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< Back to current issue of Immigration Daily < Back to current issue of Immigrant's Weekly

[Federal Register: July 24, 2001 (Volume 66, Number 142)]
[Rules and Regulations]               
[Page 38513-38522]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr24jy01-20]                         

[[Page 38513]]
-----------------------------------------------------------------------
Part IV

Department of Justice
-----------------------------------------------------------------------
Department of State
-----------------------------------------------------------------------
28 CFR Part 1100

Protection and Assistance for Victims of Trafficking; Interim Rule

[[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


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