[Federal Register Volume 66, Number 142 (Tuesday, July 24, 2001)]
[Rules and Regulations]
[Pages 38514-38522]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-18388]
[[Page 38513]]
-----------------------------------------------------------------------
Part IV
Department of Justice
-----------------------------------------------------------------------
Department of State
-----------------------------------------------------------------------
28 CFR Part 1100
Protection and Assistance for Victims of Trafficking; Interim Rule
Federal Register / Vol. 66, No. 142 / Tuesday, July 24, 2001 / Rules
and Regulations
[[Page 38514]]
-----------------------------------------------------------------------
DEPARTMENT OF JUSTICE
DEPARTMENT OF STATE
28 CFR Part 1100
[INS No. 2133-01; AG Order No. 2493-2001]
RIN 1115-AG20
Protection and Assistance for Victims of Trafficking
AGENCY: Department of Justice and Department of State.
ACTION: Interim rule with request for comments.
-----------------------------------------------------------------------
SUMMARY: This rule sets forth guidance for all appropriate federal
officials, including but not limited to officials of the Department of
Justice (DOJ) and the Department of State (DOS) in implementing
provisions of section 107(c) of the Trafficking Victims Protection Act
of 2000. It establishes overall implementation procedures and assigns
responsibilities for DOJ and DOS officials to carry out certain
requirements related to the identification and protection of victims of
severe forms of trafficking in persons. This rule establishes and/or
identifies mechanisms that will allow officials to appropriately
address the particular needs of these victims. Specifically it
addresses: the identification of victims of a severe form of
trafficking in persons; the protection of victims of severe forms of
trafficking in persons while in custody; access to information and
translation services for victims of severe forms of trafficking in
persons; legal mechanisms for allowing victims of severe forms of
trafficking in persons, who are potential witnesses, continued presence
in the United States; and development of appropriate DOJ and DOS
training.
DATES: Effective Date: This interim rule is effective August 23, 2001.
Comment Date: Written comments must be submitted on or before
October 22, 2001.
ADDRESSES: Please submit your written comments to the Immigration and
Naturalization Service, Policy Directive and Instructions Branch,
Attention TVPA Implementation Team, 425 I Street, NW, Room 4034,
Washington, DC 20536 by mail or e-mail your comments through the
Immigration and Naturalization Service Website Feedback Option at
http://www.ins.usdoj.gov/graphics/feedback.htm. To ensure proper
handling, please reference INS No. 2133-01 on your correspondence.
Comments are available for public inspection at the above address by
calling (202) 514-3048 to arrange for an appointment.
FOR FURTHER INFORMATION CONTACT: Anne M. Veysey, Director, Program
Strategy and Development Branch, Immigration and Naturalization
Service, Office of Investigations, 425 I Street, NW., Room 1000,
Washington, DC 20536, telephone: (202) 514-3479.
SUPPLEMENTARY INFORMATION:
Background and Legislative Authority
The Trafficking Victims Protection Act of 2000 (TVPA), Division A
of Public Law 106-386, Victims of Trafficking and Violence Protection
Act of 2000 (VTVPA), was signed into law on October 28, 2000. When
Congress passed this law, it provided a comprehensive set of tools for
the federal government to combat trafficking in persons, in the United
States and around the world, through prevention, prosecution and
enforcement against traffickers, and protection and assistance for
victims of trafficking in persons.
This regulation implements section 107(c) of the TVPA and provides
guidance concerning: (1) Protections for victims of severe forms of
trafficking in persons while in custody (section 107(c)(1)); (2)
victims' access to information and translation services (section
107(c)(2)); (3) authority to permit continued presence in the United
States of a victim and potential witness (section 107(c)(3)); and (4)
training of government personnel (section 107(c)(4)).
This law's purposes ``are to combat trafficking in persons, a
contemporary manifestation of slavery whose victims are predominantly
women and children, to ensure just and effective punishment of
traffickers, and to protect their victims.'' Section 102(a), Purposes
and Findings, TVPA. Congress found that ``[t]rafficking in persons . .
. is the largest manifestation of slavery today. At least 700,000
persons annually, primarily women and children, are trafficked within
or across international borders. Approximately 50,000 women and
children are trafficked into the United States each year.'' Section
102(b)(1), TVPA. Congress further found that ``[t]raffickers often
transport victims from their home communities to unfamiliar
destinations, including foreign countries away from family and friends,
religious institutions, and other sources of protection and support,
leaving the victims defenseless and vulnerable.'' Id. at section
102(b)(5). Moreover, Congress recognized that victims are often
``forced through physical violence to engage in sex acts or perform
slavery-like labor'' and that ``[t]raffickers often make
representations to their victims that physical harm may occur to them
or others.'' Id. at sections 102(b)(6) and (7).
Stakeholders' meetings were held with key federal agencies and
other groups to consider how best to accomplish the objectives of the
TVPA. Input and feedback from these stakeholders were used in the
drafting of this regulation. Additionally, a DOJ working group on
implementation of the new trafficking law was established. Input from
these meetings also was utilized in the development of this rule.
Section 107(c) provides certain protections and assistance to
victims of severe forms of trafficking in persons. However, it should
be noted that the TVPA contains other forms of protection and
assistance to be administered by various federal agencies, including
the Departments of Health and Human Services, Labor, Justice, and
State, and the Legal Services Corporation. The forms of protection and
assistance identified in the TVPA include the establishment and
implementation of programs and initiatives in foreign countries to
assist in the safe integration, reintegration, or resettlement, as
appropriate, of victims of trafficking in persons; and the eligibility
for benefits and services under federal or state programs that are
funded or administered by federal agencies without regard to the
immigration status of such victims. The law also authorizes grants to
States, Indian tribes, units of local government, and nonprofit,
nongovernmental victims' service organizations to develop, expand, or
strengthen victim service programs for victims of trafficking in
persons. The law also provides for protection from removal for certain
trafficking victims through the establishment of two new nonimmigrant
classifications. The ``T'' visa allows victims of severe forms of
trafficking in persons to remain in the United States if they have
complied with any reasonable request for assistance in the
investigation or prosecution of acts of trafficking in persons or are
under 15 years of age, and would suffer extreme hardship involving
unusual and severe harm upon removal. Trafficking victims may also be
eligible for the new ``U'' visa contained in section 1513 of the
Battered Immigrant Women Protection Act of 2000, which is Title V of
Division B of the Victims of Trafficking and Violence Protection Act
2000, Public Law 106-386. This rulemaking does not
[[Page 38515]]
address these issues. Relevant federal agencies or components with
primary responsibility regarding this protection and assistance may
develop regulations or guidance in the coming months.
Discussion of the Interim Rule
Victims of Severe Forms of Trafficking in Persons
Who Are Victims of Severe Forms of Trafficking in Persons?
A victim of a severe form of trafficking in persons is anyone who
has been subjected either (1) to sex trafficking in which a commercial
sex act is induced by force, fraud, or coercion, or in which the person
induced to perform the commercial sex act is under 18 years of age, or
(2) to the recruitment, harboring, transportation, provision, or
obtaining of a person for labor or services, through the use of force,
fraud, or coercion for the purpose of subjection to involuntary
servitude, peonage, debt bondage, or slavery.
Victims of a severe form of trafficking in persons may include
United States citizens or nationals, lawful permanent residents, and
other aliens lawfully or unlawfully present in the United States.
How Will Federal Officials Identify Victims of Severe Forms of
Trafficking in Persons?
Federal officials will follow the definition of severe forms of
trafficking in persons articulated in section 103 of the TVPA. Indeed,
certain federal officials already have obligations to identify victims
of federal crime. Under 42 U.S.C. 10607, the head of each department
and agency of the United States engaged in the detection,
investigation, or prosecution of crime must designate ``responsible
officials'' to identify victims of crime. Section 107(c) will be
implemented consistent with these pre-existing obligations to identify
victims of crime.
What Is the Difference Between Alien Smuggling and Severe Forms of
Trafficking in Persons?
Federal law makes a distinction between alien smuggling--in which
the smuggler arranges for an alien to enter the country illegally for
any reason, including where the alien has voluntarily contracted to be
smuggled--and severe forms of trafficking in persons. Unlike alien
smuggling, as the following definition indicates, severe forms of
trafficking in persons must involve both a particular means such as the
use of force, fraud, or coercion, and a particular end such as
involuntary servitude or a commercial sex act (with regards to a
commercial sex act, however, the use of force, fraud, or coercion is
not necessary if the person induced to perform a commercial sex act is
under the age of 18). Pursuant to the TVPA, victims of severe forms of
trafficking are persons who are recruited, harbored, transported,
provided, or obtained for: (1) Labor or services, through the use of
force, fraud, or coercion for the purpose of subjection to involuntary
servitude, peonage, debt bondage, or slavery; or (2) the purpose of a
commercial sex act in which such act is induced by force, fraud, or
coercion, or in which the person induced to perform such act has not
attained 18 years of age. Aliens who are voluntarily smuggled into the
United States, in most cases, will not be considered victims of severe
forms of trafficking in persons. However, individuals who are smuggled
into the United States in order to be used for labor or services may
become victims of a severe form of trafficking in persons if, for
example, after arrival the smuggler uses threats of serious harm or
physical restraint to force the individual into involuntary servitude,
peonage, debt bondage, or slavery. Federal law prohibits forced labor
regardless of the victim's initial consent to work. This distinction
between alien smuggling and severe forms of trafficking in persons is
consistent with the separate treatment of the trafficking and smuggling
issues internationally.
Who Receives Protections Under the TVPA?
Once identified as a victim of a severe form of trafficking in
persons, section 107(c)(1) of the TVPA requires that all victims of
severe forms of trafficking in persons be protected while in federal
custody. Under section 107(c)(3), victims of severe forms of
trafficking in persons who are potential witnesses to trafficking in
persons and whom federal law enforcement officials seek to keep in this
country in order to prosecute traffickers also receive necessary
protections, even when the victims are not in custody. Pursuant to the
TVPA and 42 U.S.C. 10607(c)(2), federal law enforcement officials
should arrange for victims of severe forms of trafficking in persons to
receive reasonable protections from suspected traffickers and persons
acting in concert with or at the behest of the suspected traffickers.
Which Family Members Are Covered in the Protection and Continued
Presence Provisions of the TVPA?
In the TVPA, Congress recognized that traffickers may use threats
of intimidation or reprisals against the family members of victims of
severe forms of trafficking in persons as a tool to force trafficking
victims to comply with their wishes. For victims of severe forms of
trafficking in persons who are in custody or whose continued presence
the Attorney General has authorized, the TVPA requires law enforcement
personnel, immigration officials, and DOS officials to take measures to
protect them and their family members from intimidation, threats of
reprisals, and reprisals from traffickers. For the purpose of
determining immigration benefits under the T visa, the definition of
family members is narrowly drawn. For the protections afforded by this
rule, federal law enforcement personnel, immigration officials, and DOS
officials are not limited to that specific definition. Instead, in this
context, family members may include those members of a victim's family
whom traffickers have chosen to target or whom traffickers are likely
to target.
Federal law enforcement personnel, immigration officials, and DOS
officials should work with victims of severe forms of trafficking in
persons to determine whether a member of the victim's family is likely
to be threatened, intimidated, or harmed. Federal law enforcement
personnel, immigration officials, and DOS officials have discretion to
determine whom they can reasonably protect from such reprisals, given
such parameters, for instance, as the inability of the United States to
provide protection in foreign countries.
Who Provides the Protection?
Federal law enforcement personnel, immigration officials, and DOS
officials are responsible for protecting victims of severe forms of
trafficking in persons. Under 42 U.S.C. 10607, federal officials
involved in the detection, investigation, or prosecution of crime are
required to arrange for a victim to receive reasonable protection from
suspected offenders and persons acting in concert with or at the behest
of the suspected offenders. (See ``Attorney General Guidelines for
Victim and Witness Assistance 2000,'' at 21, currently available at
http://www.ojp.usdoj.gov/ovc/infores/agg2000.) This rule will help to
identify victims as early as possible in the investigation and
prosecution processes, so that they are provided the protection and
services available to them under the laws of the United States. Victims
of severe forms of trafficking, by virtue of being victims of a federal
crime, already are eligible to receive reasonable protections and
services in accordance with 42 U.S.C. 10606 and 10607.
[[Page 38516]]
Victims of severe forms of trafficking in persons, however, are
often particularly vulnerable, because they have experienced physical
and psychological trauma, are far from home without nearby friends or
family, have limited or no English proficiency, and come from cultural
traditions different from those in the United States. In accordance
with the intent of the TVPA, the particular needs of these victims
should be taken into account by federal law enforcement personnel,
immigration officials, and DOS officials. As such, where practicable
and appropriate, this protection and these services should be
specifically tailored to meet the particular needs of victims of severe
forms of trafficking in persons.
For this rule, federal officials as defined by 42 U.S.C. 10606(a)
also include federal law enforcement personnel who work cooperatively
with the federal law enforcement agencies with the primary
responsibility for enforcing trafficking laws.
Will Alien Victims of a Severe Form of Trafficking in Persons, who are
not Legally in the United States, Be Placed in U.S. Immigration Removal
Proceedings?
The Immigration and Naturalization Service (INS or Service) has
prosecutorial discretion whether to place alien victims of severe forms
of trafficking in persons into removal proceedings. INS officials, when
deciding whether to place alien victims into removal proceedings, will
take into account the facts and circumstances of each individual
situation, including specific recommendations from federal law
enforcement officials relating to individual victims for whom they are
requesting continued presence. If these alien victims are potential
witnesses to trafficking in persons, their continued presence in the
United States may be authorized. The INS reserves the right to initiate
removal proceedings, where necessary and appropriate, against aliens
whose continued presence in the United States has been authorized. In
cases where proceedings have been initiated, the INS may use various
tools to exercise its prosecutorial discretion to accomplish the goal
of allowing the alien victim to remain in the United States. Victims of
severe forms of trafficking in persons also may be eligible for other
forms of immigration relief, including the new nonimmigrant T and U
visas, that would prevent their removal.
Will the INS Keep Alien Victims of Severe Forms of Trafficking in
Persons in Custody?
The INS will not detain victims unless individual circumstances or
the law requires detention and the INS has the authority under the
Immigration and Nationality Act (Act or INA) to detain them for removal
proceedings. If INS does take victims of a severe form of trafficking
in persons into custody, to the extent practicable, these individuals
should not be detained in facilities inappropriate to their crime
victim status. Additionally, unless the law prohibits release, the INS,
an Immigration Judge or the Board of Immigration Appeals (BIA)--whoever
has proper jurisdiction--may decide whether to release the alien. The
need to continue custody in order to protect the victim and the
victim's desire to remain in custody for protection purposes should be
taken into consideration when making this decision. In general, an
alien victim of severe forms of trafficking in persons will not be
required to remain in INS custody for the sole purpose of protection.
Will Other Federal Officials Detain Victims of Severe Forms of
Trafficking in Persons?
Such victims will only be held in federal detention if authority to
detain exists under statutory authority separate from the TVPA. If
victims are detained by federal officials, to the extent practicable,
they shall not be detained in facilities inappropriate to their status
as crime victims.
Access to Information and Translation Services
What Information Will Be Provided to Victims of Severe Forms of
Trafficking In Persons?
Section 107(c)(2) of the TVPA mandates that ``[v]ictims of severe
forms of trafficking in persons shall have access to information about
their rights and translation services.'' Under Sec. 1100.33 of the
interim rule, victims of severe forms of trafficking in persons will be
provided with notice about their rights and services, including
information about legal services, federal and state benefits and
services, victim service organizations, protections available, rights
of privacy and confidentiality issues, victim compensation and
assistance programs, immigration benefits and programs that might be
relevant including those available under the TVPA, the right to
restitution, the right to notification of case status, and the
availability of medical services. We are planning to prepare updated
versions of standardized victim-assistance brochures targeted for
victims of severe forms of trafficking in persons. The Departments of
Justice, State, Health and Human Services, and Labor are working
collaboratively to develop these brochures, which will provide basic
information or points of contact about victims' rights and potential
services and benefits that may be available to victims, depending on
their eligibility. Where information more specific to a geographic area
is required by this regulation--for instance, in providing information
about low-cost or pro bono legal services--local agency representatives
may need to supplement the general information provided in the
brochures. These brochures will be distributed and copied for use by
federal agencies that may encounter victims of severe forms of
trafficking in persons and will contain general information about
relevant immigration benefits and programs. Specific advice, relevant
to individual circumstances, about a victim's eligibility for such
immigration benefits is more appropriately given by an independent
legal advisor than by federal law enforcement personnel, immigration
officials, or DOS officials. We welcome public comment on the
notification arrangements set out in Sec. 1100.33. Any such comments
should include suggestions about how information can be provided to
trafficking victims most effectively and without undue burden to law
enforcement officers operating in a range of contexts and with varying
areas of expertise.
Who Will Provide Victims Of Severe Forms of Trafficking in Persons
Information About Their Rights and Available Services Under the Law?
Federal law enforcement personnel, immigration officials, and DOS
officials, as appropriate, are required by the TVPA to make available
to victims of severe forms of trafficking in persons information about
their rights under United States law, as well as reasonable access to
translation services. In addition, victims of federal crime, including
victims of severe forms of trafficking in persons, have certain rights,
as outlined in 42 U.S.C. 10606. These rights include the right to be
treated with fairness and respect, the right to be notified of court
proceedings, and the right to be present at all public court
proceedings. Moreover, under 42 U.S.C. 10607, responsible federal
officials must provide certain services to federal crime victims,
including victims of severe forms of trafficking in persons.
[[Page 38517]]
Section 1100.31 of this rule specifies that victims of severe forms of
trafficking in persons also will receive information about services.
Continued Presence
Who May Be Allowed To Remain in the United States Under the Continued
Presence Provision of Section 107(c) of The TVPA?
Victims of severe forms of trafficking in persons who are aliens
and potential witnesses to such trafficking may be allowed to remain
temporarily in the United States to effectuate prosecution of those
responsible for the trafficking.
Can Any Law Enforcement Officer or Agency Permit an Alien Victim of a
Severe Form of Trafficking in Persons to Remain in the United States
Without Proper Immigration Status?
No. Only the Attorney General or someone delegated the authority
under the immigration laws can authorize an alien to enter or to remain
in the United States.
What if a Law Enforcement Agency Has a Genuine Need To Have a Victim/
Witness Remain in the United States for the Purpose of Investigation
and Prosecution of a Case?
Any federal law enforcement agency may request an alien's continued
presence in the United States in order to investigate and prosecute
traffickers if the alien is a victim of a severe form of trafficking in
persons and a potential witness to such trafficking. The agency may
contact the INS, Headquarters Office of Field Operations, and request
that an alien be allowed to remain temporarily in the country. When
appropriate, the INS will grant continued presence in the United States
through one of several mechanisms available under the law. These
mechanisms may include parole, voluntary departure, stay of final
order, deferred action under section 107(c)(3), or any other authorized
form of relief, including applicable nonimmigrant visas. Aliens granted
deferred action based upon section 107(c)(3) are considered to be
present in the United States pursuant to a period of stay authorized by
the Attorney General for purposes of INA sections 212(a)(9)(B)(I) and
(c) and therefore do not accrue time toward unlawful presence.
The requirements of this rule do not apply to state or local law
enforcement. However, if state or local law enforcement officials want
assistance in having victims of severe forms of trafficking in persons
remain in this country to effectuate prosecution of traffickers, those
law enforcement officials should contact the Criminal Section of the
Civil Rights Division of the U.S. Department of Justice or other
appropriate federal law enforcement officials who may investigate or
prosecute trafficking in persons. The federal law enforcement officials
may then contact the INS, Headquarters Office of Field Operations, and
request that an alien be allowed to remain temporarily in the country.
In most cases, victims whose continued presence has been authorized
may be eligible for temporary employment authorization, as employment
is often one of the particular needs of victims of severe forms of
trafficking in persons.
If the Victim is an Alien and Does Not Wish to Remain in the United
States, Will the Alien Be Prevented From Departing?
Generally, the INS will not require victims of severe forms of
trafficking in persons, regardless of their immigration status, to
remain in the United States. However, under unusual circumstances, a
victim may be required to stay. An alien can be prevented from
departing the United States if that departure is deemed prejudicial to
the interests of the United States. One example of this could be if the
alien is needed in the United States as a witness in, or a party to,
any criminal case under investigation or action pending in a court in
the United States. An alien also can be prevented from departing the
United States for national security reasons, if the alien is a fugitive
from justice, or if it is believed that the alien is being forced to
depart involuntarily under conditions other than removal, exclusion, or
extradition. The procedures governing these actions are established in
8 CFR part 215.
Who Is Responsible for Implementing This Rule?
All federal law enforcement personnel, immigration officials, and
Department of State officials who are involved in investigating or
prosecuting traffickers in persons, or in identifying, encountering, or
detaining victims of severe forms of trafficking in persons, are
responsible for implementing this rule. Those officials responsible for
implementation include federal officers who work cooperatively with the
federal law enforcement agencies with the primary jurisdiction for
enforcing trafficking laws, such as screening for and referring
suspected victims of severe forms of trafficking in persons.
Does a Victim as a Private Individual Have any Legal Recourse Against
the United States Government if Benefits Under Section 107(c) Are
Somehow Not Provided?
No. Nothing in section 107(c) shall be construed as creating any
private cause of action against the United States, or its officers or
employees. See section 107(d) of the TVPA. Furthermore, this regulation
does not abrogate existing laws with respect to immigration admission
and status or the United States Government's obligation to provide
consular notice and access under the Vienna Convention on Consular
Relations, April 24, 1963, 21 U.S.T. 77, T.I.A.S. No. 6820, 596
U.N.T.S. 261, and applicable bilateral agreements, which are described
at the DOS website in ``Consular Notification and Access'' at http://www.state.gov.
Who Will Receive Training Under This Rule and What Type of Training
Will Be Provided?
Section 1100.37 requires that appropriate DOJ and DOS personnel
receive training in identifying victims of severe forms of trafficking
in persons and providing for protections for such victims. The training
will also include the rights of victims of crimes, as well as the
benefits and services available to them and the victims of trafficking
in persons in particular.
Regulatory Procedures
Good Cause Exception
Pursuant to 5 U.S.C. 553(b)(B), the Attorney General has determined
that there is ``good cause'' to issue this rule as an interim rule with
a provision for post-promulgation public comment; any delay in issuing
these regulations would be contrary to the public interest. In the
TVPA, Congress clearly recognized the need to promulgate these
regulations expeditiously in order to provide for protection and
assistance to victims of severe forms of trafficking in persons.
Indeed, Congress provided the Department of Justice and the Department
of State only 180 days within which to issue these required
regulations. Without the protections and procedures provided in this
interim rule, victims of severe forms of trafficking in persons
currently in the United States may be held inappropriately in federal
custody and not accorded the assistance due such victims. This
regulation also outlines a mechanism that enables federal law
enforcement officials to provide a legal means for individuals who have
been victimized through a severe form of trafficking in persons to
remain in the
[[Page 38518]]
United States. Without the prompt promulgation of this rule, victims of
severe forms of trafficking in persons might inadvertently be sent back
to their home countries, thus hindering the ability of federal law
enforcement to investigate and prosecute cases. Moreover, the safety of
victims of severe forms of trafficking in persons might be placed at
risk, if the protections and assistance set forth in the TVPA were not
available as soon as possible. The issuance of these regulations as an
interim rule effective thirty days after publication will allow victims
of severe forms of trafficking in persons to be accorded these needed
protections as soon as possible. Finally, these regulations also
implement training requirements for certain federal law enforcement
personnel in order to facilitate the identification and protection of
victims of severe forms of trafficking in persons and to provide
methods to inform such victims of possible benefits and services. Since
prior notice and comment with respect to this interim rule are
impractical and contrary to the public interest, there is ``good
cause'' under 5 U.S.C. 553 to make this rule effective August 23, 2001.
Regulatory Flexibility Act
The Attorney General, in accordance with the Regulatory Flexibility
Act (5 U.S.C. 605(b)), has reviewed this regulation, and by approving
it, certifies that this rule will not have a significant economic
impact on a substantial number of small entities as defined under
section 3 of the Small Business Act. The rule deals with issues related
to victims of severe forms of the trafficking in persons into the
United States and the protection of those victims. Therefore, this rule
does not affect small entities as that term is defined in 5 U.S.C.
601(6).
Unfunded Mandates Reform Act of 1995
This rule will not result in the expenditure by State, local, or
tribal governments in the aggregate, or by the private sector, of $100
million or more in any 1-year period, and it will not significantly or
uniquely affect small governments. Therefore, no actions were deemed
necessary under the provisions of the Unfunded Mandates Reform Act of
1995.
Small Business Regulatory Enforcement Fairness Act of 1996
This rule is not a major rule as defined by section 251 of the
Small Business Regulatory Enforcement Fairness Act of 1996. 5 U.S.C.
804. This rule will not result in an annual effect on the economy of
$100 million or more; a major increase in costs or prices; or
significant adverse effects on competition, employment, investment,
productivity, innovation, or on the ability of United States-based
companies to compete with foreign-based companies in domestic and
export markets.
Executive Order 12866, Regulatory Planning and Review
This rule is considered by the Department of Justice to be a
``significant regulatory action'' under Executive Order 12866, section
3(f), Regulatory Planning and Review. Accordingly, this regulation has
been submitted to the Office of Management and Budget for review.
Paperwork Reduction Act
Under the Paperwork Reduction Act of 1995, Public Law 104-13, all
Departments are required to submit to the Office of Management and
Budget (OMB), for review and approval, any reporting or recordkeeping
requirements inherent in a final rule. This rule does not impose any
new reporting or recordkeeping requirements under the Paperwork
Reduction Act.
Clarity of the Regulations
Executive Order 12866 requires each agency to write regulations
that are simple and easy to understand. We invite your comments on how
to make these regulations easier to understand, including answers to
questions such as the following: (1) Are the requirements in this
regulation clearly stated? (2) Do the regulations contain technical
language or jargon that interferes with their clarity? (3) Does the
format of these regulations (grouping and order of sections, use of
headings, paragraphing, etc.) aid or reduce their clarity? (4) Would
the regulations be easier to understand if they were divided into more
(but shorter) sections? (5) Is the description of these regulations in
the SUPPLEMENTARY INFORMATION section helpful in understanding the
regulations? How could this description be more helpful in making these
regulations easier to understand?
Please send any comments you have on the clarity of the regulations
to the address specified in the ADDRESSES section.
Executive Order 13132, Federalism
This rule does not have a substantial direct effect on the States,
on the relationship between the National Government and the States, or
on the distribution of power and responsibilities among the various
levels of government. Therefore, in accordance with section 6 of
Executive Order 13132, the Attorney General, by approving this rule,
has determined that it does not have sufficient federalism implications
to warrant preparation of a federalism summary impact statement.
Executive Order 12988, Civil Justice Reform
This interim rule meets the applicable standards set forth in
sections 3(a) and 3(b)(2) of Executive Order 12988.
List of Subjects in 28 CFR Part 1100
Administrative practice and procedure, Aliens, Civil rights, Crime,
Immigration, Investigations, Intergovernmental relations, Labor, Law
enforcement, Law enforcement officers, Victims.
Accordingly, for the reasons set forth and pursuant to section
107(c) of the TVPA, title 28 of the Code of Federal Regulations is
amended by establishing a new chapter XI consisting of part 1100 to
read as follows:
CHAPTER XI--DEPARTMENT OF JUSTICE AND DEPARTMENT OF STATE
PART 1100--TRAFFICKING IN PERSONS
Subpart A--[Reserved]
Subpart B--Victims of Severe Forms of Trafficking in Persons
Sec.
1100.25 Definitions.
1100.27 Purpose and scope.
1100.29 The roles and responsibilities of federal law enforcement,
immigration, and Department of State officials under the Trafficking
Victims Protection Act (TVPA).
1100.31 Procedures for protecting and providing services to
victims of severe forms of trafficking in persons in federal
custody.
1100.33 Access to information and translation services for victims
of severe forms of trafficking in persons.
1100.35 Authority to permit continued presence in the United
States for victims of severe forms of trafficking in persons.
1100.37 Requirements to train appropriate personnel in identifying
and protecting victims of severe forms of trafficking in persons.
Authority: 5 U.S.C. 552, 552a; 8 U.S.C. 1101, 1103, 1104, 1252;
22 U.S.C. 7101, 7105; 42 U.S.C. 10606 and 10607; and section 107(c)
of Public Law 106-386 (114 Stat. 1464, 1477).
[[Page 38519]]
Subpart A--[Reserved]
Subpart B--Victims of Severe Forms of Trafficking in Persons
Sec. 1100.25 Definitions.
In this subpart, the following definitions apply:
Admission and Admitted mean, with respect to an alien, the lawful
entry of the alien into the United States after inspection and
authorization by an immigration officer (8 U.S.C. 1101).
Alien means any person not a citizen or national of the United
States (8 U.S.C. 1101).
Attorney General Guidelines means the Attorney General Guidelines
for Victim and Witness Assistance 2000, which contain a policy guidance
on how to treat crime victims and witnesses; these guidelines are
available through the Internet on the Department of Justice's website.
Coercion means threats of serious harm to or physical restraint
against any person; or any scheme, plan, or pattern intended to cause a
person to believe that failure to perform an act would result in
serious harm to or physical restraint against any person; or the abuse
or threatened abuse of law or the legal process (22 U.S.C. 7102).
Commercial sex act means any sex act on account of which anything
of value is given to or received by any person (22 U.S.C. 7102).
Debt bondage means the status or condition of a debtor arising from
a pledge by the debtor of his or her personal services or of those of a
person under his or her control as a security for debt, if the value of
those services as reasonably assessed is not applied toward the
liquidation of the debt or the length and nature of those services are
not respectively limited and defined (22 U.S.C. 7102).
Family members of victims of severe forms of trafficking in persons
means spouses, children, parents, or siblings whom traffickers have
targeted or are likely to target and for whom protections from harm may
reasonably be provided. At the discretion of the responsible official,
this classification may be extended to include other family members.
This definition is only applicable to the protections from harm
referred to in this subpart.
Federal custody means that statutory detention and custodial
authority exercised by personnel of federal agencies, bureaus, boards,
divisions, programs, and offices.
Federal victims' rights legislation means the following statutes,
as amended: the Victim and Witness Protection Act of 1982 (VWPA),
Public Law 97-291, 96 Stat. 1248; the Victims of Crime Act of 1984,
Public Law 98-473, 98 Stat. 2170; the Victims Rights and Restitution
Act of 1990, Public Law 101-647, 104 Stat. 4820; the Violent Crime
Control and Law Enforcement Act of 1994, Public Law 103-322, 108 Stat.
1796; the Antiterrorism and Effective Death Penalty Act of 1996, Public
Law 104-132, 110 Stat. 1214; the Victim Rights Clarification Act of
1997, Public Law 105-6, 111 Stat. 12; and the Victims of Trafficking
and Violence Protection Act of 2000 (VTVPA), Public Law 106-386, 114
Stat. 1464.
INA means the Immigration and Nationality Act, 8 U.S.C. 1101 et
seq.
Involuntary servitude includes a condition of servitude induced by
means of any scheme, plan, or pattern intended to cause a person to
believe that, if the person did not enter into or continue in such
condition, that person or another person would suffer serious harm or
physical restraint; or the abuse or threatened abuse of the legal
process (22 U.S.C. 7102).
Responsible official refers to the agency official designated to
provide the services described in 42 U.S.C. 10607(a).
Section 107(c) means section 107(c) of TVPA, Division A of Public
Law 106-386.
Services to victims refer to those services to be provided pursuant
to 42 U.S.C. 10607(c), unless otherwise specified in the TVPA or this
subpart.
Severe forms of trafficking in persons means sex trafficking in
which a commercial sex act is induced by force, fraud, or coercion, or
in which the person induced to perform such act has not attained 18
years of age; or the recruitment, harboring, transportation, provision,
or obtaining of a person for labor or services, through the use of
force, fraud, or coercion for the purpose of subjection to involuntary
servitude, peonage, debt bondage, or slavery (22 U.S.C. 7102).
Sex trafficking means the recruitment, harboring, transportation,
provision, or obtaining of a person for the purpose of a commercial sex
act (22 U.S.C. 7102).
TVPA means the Trafficking Victims Protection Act of 2000, Public
Law 106-386, Division A, October 28, 2000, 114 Stat. 1464, as amended,
22 U.S.C. 7105, et seq.
United States means the fifty States of the United States, the
District of Columbia, the Commonwealth of Puerto Rico, the Virgin
Islands, American Samoa, Guam, the Commonwealth of the Northern Mariana
Islands, and the territories and possessions of the United States (22
U.S.C. 7102).
Victims' rights refer to crime victims' rights under 42 U.S.C.
10606(b), as well as in other federal victims' rights legislation.
Sec. 1100.27 Purpose and scope.
(a) Under section 107(c) of the TVPA, both the Department of
Justice (DOJ) and the Department of State (DOS) have been directed to
promulgate regulations to implement the following:
(1) Procedures for appropriate federal employees to ensure, to the
extent practicable, that victims of severe forms of trafficking in
persons are housed in a manner appropriate to their status as crime
victims, afforded proper medical care and other assistance, and
protected while in federal custody, in accordance with their status as
victims of severe forms of trafficking in persons;
(2) Procedures to provide victims of severe forms of trafficking in
persons with access to information about their rights and with
translation services;
(3) Procedures for federal law enforcement officials to request
that certain victims of severe forms of trafficking in persons, who are
aliens and are also potential witnesses, be permitted to remain in the
United States to effectuate the prosecution of those responsible, and
procedures to protect their safety, including taking measures to
protect victims of severe forms of trafficking in persons and their
family members from intimidation, threats of reprisals, and reprisals
from traffickers and their associates (these procedures should be
appropriate to their status as victims of severe forms of trafficking
in persons); and
(4) Training of appropriate DOJ and DOS personnel in identifying
victims of severe forms of trafficking in persons, in understanding the
particular needs common to victims of severe forms of trafficking in
persons, and in providing for the protection of such victims.
(b) The regulations in this subpart apply to all federal law
enforcement personnel, immigration officials and DOS officials, insofar
as their duties involve investigating or prosecuting traffickers in
persons, or may involve identifying, encountering or detaining victims
of severe forms of trafficking in persons.
(c) The rights and protections made available to victims of severe
forms of trafficking in persons under section 107(c) supplement those
rights and protections provided to victims and witnesses in federal
victims' rights legislation as defined in this subpart. The intent of
this subpart is to ensure that the protections available under the
provisions of federal victims' rights legislation as well as the TVPA
are fully provided to victims of severe forms of trafficking in
persons, in keeping with
[[Page 38520]]
their status as victims of severe forms of trafficking in persons. This
subpart will ensure that these victims are identified as early as
possible in the investigation and prosecution process, so that services
and protections available to them under the laws of the United States
are provided.
(d) The regulations under this subpart set forth the general
procedures to ensure these rights are protected in cases involving
victims of severe forms of trafficking in persons. All agencies,
bureaus, boards, divisions, programs, and offices in the DOJ and the
DOS with specific responsibilities under this subpart shall adopt such
regulations and/or operating procedures as may be necessary to ensure
compliance with section 107(c) and the requirements of this subpart.
Sec. 1100.29 The roles and responsibilities of federal law
enforcement, immigration, and Department of State officials under the
Trafficking Victims Protection Act (TVPA).
(a) Department of Justice officials. The various agencies, bureaus,
boards, divisions, programs, and offices of the DOJ have most of the
responsibilities assigned by section 107(c). The goals of section
107(c) are to identify victims of severe forms of trafficking in
persons as early as possible in the investigation and prosecution
process, to ensure efforts are made to see that such victims are
accorded the rights described in 42 U.S.C. 10606, and to provide the
protections and services required under 42 U.S.C. 10607 and under the
TVPA.
(b) Department of State officials. Department of State missions
throughout the world are often the initial contact for aliens in
foreign countries who wish to come to the United States. Appropriate
DOS personnel should be trained in identifying victims of severe forms
of trafficking in persons. Furthermore, considering the international
nature of trafficking in persons, appropriate DOS personnel, upon
encountering victims of severe forms of trafficking in persons in
foreign countries, should consider referrals to local law enforcement
or service providers in the host country, but only if the local host
country conditions support such actions.
(c) Federal law enforcement officials. Federal law enforcement
officials who, during the performance of their duties, encounter a
person whom they believe may be a victim of a severe form of
trafficking in persons as defined by this subpart, are responsible for
bringing such an individual to the attention of those federal law
enforcement officials primarily responsible for enforcing trafficking
laws, specifically INS or FBI. In addition, DOS's Diplomatic Security
Service has investigative authority in visa and passport fraud cases
that may involve trafficking in persons. Federal law enforcement
officials also include federal law enforcement personnel working
cooperatively with law enforcement officials who have primary
investigative jurisdiction in such trafficking cases. Each federal
agency having law enforcement responsibilities should ensure that its
officers are trained in identifying victims of severe forms of
trafficking in persons, and are familiar with the rights, services, and
protections such victims are to be accorded under the TVPA and 42
U.S.C. 10606 and 10607.
Sec. 1100.31 Procedures for protecting and providing services to
victims of severe forms of trafficking in persons in federal custody.
(a) While in federal custody, all victims of severe forms of
trafficking in persons must be provided, to the extent practicable, the
protections and services outlined in this section in accordance with
their status as victims of severe forms of trafficking in persons.
Under 42 U.S.C. 10607(a), each agency must designate officials who are
responsible for identifying victims of crime and providing services to
them. The designations appear in the Attorney General Guidelines. This
responsibility also extends to those who are responsible for victims of
severe forms of trafficking in persons while they are in federal
custody.
(b) To the extent practicable and allowed by law, alternatives to
formal detention of victims of severe forms of trafficking in persons
should be considered in every case. However, if detention is required,
victims of severe forms of trafficking in persons in federal custody,
to the extent practicable, shall not be detained in facilities
inappropriate to their status as crime victims. The responsible
official shall make all efforts, where appropriate and practicable, to
house those victims separately from those areas in which criminals are
detained. The responsible official must also provide protections and
security to those victims as required by federal standards, policies,
and procedures. Information on the federal prohibitions against
intimidation and harassment, and the remedies available for such
actions should routinely be made available to victims.
(c) Victims of severe forms of trafficking in persons in federal
custody shall receive necessary medical care and other assistance. This
care should include free optional testing for HIV and other sexually
transmitted diseases in cases involving sexual assault or trafficking
into the sex industry, as well as a counseling session by a medically-
trained professional on the accuracy of such tests and the risk of
transmission of sexually transmitted diseases to the victim. Other
forms of mental health counseling or social services also may be
appropriate to address the trauma associated with trafficking in
persons.
(d) As mandated by 42 U.S.C. 10607, federal officials are
responsible for arranging for victims to receive reasonable protection
from a suspected offender and persons acting in concert with or at the
behest of the suspected offender. Federal law enforcement agencies also
should protect victims of a severe form of trafficking in persons from
harm and intimidation pursuant to section 6 of the Victim and Witness
Protection Act of 1982 and 18 U.S.C. 1512 note. It may also be
appropriate to discuss with the victims the available remedies
described in 18 U.S.C. 1512 and 1513. Federal officials also should
employ civil procedures for protecting victims and witnesses, including
application for temporary restraining orders and protective orders, as
set out in 18 U.S.C. 1514, if practicable. If the victim's safety is at
risk or if there is danger of the victim's recapture by the trafficker,
the responsible official should take the following steps under the
TVPA:
(1) Use available practical and legal measures to protect the
trafficked victim and family members from intimidation, harm, and
threats of harm; and
(2) Ensure that the names and identifying information pertaining to
trafficked victims and family members are not disclosed to the public.
Sec. 1100.33 Access to information and translation services for
victims of severe forms of trafficking in persons.
(a) All federal investigative, prosecutorial, and correctional
agencies engaged in the detection, investigation, or prosecution of
crime shall use their best efforts to see that victims of severe forms
of trafficking in persons are accorded all rights under federal
victims' rights legislation. In cases involving severe forms of
trafficking in persons, federal officials should provide victims within
the United States, as defined by this subpart, information about their
rights and applicable services, including:
(1) Pro bono and low-cost legal services, including immigration
services;
(2) Federal and state benefits and services (victims who are minors
and adult victims who are certified by the United States Department of
Health and
[[Page 38521]]
Human Services (HHS) are eligible for assistance that is administered
or funded by federal agencies to the same extent as refugees; others
may be eligible for certain, more limited, benefits);
(3) Victim service organizations, including domestic violence and
rape crisis centers;
(4) Protections available, especially against threats and
intimidation, and the remedies available as appropriate for the
particular individual's circumstances;
(5) Rights of individual privacy and confidentiality issues;
(6) Victim compensation and assistance programs;
(7) Immigration benefits or programs that may be relevant to
victims of severe forms of trafficking in persons, including those
available under the VTVPA;
(8) The right to restitution;
(9) The right to notification of case status; and
(10) The availability of medical services.
(b) The federal agencies as defined in paragraph (a) of this
section must ensure reasonable access to translation services and/or
oral interpreter services in the event the victim is not able to
communicate in English.
Sec. 1100.35 Authority to permit continued presence in the United
States for victims of severe forms of trafficking in persons.
(a) Federal law enforcement officials who encounter alien victims
of severe forms of trafficking in persons who are potential witnesses
to that trafficking may request that the Immigration and Naturalization
Service (INS) grant the continued presence of such aliens in the United
States. All law enforcement requests for continued presence must be
submitted to the INS, Headquarters Office of Field Operations, in
accordance with INS procedures. Each federal law enforcement agency
will designate a headquarters office to administer submissions and
coordinate with the INS on all requests for continued presence. The
designated headquarters office will be responsible for meeting all
reporting requirements contained in INS procedures for the processing
and administering of the requests for continued presence in the United
States of eligible aliens.
(b) Upon receiving a request, the INS will determine the victim's
immigration status. When applicable and appropriate, the INS may then
use a variety of statutory and administrative mechanisms to ensure the
alien's continued presence in the United States. The specific mechanism
used will depend on the alien's current status under the immigration
laws and other relevant facts. These mechanisms may include parole,
voluntary departure, stay of final order, section 107(c)(3)-based
deferred action, or any other authorized form of continued presence,
including applicable nonimmigrant visas.
(1) The alien's continued presence in the United States under this
subpart does not convey any immigration status or benefit apart from
that already encompassed by the particular form of authorized continued
presence granted. In most circumstances, victims granted continued
presence will be eligible for temporary employment authorization.
(2) The continued presence granted through any of the mechanisms
described in this paragraph (b) will contain the terms normally
associated with the particular type of authorized continued presence
granted, including, but not limited to, duration of benefit, terms and
procedures for receiving an extension, travel limitations, and
employment authorization unless expressly waived in an individual
approval. Aliens granted deferred action based upon section 107(c)(3)
are considered to be present in the United States pursuant to a period
of stay authorized by the Attorney General for purposes of INA sections
212(a)(9)(B)(I) and (C).
(c) (1) In cases where it is determined that the granting to an
alien of continued presence in the United States poses a threat to
national security or to the safety and welfare of the public, the INS
may require the requesting agency to meet special conditions or
requirements prior to approval. The INS will promptly convey any such
condition or requirement to the requesting agency in writing. Upon
agreement by the requesting agency to comply with the conditions and
accept the costs associated with the implementation of those
conditions, the INS will grant the continued presence of the alien in
the United States.
(2) Although the INS and the requesting law enforcement agency will
make every effort to reach a satisfactory agreement for the granting of
continued presence, the INS may deny a request for continued presence
in the following instances:
(i) Failure, on the part of the requesting agency, to provide
necessary documentation or to adhere to established INS procedures;
(ii) Refusal to agree or comply with conditions or requirements
instituted in accordance with paragraph (c)(1) of this section;
(iii) Failure, on the part of the requesting agency, to comply with
past supervision or reporting requirements established as a condition
of continued presence; or
(iv) When the INS determines that granting continued presence for
the particular alien would create a significant risk to national
security or public safety and that the risk cannot be eliminated or
acceptably minimized by the establishment of agreeable conditions.
(3) In the case of a denial, the INS shall promptly notify the
designated office within the requesting agency. The INS and the
requesting agency will take all available steps to reach an acceptable
resolution. In the event such resolution is not possible, the INS shall
promptly forward the matter to the Deputy Attorney General, or his
designee, for resolution.
(d) In addition to meeting any conditions placed upon the granting
of continued presence in accordance with paragraph (c) of this section,
the responsible official at the law enforcement agency requesting the
victim's continued presence in the United States as described in
paragraph (a) of this section shall arrange for reasonable protection
to any alien allowed to remain in the United States by the INS. This
protection shall be in accordance with 42 U.S.C. 10606 and shall
include taking measures to protect trafficked persons and their family
members from intimidation, threats of reprisals, and reprisals from
traffickers and their associates in accordance with section 107(c)(3).
Such protection shall take into account their status as victims of
severe forms of trafficking in persons.
Sec. 1100.37 Requirements to train appropriate personnel in
identifying and protecting victims of severe forms of trafficking in
persons.
(a) The TVPA requires that appropriate DOJ and DOS personnel be
trained in identifying victims of severe forms of trafficking in
persons and providing for the protection of such victims. These federal
personnel will be trained to recognize victims and provide services and
protections, as appropriate, in accordance with the TVPA, 42 U.S.C.
10606 and 10607, and other applicable victim-assistance laws.
Specifically, the training will include, as applicable:
(1) Procedures and techniques for identifying victims of severe
forms of trafficking in persons;
(2) Rights of crime victims, including confidentiality
requirements;
(3) Description of the services available to victims of severe
forms of trafficking in persons at the investigation, prosecution, and,
where
[[Page 38522]]
applicable, correction stages of the law enforcement process;
(4) Referral services to be provided to victims of severe forms of
trafficking in persons;
(5) Benefits and services available to alien victims of severe
forms of trafficking in persons regardless of their immigration status;
(6) Particular needs of victims of severe forms of trafficking in
persons;
(7) Procedures and techniques for dealing with specialized needs of
victims who may face cultural, language, and/or other obstacles that
impede their ability to request and obtain available services for
themselves; and
(8) Protection obligations of responsible officials under federal
law and policies, as these apply to victims of severe forms of
trafficking in persons.
(b) Each component of the DOJ and the DOS with program
responsibility for victim witness services must provide initial
training in the particular needs of victims of severe forms of
trafficking in persons, and appropriate federal agencies' responses to
such victims; initial training of appropriate agency personnel should
be conducted as soon as possible. Thereafter, training must be held on
a recurring basis to ensure that victims of severe forms of trafficking
in persons receive the rights, protections, and services accorded them
under the TVPA and federal victims' rights laws, and the federal
policies, procedures, and guidelines implementing the TVPA and other
federal victims' rights laws.
Dated: July 18, 2001.
John Ashcroft,
Attorney General.
Dated: July 16, 2001.
Richard L. Armitage,
Deputy Secretary of State.
[FR Doc. 01-18388 Filed 7-23-01; 8:45 am]
BILLING CODE 4410-10-P