will not be incorporated in this rule.
    (19) Inclusion of comparable tribal regulations in the standards. 
The standards indicate that non-regulatory documents will not be 
incorporated into the rule. The standards were developed for BIA 
operated detention/correctional facilities and programs, but permit 
tribes to operate under comparable tribal regulations when the program 
is contracted under the Indian Self-Determination and Education 
Assistance Act. The recommendation will not be incorporated in this 
rule.

National Commission on Correctional Health Care and the American 
Psychiatric Association

    The recommendation by the National Commission on Correctional 
Health Care (NCOCHC) and American Psychiatric Association suggested 
replacing the drafted health care standards developed in association 
with the Indian Health Service with the NCOCHC's standards for health 
services in jails. Indian country detention and holding facilities, in 
general, are smaller than the facilities referenced in NCOCHC 
standards. The NCOCHC standards are unrealistic for reservation 
facilities. The Indian Health Service has a legal obligation to provide 
health services to Indian people and to mandate NCOCHC's standards is 
duplicative. The Bureau standards are equal to or exceed the American 
Correctional Association standards. These standards are consistent with 
national professional standards. The recommendation will not be 
incorporated in this rule.

Changes Reflecting Department of the Interior Policy

    The Office of Regulatory Affairs and the Office of the Solicitor, 
Department of the Interior, indicated that the proposed rule was 
predominately standards and procedures for the operation of detention 
or holding facilities in Indian country; as such they should not be 
published in the Code of Federal Regulations. This is consistent with 
Executive Order 12866 that mandates that agencies streamline the 
regulatory process and enhance the planning and coordination of new and 
existing regulations.
    The Bureau has separated the operational standards and day-to-day 
guidance from the rulemaking process. The operational standards are now 
included in easy-to-read reference handbooks and guides. These 
handbooks and guides are specific to Indian country detention and 
holding facilities. They are now part of the Bureau's operations 
management handbook and are available to the public, tribal programs, 
and BIA employees upon request. Inmates will receive written guidelines 
at the time of booking into a facility detailing what behavior will be 
expected of them, their rights and privileges, and the nutritional/
medical/emergency treatment to be provided.
    Public comments have been incorporated in the ``Indian Country 
Detention Facilities and Programs 69'' (Chapter 69 Bureau of Indian 
Affairs Manual) and accompanying handbooks. The Inmate Handbook ensures 
that all persons incarcerated in Indian country detention or holding 
facilities understand their rights, privileges, safety procedures, 
detainee treatment during incarceration, and the behavior expected of 
detainees.

Evaluation and Certification

Executive Order 12988

    The Department has determined that these regulations meet the 
applicable standards provided in sections 3(a) and 3(b)(2) of Executive 
Order 12988.

Executive Order 12866

    This rule is not a significant regulatory action under Executive 
Order 12866.

Regulatory Flexibility Act

    This rule will not have a significant economic impact on a 
substantial number of small entities under the Regulatory Flexibility 
Act (5 U.S.C. Sec. 601 et seq.)

Executive Order 12630

    The Department has determined that this rule does not have 
``significant'' takings implications. The rule does not pertain to 
``taking'' of private property interests, nor does it impact private 
property.

Executive Order 12612

    The Department has determined that this rule does not have 
significant federalism effects because it pertains solely to Federal-
tribal relations and will not interfere with the roles, rights and 
responsibilities of states.

NEPA Statement

    The Department has determined that this rule does not constitute a 
major Federal action significantly affecting the quality of the human 
environment and that no detailed statement is required pursuant to the 
National Environmental Policy Act of 1969.

Unfunded Mandates Act of 1995

    This proposed rule imposes no unfunded mandates on any governmental 
or private entity and is in compliance with the provisions of the 
Unfunded Mandates Act of 1995.

Paperwork Reduction Act of 1995

    This rule has been examined under the Paperwork Reduction Act of 
1995 and has been found to contain no information collection 
requirements.

Drafting Information

    The primary author of this document is Warren LeBeau, Detention 
Specialist, Bureau of Indian Affairs, Office of Law Enforcement 
Services.

List of Subjects in 25 CFR Part 10

    Buildings, Indians, Law enforcement, Prisoners, Youth.

    For the reasons given in the preamble, a new part 10 is added to 
Chapter I of title 25 of the Code of Federal Regulations as set forth 
below.

[[Page 34374]]

PART 10--INDIAN COUNTRY DETENTION FACILITIES AND PROGRAMS

Sec.
10.1  Why are policies and standards needed for Indian country 
detention programs?
10.2  Who is responsible for developing and maintaining the policies 
and standards for detention and holding facilities in Indian 
country?
10.3  Who must follow these policies and standards?
10.4  What happens if the policies and standards are not followed?
10.5   Where can I find the policies and standards for the 
administration, operation, services, and physical plant/construction 
of Indian country detention, Inmate Handbook, and holding 
facilities?
10.6  How is the BIA assured that the policies and standards are 
being applied uniformly and facilities are properly accredited?
10.7  Where do I find help or receive technical assistance in 
complying with the policies and standards?
10.8  What minimum records must be kept and reports made at each 
detention, Inmate Handbook, or holding facility in Indian country?
10.9  If a person is detained or incarcerated in an Indian country 
detention, Inmate Handbook, or holding facility, how would they know 
what their rights, privileges, safety, protection and expected 
behavior would be?
10.10  What happens if I believe my civil rights have been violated 
while incarcerated in an Indian country detention or holding 
facility?
10.11  How would someone detained or incarcerated, or their 
representative, get the BIA policies and standards?

    Authority: 5 U.S.C. 301; 25 U.S.C. 2, 9, 13, 2417, 2453, and 
2802.


Sec. 10.1   Why are policies and standards needed for Indian country 
detention programs?

    Policies and standards are required to ensure that all Bureau of 
Indian Affairs (BIA) and tribal entities that receive Federal funding 
for the operation, maintenance, design and construction or renovation 
of detention facilities, Inmate Handbook, or holding facilities are 
supporting constitutional rights and are complying with the Indian Law 
Enforcement Reform Act of 1990. Self-governance tribes and tribes with 
limited jurisdiction are encouraged to follow the regulations in this 
part, and other BIA manuals and handbooks. The provision for funding 
tribes for detention programs under the Indian Alcohol and Substance 
Abuse Prevention and Treatment Act, Public Law 99-570, (25 U.S.C. 2453) 
requires standards and procedures for such facilities.


Sec. 10.2   Who is responsible for developing and maintaining the 
policies and standards for detention and holding facilities in Indian 
country?

    The Director, Office of Law Enforcement Services who reports to the 
Deputy Commissioner of Indian Affairs, BIA, establishes policies, 
procedures, and standards for the operations, design, planning, 
maintenance, renovation, and construction of detention programs in the 
BIA and by tribal contract under Indian Self-Determination and 
Education Assistance Act, Public Law 93-638, as amended, 25 U.S.C. 450.


Sec. 10.3   Who must follow these policies and standards?

    You must follow these minimum policies, standards, and guides if 
you are part of the BIA or tribal detention or rehabilitation program 
receiving Federal funding. Self-governance tribes and tribes with 
limited jurisdiction are encouraged to follow the regulations in this 
part, and other BIA manuals and handbooks. Detention officers, guards, 
cooks and other staff conducting business in the facilities must meet 
minimum standards of law enforcement personnel as prescribed in 25 CFR 
part 12, subpart D, ``Qualifications and Training Requirements.'' Those 
tribal programs not receiving Federal funding under the Indian Self-
Determination and Education Assistance Act (Public Law 93-638, as 
amended) who wish to be accredited are encouraged to use the policies 
and standards in that part since they have been modified and approved 
for Indian country.


Sec. 10.4   What happens if the policies and standards are not 
followed?

    The risk for human and civil rights violations due to lack of 
common standards will subject the operation and/or facility to 
unnecessary exposure to liability. Lack of employee standards, 
particularly for training and background checks, will increase the risk 
of misconduct and vicarious liability of the tribes and the Federal 
government through tort claims. Funding sources for detention programs 
may become scarce to nonexistent because of contract noncompliance. The 
tribes' opportunity to receive funding from potential resource sharing 
agreements with other law enforcement agencies may be damaged because 
the facility may have to be closed for cause due to violation of the 
life safety codes.


Sec. 10.5   Where can I find the policies and standards for the 
administration, operation, services, and physical plant/construction of 
Indian country detention, Inmate Handbook, and holding facilities?

    The Bureau of Indian Affairs, Department of the Interior, maintains 
a manual of policies and procedures called the Bureau of Indian Affairs 
Manual (BIAM). The Chapter 69 BIAM titled ``Indian Country Detention 
Facilities and Programs,'' contains the BIA's policies, procedures, and 
standards for detention and holding programs in Indian country. The 
standards for the programs within the BIAM are in handbook format for 
easy field reference and use. Copies of the Chapter 69 BIAM and 
handbooks may be obtained from the Director, Office of Law Enforcement 
Services.


Sec. 10.6   How is the BIA assured that the policies and standards are 
being applied uniformly and facilities are properly accredited?

    The tribes and BIA programs will use a phased approach to meeting 
all non-mandatory detention standards and will document progress on 
uniform reporting. The BIA Office of Law Enforcement Services will 
conduct periodic operational evaluations for oversight.


Sec. 10.7  Where do I find help or receive technical assistance in 
complying with the policies and standards?

    The BIA has a trained Detention Specialist on the staff of the 
Office of Law Enforcement Services, Albuquerque, New Mexico, who is 
available to conduct evaluations and provide technical assistance or 
guidance in all facets of Indian country detention programs.


Sec. 10.8  What minimum records must be kept and reports made at each 
detention, Inmate Handbook, or holding facility in Indian country?

    The Director, Office of Law Enforcement Services, BIA, will develop 
all necessary requirements for maintaining records, reporting data, and 
archiving information. These requirements will be published in 69 BIAM, 
``Indian Country Detention Facilities and Programs.''


Sec. 10.9  If a person is detained or incarcerated in an Indian country 
detention, Inmate Handbook, or holding facility, how would they know 
what their rights, privileges, safety, protection and expected behavior 
would be?

    When an individual is incarcerated in an Indian country detention, 
Inmate Handbook, or holding facility, he/she will be given, or in some 
cases notified of the availability of, an Inmate

[[Page 34375]]

Handbook. This book of guidelines describes in detail the inmate's 
rights, privileges, protection and safety, cleanliness and sanitation, 
and general health and nutritional standards. The Inmate Handbook 
describes the emergency evacuation procedures, medical, counseling, 
rehabilitation services, visitation procedures, and other appropriate 
information. The Inmate Handbook is published by the Director, Office 
of Law Enforcement Services and maintained by the detention facility 
administrator at each facility location.


Sec. 10.10  What happens if I believe my civil rights have been 
violated while incarcerated in an Indian country detention or holding 
facility?

    All allegations of civil rights violations must be reported 
immediately to the Internal Affairs Branch of the Office of Law 
Enforcement Services. This office will ensure that such allegations are 
immediately reported to the Civil Rights Division of the U.S. 
Department of Justice through established procedures. The BIA Internal 
Affairs Branch may also investigate alleged violations and make 
recommendations for additional action as necessary. Detailed 
instructions on the procedure to report violations can be found in the 
Inmate Handbook.


Sec. 10.11  How would someone detained or incarcerated, or their 
representative, get the BIA policies and standards?

    At each detention, Inmate Handbook, or holding facility located in 
a tribal jurisdiction where federal funds are used for operations or 
maintenance programs, the BIA's policies, standards, and procedures 
will be made available upon request. The Inmate Handbook will be made 
available to all persons at the time they are incarcerated or detained 
in a facility. There may be times when this may be delayed due to the 
physical or mental condition of the person at time of incarceration. In 
these cases, the Inmate Handbook will be made available when the person 
is deemed receptive and cognizant by the detention officer in charge. 
All policies, standards, procedures, and guidelines are available at 
each facility to the public or by writing to the Director, Office of 
Law Enforcement Services.

    Dated: May 28, 1996.
Ada E. Deer,
Assistant Secretary--Indian Affairs.
[FR Doc. 96-16042 Filed 7-1-96; 8:45 am]
BILLING CODE 4310-02-P