[Federal Register Volume 77, Number 119 (Wednesday, June 20, 2012)]
[Rules and Regulations]
[Pages 37106-37232]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-12427]



[[Page 37105]]

Vol. 77

Wednesday,

No. 119

June 20, 2012

Part II





Department of Justice





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28 CFR Part 115





National Standards To Prevent, Detect, and Respond to Prison Rape; 
Final Rule

  Federal Register / Vol. 77, No. 119 / Wednesday, June 20, 2012 / 
Rules and Regulations  

[[Page 37106]]


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DEPARTMENT OF JUSTICE

28 CFR Part 115

[Docket No. OAG-131; AG Order No. 3331-2012]
RIN 1105-AB34


National Standards To Prevent, Detect, and Respond to Prison Rape

AGENCY: Department of Justice.

ACTION: Final rule; request for comment on specific issue.

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SUMMARY: The Department of Justice (Department) is issuing a final rule 
adopting national standards to prevent, detect, and respond to prison 
rape, as required by the Prison Rape Elimination Act of 2003 (PREA). In 
addition, the Department is requesting comment on one issue relating to 
staffing in juvenile facilities. Further discussion of the final rule 
is found in the Executive Summary.

DATES: This rule is effective August 20, 2012. Comments on the juvenile 
staffing ratios set forth in Sec.  115.313 must be submitted 
electronically or postmarked no later than 11:59 p.m. on August 20, 
2012.

ADDRESSES: To ensure proper handling of solicited additional comments, 
please reference ``Docket No. OAG-131'' on all written and electronic 
correspondence. Written comments being sent through regular or express 
mail should be sent to Robert Hinchman, Senior Counsel, Office of Legal 
Policy, Department of Justice, 950 Pennsylvania Avenue NW., Room 4252, 
Washington, DC 20530. Comments may also be sent electronically through 
http://www.regulations.gov using the electronic comment form provided 
on that site. An electronic copy of this document is also available at 
the http://www.regulations.gov Web site. The Department will accept 
attachments to electronic comments in Microsoft Word, WordPerfect, 
Adobe PDF, or Excel file formats only. The Department will not accept 
any file formats other than those specifically listed here.
    Please note that the Department is requesting that electronic 
comments be submitted before midnight Eastern Time on the day the 
comment period closes because http://www.regulations.gov terminates the 
public's ability to submit comments at midnight Eastern Time on the day 
the comment period closes. Commenters in time zones other than Eastern 
Time may want to consider this so that their electronic comments are 
received. All comments sent through regular or express mail will be 
considered timely if postmarked on or before the day the comment period 
closes.
    Posting of Solicited Additional Public Comments: Please note that 
all comments received are considered part of the public record and made 
available for public inspection online at http://www.regulations.gov 
and in the Department's public docket. Such information includes 
personal identifying information (such as your name, address, etc.) 
voluntarily submitted by the commenter.
    You are not required to submit personal identifying information in 
order to comment on this rule. Nevertheless, if you still want to 
submit personal identifying information (such as your name, address, 
etc.) as part of your comment, but do not want it to be posted online 
or made available in the public docket, you must include the phrase 
``PERSONAL IDENTIFYING INFORMATION'' in the first paragraph of your 
comment. You must also place all the personal identifying information 
you do not want posted online or made available in the public docket in 
the first paragraph of your comment and identify what information you 
want redacted.
    If you want to submit confidential business information as part of 
your comment, but do not want it to be posted online or made available 
in the public docket, you must include the phrase ``CONFIDENTIAL 
BUSINESS INFORMATION'' in the first paragraph of your comment. You must 
also prominently identify confidential business information to be 
redacted within the comment. If a comment has so much confidential 
business information that it cannot be effectively redacted, all or 
part of that comment may not be posted online or made available in the 
public docket.
    Personal identifying information and confidential business 
information identified and located as set forth above will be redacted 
and the comment, in redacted form, will be posted online and placed in 
the Department's public docket file. Please note that the Freedom of 
Information Act applies to all comments received. If you wish to 
inspect the agency's public docket file in person by appointment, 
please see the FOR FURTHER INFORMATION paragraph.

FOR FURTHER INFORMATION CONTACT: Robert Hinchman, Senior Counsel, 
Office of Legal Policy, Department of Justice, 950 Pennsylvania Avenue 
NW., Room 4252, Washington, DC 20530; telephone: (202) 514-8059. This 
is not a toll-free number.

SUPPLEMENTARY INFORMATION:

I. Executive Summary

A. Overview

    The goal of this rulemaking is to prevent, detect, and respond to 
sexual abuse in confinement facilities, pursuant to the Prison Rape 
Elimination Act of 2003. For too long, incidents of sexual abuse 
against incarcerated persons have not been taken as seriously as sexual 
abuse outside prison walls. In popular culture, prison rape is often 
the subject of jokes; in public discourse, it has been at times 
dismissed by some as an inevitable--or even deserved--consequence of 
criminality.
    But sexual abuse is never a laughing matter, nor is it punishment 
for a crime. Rather, it is a crime, and it is no more tolerable when 
its victims have committed crimes of their own. Prison rape can have 
severe consequences for victims, for the security of correctional 
facilities, and for the safety and well-being of the communities to 
which nearly all incarcerated persons will eventually return.
    In passing PREA, Congress noted that the nation was ``largely 
unaware of the epidemic character of prison rape and the day-to-day 
horror experienced by victimized inmates.'' 42 U.S.C. 15601(12). The 
legislation established a National Prison Rape Elimination Commission 
(NPREC) to ``carry out a comprehensive legal and factual study of the 
penalogical [sic], physical, mental, medical, social, and economic 
impacts of prison rape in the United States'' and to recommend to the 
Attorney General ``national standards for enhancing the detection, 
prevention, reduction, and punishment of prison rape.'' 42 U.S.C. 
15606(d)(1), (e)(1). The statute defines ``prison'' as ``any 
confinement facility,'' including jails, police lockups, and juvenile 
facilities, and defines ``rape'' to include a broad range of unwanted 
sexual activity. 42 U.S.C. 15609(7) & (9). After over four years of 
work, the NPREC released its recommended national standards in June 
2009 and subsequently disbanded, pursuant to the statute.
    The statute directs the Attorney General to publish a final rule 
adopting ``national standards for the detection, prevention, reduction, 
and punishment of prison rape * * * based upon the independent judgment 
of the Attorney General, after giving due consideration to the 
recommended national standards provided by the Commission * * * and 
being informed by such data, opinions, and proposals that the Attorney 
General determines to be appropriate to consider.'' 42 U.S.C. 
15607(a)(1)-(2). However, the standards may not ``impose substantial 
additional costs

[[Page 37107]]

compared to the costs presently expended by Federal, State, and local 
prison authorities.'' 42 U.S.C. 15607(a)(3).
    The standards are to be immediately binding on the Federal Bureau 
of Prisons. 42 U.S.C. 15607(b). A State whose Governor does not certify 
full compliance with the standards is subject to the loss of five 
percent of any Department of Justice grant funds that it would 
otherwise receive for prison purposes, unless the Governor submits an 
assurance that such five percent will be used only for the purpose of 
enabling the State to achieve and certify full compliance with the 
standards in future years. 42 U.S.C. 15607(c). The final rule specifies 
that the Governor's certification applies to all facilities in the 
State under the operational control of the State's executive branch, 
including facilities operated by private entities on behalf of the 
State's executive branch.
    In addition, any correctional accreditation organization that seeks 
Federal grants must adopt accreditation standards regarding sexual 
abuse that are consistent with the national standards in this final 
rule. 42 U.S.C. 15608.
    In drafting the final rule, the Department balanced a number of 
competing considerations. In the current fiscal climate, governments at 
all levels face budgetary constraints. The Department has aimed to 
craft standards that will yield the maximum desired effect while 
minimizing the financial impact on jurisdictions. In addition, 
recognizing the unique characteristics of individual facilities, 
agencies, and inmate populations, the Department has endeavored to 
afford discretion and flexibility to agencies to the extent feasible.
    The success of the PREA standards in combating sexual abuse in 
confinement facilities will depend on effective agency and facility 
leadership, and the development of an agency culture that prioritizes 
efforts to combat sexual abuse. Effective leadership and culture 
cannot, of course, be directly mandated by rule. Yet implementation of 
the standards will help foster a change in culture by 
institutionalizing policies and practices that bring these concerns to 
the fore.
    Notably, the standards are generally not outcome-based, but rather 
focus on policies and procedures. While performance-based standards 
generally give regulated parties the flexibility to achieve regulatory 
objectives in the most cost-effective way, it is difficult to employ 
such standards effectively to combat sexual abuse in confinement 
facilities, where significant barriers exist to the reporting and 
investigating of such incidents. An increase in incidents reported to 
facility administrators might reflect increased abuse, or it might just 
reflect inmates' increased willingness to report abuse, due to the 
facility's success at assuring inmates that reporting will yield 
positive outcomes and not result in retaliation. Likewise, an increase 
in substantiated incidents could mean either that a facility is failing 
to protect inmates, or else simply that it has improved its 
effectiveness at investigating allegations. For these reasons, the 
standards generally aim to inculcate policies and procedures that will 
reduce and ameliorate bad outcomes, recognizing that one possible 
consequence of improved performance is that evidence of more incidents 
will come to light.
    The standards are not intended to define the contours of 
constitutionally required conditions of confinement. Accordingly, 
compliance with the standards does not establish a safe harbor with 
regard to otherwise constitutionally deficient conditions involving 
inmate sexual abuse. Furthermore, while the standards aim to include a 
variety of best practices, they do not incorporate every promising 
avenue of combating sexual abuse, due to the need to adopt national 
standards applicable to a wide range of facilities, while taking costs 
into consideration. The standards consist of policies and practices 
that are attainable by all affected agencies, recognizing that agencies 
can, and some currently do, exceed the standards in a variety of ways. 
The Department applauds such efforts, encourages agencies to adopt or 
continue best practices that exceed the standards, and intends to 
support further the identification and adoption of innovative methods 
to protect inmates from harm. As described in the Background section, 
the Department is continuing its efforts to fund training, technical 
assistance, and other support for agencies, including through a 
National Resource Center for the Elimination of Prison Rape.
    Because the purposes and operations of various types of confinement 
facilities differ significantly, there are four distinct sets of 
standards, each corresponding to a different type of facility: Adult 
prisons and jails (Sec. Sec.  115.11-115.93); lockups (Sec. Sec.  
115.111-115.193); community confinement facilities (Sec. Sec.  115.211-
115.293); and juvenile facilities (Sec. Sec.  115.311-115.393). The 
standards also include unified sections on definitions (Sec. Sec.  
115.5-115.6) and on audits and State compliance (Sec. Sec.  115.401-
115.405, 115.501).\1\
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    \1\ The standards themselves refer to persons confined in 
prisons and jails as ``inmates,'' persons confined in lockups as 
``detainees,'' and persons confined in juvenile facilities or 
community confinement facilities as ``residents.'' For simplicity, 
however, the discussion and explanation of the standards refer 
collectively to all such persons as ``inmates'' except where 
specifically discussing lockups, juvenile facilities, or community 
confinement facilities.
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    The standards contained in this final rule apply to facilities 
operated by, or on behalf of, State and local governments and the 
Department of Justice. However, in contrast to the proposed rule, the 
final rule concludes that PREA encompasses all Federal confinement 
facilities. Given their statutory authorities to regulate conditions of 
detention, other Federal departments with confinement facilities 
(including but not limited to the Department of Homeland Security) will 
work with the Attorney General to issue rules or procedures that will 
satisfy the requirements of PREA. 42 U.S.C. 15607(a)(2).

B. Summary of Major Provisions

    This summary of the major provisions of the standards does not 
include every single aspect of the standards, nor does it capture all 
distinctions drawn in the standards on the basis of facility type or 
size. Agencies that are covered by each set of standards should read 
them in full rather than rely exclusively on this summary.
    General Prevention Planning. To ensure that preventing sexual abuse 
receives appropriate attention, the standards require that each agency 
and facility designate a PREA point person with sufficient time and 
authority to coordinate compliance efforts. Facilities may not hire or 
promote persons who have committed sexual abuse in an institutional 
setting or who have been adjudicated to have done so in the community, 
and must perform background checks on prospective and current 
employees, unless a system is in place to capture such information for 
current employees. A public agency that contracts for the confinement 
of its inmates with outside entities must include in any new contracts 
or contract renewals the entity's obligation to adopt and comply with 
the PREA standards.
    Supervision and Monitoring. The standards require each facility to 
develop and document a staffing plan, taking into account a set of 
specified factors, that provides for adequate levels of staffing, and, 
where applicable, video monitoring, to protect inmates against sexual 
abuse. The staffing standard further requires all agencies to annually

[[Page 37108]]

assess, determine, and document whether adjustments are needed to the 
staffing levels or deployment of monitoring technologies.
    Due to the great variation across facilities in terms of size, 
physical layout, and composition of the inmate population, it would be 
impractical to require a specified level of staffing. Likewise, 
mandating a subjective standard such as ``adequate staffing'' would be 
extremely difficult to measure. Instead, the final standard requires 
that prisons and jails use their best efforts to comply with the 
staffing plan on a regular basis and document and justify any 
deviations. Given that staffing increases often depend on budget 
approval from an external legislative or other governmental entity, 
this revision is designed to support proper staffing without 
discouraging agencies from attempting to comply with the PREA standards 
due to financial concerns.
    The ``best efforts'' language encourages agencies to compose the 
most appropriate staffing plan for each facility without incentivizing 
agencies to set the bar artificially low in order to avoid non-
compliance. But if the facility's plan is plainly deficient on its 
face, the facility is not in compliance with this standard even if it 
adheres to its plan.
    In addition, the standards contained in the final rule require that 
supervisors conduct and document unannounced rounds to identify and 
deter staff sexual abuse and sexual harassment.
    Staffing of Juvenile Facilities. The standards set minimum staffing 
levels for certain juvenile facilities. As discussed in greater detail 
in the appropriate section below, the Department seeks additional 
comment on this aspect of the standards, and may make changes if 
warranted in light of public comments received. Specifically, the 
standards require secure juvenile facilities--i.e., those that do not 
allow residents access to the community--to maintain minimum security 
staff ratios of 1:8 during resident waking hours, and 1:16 during 
resident sleeping hours, except during limited and discrete exigent 
circumstances; deviations from the staffing plan in such circumstances 
must be documented. Because increasing staffing levels takes time and 
money, this requirement does not go into effect until October 2017 
except for facilities that are already obligated by law, regulation, or 
judicial consent decree to maintain at least 1:8 and 1:16 ratios.
    Juveniles in Adult Facilities. The final rule, unlike the proposed 
rule and the NPREC's recommended standards, contains a standard that 
governs the placement of juveniles in adult facilities. The standard 
applies only to persons under the age of 18 who are under adult court 
supervision and incarcerated or detained in a prison, jail, or lockup. 
Such persons are, for the purposes of this standard, referred to as 
``youthful inmates'' (or, in lockups, ``youthful detainees''). By 
contrast, youth in the juvenile justice system are already protected by 
the Juvenile Justice and Delinquency Prevention Act (JJDPA), 42 U.S.C. 
5601 et seq., which provides formula grants to States conditioned on 
(subject to minimal exceptions) separating juveniles from adults in 
secure facilities and removing juveniles from adult jails and lockups.
    This standard imposes three requirements upon the placement of 
youthful inmates in prisons or jails. First, no inmate under 18 may be 
placed in a housing unit where contact will occur with adult inmates in 
a common space, shower area, or sleeping quarters. Second, outside of 
housing units, agencies must either maintain ``sight and sound 
separation''--i.e., preventing adult inmates from seeing or 
communicating with youth--or provide direct staff supervision when the 
two are together. Third, agencies must make their best efforts to avoid 
placing youthful inmates in isolation to comply with this provision 
and, absent exigent circumstances, must afford them daily large-muscle 
exercise and any legally required special education services, and must 
provide them access to other programs and work opportunities to the 
extent possible. With regards to lockups, the standard requires that 
juveniles and youthful detainees be held separately from adult inmates.
    While some commenters asserted that, in addition to increasing risk 
of victimization, confining youth in adult facilities impedes access to 
age-appropriate programming and services and may actually increase 
recidivism, the Department is cognizant that its mandate in 
promulgating these standards extends only to preventing, detecting, and 
responding to sexual abuse in confinement facilities. In addition, 
imposing a general prohibition on the placement of youth in adult 
facilities, or disallowing such placements unless a court finds that 
the youth has been violent or disruptive in a juvenile facility, would 
necessarily require a fundamental restructuring of existing State laws 
that permit or require such placement. Given the current state of 
knowledge regarding youth in adult facilities, and the availability of 
more narrowly tailored approaches to protecting youth, the Department 
has decided not to impose a complete ban at this time through the PREA 
standards. The Department has supported, however, congressional efforts 
to amend the JJDPA to extend its jail removal requirements to apply to 
youth under adult criminal court jurisdiction awaiting trial, unless a 
court specifically finds that it is in the interest of justice to 
incarcerate the youth in an adult facility.
    Cross-Gender Searches and Viewing. In a change from the proposed 
standards, the final standards include a phased-in ban on cross-gender 
pat-down searches of female inmates in adult prisons, jails, and 
community confinement facilities absent exigent circumstances--which is 
currently the policy in most State prison systems. However, female 
inmates' access to programming and out-of-cell opportunities must not 
be restricted to comply with this provision.
    For juvenile facilities, however, the final standards, like the 
proposed standards, prohibit cross-gender pat-down searches of both 
female and male residents. And for all facilities, the standards 
prohibit cross-gender strip searches and visual body cavity searches 
except in exigent circumstances or when performed by medical 
practitioners, in which case the searches must be documented.
    The standards also require facilities to implement policies and 
procedures that enable inmates to shower, perform bodily functions, and 
change clothing without nonmedical staff of the opposite gender viewing 
their breasts, buttocks, or genitalia, except in exigent circumstances 
or when such viewing is incidental to routine cell checks. In addition, 
facilities must require staff of the opposite gender to announce their 
presence when entering an inmate housing unit.
    Training and Education. Proper training is essential to combating 
sexual abuse in correctional facilities. The standards require staff 
training on key topics related to preventing, detecting, and responding 
to sexual abuse. Investigators and medical practitioners will receive 
training tailored to their specific roles.
    Inmates, too, must understand a facility's policies and procedures 
in order to know that they will be kept safe and that the facility will 
not tolerate their committing sexual abuse. The standards require that 
facilities explain their zero-tolerance policy regarding sexual abuse 
and sexual harassment educate inmates on how to report any such 
incidents.
    Screening. The standards require that inmates be screened for risk 
of being sexually abused or sexually abusive and

[[Page 37109]]

that screening information be used to inform housing, bed, work, 
education, and program assignments. The goal is to keep inmates at high 
risk of victimization away from those at high risk of committing abuse. 
However, facilities may not simply place victims in segregated housing 
against their will unless a determination has been made that there is 
no available alternative means of separation, and even then only under 
specified conditions and with periodic reassessment.
    Reporting. The standards require that agencies provide at least two 
internal reporting avenues, and at least one way to report abuse to a 
public or private entity or office that is not part of the agency and 
that can allow inmates to remain anonymous upon request. An agency must 
also provide a way for third parties to report such abuse on behalf of 
an inmate.
    In addition, agencies are required to provide inmates with access 
to outside victim advocates for emotional support services related to 
sexual abuse, by giving inmates contact information for local, State, 
or national victim advocacy or rape crisis organizations and by 
enabling reasonable communication between inmates and these 
organizations, with as much confidentiality as possible.
    Responsive Planning. The standards require facilities to prepare a 
written plan to coordinate actions taken among staff first responders, 
medical and mental health practitioners, investigators, and facility 
leadership in response to an incident of sexual abuse. Upon learning of 
an allegation of abuse, staff must separate the alleged victim and 
abuser and take steps to preserve evidence.
    The standards also require agencies to develop policies to prevent 
and detect any retaliation against persons who report sexual abuse or 
who cooperate with investigations. Allegations must be investigated 
properly, thoroughly, and objectively, and documented correspondingly, 
and must be deemed substantiated if supported by a preponderance of the 
evidence. No agency may require an inmate to submit to a polygraph 
examination as a condition for proceeding with an investigation. Nor 
may an agency enter into or renew any agreement that limits its ability 
to remove alleged staff abusers from contact with inmates pending an 
investigation or disciplinary determination.
    Investigations. Investigations are required to follow a uniform 
evidence protocol that maximizes the potential for obtaining usable 
physical evidence for administrative proceedings and criminal 
prosecutions. The agency must offer victims no-cost access to forensic 
medical examinations where evidentiarily or medically appropriate. In 
addition, the agency must attempt to make available a victim advocate 
from a rape crisis center. If that option is not available, the agency 
must provide such services through either (1) qualified staff from 
other community-based organizations or (2) a qualified agency staff 
member.
    Discipline. The standards require that staff be subject to 
discipline for violating agency policies regarding sexual abuse, with 
termination the presumptive discipline for actually engaging in sexual 
abuse. Terminations or resignations linked to violating such policies 
are to be reported to law enforcement (unless the conduct was clearly 
not criminal) and to relevant licensing bodies.
    Inmates also will be subject to disciplinary action for committing 
sexual abuse. Where an inmate is found to have engaged in sexual 
contact with a staff member, the inmate may be disciplined only where 
the staff member did not consent. Where two inmates have engaged in 
sexual contact, the agency may (as the final rule clarifies) impose 
discipline for violating any agency policy against such contact, but 
may deem such activity to constitute sexual abuse only if it determines 
that the activity was not consensual. In other words, upon encountering 
two inmates engaging in sexual activity, the agency cannot simply 
assume that both have committed sexual abuse.
    Medical and Mental Health Care. The standards require that 
facilities provide timely, unimpeded access to emergency medical 
treatment and crisis intervention services, whose nature and scope are 
determined by practitioners according to their professional judgment. 
Inmate victims of sexual abuse while incarcerated must be offered 
timely information about, and timely access to, emergency contraception 
and sexually transmitted infections prophylaxis, where medically 
appropriate. Where relevant, inmate victims must also receive 
comprehensive information about, and timely access to, all lawful 
pregnancy-related medical services. In addition, facilities are 
required to offer a follow-up meeting if the initial screening at 
intake indicates that the inmate has experienced or perpetrated sexual 
abuse.
    Grievances. If an agency has a grievance process for inmates who 
allege sexual abuse, the agency may not impose a time limit on when an 
inmate may submit a grievance regarding such allegations. To be sure, a 
grievance system cannot be the only method--and should not be the 
primary method--for inmates to report abuse. As noted above, agencies 
must provide multiple internal ways to report abuse, as well as access 
to an external reporting channel.
    This standard exists only because the Prison Litigation Reform Act, 
42 U.S.C. 1997e, requires that inmates exhaust any available 
administrative remedies as a prerequisite to filing suit under Federal 
law with respect to the conditions of their confinement. The final 
standard contains a variety of other provisions aimed at ensuring that 
grievance procedures that cover sexual abuse provide inmates with a 
full and fair opportunity to preserve their ability to seek judicial 
review, without imposing undue burdens on agencies or facilities. 
However, agencies that exempt sexual abuse allegations from their 
remedial schemes are exempt from this standard, because their inmates 
may proceed directly to court.
    Audits. The final rule resolves an issue left undecided in the 
proposed rule by including standards that require that agencies ensure 
that each of their facilities is audited once every three years. Audits 
must be conducted by: (1) A member of a correctional monitoring body 
that is not part of, or under the authority of, the agency (but may be 
part of, or authorized by, the relevant State or local government); (2) 
a member of an auditing entity such as an inspector general's or 
ombudsperson's office that is external to the agency; or (3) other 
outside individuals with relevant experience. Thus, the final standards 
differ from the proposed standards in that audits may not be conducted 
by an internal inspector general or ombudsperson who reports directly 
to the agency head or to the agency's governing board.
    The Department will develop and issue an audit instrument that will 
provide guidance on the conduct of and contents of the audit. All 
auditors must be certified by the Department, pursuant to procedures, 
including training requirements, to be issued subsequently.
    Lesbian, Gay, Bisexual, Transgender, Intersex (LGBTI) and Gender 
Nonconforming Inmates. The standards account in various ways for the 
particular vulnerabilities of inmates who are LGBTI or whose appearance 
or manner does not conform to traditional gender expectations. The 
standards require training in effective and professional communication 
with LGBTI and gender nonconforming inmates and require the screening 
process to consider whether the inmate is, or is perceived to be, LGBTI 
or

[[Page 37110]]

gender nonconforming. The standards also require that post-incident 
reviews consider whether the incident was motivated by LGBTI 
identification, status, or perceived status.
    In addition, in a change from the proposed rule, the final 
standards do not allow placement of LGBTI inmates in dedicated 
facilities, units, or wings in adult prisons, jails, or community 
confinement facilities solely on the basis of such identification or 
status, unless such placement is in a dedicated facility, unit, or wing 
established in connection with a consent decree, legal settlement, or 
legal judgment for the purpose of protecting such inmates. As in the 
proposed standards, such placement is not allowed at all in juvenile 
facilities.
    The standards impose a complete ban on searching or physically 
examining a transgender or intersex inmate for the sole purpose of 
determining the inmate's genital status. Agencies must train security 
staff in conducting professional and respectful cross-gender pat-down 
searches and searches of transgender and intersex inmates.
    In deciding whether to assign a transgender or intersex inmate to a 
facility for male or female inmates, and in making other housing and 
programming assignments, an agency may not simply assign the inmate to 
a facility based on genital status. Rather, the agency must consider on 
a case-by-case basis whether a placement would ensure the inmate's 
health and safety, and whether the placement would present management 
or security problems, giving serious consideration to the inmate's own 
views regarding his or her own safety. In addition, transgender and 
intersex inmates must be given the opportunity to shower separately 
from other inmates.
    Inmates with Disabilities and Limited English Proficient (LEP) 
Inmates. The standards require agencies to develop methods to ensure 
effective communication with inmates who are deaf or hard of hearing, 
those who are blind or have low vision, and those who have 
intellectual, psychiatric, or speech disabilities. Agencies also must 
take reasonable steps to ensure meaningful access to all aspects of the 
agency's efforts to prevent, detect, and respond to sexual abuse and 
sexual harassment to inmates who are LEP. Agencies may not rely on 
inmate interpreters or readers except in limited circumstances where an 
extended delay in obtaining an effective interpreter could compromise 
the inmate's safety, the performance of first-response duties, or an 
investigation.

C. Costs and Benefits

    The anticipated costs of full nationwide compliance with the final 
rule, as well as the benefits of reducing the prevalence of prison 
rape, are discussed at length in the Regulatory Impact Assessment 
(RIA), which is available at http://www.ojp.usdoj.gov/programs/pdfs/prea_ria.pdf and is summarized below in section IV, entitled 
``Executive Orders 13563 and 12866--Regulatory Planning and Review.'' 
As shown in Table 1, the Department estimates that the costs of these 
standards to all covered facilities, assuming full nationwide 
compliance, would be approximately $6.9 billion over the period 2012-
2026, or $468.5 million per year when annualized at a 7 percent 
discount rate. The average annualized cost per facility of compliance 
with the standards is approximately $55,000 for prisons, $50,000 for 
jails, $24,000 for community confinement facilities, and $54,000 for 
juvenile facilities. For lockups, the average annualized cost per 
agency is estimated at $16,000.

   Table 1--Estimated Cost of Full State and Local Compliance With the PREA Standards, in the Aggregate, by Year and by Facility Type, in Millions of
                                                                         Dollars
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                                                                                                                                             Total all
                          Year                                Prisons          Jails          Lockups           CCF          Juveniles      facilities
--------------------------------------------------------------------------------------------------------------------------------------------------------
2012....................................................           $87.2          $254.6          $180.1           $27.8          $196.0          $745.8
2013....................................................            55.2           161.0           122.0            16.8            93.3           448.5
2014....................................................            58.3           157.9           106.6            14.2            92.1           429.2
2015....................................................            59.2           154.6            93.7            12.1            94.9           414.5
2016....................................................            61.3           153.5            87.3            11.1           109.3           422.6
2017....................................................            61.5           152.4            83.6            10.6           151.9           460.1
2018....................................................            62.9           151.3            80.1            10.1           147.3           451.8
2019....................................................            63.1           150.7            77.5             9.8           144.7           445.8
2020....................................................            64.3           150.1            75.0             9.4           142.2           441.0
2021....................................................            65.7           149.9            73.2             9.2           140.4           438.3
2022....................................................            65.9           150.1            72.0             9.0           139.2           436.2
2023....................................................            67.1           150.1            70.8             8.9           138.0           434.9
2024....................................................            67.1           149.9            69.6             8.7           136.7           432.0
2025....................................................            67.9           149.5            68.4             8.5           135.5           429.8
2026....................................................            67.6           148.8            67.2             8.4           134.3           426.3
15-yr Total.............................................           974.2         2,384.6         1,327.3           174.8         1,995.8         6,856.7
Present Value...........................................           591.2         1,488.4           869.8           116.6         1,201.4         4,267.4
Annual..................................................            64.9           163.4            95.5            12.8           131.9           468.5
--------------------------------------------------------------------------------------------------------------------------------------------------------

    However, these figures are potentially misleading. PREA does not 
require State and local facilities to comply with the Department's 
standards, nor does it enact a mechanism for the Department to direct 
or enforce such compliance; instead, the statute provides certain 
incentives for such confinement facilities to implement the standards. 
Fiscal realities faced by confinement facilities throughout the country 
make it virtually certain that the total actual outlays by those 
facilities will, in the aggregate, be less than the full nationwide 
compliance costs calculated in the RIA. Actual outlays incurred will 
depend on the specific choices that State and local correctional 
agencies make with regard to adoption of the standards, and 
correspondingly on the annual expenditures that those agencies are 
willing and able to make in choosing to implement the standards in 
their facilities. The Department has not endeavored in the RIA to 
project those actual outlays.
    With respect to benefits, the RIA conducts what is known as a 
``break-even analysis,'' by first estimating the monetary value of 
preventing various

[[Page 37111]]

types of prison sexual abuse (from incidents involving violence to 
inappropriate touching) and then, using those values, calculating the 
reduction in the annual number of victims that would need to occur for 
the benefits of the rule to equal the cost of full nationwide 
compliance.
    This analysis begins by estimating the current levels of sexual 
abuse in covered facilities. The RIA concludes that in 2008 more than 
209,400 persons were victims of sexual abuse in prisons, jails, and 
juvenile facilities, of which at least 78,500 prison and jail inmates 
and 4,300 youth in juvenile facilities were victims of the most serious 
forms of sexual abuse, including forcible rape and other nonconsensual 
sexual acts involving injury, force, or high incidence.
    Next, the RIA estimates how much monetary benefit (to the victim 
and to society) accrues from reducing the annual number of victims of 
prison rape. This is, of course, an imperfect endeavor, given the 
inherent difficulty in assigning a dollar figure to the cost of such an 
event. Executive Order 13563 states that agencies ``may consider (and 
discuss qualitatively) values that are difficult or impossible to 
quantify, including equity, human dignity, fairness, and distributive 
impacts.'' Each of these values is relevant here, including human 
dignity, which is offended by acts of sexual violence. While 
recognizing the limits of monetary measures and the difficulty of 
translation into dollar equivalents, the RIA extrapolates from the 
existing economic and criminological literature regarding rape in the 
community. On the basis of such extrapolations, it finds that the 
monetizable benefit to an adult of avoiding the highest category of 
prison sexual misconduct (nonconsensual sexual acts involving injury or 
force, or no injury or force but high incidence) is worth $310,000 to 
$480,000 per victim; for juveniles, who typically experience 
significantly greater injury from sexual abuse than do adults, the 
corresponding category is assessed as worth $675,000 per victim. Lesser 
forms of sexual abuse have correspondingly lower avoidance benefit 
values. The RIA thus determines that the maximum monetizable cost to 
society of prison rape and sexual abuse (and correspondingly, the total 
maximum benefit of eliminating it) is about $46.6 billion annually for 
prisons and jails, and an additional $5.2 billion annually for juvenile 
facilities.
    The RIA concludes that the break-even point would be reached if the 
standards reduced the annual number of victims of prison rape by 1,671 
from the baseline levels, which is less than 1 percent of the total 
number of victims in prisons, jails, and juvenile facilities. The 
Department believes it reasonable to expect that the standards, if 
fully adopted and complied with, would achieve at least this level of 
reduction in the prevalence of sexual abuse, and thus the benefits of 
the rule justify the costs of full nationwide compliance.
    As noted, this analysis inevitably excludes benefits that are not 
monetizable, but still must be included in a cost-benefit analysis. 
These include the values of equity, human dignity, and fairness. Such 
non-quantifiable benefits will be received by victims who receive 
proper treatment after an assault; such treatment will in turn enhance 
their ability to re-integrate into the community and maintain stable 
employment upon their release from prison. Furthermore, making prisons 
safer will increase the general well-being and morale of staff and 
inmates alike. Finally, non-quantifiable benefits will accrue to 
society at large, by ensuring that inmates re-entering the community 
are less traumatized and better equipped to support their community. 
Thus, the true break-even level would likely be lower and perhaps 
significantly lower than 1,671, if it were possible to account for 
these non-quantifiable benefits.

II. Background

    The Prison Rape Elimination Act of 2003, 42 U.S.C. 15601 et seq., 
requires the Attorney General to promulgate regulations that adopt 
national standards for the detection, prevention, reduction, and 
punishment of prison rape. PREA established the National Prison Rape 
Elimination Commission to carry out a comprehensive legal and factual 
study of the penological, physical, mental, medical, social, and 
economic impacts of prison rape in the United States, and to recommend 
national standards to the Attorney General and to the Secretary of 
Health and Human Services. The NPREC released its recommended national 
standards in a report dated June 23, 2009, and subsequently disbanded, 
pursuant to the statute. The NPREC's report and recommended national 
standards are available at http://www.ncjrs.gov/pdffiles1/226680.pdf.
    The NPREC set forth four sets of recommended national standards for 
eliminating prison rape and other forms of sexual abuse. Each set 
applied to one of the following four confinement settings: (1) Adult 
prisons and jails; (2) juvenile facilities; (3) community corrections 
facilities; and (4) lockups (i.e., temporary holding facilities). The 
NPREC recommended that its standards apply to Federal, State, and local 
correctional and detention facilities, including immigration detention 
facilities operated by the Department of Homeland Security and the 
Department of Health and Human Services. In addition to the standards 
themselves, the NPREC prepared assessment checklists, designed as tools 
to provide agencies and facilities with examples of how to meet the 
standards' requirements; glossaries of key terms; and discussion 
sections providing explanations of the rationale for each standard and, 
in some cases, guidance for achieving compliance. These are available 
at http://www.ncjrs.gov/pdffiles1/226682.pdf (adult prisons and jails), 
http://www.ncjrs.gov/pdffiles1/226684.pdf (juvenile facilities), http://www.ncjrs.gov/pdffiles1/226683.pdf (community corrections), and http://www.ncjrs.gov/pdffiles1/226685.pdf (lockups).
    Pursuant to PREA, the final rule adopting national standards 
``shall be based upon the independent judgment of the Attorney General, 
after giving due consideration to the recommended national standards 
provided by the Commission * * * and being informed by such data, 
opinions, and proposals that the Attorney General determines to be 
appropriate to consider.'' 42 U.S.C. 15607(a)(2). PREA expressly 
mandates that the Department not establish a national standard ``that 
would impose substantial additional costs compared to the costs 
presently expended by Federal, State, and local prison authorities.'' 
42 U.S.C. 15607(a)(3). The Department ``may, however, provide a list of 
improvements for consideration by correctional facilities.'' 42 U.S.C. 
15607(a)(3).
    The Attorney General established a PREA Working Group, chaired by 
the Office of the Deputy Attorney General, to review each of the 
NPREC's proposed standards and to assist him in preparing rulemaking 
materials. The Working Group included representatives from a wide range 
of Department components, including the Access to Justice Initiative, 
the Bureau of Prisons (including the National Institute of 
Corrections), the Civil Rights Division, the Executive Office for 
United States Attorneys, the Office of Legal Policy, the Office of 
Legislative Affairs, the Office of Justice Programs (including the 
Bureau of Justice Assistance, the Bureau of Justice Statistics, the 
National Institute of Justice, the Office of Juvenile Justice and 
Delinquency Prevention, and the Office for Victims of Crime), the 
Office on Violence Against Women, and the United States Marshals 
Service.

[[Page 37112]]

    The Working Group conducted an in-depth review of the standards 
proposed by the NPREC. As part of that process, the Working Group 
conducted a number of listening sessions in 2010, at which a wide 
variety of individuals and groups provided preliminary input prior to 
the start of the regulatory process. Participants included 
representatives of State and local prisons and jails, juvenile 
facilities, community corrections programs, lockups, State and local 
sexual abuse associations and service providers, national advocacy 
groups, survivors of prison rape, and members of the NPREC.
    Because, as noted above, PREA prohibits the Department from 
establishing a national standard that would impose substantial 
additional costs compared to the costs presently expended by Federal, 
State, and local prison authorities, the Working Group carefully 
examined the potential cost implications of the standards proposed by 
the NPREC. As part of that process, the Department commissioned an 
independent contractor to perform a cost analysis of the NPREC's 
proposed standards.
    On March 10, 2010 (75 FR 11077), while awaiting completion of the 
cost analysis, the Department published an Advance Notice of Proposed 
Rulemaking (ANPRM) soliciting public input on the NPREC's proposed 
national standards. Approximately 650 comments were received on the 
ANPRM, including comments from current or formerly incarcerated 
individuals, county sheriffs, State correctional agencies, private 
citizens, professional organizations, social service providers, and 
advocacy organizations concerned with issues involving inmate safety 
and rights, sexual violence, discrimination, and juvenile justice.
    In general, commenters supported the broad goals of PREA and the 
overall intent of the NPREC's recommendations. However, comments were 
sharply divided as to the merits of a number of standards. Some 
commenters, particularly those whose responsibilities involve the care 
and custody of inmates or juvenile residents, expressed concern that 
the NPREC's recommended national standards implementing PREA would 
impose unduly burdensome costs on already tight State and local 
government budgets. Other commenters, particularly advocacy groups 
concerned with protecting the health and safety of inmates and juvenile 
residents, expressed concern that the NPREC's standards did not go far 
enough, and, therefore, would not fully achieve PREA's goals.
    After reviewing the comments on the NPREC's proposed standards, and 
after receiving and reviewing the cost analysis of those standards, the 
Department published a Notice of Proposed Rulemaking (NPRM) on February 
3, 2011 (76 FR 6248). The scope and content of the Department's 
standards differed substantially from the NPREC's proposals in a 
variety of areas. The Department revised each of the NPREC's 
recommended standards, weighing the logistical and financial 
feasibility of each standard against its anticipated benefits. At the 
same time, the Department published an Initial Regulatory Impact 
Analysis (IRIA), which presented a comprehensive assessment of the 
benefits and costs of the Department's proposed standards in both 
quantitative and qualitative terms. The IRIA was summarized in the NPRM 
and was published in full on the Department's Web site at http://www.ojp.usdoj.gov/programs/pdfs/prea_nprm_iria.pdf.
    The NPRM solicited comments on the Department's proposed standards, 
and posed 64 specific questions on the proposed standards and the IRIA. 
In response, the Department received over 1,300 comments, representing 
the same broad range of stakeholders as comments on the ANPRM. 
Commenters provided general assessments of the Department's efforts as 
well as specific and detailed recommendations regarding each standard. 
The Department also received a range of comments responding to the 64 
questions posed in the NPRM and on the assumptions, calculations, and 
conclusions contained in the IRIA. As in the comments on the ANPRM, the 
changes recommended by commenters reflected a diverse array of views. 
Many commenters asserted that the proposed standards provided 
insufficient protection against sexual abuse, while others expressed 
the view that the proposed standards would be too onerous for 
correctional agencies.
    Following the public comment period, the Department carefully 
reviewed each comment and deliberated internally on the revisions that 
the commenters proposed and on the critiques of the IRIA's benefit-cost 
analysis. In addition, the Department once again commissioned an 
independent contractor to assist the Department in assessing the costs 
of revisions to the standards.
    The final standards reflect a considered analysis of the public 
comments and a rigorous assessment of the estimated benefits and costs 
of full nationwide compliance with the standards. The Department has 
revised the IRIA correspondingly; the final Regulatory Impact Analysis 
is available at http://www.ojp.usdoj.gov/programs/pdfs/prea_ria.pdf.
    This is a final rule; however, the Department has identified one 
provision for which it is considering making changes to the final rule, 
if warranted by public comments received. The discrete provision open 
for additional comment does not affect the finality of the rule.
    To assist agencies in their compliance efforts, the Department has 
funded the National Resource Center for the Elimination of Prison Rape 
to serve as a national source for online and direct support, training, 
technical assistance, and research to assist adult and juvenile 
corrections, detention, and law enforcement professionals in combating 
sexual abuse in confinement. Focusing on areas such as prevention 
strategies, improved reporting and detection, investigation, 
prosecution, and victim-centered responses, the Resource Center will 
identify promising programs and practices that have been implemented 
around the country and demonstrate models for keeping inmates safe from 
sexual abuse. It will offer a full library, webinars, and other online 
resources on its Web site, and will provide direct assistance in the 
field through skilled and experienced training and technical assistance 
providers. The Department also funds the National Center for Youth in 
Custody, which will partner closely with the Resource Center to assist 
facilities in addressing sexual safety for youth.
    The Department is also continuing its grantmaking, through its 
Bureau of Justice Assistance, to support State and local demonstration 
projects aimed at combating sexual abuse in confinement facilities. In 
addition, the Department's National Institute of Corrections, which has 
provided substantial PREA-related training and technical assistance 
since passage of the Act, will be developing electronic and web-based 
resource materials aimed at reaching a broad audience.

III. Overview of PREA National Standards

Scope of Standards: Application to Other Federal Confinement Facilities

    The proposed rule interpreted the statute to bind only facilities 
operated by the Bureau of Prisons, and extended the standards to United 
States Marshals Service facilities under other authorities of the 
Attorney General. In light of comments on the proposed rule, the 
Department has re-examined whether

[[Page 37113]]

PREA extends to Federal facilities beyond those operated by the 
Department of Justice. The Department now concludes that PREA does, in 
fact, encompass any Federal confinement facility ``whether administered 
by [the] government or by a private organization on behalf of such 
government,'' 42 U.S.C. 15609(7).
    With respect to Bureau of Prisons facilities, the Act explicitly 
provides that the national standards apply immediately. 42 U.S.C. 
15607(b). However, the statute does not address how it will be 
implemented at other Federal confinement facilities. In general, each 
Federal agency is accountable for, and has statutory authority to 
regulate, the operations of its own facilities and, therefore, is best 
positioned to determine how to implement the Federal laws and rules 
that govern its own operations, the conduct of its own employees, and 
the safety of persons in its custody. For example, the Department of 
Homeland Security possesses great knowledge and experience regarding 
the specific characteristics of its immigration facilities, which 
differ in certain respects from Department of Justice, State, and local 
facilities with regard to the manner in which they are operated and the 
composition of their populations. Indeed, the NPREC expressly 
recognized these distinctions by including a supplemental set of 15 
standards applicable only to facilities with immigration detainees. 
Similarly, the Department of the Interior's Bureau of Indian Affairs 
(BIA) possesses expertise regarding the various confinement facilities 
in Indian country, which are owned and operated pursuant to numerous 
different arrangements by BIA and the tribes, and which also differ in 
certain respects from Department of Justice, State, and local 
facilities.
    Given their statutory authorities to regulate conditions of 
detention, other Federal departments with confinement facilities will 
work with the Attorney General to issue rules or procedures that will 
satisfy the requirements of PREA. 42 U.S.C. 15607(a)(2).

Scope of Standards: Pretrial Release, Probation, Parole, and Related 
Programs

    In the proposed rule, the Department declined to adopt the NPREC's 
recommendation that the Department adopt a set of standards for 
community corrections, which the NPREC had recommended defining as 
follows: ``Supervision of individuals, whether adults or juveniles, in 
a community setting as a condition of incarceration, pretrial release, 
probation, parole, or post-release supervision. These settings would 
include day and evening reporting centers.'' \2\ The Department 
determined that to the extent this definition included supervision of 
individuals in a non-residential setting, it exceeded the scope of 
PREA's definitions of jail and prison, which include only ``confinement 
facilit[ies].'' 42 U.S.C. 15609(3), (7). Accordingly, the proposed rule 
did not reference community corrections, but instead proposed adopting 
a set of standards for ``community confinement facilities,'' defined as
---------------------------------------------------------------------------

    \2\ NPREC, Standards for the Prevention, Detection, Response, 
and Monitoring of Sexual Abuse in Community Corrections, 5, 
available at http://www.ncjrs.gov/pdffiles1/226683.pdf.

a community treatment center, halfway house, restitution center, 
mental health facility, alcohol or drug rehabilitation center, or 
other community correctional facility (including residential re-
entry centers) in which offenders or defendants reside as part of a 
term of imprisonment or as a condition of pre-trial release or post-
release supervision, while participating in gainful employment, 
employment search efforts, community service, vocational training, 
treatment, educational programs, or similar facility-approved 
---------------------------------------------------------------------------
programs during nonresidential hours.

    Several commenters criticized the proposed rule for excluding 
individuals who are not incarcerated but are subject to pretrial 
release, probation, parole, or post-release supervision. These 
commenters included advocacy groups, certain former members of the 
NPREC, and two trade organizations, the American Probation and Parole 
Association and the International Community Corrections Association. 
Commenters observed that parole and probation officers play a 
significant role in the lives of their charges, and that such power 
includes the potential for abuse. Some suggested that the Department 
should adopt all of the NPREC's recommendations with regard to pretrial 
release, probation, parole, or post-release supervision, while others 
proposed including only certain training requirements related to 
handling disclosures of sexual abuse and avoiding inappropriate 
relationships with probationers and parolees.
    The final rule does not include these suggested changes and instead 
retains the definition quoted above. The Department recognizes, of 
course, that staff involved in pretrial release, probation, parole, or 
post-release supervision exert great authority. The same is true, 
however, of numerous other government officials, including police 
officers who operate in the community, law enforcement investigators, 
and certain categories of civil caseworkers. While any abuse by law 
enforcement officials or other government agents is reprehensible, PREA 
appropriately addresses the unique vulnerability of incarcerated 
persons, who literally cannot escape their abusers and who lack the 
ability to access community resources available to most victims of 
sexual abuse.
    One commenter observed that PREA defines ``prison rape'' as 
including ``the rape of an inmate in the actual or constructive control 
of prison officials,'' 42 U.S.C. 15609(8), and suggested that a 
probationer or parolee should be considered to be under the 
constructive control of correctional officials. This suggestion, 
however, neglects the statute's definition of ``inmate'' as ``any 
person incarcerated or detained in any facility who is accused of, 
convicted of, sentenced for, or adjudicated delinquent for, violations 
of criminal law or the terms and conditions of parole, probation, 
pretrial release, or diversionary program.'' 42 U.S.C. 15609(2). An 
inmate by definition is ``incarcerated or detained in [a] facility''; 
the inclusion of inmates who are ``under the constructive control of 
correctional officials'' presumably refers to inmates who are 
temporarily supervised by others, such as inmates on work details. 
Furthermore, the reference to parole, probation, and related programs 
in the definition of ``inmate'' indicates that only a person who 
``violate[s] * * * the terms and conditions'' of such a program, rather 
than any person who is subject to such terms and conditions, qualifies 
as an inmate. Indeed, with the exception of an unrelated grant program 
to safeguard communities,\3\ the statute makes no other reference to 
parole, probation, pretrial release, or diversionary programs.
---------------------------------------------------------------------------

    \3\ The statute authorizes the Attorney General to make grants 
to States to ``safeguard the communities to which inmates return'' 
by, among other things, ``preparing maps demonstrating the 
concentration, on a community-by-community basis, of inmates who 
have been released, to facilitate the efficient and effective * * * 
deployment of law enforcement resources (including probation and 
parole resources),'' and ``developing policies and programs that 
reduce spending on prisons by effectively reducing rates of parole 
and probation revocation without compromising public safety.'' 42 
U.S.C. 15605(b)(2)(C), (E).
---------------------------------------------------------------------------

    The same commenter noted that PREA instructed the NPREC to 
recommend to the Attorney General national standards on, in addition to 
specifically enumerated topics, ``such other matters as may reasonably 
be related to the detection, prevention, reduction, and punishment of 
prison rape.'' 42 U.S.C. 15606(e)(2)(M). The

[[Page 37114]]

Department agrees with the commenter that this language, by extension, 
provides the Attorney General with a broad scope of authority to combat 
sexual abuse in confinement facilities. However, this language does not 
necessitate the adoption of standards to govern probation, parole, 
pretrial release, or diversionary programs. To be sure, former inmates 
may report to a parole officer sexual abuse that occurred while they 
were in a confinement facility. However, former inmates--unlike current 
inmates--generally possess ample ability to report abuse through the 
same channels as any other person living in the community.
    Still, the Department encourages probation and parole departments 
to take active steps to ensure that any information they learn about 
sexual abuse in confinement facilities is transmitted to law 
enforcement authorities or correctional agencies, as appropriate. The 
Department recommends that such departments train their officers as 
needed to facilitate proper investigation of allegations.
    Finally, one commenter suggested that probation departments should 
be included because some probation departments operate residential 
facilities, including juvenile detention facilities. No change is 
warranted, because the proposed rule already included any agency that 
operates residential facilities. For example, to the extent that a 
probation department operates a juvenile detention facility, it is 
covered by the Standards for Juvenile Facilities, Sec.  115.311 et seq.

Scope of Standards: Categorization of Prisons and Jails

    The Department received a significant number of comments from jails 
regarding the ways in which their operations differ from prisons. Jail 
commenters noted that prisons, unlike jails, generally receive 
individuals after sentencing. Thus, prison inmates have already been 
stabilized medically and been searched before being transported to the 
prison. Commenters noted that the prison intake unit or facility, 
unlike its jail counterpart, will often have received information from 
the sentencing court, and may have received records documenting medical 
and mental health conditions, criminal and institutional histories, and 
in some cases, program or treatment histories.
    The American Jail Association (AJA), plus several sheriffs and jail 
administrators, recommended that the Department develop separate 
standards for jails and prisons, due to differences in facility size, 
mission, length of stay, and operational considerations.
    The Department recognizes the various differences between jails and 
prisons, but concludes that these differences do not warrant a separate 
set of standards. Rather, the Department has endeavored to provide 
sufficient flexibility such that the standards can be adopted by both 
prisons and jails. Where appropriate, various standards impose 
different requirements upon prisons and jails, while others 
differentiate on the basis of facility size.

General Definitions (Sec.  115.5)

    Community confinement facility. Several commenters expressed 
uncertainty as to whether group homes that house juveniles would be 
governed by the standards for community confinement facilities, the 
standards for juvenile facilities, or both. For clarity, the final rule 
revises the definition of community confinement facility to expressly 
exclude juvenile facilities. All juvenile facilities, including group 
homes and halfway houses, are governed by the Standards for Juvenile 
Facilities, Sec.  115.311 et seq.
    Exigent circumstances. The final rule adds a definition of this 
term, which is used in several standards. The term is defined to mean 
``any set of temporary and unforeseen circumstances that require 
immediate action in order to combat a threat to the security or 
institutional order of a facility.'' Such circumstances include, for 
example, the unforeseen absence of a staff member whose presence is 
indispensible to carrying out a specific standard, or an outbreak of 
violence within the facility that requires immediate action.
    Full compliance. The final rule adds a definition of this statutory 
term. As discussed above in the Executive Summary and below in the 
section titled Executive Order 13132--Federalism, PREA provides that 
the Governor of each State must certify ``full compliance'' with the 
standards or else forfeit five percent of any Department of Justice 
grant funds that the State would otherwise receive for prison purposes, 
unless the Governor submits an assurance that such five percent will be 
used only for the purpose of enabling the State to achieve and certify 
full compliance with the standards in future years. 42 U.S.C. 15607(c).
    NPRM Question 34 solicited comments on how the final rule should 
define ``full compliance.'' Several commenters recommended that full 
compliance be measured by a percentage of each standard complied with. 
These recommendations were generally between 80 and 100 percent. One 
commenter suggested that each standard be designated as either 
mandatory or non-mandatory, with differential percentages for each 
category. A number of comments recommended that full compliance mean 
complete compliance, with exceptions for de minimis violations.
    A number of commenters recommended that ``full compliance'' be 
fully or partially contingent on certain outcome measures. In other 
words, ``full compliance'' could only be achieved if a certain 
objective level of safety and security is achieved in a facility.
    Other commenters suggested that, instead of relying on ``full 
compliance,'' the standards should be measured using a multi-tiered 
approach, such as ``substantial compliance,'' ``partial compliance,'' 
``non-compliance with progress,'' and ``non-compliance.'' One commenter 
recommended that ``full compliance'' be regarded as achieved when the 
facility meets the spirit of the standard. Another suggested that 
``full compliance'' be regarded as achieved when an agency adopts 
adequate policies and procedures, and has demonstrated its intention to 
comply with those policies.
    Finally, a number of comments suggested that the standards be 
``fully'' complied with, and two suggested that ``full compliance'' 
mean complete compliance with the critical elements of the standard.
    The final rule defines ``full compliance'' as ``compliance with all 
material requirements of each standard except for de minimis 
violations, or discrete and temporary violations during otherwise 
sustained periods of compliance.'' The Department concludes that a 
requirement for specific outcome measures would be impractical to 
implement across a broad spectrum of facility types, and further notes 
that compliance with procedural mandates is usually more within the 
control of a facility than achieving specific outcome measures. 
Furthermore, a definition that allows for some standards to be non-
mandatory, or that defines full compliance as a percentage or by 
reference to substantial compliance, is not compatible with the plain 
meaning of the statutory term ``full compliance.'' Accordingly, the 
Department lacks the discretion to adopt such a definition.
    Below is a nonexhaustive set of examples of violations that would 
be consistent with full compliance:
     A temporary vacancy in the PREA coordinator's position 
that the agency is actively seeking to fill;
     A small number of instances in which an agency fails by a 
number of days to meet a 14-day deadline imposed by the rule;

[[Page 37115]]

     Occasional noncompliance with staffing ratios in juvenile 
facilities due to disturbances in other housing units or staff 
illnesses;
     A short-term telephone malfunction that prevents inmate 
access to a confidential reporting hotline, which the agency acts 
promptly to restore once the malfunction is brought to its attention.
    Generally speaking, the intent of this definition is to make clear 
that a Governor may certify ``full compliance'' even if, in 
circumstances that are not reasonably foreseeable, certain of the 
State's facilities are at times unable to comply with the letter of 
certain standards for some short period of time, but then act promptly 
to remedy the violation. This definition is in keeping with Congress's 
view that States would be able--and should be encouraged--to achieve 
full compliance.
    The final rule also provides, in Sec.  115.501(b), that the 
Governor's certification applies to all facilities in the State under 
the operational control of the State's executive branch, including 
facilities operated by private entities on behalf of the State's 
executive branch. The certification, by its terms, does not encompass 
facilities under the operational control of counties, cities, or other 
municipalities.
    Gender nonconforming. The final rule adds a definition of this 
term, which is used in several standards. The term is defined to mean 
``a person whose appearance or manner does not conform to traditional 
societal gender expectations.''
    Intersex. Various commenters, including both correctional agencies 
and advocates, requested a definition of this term, and several 
advocates suggested definitions. The final rule defines the term as ``a 
person whose sexual or reproductive anatomy or chromosomal pattern does 
not seem to fit typical definitions of male or female.'' The definition 
also notes that ``[i]ntersex medical conditions are sometimes referred 
to as disorders of sex development.''
    Juvenile. Several commenters criticized the proposed rule's 
definition of juvenile as any person under the age of 18 unless 
otherwise defined by State law. One commenter noted that State law may 
be inconsistent, defining a person as a juvenile for some purposes and 
as an adult for others. For clarity, the final rule revises the 
definition by changing ``unless otherwise defined by State law'' to 
``unless under adult court supervision and confined or detained in a 
prison or jail.'' For reasons explained at greater length below, the 
Department has rejected the suggestion by some commenters to define 
juvenile as any person under the age of 18.
    Some commenters recommended that the definition of juvenile include 
persons over the age of 18 who are currently in the custody of the 
juvenile justice system, because some State juvenile justice systems 
hold persons beyond that age who were originally adjudicated as 
juvenile delinquents. The final rule does not make that change. The set 
of standards for juvenile facilities refers throughout to 
``residents.'' A ``resident'' is defined as ``any person confined or 
detained in a juvenile facility.'' Thus, the standards already cover 
over-18 persons confined in a facility that is primarily used for the 
confinement of under-18 persons, and the commenters' proposed change is 
not needed. In the rare instance that an over-18 person in the custody 
of the juvenile justice system is confined in an adult facility, it is 
appropriate for that person to be treated the same as others of similar 
age.
    Juvenile facility. For clarifying purposes, the final rule adds 
language to make clear that a juvenile facility is one that is 
primarily used to confine juveniles ``pursuant to the juvenile justice 
system or criminal justice system.'' A facility that confines juveniles 
pursuant to a social services system, or for medical purposes, is 
beyond the scope of these regulations, regardless of whether it is 
administered or licensed by a Federal, State, or local government or a 
private organization on behalf of such government.
    One commenter suggested amending the definition of juvenile 
facility to clarify that it includes all youth confined in juvenile 
facilities, not just those who are accused of, or have been adjudicated 
for committing, a delinquent act or criminal offense. The commenter 
noted that, as a result of shortages in residential mental health 
facilities, juvenile facilities may temporarily hold youth who are not 
accused of delinquent or criminal acts, while waiting for bed space to 
open up in residential mental health facilities. The Department has not 
made this change, because such youth are already covered to the extent 
that they are housed in a facility that primarily confines juveniles 
pursuant to the juvenile justice system or criminal justice system.
    A State juvenile agency requested that the standards exempt 
community-based facilities that are not ``physically restricting'' and 
that serve juvenile delinquents as well as non-delinquent youth. The 
Department has not made this change. As stated above, the definition of 
juvenile facility includes any facility ``primarily used for the 
confinement of juveniles pursuant to the juvenile justice system or 
criminal justice system.'' If a non-secure residential facility fits 
this definition, it will fall within the scope of the standards, even 
if it also holds some non-delinquent youth. Youth who are legally 
obligated to return to a facility in the evening are at risk of sexual 
abuse and therefore warrant protection under these standards. 
Furthermore, where a facility is primarily used to confine juvenile 
delinquents, it would be illogical to exempt from coverage those 
facilities that happen to confine some non-delinquent youth as well.
    Transgender. As with ``intersex,'' both agency and advocacy 
commenters requested that the final rule define this term. The 
definition adopted in the final rule--``a person whose gender identity 
(i.e., internal sense of feeling male or female) is different from the 
person's assigned sex at birth''--reflects the suggestions of numerous 
advocacy commenters.
    Other terms. The Department has not adopted the suggestion of one 
commenter to define a variety of additional terms including jail 
booking, intake, initial screening, and risk assessment. These terms 
are in common usage in correctional settings and have meanings that are 
generally understood, even if facility practices may vary in certain 
respects. To define these terms would risk confusion by imposing a one-
size-fits-all definition on facilities that employ these terms in 
slightly different ways.

Definitions Related to Sexual Abuse (Sec.  115.6)

    The final rule makes various changes to terms related to sexual 
abuse that were defined in the proposed rule.
    Sexual abuse. Various commenters criticized the proposed definition 
for referencing the intent of the abuser. These commenters expressed 
the view that including an intent element would, in the words of one, 
``require agencies to engage in a complicated time- and labor-intensive 
inquiry into the intent of the perpetrator.'' The final rule revises 
the definition to limit the relevance of intent.
    With regard to sexual abuse by an inmate, the proposed rule had 
excluded ``incidents in which the intent of the sexual contact is 
solely to harm or debilitate rather than to sexually exploit.'' The 
purpose of that language was to exclude physical altercations that 
incidentally resulted in injuries to an inmate's genitalia. While 
correctional agencies should, of course, endeavor to protect inmates 
from physical harm of

[[Page 37116]]

all sorts, such incidental injury is beyond the scope of PREA. To 
eliminate the intent element while still preserving this exclusion, the 
final rule replaces the language quoted above with ``contact incidental 
to a physical altercation.''
    With regard to abuse by staff, the proposed rule included contact 
between the penis and the vulva or anus; contact between the mouth and 
the penis, vulva, or anus; penetration of the anal or genital opening; 
and ``[a]ny other intentional touching, either directly or through the 
clothing, of the genitalia, anus, groin, breast, inner thigh, or the 
buttocks of any person with the intent to abuse, arouse, or gratify 
sexual desire.'' The final rule replaces the intent clause with the 
following language: ``that is unrelated to official duties or where the 
staff member, contractor, or volunteer has the intent to abuse, arouse 
or gratify sexual desire.'' Thus, if the touching is unrelated to 
official duties, no finding as to intent is necessary. If the touching 
is related to official duties--such as a strip search--the touching 
qualifies as sexual abuse only if it is performed in a manner that 
evidences an intent to abuse, arouse, or gratify sexual desire.
    One agency recommended replacing ``sexual abuse'' with ``rape.'' 
The Department has not made this change. PREA defines ``rape'' broadly, 
in a manner that is more consistent with the customary definition of 
sexual abuse. For example, PREA includes ``sexual fondling'' in its 
definition of rape, see 42 U.S.C. 15609(9), (11), even though that term 
is typically associated with sexual abuse rather than with rape. The 
Department concludes that sexual abuse is a more accurate term to 
describe the behaviors that Congress aimed to eliminate.
    An advocate for disability rights recommended that the Department 
define what it means for an inmate to be ``unable to consent,'' due to 
variations in State law on this issue. The Department has not done so, 
concluding that correctional agencies should use their judgment, taking 
into account any applicable State law.
    One advocacy organization recommended that kissing be added to the 
definition of sexual abuse or sexual harassment, due to the possibility 
that kissing could be used as a ``grooming'' technique leading to other 
sexual activities. The Department concludes that it is appropriate to 
consider kissing to constitute sexual abuse in certain contexts where 
committed by a staff member. Accordingly, the final rule adds to the 
definition of sexual abuse by a staff member ``[c]ontact between the 
mouth and any body part where the staff member, contractor, or 
volunteer has the intent to abuse, arouse, or gratify sexual desire.''
    Finally, the Department has made various nonsubstantive changes to 
the definition of sexual abuse, including simplifying its structure. In 
addition, the final rule provides that sexual abuse is not limited to 
incidents where the staff member touches the inmate's genitalia, 
breasts, anus, groin, inner thigh, or buttocks, but also includes 
incidents where the staff member induces the inmate to touch the staff 
member in such a manner.
    Sexual harassment. Several correctional agencies recommended that 
the final rule remove sexual harassment from the scope of the 
standards. The Department has not done so. Although PREA does not 
reference sexual harassment, it authorized the NPREC to propose, and by 
extension authorized the Attorney General to adopt, standards relating 
to ``such other matters as may reasonably be related to the detection, 
prevention, reduction, and punishment of prison rape.'' 42 U.S.C. 
15606(e)(2)(M). Certain standards reference sexual harassment in order 
to combat what may be a precursor to sexual abuse.
    One commenter took issue with the categorization of ``repeated 
verbal comments or gestures of a sexual nature * * * including 
demeaning references to gender, sexually suggestive or derogatory 
comments'' as sexual harassment rather than sexual abuse. The commenter 
suggested that this categorization inappropriately downplayed the harm 
associated with such conduct, especially because many of the standards 
in the proposed rule referenced only sexual abuse and not sexual 
harassment. The Department has not made this change, largely because 
such activities fit the textbook definition of sexual harassment. To 
label comments and gestures as sexual harassment is not meant to 
belittle the harm that may ensue. (The question of whether specific 
standards should include sexual harassment as well as sexual abuse is a 
separate issue and is discussed below in reference to specific 
standards.) However, similar activity, when performed by a staff 
member, does constitute sexual abuse. This distinction recognizes that 
staff exert tremendous authority over every aspect of inmates' lives--
far more authority than employers exert over employees in a workplace 
context. An attempt, threat, or request to engage in sexual contact, 
even if it does not result in actual sexual contact, may lead to grave 
consequences for an inmate, and deserves to be treated seriously. 
Indeed, in many States, such contact is considered to be a crime.\4\
---------------------------------------------------------------------------

    \4\ See National Institute of Corrections/Washington College of 
Law Project on Addressing Prison Rape, Fifty-State Survey of 
Criminal Laws Prohibiting Sexual Abuse of Individuals in Custody, 
available at http://www.wcl.american.edu/endsilence/documents/50StateSurveyofSSMLawsFINAL2009Update.pdf.
---------------------------------------------------------------------------

    The same commenter also recommended defining sexual harassment to 
include all comments of a sexual nature, not just repeated comments. 
One correctional agency made the same recommendation with regard to 
comments made by staff. The Department has not made this change. 
Various standards require remedial action in response to sexual 
harassment; while correctional agencies may take appropriate action in 
response to a single comment, a concern for efficient resource 
allocation suggests that it is best to mandate such action only where 
comments of a sexual nature are repeated.
    Voyeurism. Some correctional agencies recommended removing 
voyeurism from the scope of the standards, fearing that its inclusion 
would result in groundless accusations against staff members merely for 
performing their jobs. This change has not been made. The Department 
notes that voyeurism is limited to actions taken ``for reasons 
unrelated to official duties''--which constitutes a significant 
limitation. A staff member who happens to witness an inmate in a state 
of undress while conducting rounds has not engaged in voyeurism. The 
risk of false accusations is an inevitable consequence of imposing 
limits upon staff members' actions, and is neither limited to, nor 
unusually problematic in, the context of voyeurism.
    One correctional agency recommended that voyeurism be considered as 
a subset of sexual harassment and be limited to repeated actions, as 
with sexual harassment. The Department has not made this change. 
Voyeurism is appropriately considered to be a more serious offense than 
sexual harassment, and indeed is often a crime. The same commenter 
suggested that by placing voyeurism within the category of sexual 
abuse, ``there is no differentiation between incidences of voyeurism 
and rape.'' This is incorrect; sexual abuse appropriately encompasses a 
broad range of incidents of varying degrees of severity. The standards 
oblige correctional agencies to take certain actions in response to all 
incidents of sexual abuse, but the appropriate response will vary 
greatly depending upon the nature of the incident.

[[Page 37117]]

    Some advocacy commenters, and one sheriff's office, criticized the 
proposed rule for providing that taking images of all or part of an 
inmate's naked body, or of an inmate performing bodily functions, 
constituted voyeurism only if the staff member also distributed or 
published them. The final rule removes that limitation. Under the 
revised definition, taking such images constitutes voyeurism regardless 
of what the staff member does with the images afterwards.

Zero Tolerance; PREA Coordinator (Sec. Sec.  115.11, 115.111, 115.211, 
115.311)

Summary of Proposed Rule
    The standard contained in the proposed rule required that agencies 
establish a zero-tolerance policy toward sexual abuse and harassment 
that outlines the agency's approach to preventing, detecting, and 
responding to such conduct. The Department also proposed that agencies 
employ or designate an upper-level, agency-wide PREA coordinator to 
oversee efforts to comply with the standards. The proposed standard 
specified that the agency-wide PREA coordinator would be a full-time 
position in all agencies that operate facilities whose total rated 
capacity--i.e., an objective determination of available bed space in a 
facility--exceeds 1,000 inmates, but could be a part-time position in 
other agencies. The proposed standard also required that agencies whose 
total capacity exceeds 1,000 inmates must designate an existing full-
time or part-time employee at each facility to serve as that facility's 
PREA coordinator.
Changes in Final Rule
    The final standard no longer requires that the agency-wide PREA 
coordinator be a full-time position for large agencies. Instead, the 
standard provides that the PREA coordinator must have ``sufficient time 
and authority'' to perform the required responsibilities, which have 
not been changed from the proposed standard.
    The final standard also requires that any agency that operates more 
than one facility (regardless of agency size) designate a PREA 
compliance manager at each facility with sufficient time and authority 
to coordinate the facility's efforts to comply with the PREA standards.
Comments and Responses
    Comment. Numerous commenters criticized the proposed standard for 
requiring that the PREA coordinator be a full-time position. Such 
commenters indicated that establishing a full-time position would be 
cost-prohibitive and would inappropriately divert resources from other 
important efforts. Some recommended that agencies be given discretion 
in how to structure their PREA oversight and that coordinators be given 
flexibility to work on related tasks. One commenter suggested that the 
standard mandate that the PREA coordinator devote a specified minimum 
percentage of time to PREA-related work. Another commenter proposed 
that a full-time PREA coordinator be required only if a threshold level 
of verified sexual abuse incidents is reached.
    Response. Designating a specific staff person to be accountable for 
PREA development, implementation, and oversight will help ensure the 
success of such efforts. However, agencies should have discretion in 
how to manage their PREA initiatives. Therefore, the final standard 
does not require that the PREA coordinator be a full-time position. 
Similarly, mandating a minimum percentage of staff time to be spent on 
PREA would be too stringent, and would not provide sufficient 
flexibility. Rather, the final standard requires that the agency 
designate a PREA coordinator with sufficient time and authority to 
develop, implement, and oversee agency efforts to comply with the PREA 
standards.
    As for the suggestion that a full-time coordinator be required only 
if verified incidents exceed a specified threshold, it is important to 
note that a low level of verified incidents does not necessarily mean 
that sexual abuse is not a concern. If an agency is not appropriately 
investigating allegations of sexual abuse, or if victims do not feel 
comfortable reporting such incidents, the level of verified incidents 
may not accurately reflect the agency's success at combating sexual 
abuse.
    Comment. Various agency commenters requested additional flexibility 
with respect to the requirement that agencies with aggregate rated 
capacities of over 1,000 inmates designate facility-level PREA 
coordinators. Some commenters suggested raising or lowering the 
population threshold for this requirement.
    Response. Where an agency operates multiple facilities, the final 
standard requires that all such facilities, regardless of size, 
designate a PREA compliance manager with sufficient time and authority 
to coordinate the facility's efforts to comply with the PREA standards. 
Having a ``point person'' at each facility will be beneficial 
regardless of the size of the agency or facility. (The PREA coordinator 
would serve as the ``point person'' at single-facility agencies.) The 
language in the final standard appropriately balances the need for 
accountability with the flexibility that sound correctional management 
requires.
    Comment. One commenter inquired as to whether separate smaller 
facilities could share one PREA coordinator, to accommodate workload 
and cost concerns.
    Response. With the additional flexibility provided in the final 
standard, such arrangements should not be necessary. Facilities are 
encouraged to collaborate on PREA efforts to the extent feasible, but 
ultimately each facility will need to ensure that effective practices 
and procedures are in place. For this reason, the final standard 
requires each facility in a multi-facility agency to have its own PREA 
compliance manager.
    Comment. One commenter requested clarification as to the 
requirement that the PREA coordinator be an ``upper-level'' staff 
member.
    Response. While it is not possible to define ``upper-level'' with 
precision, the PREA coordinator should have access to agency and 
facility leadership on a regular basis, and have the authority to work 
with other staff, managers, and supervisors to effectuate change if 
necessary. By contrast, the facility-specific PREA compliance manager 
need not be ``upper-level,'' but should have access to facility staff, 
managers, and supervisors in order to guide implementation.

Contracting With Other Entities for Confinement of Inmates (Sec. Sec.  
115.12, 115.112, 115.212, 115.312)

Summary of Proposed Rule
    The standard contained in the proposed rule required that agencies 
that contract with outside entities include in any new contract or 
contract renewal the entity's obligation to comply with the PREA 
standards.
Changes in Final Rule
    No substantive changes have been made to the proposed standard.
Comments and Responses
    Comment. Numerous advocates urged that the standard be revised to 
require government agencies to impose financial sanctions on private 
contractors that fail to comply with the standards. These commenters 
also argued that contract entities should be held to the same auditing 
standards as agency-run facilities.
    Response. As discussed below, the auditing standard (Sec.  115.401) 
requires

[[Page 37118]]

that every facility operated by an agency, or by a private organization 
on behalf of an agency, be audited for PREA compliance at least once in 
every three-year auditing cycle. The auditing requirements are the 
same, as are the effects of such audits: The Governor of each State is 
required to consider the audits of facilities within the operational 
control of the State's executive branch, including the audits of 
private facilities operated by a contract entity on behalf of such 
agencies, in determining whether to certify that the State is in full 
compliance with the PREA standards. However, the final standard does 
not require agencies to impose financial sanctions on non-compliant 
private contractors. The standard requires that new contracts or 
contract renewals include a provision that obligates the entity to 
adopt and comply with the PREA standards. Beyond that, the Department 
sees no need to specify the manner in which an agency enforces such 
compliance.

Supervision and Monitoring (Sec. Sec.  115.13, 115.113, 115.213, 
115.313)

Summary of Proposed Rule
    The standard in the proposed rule contained four requirements. 
First, it required the agency to make an assessment of adequate 
staffing levels, taking into account its use, if any, of video 
monitoring or other technology, and the physical layout and inmate 
population of the facility. Second, it required agencies to devise a 
plan for how to best protect inmates from sexual abuse should staffing 
levels fall below an adequate level. Third, it required agencies to 
reassess at least annually the identified adequate staffing levels, as 
well as the staffing levels that actually prevailed during the previous 
year, and the facility's use of video monitoring systems and other 
technologies. Fourth, it required prisons, juvenile facilities, and 
jails whose rated capacity exceeds 500 inmates to implement a policy of 
unannounced rounds by supervisors to identify and deter staff sexual 
abuse and sexual harassment.
Changes in Final Rule
    The final standard requires each prison, jail, and juvenile 
facility to develop and document a staffing plan that provides for 
adequate levels of staffing, and, where applicable, video monitoring, 
to protect inmates against sexual abuse. In calculating adequate 
staffing levels and determining the need for video monitoring, 
facilities must consider several factors, including: (1) Generally 
accepted detention and correctional practices; (2) any judicial 
findings of inadequacy; (3) any findings of inadequacy from Federal 
investigative agencies; (4) any findings of inadequacy from internal or 
external oversight bodies; (5) all components of the facility's 
physical plant (including ``blind spots'' or areas where staff or 
inmates may be isolated); (6) the composition of the inmate population; 
(7) the number and placement of supervisory staff; (8) institution 
programs occurring on a particular shift; (9) any applicable State or 
local laws, regulations, or standards; (10) the prevalence of 
substantiated and unsubstantiated incidents of sexual abuse; and (11) 
any other relevant factors. Prisons and jails must use ``best efforts 
to comply with the staffing plan on a regular basis'' and are required 
to document and justify deviations from the staffing plan.
    Like the proposed standard, the final standard requires all 
agencies to annually assess, determine, and document for each facility 
whether adjustments are needed to (1) The staffing levels established 
pursuant to this standard; (2) prevailing staffing patterns; and (3) 
the facility's deployment of video monitoring systems and other 
monitoring technologies. The final standard also adds a requirement 
that the annual assessment examine the resources the facility has 
available to commit to ensure adequate staffing levels.
    The final standard requires, lockups and community confinement 
facilities to develop and document a staffing plan that provides for 
adequate levels of staffing, and, where applicable, video monitoring, 
to protect inmates against sexual abuse. In circumstances where the 
staffing plan is not complied with, lockups and community confinement 
facilities must document and justify all deviations from the plan. The 
final standard, like the proposed standard, requires lockup and 
community confinement agencies to consider the facility's physical 
layout, the composition of its population, the prevalence of 
substantiated and unsubstantiated incidents of sexual abuse, and any 
other relevant factors. If vulnerable detainees are identified pursuant 
to the lockup screening process set forth in Sec.  115.141, security 
staff must provide such detainees with heightened protection, including 
continuous direct sight and sound supervision, single-cell housing, or 
placement in a cell that is actively monitored, unless no such option 
is determined to be feasible.
    The final standard sets specific minimum staffing levels for 
certain juvenile facilities. As set forth below at the end of the 
discussion of the Supervision and Monitoring standard, the Department 
seeks additional comment on this aspect of the standard. Specifically, 
the final standard requires secure juvenile facilities to maintain 
minimum security staff ratios of 1:8 during resident waking hours, and 
1:16 during resident sleeping hours, except during limited and discrete 
exigent circumstances, and to fully document deviations from the 
minimum ratios during such circumstances. However, any secure juvenile 
facility that, as of the date of publication of the final rule, is not 
already obligated by law, regulation, or judicial consent decree to 
maintain the required staffing ratios shall have until October 1, 2017, 
to achieve compliance. A secure facility is one that typically does not 
allow its residents to leave the facility without supervision.\5\ Group 
homes and other facilities that allow residents access to the community 
to achieve treatment or correctional objectives, such as through 
educational or employment programs, typically will not be considered to 
be secure facilities. For juvenile facilities, the final standard omits 
the requirement to plan for staffing levels that do not meet the 
identified adequate levels.
---------------------------------------------------------------------------

    \5\ The full definition is as follows: ``Secure juvenile 
facility means a juvenile facility in which the movements and 
activities of individual residents may be restricted or subject to 
control through the use of physical barriers or intensive staff 
supervision. A facility that allows residents access to the 
community to achieve treatment or correctional objectives, such as 
through educational or employment programs, typically will not be 
considered to be a secure juvenile facility.'' Sec.  115.5.
---------------------------------------------------------------------------

    The final standard also extends to all jails (rather than, as in 
the proposed standards, only those jails whose rated capacity exceeds 
500 inmates) the requirement of unannounced supervisory rounds to 
identify and deter staff sexual abuse and sexual harassment. In order 
to address concerns that some staff members might prevent such rounds 
from being ``unannounced'' by providing surreptitious warnings, the 
final standard adds a requirement that agencies have a policy to 
prohibit staff members from alerting their colleagues that such 
supervisory rounds are occurring, unless such announcement is related 
to the legitimate operational functions of the facility.
Comments and Responses
    The NPRM posed several questions regarding staffing. Below is a 
summary of all comments received regarding this standard, keyed to the 
question to which they correspond, and the Department's responses.

[[Page 37119]]

    NPRM Question 4: Should the standard require that facilities 
actually provide a certain level of staffing, whether determined 
qualitatively, such as by reference to ``adequacy,'' or quantitatively, 
by setting forth more concrete requirements? If so, how?
    Comment. Commenters were nearly unanimous in opposing a 
quantitative staffing requirement for adult facilities. Numerous adult 
correctional agencies expressed a strong preference for deference to 
agency decisions on staffing issues, given the varied and intricate 
factors that affect staffing levels, such as facility type, layout, 
population, classification levels, and whether and how the facility 
uses video surveillance. Many agency commenters expressed support for 
the proposed standard as written; some noted that many facilities 
already employ mandatory and minimum post/staffing criteria, which they 
can tailor to meet specific needs, such as by increasing staffing 
levels in particular units that have experienced an increase in 
victimization. Other commenters noted that some facilities are already 
bound by State-mandated staffing ratios, and that additional or 
different PREA ratios could conflict with State law. Jail 
administrators suggested the absence of any national model or best 
practice that supports a specific staffing ratio in local jails, due to 
extreme differences in facility size, age, architectural design, and 
population. Agency commenters emphasized that facility leadership is 
best positioned to determine ``adequate'' staffing levels. In general, 
advocacy groups agreed that, due to these concerns, the final standard 
should not mandate staffing ratios in adult facilities.
    In addition to feasibility, many correctional commenters stated 
that the costs of establishing a specific staffing requirement would be 
prohibitive. These commenters noted that the ability to increase 
staffing levels at a facility is often beyond the control of either the 
facility or the agency. Staffing increases require additional funding, 
which usually must be legislatively appropriated. The commenters also 
noted that budget increases are unlikely in the current fiscal climate 
and would require a significant amount of lead time for approval. 
Several correctional stakeholders, joined by some advocacy groups, 
commented that specific staffing ratios in adult facilities would 
constitute an ``unfunded mandate,'' which might compel some agencies to 
choose not to attempt compliance with the PREA standards in general. In 
addition, commenters observed that increased costs imposed by a 
staffing mandate could result in elimination of programming for inmates 
due to funding limitations.
    On the other hand, one local correctional agency commented that, 
given current fiscal conditions, some agencies will have difficulties 
expanding staffing unless the final standard mandates minimum staffing 
levels. In addition, some advocates noted that courts have held that 
cost is not an excuse for failing to provide for the safety of persons 
in custody, and argued that if an agency cannot provide adequate 
staffing to ensure inmate safety, then it should reduce its inmate 
population.
    Response. The Department recognizes the many factors that affect 
adequate staffing and therefore does not promulgate a standard with 
concrete staffing requirements for adult facilities. The final standard 
enumerates a broader set of factors to be taken into consideration in 
calculating adequate staffing levels and determining the need for video 
monitoring: Generally accepted detention and correctional practices; 
any judicial findings of inadequacy; any findings of inadequacy from 
Federal investigative agencies; any findings of inadequacy from 
internal or external oversight bodies; all components of the facility's 
physical plant (including ``blind-spots'' or areas where staff or 
inmates may be isolated); the composition of the inmate population 
(such as gender, age, security level, and length of time inmates reside 
in the facility); the number and placement of supervisory staff; 
institution programs occurring on a particular shift; any applicable 
State or local laws, regulations, or standards; and the prevalence of 
substantiated and unsubstantiated incidents of sexual abuse. In 
addition, the final standard requires facilities to take into account 
``any other relevant factors.''
    Given the intricacies involved in formulating an adequate staffing 
plan, the Department does not include specific staffing ratios for 
adult facilities in the final standard. The final determination as to 
adequate staffing levels remains in the discretion of the facility or 
agency administration. In addition, the facility is encouraged to 
reassess its staffing plan as often as necessary to account for changes 
in the facility's demographics or needs.
    With regard to the cost of staffing, the Department notes that the 
Constitution requires that correctional facilities provide inmates with 
reasonable safety and security from violence, see Farmer v. Brennan, 
511 U.S. 825, 832 (1994), and sufficient staff supervision is essential 
to that requirement. However, the Department is sensitive to current 
fiscal conditions and the inability of correctional agencies to secure 
budget increases unilaterally. The Department is also cognizant of the 
fact that staffing is the largest expense for correctional agencies, 
and recognizes that the costs involved in increasing staffing could 
make compliance difficult for some facilities. While adequate staffing 
is essential to a safe facility, the Department wishes to avoid the 
unintended consequence of decreased programming and other opportunities 
for inmates as a result of budgetary limitations.
    The final standard also requires the agency to reassess, determine, 
and document, at least annually, whether adjustments are needed to 
resources the facility has available to commit to ensure adherence to 
the staffing plan. This language accounts for the fact that resource 
availability will affect staffing levels and provides agencies an 
incentive to request additional staffing funds as needed. The 
Department considered including a requirement for the agency to request 
additional funds from the appropriate governing authority, if 
necessary, but determined that this decision best remained within the 
discretion of the agency.
    The final standard requires agencies to use ``best efforts to 
comply on a regular basis'' with the staffing plan. Facilities must 
document and justify deviations from the staffing plan, but full 
compliance with the plan is not required to achieve compliance with the 
standard. The Department considered including in the standard a 
specific mandate to comply with the staffing plan, but determined that 
requiring ``best efforts'' is more appropriate, to avoid penalizing 
agencies that unsuccessfully seek to obtain additional funds. Lockups 
and community confinement facilities are exempt from the ``best 
efforts'' language, but must document deviations from the staffing 
plan. Juvenile facilities, however, must comply with their staffing 
plans except during limited and discrete exigent circumstances, and 
must fully document deviations from a plan during such circumstances.
    The Department reiterates, however, that this standard, like all 
the standards, is not intended to serve as a constitutional safe 
harbor. A facility that makes its best efforts to comply with the 
staffing plan is not necessarily in compliance with constitutional 
requirements, even if the staffing shortfall is due to budgetary 
factors beyond its control.
    Comment. Numerous advocates expressed concern that the proposed

[[Page 37120]]

standard did not require the facilities to adhere to a specific 
staffing plan. These commenters noted that the proposed standard 
required agencies to develop a staffing plan but did not require that 
agencies safely staff the facilities. In addition, because the proposed 
standard required agencies to plan for what to do if they failed to 
comply with their staffing goals, commenters suggested that it could be 
read to permit or condone unsafe supervision levels. These advocates 
proposed requiring agencies to comply with their initial staffing goals 
and eliminating the requirement that agencies plan for suboptimal 
staffing. Former members of the NPREC, and an advocacy organization, 
recommended that the Department revise its proposed supervision 
standard to require agencies to annually review staffing and video 
monitoring to assess their effectiveness at keeping inmates safe in 
light of reported incidents of sexual abuse, identify the changes it 
considers necessary, and actually implement those changes.
    Response. The Department recognizes the tension in the proposed 
standard between requiring an agency to identify adequate staffing 
levels, but then implicitly allowing the facility to operate without 
requisite staffing in accordance with a ``backup plan.'' Therefore, the 
final standard requires each prison, jail, and juvenile facility to 
develop, implement, and document a staffing plan that provides for 
adequate levels of staffing, and, where applicable, video monitoring, 
to protect inmates against sexual abuse, taking into account the 
relevant factors affecting staffing needs. In addition, the final 
standard requires that, at least annually, the agency must assess, 
determine, and document whether adjustments are needed to the staffing 
plan, but does not require implementation of such adjustments. Because 
the Department recognizes that staffing levels are often dependent on 
budget approval from an external legislative or other governmental 
entity, the final standard requires each adult prison and jail to use 
its ``best efforts to comply on a regular basis'' with its staffing 
plan. Given the costs involved and the lack of control correctional 
agencies may have with regard to budgetary issues, the final standard 
is designed to encourage adequate staffing without discouraging 
agencies from attempting to comply with the PREA standards due to 
financial concerns.
    Comment. Advocates expressed concern that the proposed standards 
failed to provide sufficient guidance with respect to how staffing 
levels should be established. One advocate suggested that, in 
determining safe staffing ratios, facilities should start with any 
State requirements and standards promulgated by the American 
Correctional Association and the American Jail Association. Several 
comments suggested including as factors any blind spots within the 
facility, including spaces not designated for residents, such as 
closets, rooms, and hallways; high traffic areas within the facility; 
the ease with which individual staff members can be alone with 
individual residents in a given location; the potential value of 
establishing and retaining video and other evidence of sexual 
misconduct; the need to provide enhanced supervision of inmates who 
have abused or victimized other inmates; the need to ensure that 
vulnerable inmates receive additional protections without being 
subjected to extended isolation or deprived of programming; previous 
serious incidents and the staffing and other circumstances that existed 
during those incidents; the need for increased or improved staff 
training; the number of special needs or vulnerable inmates; the number 
and placement of supervisory staff; grievances from inmates, staff, 
visitors, family members, or others; compliance with any applicable 
laws and regulations related to staffing requirements; individual 
medical and mental health needs; availability of technology; custody 
level; management level; capacity; and peripheral duty requirements.
    Response. The Department considered each suggestion and adopted a 
final standard that requires facilities to consider the following 
factors: (1) Generally accepted detention and correctional practices; 
(2) any judicial findings of inadequacy; (3) any findings of inadequacy 
from Federal investigative agencies; (4) any findings of inadequacy 
from internal or external oversight bodies; (5) all components of the 
facility's physical plant (including ``blind-spots'' or areas where 
staff or inmates may be isolated); (6) the composition of the inmate 
population; (7) the number and placement of supervisory staff; (8) 
institution programs occurring on a particular shift; (9) any 
applicable State or local laws, regulations, or standards; (10) the 
prevalence of substantiated and unsubstantiated incidents of sexual 
abuse; and (11) any other relevant factors. The factors enumerated in 
the final standard are broadly applicable across different types of 
facilities, allow for comprehensive analysis without prescribing every 
single detail to be considered, and provide sufficient guidance as to 
how to plan for staffing levels that will provide adequate supervision 
to protect inmates from sexual abuse. The listed factors are not 
exclusive; facilities should consider additional issues that are common 
across correctional facilities and pertinent to the characteristics of 
each specific facility, and findings from reports and empirical studies 
relevant to sexual abuse issued by the Department, academia, or 
professional sources. As an example of one finding from a Department 
report that would be relevant to determining adequate staffing, as well 
as the need for increased video monitoring or the frequency of rounds, 
the Department encourages facilities to consider that inmate-on-inmate 
sexual abuse is most likely to occur in the evening, when inmates are 
awake but often confined to their cells and staffing levels are 
generally lower than during the day.\6\ In addition, the National 
Resource Center for the Elimination of Prison Rape will develop 
guidance to help facilities compose an adequate staffing plan, and the 
Department's National Institute of Corrections is available to provide 
technical assistance on developing an adequate staffing plan.
---------------------------------------------------------------------------

    \6\ See Allen J. Beck and Paige M. Harrison, Bureau of Justice 
Statistics (``BJS''), Sexual Victimization in Prisons and Jails 
Reported by Inmates, 2008-09, at 22 (Table 16) (Aug. 2010).
---------------------------------------------------------------------------

    Comment. One correctional agency interpreted the proposed standard 
to require direct supervision of inmates, which it asserted would have 
major cost implications.
    Response. This comment is based on a misinterpretation of the 
proposed standard, which did not require direct supervision. Nor does 
the final standard.
    Comment. Some correctional agency commenters argued that it is not 
appropriate for the Federal government, or for State governments, to 
set staffing standards for a facility run by an independently elected 
constitutional officer at the local level.
    Response. The Department is sensitive to concerns regarding 
interference with local government. However, Congress mandated in PREA 
that the Attorney General adopt standards that would apply to local 
facilities as well as Federal and State facilities, as evidenced by the 
statute's definition of ``prison'' as ``any confinement facility of a 
Federal, State, or local government, whether administered by such 
government or by a private organization on behalf of such

[[Page 37121]]

government.'' 42 U.S.C. 15609.\7\ The application of the staffing 
standard to local correctional agencies is consistent with Congress's 
mandate to the Department. Indeed, it is not uncommon for State 
staffing standards, especially for juvenile facilities, to apply to 
facilities that are under the purview of an independently elected 
county or municipal official. For these reasons, the Department does 
not view the imposition of this standard as inappropriately intruding 
upon the prerogatives of local elected officials.
---------------------------------------------------------------------------

    \7\ In addition, the cost limitation language in the statute 
expressly references local institutions. See 42 U.S.C. 15607(a)(3) 
(``The Attorney General shall not establish a national standard 
under this section that would impose substantial additional costs 
compared to the costs presently expended by Federal, State, and 
local prison authorities.'').
---------------------------------------------------------------------------

    Comment. One correctional agency commented that hiring more staff 
does not necessarily eliminate sexual abuse.
    Response. The Department recognizes that adequate staffing levels 
alone are not sufficient to combat sexual abuse in a corrections 
setting. However, adequate staffing is essential to providing 
sufficient supervision to protect inmates from abuse.
    NPRM Question 5: If a level such as ``adequacy'' were mandated, how 
would compliance be measured?
    NPRM Question 11: If the Department does not mandate the provision 
of a certain level of staffing, are there other ways to supplement or 
replace the Department's proposed standard in order to foster 
appropriate staffing?
    NPRM Question 14: Are there other ways not mentioned above in which 
the Department can improve the proposed standard?
    Comment. The Department received numerous suggestions from agency 
commenters on proposed methods for measuring adequacy. Some 
stakeholders expressed concern that a subjective ``adequacy'' standard 
would be difficult to audit. Many commenters requested a better 
definition of ``adequacy.'' Various advocacy and correctional groups 
commented that agencies would benefit from a more detailed description 
of what they must consider when conducting the staffing and technology 
analyses that PREA requires. Others suggested that ``adequate,'' while 
subjective, is the most appropriate term to use in this context.
    Response. The final standard does not include a specific definition 
for ``adequate staffing'' but does provide greater guidance as to the 
factors that should be considered in developing an adequate staffing 
plan. The Department intends to develop, in conjunction with the 
National Resource Center for the Elimination of Prison Rape, auditing 
tools that will guide PREA auditors regarding the various factors 
affecting the adequacy of staffing. The final standard contains 
additional documentation requirements, which will aid the auditor in 
reviewing the adequacy of the plan and the facility's efforts at 
complying with it. The auditor will review documentation showing that 
the agency or facility conducted a proper staffing analysis taking into 
account all enumerated and relevant factors included in the standard. 
In addition, the National Resource Center for the Elimination of Prison 
Rape will develop guidance to help facilities compose an adequate 
staffing plan. And, as noted above, the Department's National Institute 
of Corrections can provide technical assistance on developing an 
adequate staffing plan.
    Comment. Some correctional commenters, including the American Jail 
Association, requested best-practice tools for achieving ``adequate'' 
staffing. They suggested that the Federal government develop 
appropriate tools, model policies, and training materials that address 
the basic principles of PREA and focus on adequate supervision in order 
to provide facilities with ``a greater chance of meaningful 
implementation of this standard.''
    Response. As discussed above, the National Resource Center for the 
Elimination of Prison Rape will develop guidance both for facilities in 
composing an adequate staffing plan and for auditors in evaluating 
adequacy of staffing during a PREA audit. These materials will be 
available to aid agencies in achieving compliance with the final 
standard.
    Comment. Some correctional agencies and advocacy groups recommended 
assessing the adequacy of staffing by reviewing any incidents related 
to sexual or physical abuse at a facility to determine if inadequate 
staffing played a role. One juvenile justice agency suggested that 
daily monitoring of PREA-related incidents could help identify staffing 
needs. Another agency commenter suggested reviewing incident reports of 
rule violations at particular posts.
    Response. Reviewing incidents of abuse and rule violations can 
provide information as to whether staffing is adequate in a particular 
facility or unit of a facility. However, incidents of abuse should not 
be the only factor. As discussed above, many factors affect adequacy of 
staffing. In addition, the reliability of the record of prior incidents 
may depend upon the facility's diligence at investigating allegations 
and its ability to create a culture in which inmate victims feel 
comfortable reporting incidents without fear of reprisal. Accordingly, 
it is not possible to define adequacy solely in these terms. Of course, 
if a review of incident reports indicates that insufficient staffing is 
a contributing factor in sexual abuse, such a finding is clearly 
relevant to the ultimate determination as to the adequacy of staffing.
    Comment. One State correctional agency suggested that adequacy 
could be defined by determining the minimum staffing levels at which a 
facility is able to operate within constitutional requirements and 
determining whether a facility is adhering to such staffing levels.
    Response. Adequate staffing is essential to providing 
constitutional conditions within a correctional facility. However, it 
is not feasible for the Department to determine, at every Federal, 
State, and local facility, the level of staffing required to comport 
with the Constitution, especially given that the level may change over 
time as the size and nature of the facility's population changes. The 
PREA audit with regard to this standard will focus on whether the 
facility has developed and utilized best efforts to comply on a regular 
basis with an adequate staffing plan to protect inmates from sexual 
abuse.
    Comment. Some correctional commenters suggested that ``adequate'' 
staffing levels be measured by the facility's ability to perform 
required functions, such as feeding inmates, conducting routine checks, 
holding outdoor recreation, and generally maintaining the facility 
schedule without requiring significant periods of lockdown.
    Response. A facility's inability to perform required functions and 
operate in accordance with the institutional schedule without 
significant periods of lockdown may have a direct bearing on the 
adequacy of staffing. However, deviations from the schedule and 
performance deficiencies may signal deeper problems unrelated to the 
number of staff. In addition, the ability to stay on schedule and 
perform routine functions does not necessarily indicate a safe or 
adequately staffed facility. While this information may be relevant to 
an auditor's review of the facility's staffing plan, it cannot be the 
sole determinant of staffing adequacy.
    Comment. Many commenters, including correctional agencies and 
advocacy groups, suggested that adequacy be measured by assessing 
whether a facility complies with its written staffing plan. One agency

[[Page 37122]]

suggested that compliance should be measured by determining whether the 
facility is complying with the plan rather than by reviewing the level 
or nature of incidents of abuse. Former NPREC members recommended that 
staffing level compliance be measured during the baseline audit, and 
that actual staffing patterns should be compared with the levels 
determined by the facility needs assessment. If the audit outcome 
reveals that current staffing levels are inadequate, facilities should 
be required to develop a corrective action plan, a timeline for 
implementation, and regularly scheduled assessments to monitor progress 
toward achieving safe staffing levels.
    Response. The final standard requires agencies to develop, 
document, and use ``best efforts'' to comply on a regular basis with a 
staffing plan that provides for adequate levels of staffing, and, where 
applicable, video monitoring, to protect inmates against sexual abuse, 
taking into account the relevant, enumerated factors. A more stringent 
mandate would unfairly penalize agencies that do not have budgetary 
authority or funds to increase staffing. In addition, if faced with a 
specific mandate to comply with the staffing plan, agencies would have 
an incentive to formulate plans that undercount the number of staff 
needed in order to facilitate compliance with the plan. The final 
standard encourages agencies to compose the most appropriate staffing 
plan for each facility without concern that the agencies will be overly 
conservative in their staffing analysis in order to avoid non-
compliance with the PREA standards. To be sure, if the facility's plan 
is plainly deficient on its face, the facility is not in compliance 
with this standard even if it adheres to the plan.
    In addition, a failure to comply with identified adequate staffing 
levels may affect a facility's ability to comply with other standards. 
Pursuant to the auditing standards, facilities that receive a finding 
of ``Does Not Meet Standard'' with regard to any of the PREA standards 
will have a 180-day corrective action period in which the auditor and 
the agency shall jointly develop a corrective action plan to achieve 
compliance and the auditor will take necessary and appropriate steps to 
verify implementation of the corrective action plan before issuing a 
final determination as to whether the facility has achieved compliance.
    Comment. Some correctional stakeholders suggested that the 
Department require each facility to conduct incident mapping and set 
performance goals, and then measure adequacy based on the facility's 
ability to meet these goals.
    Response. The Department recognizes that incident mapping and 
performance goals are important quality improvement measures, and 
encourages all facilities to implement a system to set goals, collect 
and review data, identify trends, and chart progress towards 
performance goals. However, because incident reporting is an imperfect 
measurement of adequate staffing, the results of such a system cannot 
provide an ultimate assessment of compliance.
    NPRM Question 6: Various States have regulations that require 
correctional agencies to set or abide by minimum staffing requirements. 
To what extent, if any, should the standard take into account such 
State regulations?
    Comment. Agency commenters felt strongly that compliance with a 
State minimum staffing requirement should lead to a presumption that 
staffing is adequate. Some stakeholders commented that concrete 
staffing requirements should apply only if a facility is not already 
subject to staffing mandates set by an outside agency or commission. 
Various correctional commenters noted that some accreditation entities 
honor compliance with State staffing regulations, and suggested that 
the PREA standards do the same. On the other hand, some advocacy groups 
argued that State-mandated minimum staffing ratios may not be 
sufficient to establish adequacy and that many facilities are not in 
compliance with such ratios. One advocate recommended that the 
standards require compliance with any applicable State or Federal laws, 
unless the PREA standards offer increased protection.
    Response. The final standard directs agencies to take into account 
any applicable State or local laws, regulations, or standards in 
formulating an adequate staffing plan for jails, prisons, and juvenile 
facilities. While regulations setting a minimum staffing level may be 
instructive, they do not necessarily equate to adequate staffing for 
each unit of each facility. Applicable State laws are a factor to 
consider, but in developing adequate staffing plans, an agency must 
take into account all relevant factors that bear on the question of 
adequacy.
    Comment. Some correctional stakeholders commented that it would 
violate the Tenth Amendment if the PREA standards required compliance 
with a specific staffing standard other than that set by the State.
    Response. The Department understands the concerns submitted by 
State agencies regarding the impact of PREA standards, and has welcomed 
the opportunity to consult with the Department's partners at the State 
level to develop effective standards that minimize costs, maximize 
flexibility, and, to the extent feasible, minimize conflict with State 
and local laws and regulations. However, the Department concludes that 
PREA is consistent with the Federal government's responsibilities to 
protect the constitutional and civil rights of all persons in custody. 
Moreover, PREA is an appropriate exercise of Congress's power to 
condition Federal funding upon grantees' compliance with relevant 
conditions. The application of the staffing standard to State and local 
correctional agencies is consistent with Congress's mandate to the 
Department. Indeed, Federal regulations frequently impose requirements 
that exceed requirements imposed by specific States. Accordingly, the 
Department does not view the imposition of this standard as 
inappropriately intruding on State prerogatives.
    NPRM Question 7: Some States mandate specific staff-to-resident 
ratios for certain types of juvenile facilities. Should the standard 
mandate specific ratios for juvenile facilities?
    Comment. Many advocacy groups commented that specific staffing 
ratios are appropriate and commonly utilized for juvenile facilities, 
and specifically proposed establishing a minimum 1:6 ratio for 
supervision during hours when residents are awake and a 1:12 ratio 
during sleeping hours. These commenters stated that minimum juvenile 
staffing ratios fall within the guidelines established by various 
States and correctional organizations, and that two jurisdictions 
already require the 1:6 and 1:12 staffing ratios. In contrast to adult 
correctional agencies, juvenile agencies were less opposed to mandatory 
staffing ratios for juvenile facilities. However, some juvenile justice 
administrators expressed the same concerns raised with regard to adult 
facilities--that specific ratios would constitute a cost-prohibitive, 
unfunded mandate and that it would be impractical to establish one 
ratio to fit all facilities. Multiple agency commenters noted that they 
were already subject to mandatory staffing ratios and that any such 
ratios in the PREA standards would be duplicative or conflicting.
    Response. The Department adopts a standard requiring a minimum 
staffing ratio in secure juvenile facilities of 1:8 for supervision 
during resident waking

[[Page 37123]]

hours and 1:16 during resident sleeping hours. Unlike for adult 
facilities, it is relatively common for juvenile facilities to be 
subject to specific staffing ratios by State law or regulation. The 
Department's research indicates that over 30 States already impose 
staffing ratios on some or all of their juvenile facilities.
    The standard's ratios include only security staff. Of the States 
identified as requiring specific staffing ratios, approximately half 
count only ``direct-care staff'' in these ratios.\8\ (For most of the 
remaining States requiring specific staffing ratios, the Department has 
not been able to determine precisely which categories of staff are 
included.) In addition, the National Juvenile Detention Association's 
position statement, ``Minimum Direct Care Staff Ratio in Juvenile 
Detention Centers,'' which recommends respective day and night minimum 
ratios of 1:8 and 1:16, specifically limits the included staff to 
direct-care staff.\9\
---------------------------------------------------------------------------

    \8\ For juvenile facilities, the term ``direct-care staff'' is 
often used in a manner that approximates this rule's definition of 
``security staff.'' While the precise definition varies across 
jurisdictions, it is generally meant to include staff whose 
exclusive or primary duties include the supervision of residents.
    \9\ See National Juvenile Detention Association, Minimum Direct 
Care Staff Ratio in Juvenile Detention Centers, at 6 (June 8, 1999), 
available at http://npjs.org/docs/NJDA/NJDA_Position_Statements.pdf. The NJDA position statement is generally more 
restrictive than the requirement in the PREA standard. Specifically, 
while the PREA standard defines ``security staff'' as ``employees 
primarily responsible for the supervision and control of * * * 
residents in housing units, recreational areas, dining areas, and 
other program areas of the facility,'' the NJDA position statement 
defines ``direct care staff'' as ``[e]mployees whose exclusive 
responsibility is the direct and continuous supervision of 
juveniles'' Id. (emphases added).
---------------------------------------------------------------------------

    The 1:8 and 1:16 staffing ratios adopted by the final standard 
match or are less stringent than the ratios currently mandated by 
twelve States, plus the District of Columbia and Puerto Rico, for their 
juvenile detention facilities, juvenile correctional facilities, or 
both. The Department's Civil Rights Division has consistently taken the 
position that sufficient staffing is integral to keeping youth safe 
from harm and views minimum staffing ratios of 1:8 during the day and 
1:16 at night as generally accepted professional standards in secure 
juvenile facilities. For this reason, the Civil Rights Division has 
entered into multiple settlement agreements that require jurisdictions 
to meet minimum staffing ratios in order to ensure constitutional 
conditions of confinement for juveniles. In addition, as noted above, 
the National Juvenile Detention Association's 1999 position statement 
on ``Minimum Direct Care Staff Ratio in Juvenile Detention Centers'' 
supports a minimum ratio of 1:8 during the day and 1:16 at night.
    Given the widespread practice of setting minimum staffing ratios 
for juvenile facilities, the Department believes these ratios accord 
with national practice, are an integral measure for protecting 
juveniles from sexual assault, and can be implemented without excessive 
additional costs. In order to provide agencies with sufficient time to 
readjust staffing levels and, if necessary, request additional funding, 
any facility that, as of the date of publication of the final rule, is 
not already obligated by law, regulation, or judicial consent decree to 
maintain the required staffing ratios shall have until October 1, 2017, 
to achieve compliance.
    The standard excludes non-secure juvenile facilities from this 
requirement. Juveniles in non-secure facilities typically have less 
acute violent and abusive characteristics than those in secure 
facilities. Many jurisdictions utilize a risk screening instrument to 
determine whether a juvenile requires a secure placement; juveniles who 
are identified as having a high likelihood for assaultive behavior and 
re-offense are generally held in secure facilities. Accordingly, many 
non-secure and community-confinement-type facilities do not require as 
intensive staffing levels to protect residents from victimization.
    Comment. Many correctional stakeholders suggested that, if a 
staffing ratio is set for juvenile facilities, the standards should 
differentiate between long-term juvenile correctional facilities and 
short-term juvenile detention facilities.
    Response. The Department recognizes that long-term placement 
facilities have different types of staffing needs than short-term 
detention facilities. For example, short-term detention facilities 
serve less stable populations, residents without comprehensive housing 
classification information, and residents awaiting placement in other 
residential facilities--usually for shorter stays but sometimes for 
extended periods of time. These populations tend to be more 
unpredictable and more likely to engage in disruptive behavior 
requiring higher levels of staffing. On the other hand, long-term 
placement facilities often have significantly higher levels of 
programming requiring continuous movement throughout various areas of 
the facility. Such increased movement requires higher levels of 
security staffing to maintain security. Accordingly, the Department has 
determined that the same staff ratios are appropriate for both types of 
facilities, but for different reasons.
    Some States currently mandate higher levels of staff supervision in 
their long-term residential facilities, while others require higher 
levels of staff supervision for their short-term detention facilities. 
A number of States currently require high levels of staff supervision 
for both facility types. Agencies are encouraged to exceed the ratios 
set forth in the standard where the unique characteristics of the 
facility and youth require more intensive supervision levels.
    Comment. One juvenile correctional agency commented that stringent 
staffing levels will not ensure the safety of youth if staff do not 
remain vigilant and provide active supervision. This commenter posited 
that if a facility has high numbers of incidents, it is most likely due 
to facility culture rather than staff size.
    Response. The Department recognizes that adequate staffing levels 
alone are not sufficient to combat sexual abuse and that developing a 
healthy facility culture is a key component in this effort. However, 
adequate staffing is essential to providing sufficient supervision to 
protect residents from abuse. In addition to the staffing requirements, 
the final rule contains comprehensive standards on a broad range of 
topics related to preventing abuse. While a healthy facility culture 
cannot be mandated directly, the adoption and implementation of the 
standards will assist greatly in developing such a culture, by 
requiring agencies and facilities to institutionalize a set of policies 
and practices that, among other things, will elevate the importance of 
agency and facility responsibilities to protect against sexual abuse.
    Comment. Some juvenile agencies suggested that, if adequate 
staffing levels are mandated, there will be a need for guidelines for 
auditors so that sporadic deficiencies in staff levels may be excused, 
while long-term patterns of non-compliance are dealt with fairly.
    Response. In the final rule, the Department adopts a definition of 
``full compliance'' that requires ``compliance with all material 
requirements of each standard except for de minimis violations, or 
discrete and temporary violations during otherwise sustained periods of 
compliance.'' Sec.  115.5. However, when conducting an audit of a 
particular facility, the PREA auditor will assess, with regard to each 
specific standard, whether the facility exceeds the standard, meets the 
standard, or requires corrective action. The Department intends to 
develop, in conjunction with the National Resource

[[Page 37124]]

Center for the Elimination of Prison Rape, auditing tools that will 
guide PREA auditors through these assessments.
    Comment. Some juvenile justice agencies commented that, in States 
that currently require a minimum staffing ratio for juvenile 
facilities, additional PREA staffing ratio requirements will result in 
agencies and facilities being audited on the same standards by two 
different auditing teams--one to determine compliance with the State 
requirements and one to determine compliance with the PREA standards. 
These commenters remarked that such double auditing would be an 
unnecessary duplication of effort and should not be required by the 
PREA standards.
    Response. The staffing analysis conducted by a PREA auditor will be 
just one aspect of the PREA audit, which will examine a facility's 
compliance with all applicable standards. While this may result in some 
duplication of efforts, facilities may be able to schedule their 
triennial PREA audits so as to combine the PREA audit with other 
accreditation proceedings. In addition, while the PREA audit will 
encompass the facility's compliance with all of the PREA standards, it 
will be focused on issues related to sexual abuse and thus likely will 
be narrower in scope than other audits to which the facility is 
subjected.
    Comment. Many advocacy groups recommended that the juvenile 
standard recognize the value of continuous, direct supervision in 
preventing sexual misconduct in juvenile facilities.
    Response. The Department supports the use of continuous, direct 
supervision and notes that many juvenile facilities already employ 
direct supervision as a matter of course. However, some physical plants 
are not conducive to direct supervision. In those facilities, a mandate 
for direct supervision would require major renovations at a high cost. 
For this reason, the final standard does not require direct 
supervision. With regard to under-18 inmates held in adult facilities, 
Sec.  115.14 requires such facilities to provide direct staff 
supervision if the under-18 inmates have contact with adult inmates.
    NPRM Question 8: If a level of staffing were mandated, should the 
standard allow agencies a longer time frame, such as a specified number 
of years, in order to reach that level? If so, what time frame would be 
appropriate?
    Comment. Correctional stakeholders, while remaining opposed to 
mandated staffing levels, supported an extended timeframe, if such 
requirements were included, in order to allow for the local governments 
to allocate additional staffing funding. Some suggested a two-year 
timeframe; others requested up to five years; and some suggested that 
extensions should be granted where necessary. One agency proposed tying 
the timeframe to the growth rate of the State's annual per capita gross 
domestic product. Although advocacy groups did not promote specific 
ratios for adult facilities, they did state that if specific staffing 
levels are required, there should be no extension of the timeframe 
because, in one commenter's words, ``adequate staffing to prevent risk 
of harm to incarcerated individuals is already required by the 
Constitution and reinforced through case law requiring protection from 
harm.''
    Response. The Department adopts specific staffing ratios only with 
regard to secure juvenile facilities. Many of these facilities are 
already subject to the ratios required by the final standard and 
therefore will not need additional time to comply. However, in order to 
provide agencies with sufficient time to readjust staffing levels and, 
if necessary, request and obtain additional funding, any secure 
juvenile facility that, as of the date of publication of the final 
rule, is not already obligated by law, regulation, or judicial consent 
decree to maintain the required staffing ratios shall have until 
October 1, 2017, to achieve compliance. The Department recognizes that 
increasing staffing often requires additional legislative 
appropriations, as well as time needed to recruit and train appropriate 
new staff.
    NPRM Question 9: Should the standard require the establishment of 
priority posts, and, if so, how should such a requirement be structured 
and assessed?
    NPRM Question 10: To what extent can staffing deficiencies be 
addressed by redistributing existing staff assignments? Should the 
standard include additional language to encourage such redistribution?
    Comment. In general, correctional stakeholders and advocacy groups 
agreed that it would be difficult to establish priority posts or 
regulate staff redistribution, given the vast differences in facility 
layout and inmate composition. Many comments stated that establishing 
priority posts and redistributing staff require detailed knowledge of 
the facility's needs in order to best determine how staff should be 
allocated. Other commenters suggested that the Department encourage but 
not mandate this practice. One State correctional agency recommended 
that the standard omit language regarding redistribution to avoid 
conflict with existing collective bargaining agreements and State laws 
governing such agreements.
    Some advocates argued that staffing in medical units, work release 
programs, and other opportunities for seclusion should be considered 
priority posts. One advocacy group recommended that the staffing plan 
identify those posts that must be filled in every shift, regardless of 
unexpected absences or staff shortages.
    Response. Given the variation in facilities and their operational 
needs, the Department concludes that priority posts and staff 
distribution are best left to the agency's discretion. By requiring 
agencies to reassess their staffing plans at least once per year, the 
final standard requires agencies to determine whether and to what 
extent priority posts should be established, or existing staff 
redistributed, to account for changed circumstances and facility needs.
    Comment. The American Jail Association commented that few jails are 
sufficiently similar in layout, classification systems, and supervision 
methods to allow for any universal definition of priority posts. 
Therefore, the AJA and other correctional stakeholders requested that 
the Federal government provide a tool for local jails to use in 
determining risk, thereby helping jails to identify priority posts.
    Response. The National Resource Center for the Elimination of 
Prison Rape will be available to provide technical assistance to 
agencies who seek resources and training. The Department encourages 
agencies to contact the Center with requests of this type.
    Comment. Some correctional agencies suggested that staff 
redistribution should be connected to filed and substantiated 
complaints related to sexual abuse, but that the ultimate decision 
should be a management activity.
    Response. The Department agrees that staff redistribution may be an 
appropriate response to a complaint of sexual abuse. The agency retains 
the discretion as to how to handle such staff redistribution.
    NPRM Question 12: Should the Department mandate the use of 
technology to supplement sexual abuse prevention, detection, and 
response efforts?
    NPRM Question 13: Should the Department craft the standard so that 
compliance is measured by ensuring that the facility has developed a 
plan for securing technology as funds become available?

[[Page 37125]]

    Comment. Correctional stakeholders strongly opposed any mandate for 
increased technology, which they emphasized would be cost-prohibitive. 
Some advocates strongly encouraged mandates for cameras throughout the 
facilities, which they viewed as the best deterrent against abuse, 
especially by staff, and important to substantiating incidents of 
abuse. Other advocates cautioned that cameras in certain locations can 
intrude upon inmate privacy. Several advocacy groups emphasized that 
technology should supplement, not substitute for, adequate staff 
supervision. These advocates opposed a technology mandate when the 
funds could better be spent on additional or higher-quality staffing, 
believing that cameras are most productive as investigatory tools to 
confirm abuse, rather than as a means to prevent abuse. Most commenters 
were receptive to a standard encouraging increased use of technology to 
augment supervision.
    Response. The final standard requires each facility to develop, 
implement, and document a staffing plan that provides for adequate 
levels of staffing, and, where applicable, video monitoring, to protect 
inmates against sexual abuse. Given the costs associated with video 
monitoring technology, the Department concludes that the issue is best 
left to the agency's discretion. The facility is in the best position 
not only to determine the need for such technology but also to 
determine how and where to place cameras.
    The Department recognizes that technology is best utilized to 
supplement, but not replace, staff supervision. Camera surveillance is 
a powerful deterrent and a useful tool in post-incident investigations. 
But it cannot substitute for more direct forms of staff supervision (in 
part because blind spots are inevitable even in facilities with 
comprehensive video monitoring), and cannot replace the interactions 
between inmates or residents and staff that may prove valuable at 
identifying or preventing abuse. In addition, cameras generally do not 
translate into a reduction of staff levels--additional staff may be 
required to properly monitor the new cameras. Indeed, many cameras in 
correctional facilities are currently not continuously monitored.
    While the Department encourages increased use of video monitoring 
technology to supplement sexual abuse prevention, detection, and 
response efforts, the agency is in the best position to determine if 
current or future funds are best directed at increasing the agency's 
use of technology.
    Comment. Former members of the NPREC recommended that the 
Department reinstate two distinct standards for inmate supervision and 
use of monitoring technology. They expressed concern that the 
Department's decision to incorporate inmate supervision and monitoring 
technology into a single standard unintentionally emphasizes the use of 
technology to the detriment of the level of supervision that is 
essential to protect inmates from sexual abuse. They recommended that 
the Department encourage and facilitate, but not mandate, the use of 
technology to supplement sexual abuse prevention, detection, and 
response efforts.
    Response. The final standard does not mandate the use of video 
monitoring technology but instructs agencies to take such technology 
into consideration, where applicable, in evaluating staffing needs. The 
Department did not intend for the combined standard to emphasize the 
use of technology over supervision, and based upon comments received, 
does not believe that it was received as such. The Department believes 
it is appropriate to consider the technology available to a facility, 
but does not consider video monitoring a substitute for staff 
supervision. The National Resource Center for the Elimination of Prison 
Rape can provide technical assistance for agencies seeking input on how 
to introduce or enhance monitoring technology in their facilities.
    Comment. One advocacy group commented that the proposed standard 
should provide guidance on who should monitor cameras, especially in 
cross-gender circumstances.
    Response. Section 115.15 requires that all facilities implement 
policies and procedures that enable inmates to shower, perform bodily 
functions, and change clothing without nonmedical staff of the opposite 
gender viewing their breasts, buttocks, or genitalia, except in the 
case of emergency (now reworded as ``exigent circumstances'') or when 
such viewing is incidental to routine cell checks. Such policies and 
procedures shall require staff of the opposite gender to announce their 
presence when entering an inmate housing unit (for jails and prisons) 
or an area where detainees or residents are likely to be showering, 
performing bodily functions, or changing clothing. Accordingly, no 
staff should monitor a camera that is likely to view inmates of the 
opposite gender while they are showering, performing bodily functions, 
or changing clothing.
    Comment. One advocacy group commented that the proposed standard 
should provide guidance on how long recordings should be retained.
    Response. The Department encourages sufficient retention policies 
to support an appropriate investigations system. Because the final 
standard does not mandate the use of video, it is best to leave the 
specifics to agency discretion.
    Comment. Some juvenile justice agencies suggested that any mandate 
regarding video monitoring technology should be tied directly to a 
facility's compliance with the PREA standards and its overall rate of 
substantiated sexual abuse incidents. A plan for securing additional 
technology funding should only be necessary, in their view, if a 
facility is found to have a higher than average rate of sexual abuse 
cases. Facilities would then draft a corrective active plan that may or 
may not include the need for additional technology. Mandated technology 
expenditures would occur only after a facility has demonstrated a 
continued failure to reduce a higher-than-average rate of sexual abuse 
incidents.
    Response. While the Department encourages the use of video 
monitoring technology to deter sexual abuse and aid in the 
investigatory process, the final standard does not require any facility 
to install camera systems. However, an agency may determine that the 
addition of cameras is an appropriate response to incidents of sexual 
abuse at a particular facility or specific areas within a facility. The 
Department encourages all agencies to assess the potential value of 
such technology in combating sexual abuse. As discussed elsewhere, the 
Department does not believe that the overall rate of substantiated 
sexual abuse incidents can serve as a useful trigger for the imposition 
of additional requirements, because the rate is itself dependent not 
only upon a facility's success at combating sexual abuse, but its 
diligence in investigating allegations and in creating a culture in 
which victims are comfortable reporting incidents without fear of 
retaliation.
    NPRM Question 15: Should this standard mandate a minimum frequency 
for the conduct of such rounds, and if so, what should it be?
    Comment. Correctional stakeholders generally agreed that 
unannounced supervisory rounds should be conducted and are standard 
correctional practice. However, they recommended that the frequency of 
such rounds be left to agency discretion. One sheriff's office noted 
that flexibility in meeting the requirement would reduce resistance by 
supervisors. Advocacy groups made relatively few proposals regarding 
the frequency of such rounds, ranging from every 30 minutes, to weekly, 
to monthly, to ``often enough to prevent

[[Page 37126]]

abuse.'' Some comments noted that frequency should vary so as to 
preserve the element of surprise. Other comments stated that the 
requirement should apply to all facilities, not just those with more 
than 500 beds.
    Response. The final standard expands the requirement for 
unannounced supervisory rounds to all prisons, jails, and juvenile 
facilities. The Department recognizes the value in this practice and 
believes it is appropriate for all facilities. The Department concludes 
that the precise frequency of such rounds is best left to agency 
discretion. The standard requires that facilities implement a policy 
and practice requiring ``unannounced rounds to identify and deter staff 
sexual abuse and sexual harassment,'' document the rounds, and conduct 
the rounds on night shifts and day shifts. Thus, rounds should be 
conducted on a regular basis in a manner intended to discourage staff 
sexual abuse and sexual harassment.
    Comment. Two advocacy groups commented that the standard expressly 
should prohibit so-called ``trip calls,''--i.e., actions by staff to 
tip off their colleagues that a supervisor is en route. These 
commenters asserted that allowing trip calls would defeat the purpose 
of unannounced rounds.
    Response. The final standard adds a requirement that agencies 
maintain a policy prohibiting staff from alerting other staff members 
that these supervisory rounds are occurring, unless such announcement 
is related to the legitimate operational functions of the facility.
    Comment. One law student commented that the standards should 
require a minimum frequency of unannounced supervisory rounds because 
the proposed standard could be satisfied by one unannounced round in a 
decade.
    Response. The final standard requires prisons, jails, and juvenile 
facilities to implement a policy and practice of having intermediate 
level or higher-level supervisors conduct and document unannounced 
rounds. While the final standard does not specify a minimum frequency, 
a policy of one round per decade would clearly not serve as 
``unannounced rounds to identify and deter staff sexual abuse and 
sexual harassment'' (emphasis added).
    Comment. One sheriff's office commented that any standard should 
contain wording that would exempt random supervisory checks in 
emergency and staffing shortage situations.
    Response. Because the final standard does not mandate a specific 
time or frequency of such rounds, facilities may implement a reasonable 
policy that does not require such rounds during an emergency or 
temporary staffing shortage.
    Comment. Another sheriff's office commented that establishing a 
reasonable minimum frequency is advisable to prevent disagreements 
between facility administrators and auditors as to whether the 
frequency of a facility's rounds is adequate. The commenter cautioned, 
however, that great care must be taken to ensure the requirement is 
reasonable, given the vast differences in facilities, and suggested 
that the minimum frequency should be once per month.
    Response. While the final standard does not set a minimum frequency 
for unannounced supervisory rounds, it requires facilities to implement 
a policy and practice requiring ``unannounced rounds to identify and 
deter staff sexual abuse and sexual harassment.'' As such, the 
facilities may set the practice with regard to frequency of rounds, but 
rounds should be conducted on a regular basis in order to have an 
effect on staff sexual abuse and sexual harassment. The Department 
submits that once per month is unlikely to be frequent enough to have 
the intended effect.

Solicitation of Additional Comments Regarding the Juvenile Staffing 
Ratios Set Forth in Sec.  115.313(c)

    While this final rule is effective on the date indicated herein, 
the Department believes that further discussion is warranted regarding 
the aspect of this standard that requires secure juvenile facilities to 
maintain minimum staffing ratios during resident waking and sleeping 
hours. The standard contained in the final rule requires, in pertinent 
part, that ``[e]ach secure juvenile facility shall maintain staff 
ratios of a minimum of 1:8 during resident waking hours and 1:16 during 
resident sleeping hours, except during limited and discrete exigent 
circumstances, which shall be fully documented. Only security staff 
shall be included in these ratios.'' Sec.  115.313(c). Accordingly, the 
Department solicits additional comments limited to this issue.
    Commenters are encouraged to address (1) Whether the provision, as 
written, is appropriate; (2) whether the specific ratios enumerated in 
the provision are the appropriate minimum ratios, or whether the ratios 
should be higher or lower; (3) whether the provision appropriately 
allows an exception from the minimum ratios during ``limited and 
discrete exigent circumstances'' (as ``exigent circumstances'' is 
defined in Sec.  115.5), or whether that exception should be broadened, 
limited, or otherwise revised; (4) whether certain categories of secure 
juvenile facilities should be exempt from the minimum ratio requirement 
or, conversely, whether certain categories of non-secure juvenile 
facilities should also be included in the minimum ratio requirement; 
(5) the extent to which the provision can be expected to be effective 
in combating sexual abuse; (6) the expected costs of the provision; (7) 
whether the required ratios may have negative unintended consequences 
or additional positive unintended benefits; (8) whether empirical 
studies exist on the relationship between staffing ratios and sexual 
abuse or other negative outcomes in juvenile facilities; \10\ (9) 
whether specific objectively determined resident populations within a 
secure facility should be exempt from the minimum ratios; (10) whether 
additional categories of staff, beyond security staff, should be 
included in the minimum ratios; (11) whether the standard should 
exclude from the minimum ratio requirement facilities that meet a 
specified threshold of resident monitoring through video technology or 
other means, and, if so, what that threshold should include; and (12) 
whether the standard appropriately provides an effective date of 
October 1, 2017, for any facility not already obligated to maintain the 
staffing ratios.
---------------------------------------------------------------------------

    \10\ While the Department has not identified studies that 
address the relationship between negative outcomes and specific 
staffing ratios, the Department has reviewed studies that address 
the relationship between negative outcomes and the quantity of 
staffing more generally. See New Amsterdam Consulting, Performance-
based Standards for Youth Correction and Detention Facilities: 2011 
Research Report (unpublished study; available in rulemaking docket); 
Aaron Kupchik and R. Bradley Snyder, The Impact of Juvenile Inmates' 
Perceptions and Facility Characteristics on Victimization in 
Juvenile Correctional Facilities, 89 The Prison Journal 265 (2009), 
available at http://tpj.sagepub.com/content/89/3/265.
---------------------------------------------------------------------------

Youthful Inmates (Sec. Sec.  115.14, 115.114)

    Sections 115.14 and 115.114 regulate the placement of persons under 
the age of 18 in adult prisons, jails, and lockups. The final rule 
refers to under-18 persons in such facilities as ``youthful inmates'' 
(in adult prisons and jails) and ``youthful detainees'' (in lockups).
    The proposed rule did not contain a standard that governed the 
placement of under-18 inmates in adult facilities. Rather, the proposed 
rule noted, and solicited input regarding, ANPRM commenters' 
recommendations that the NPREC's recommended standards be supplemented 
with an additional

[[Page 37127]]

standard to govern the placement and treatment of juveniles in adult 
facilities.
    Some ANPRM commenters had proposed a full ban on placing persons 
under the age of 18 in adult facilities where contact would occur with 
incarcerated adults, while others proposed instead that the standards 
incorporate the requirements of the Juvenile Justice and Delinquency 
Prevention Act (JJDPA), 42 U.S.C. 5601 et seq. As the NPRM discussed, 
the JJDPA provides formula grants to States conditioned on (subject to 
minimal exceptions) deinstitutionalizing juveniles who are charged with 
or who have committed an offense that would not be criminal if 
committed by an adult (often referred to as ``status offenders''), 
separating juveniles from adult inmates in secure facilities, and 
removing juveniles from adult jails and lockups. See 42 U.S.C. 
5633(a)(11)-(14). States that participate in the JJDPA Formula Grants 
Program are subject to a partial loss of funding if they are found not 
to be in compliance with specified requirements.
    Generally speaking, the JJDPA applies to juveniles who are in the 
juvenile justice system, as opposed to those who are under the 
jurisdiction of adult criminal courts. The JJDPA's separation 
requirement applies only to juveniles who are alleged to be or are 
found to be delinquent, juveniles who are charged with or who have 
committed an offense that would not be criminal if committed by an 
adult, or juveniles who are not charged with any offense at all. See 42 
U.S.C. 5633(a)(11)-(12). The JJDPA defines ``adult inmate'' as ``an 
individual who * * * has reached the age of full criminal 
responsibility under applicable State law; and * * * has been arrested 
and is in custody for or awaiting trial on a criminal charge, or is 
convicted of a criminal charge offense.'' 42 U.S.C. 5603(26).
    Accordingly, the NPRM expressly solicited comments on whether the 
final rule should include a standard that governs the placement of 
juveniles in adult facilities, and if so, what the standard should 
require, and how it should interact with current JJDPA requirements and 
penalties.
    After reviewing the comments in response to the questions posed in 
the NPRM, the Department has chosen to adopt a new standard that 
restricts, but does not forbid, the placement of juveniles in adult 
facilities. The standard applies only to persons under the age of 18 
who are under adult court supervision and incarcerated or detained in a 
prison, jail, or lockup. Such persons are, for the purposes of this 
standard, referred to as ``youthful inmates'' (or, in lockups, 
``youthful detainees'').
    The standard imposes three requirements for juveniles placed in 
adult prisons or jails. First, it mandates that no youthful inmate may 
be placed in a housing unit in which he or she will have contact with 
any adult inmate through use of a shared day room or other common 
space, shower area, or sleeping quarters. Second, it requires that, 
outside of housing units, agencies either maintain ``sight and sound 
separation'' between youthful inmates and adult inmates--i.e., prevent 
adult inmates from seeing or communicating with youth--or provide 
direct staff supervision when youthful inmates and adult inmates are 
together. Third, it requires that agencies make their best efforts to 
avoid placing youthful inmates in isolation to comply with this 
provision and that, absent exigent circumstances, agencies comply with 
this standard in a manner that affords youthful inmates daily large-
muscle exercise and any legally required special education services, 
and provides access to other programs and work opportunities to the 
extent possible.
    In lockups, the standard requires that juveniles and youthful 
detainees be held separately from adult detainees.
Comments and Responses
    Comment. In response to the questions posed in the NPRM, comments 
varied widely.
    Many commenters from advocacy organizations recommended a complete 
ban on incarcerating persons under the age of 18 in adult facilities, 
citing statistics indicating that youth in adult facilities face an 
increased risk of sexual abuse. Some advocates expressed concern that 
attempts to protect youth in adult facilities by housing them in 
segregated settings often cause or exacerbate mental health problems. 
Furthermore, advocates asserted, correctional agencies lack sufficient 
expertise in treating the unique needs of the underage population.
    Some advocates proposed, as a fallback option, that the standard 
require a presumption that all youth be housed in juvenile facilities, 
unless a hearing determines that the interests of justice require 
housing in an adult facility.
    Former members of the NPREC--whose final report did not include a 
recommended standard that would govern the placement of youth in adult 
facilities--submitted a comment that supported a standard that would 
require individuals below the age of 18 to be held in juvenile 
facilities, with some exceptions. Specifically, the former members 
recommended that a person under 18 be transferred to an adult facility 
only upon court order following a finding that the juvenile was violent 
or disruptive. If such a juvenile is transferred, the facility would 
need to comply with the standards governing juvenile facilities, 
separate the juvenile by sight and sound from adult inmates, ensure 
that the juvenile receives daily visits from health care providers and 
other staff, and visually check the juvenile every 15 minutes.
    With regard to the intersection with the JJDPA, advocates indicated 
that the PREA standards could and should overlap with the conditions 
applied to formula grants under the JJDPA.
    A significant number of correctional agency commenters opposed 
restricting the placement of youth in adult facilities. Some commenters 
noted that State law governs placement options for youth, and 
recommended that the Department not mandate a standard that would 
contravene such State laws. Other comments suggested that any such 
standard might improperly intrude into judicial functions by infringing 
on judges' discretion in making placement decisions. One comment 
suggested that a national standard governing the placement of juveniles 
in adult facilities would be impractical due to variation in facility 
size, layout, and staffing; another recommended against a standard 
regarding the placement of youth in adult facilities because the zero-
tolerance mandate of Sec.  115.11 already provides adequate protections 
to this population.
    Some agency commenters recommended intermediate approaches. One 
commenter suggested that the final standard should allow youth to be 
placed in adult facilities only where there is ``total separation'' 
between the two populations. Another commenter suggested that adult 
facilities be required (1) to develop and implement a plan to provide 
additional protections for juvenile inmates, and (2) to report 
separately instances of abuse involving juvenile victims.
    A number of agency commenters expressed concerns about importing 
JJDPA requirements into the PREA standards. Some remarked that this 
would result in ``double-counting'' and would result in undue weight 
being placed on this standard.
    Response. After reviewing the comments received on this issue, the 
Department has decided to adopt a standard that restricts the placement 
of youth in adult facilities to the extent that such placement would 
bring youth into unsupervised contact with adults.

[[Page 37128]]

    The Department recognizes that the statistical evidence regarding 
the victimization of youth in adult facilities is not as robust as it 
is for juvenile facilities, in large part because of the small number 
of under-18 inmates in adult facilities and the additional difficulties 
in obtaining consent to survey such inmates.\11\
---------------------------------------------------------------------------

    \11\ The Department does not rely on Congress's finding in PREA 
that ``[j]uveniles are 5 times more likely to be sexually assaulted 
in adult rather than juvenile facilities,'' 42 U.S.C. 15601(4), 
because insufficient data exist to support that assessment. 
Congress's finding appears to derive from a study based on 
interviews with youth adjudicated or tried for violent offenses in 
four cities between 1981 and 1984. See Martin Frost, et al., Youths 
in Prisons and Training Schools: Perceptions and Consequences of the 
Treatment-Custody Dichotomy, 40 Juv. & Fam. Ct. J. 1, 4 (1989). The 
study noted that 7 of 81 youth sentenced to adult facilities, or 
8.6%, reported experiencing sexual assault, as compared to 2 of 59 
youth sent to juvenile facilities, or 1.7%. Id. at 4, 10. While 
suggesting that this discrepancy, and discrepancies regarding other 
types of victimization, ``illustrate the increased danger of 
violence for juveniles sentenced to adult prisons,'' the authors 
noted that ``the victimization results are not statistically 
significant.'' Id. at 9.
---------------------------------------------------------------------------

    The Department's Bureau of Justice Statistics (BJS) previously 
reported that, based on its surveys of facility administrators, 20.6 
percent of victims of substantiated incidents of inmate-on-inmate 
sexual violence in adult jails in 2005 were under the age of 18, and 13 
percent of such victims in 2006 were under 18,\12\ despite the fact 
that under-18 inmates accounted for less than one percent of the total 
jail population in both years.\13\ These findings derived from facility 
responses to BJS's Survey of Sexual Violence (SSV), which was 
administered to a representative sampling of jail facilities in 
addition to all Federal and State prison facilities. However, upon 
further review, BJS has determined that these figures are not 
statistically significant due to the small number of reported incidents 
and the small number of jails contained in the sample. Indeed, in 
reporting data from the 2007 and 2008 SSVs, BJS determined that the 
standard errors around the under-18 estimates for adult jails were 
excessively large, and consequently did not report the estimates 
separately, but rather reported combined figures for inmates under the 
age of 25. BJS has now determined that it should have done the same for 
2005 and 2006.
---------------------------------------------------------------------------

    \12\ See Beck, BJS, Sexual Violence Reported by Correctional 
Authorities, 2005, Table 4 (2006); and Beck, BJS, Sexual Violence 
Reported by Correctional Authorities, 2006, Appendix Table 5 (2007).
    \13\ See Minton, BJS, Jail Inmates at Midyear 2010--Statistical 
Tables, Table 7 (2011).
---------------------------------------------------------------------------

    However, this conclusion does not impact the findings of the same 
BJS surveys performed in State prisons, which surveyed all State 
prisons, in contrast to the jails surveys, which included only a 
sampling of jails. According to SSV reports, from 2005 through 2008, 
1.5 percent of victims of substantiated incidents of inmate-on-inmate 
sexual violence in State prisons were under 18, even though under-18 
inmates constituted less than 0.2 percent of the State prison 
population. While the number of such substantiated incidents is small--
a total of 10--the combined data indicate that State prison inmates 
under the age of 18 are more than eight times as likely as the average 
State prison inmate to have experienced a substantiated incident of 
sexual abuse. Furthermore, the true prevalence of sexual abuse is 
undoubtedly higher than the number of substantiated incidents, due to 
the fact that many incidents are not reported, and some incidents that 
are reported are not able to be verified and thus are not classified as 
``substantiated.'' Indeed, it is quite possible that prison inmates 
under 18 are more reluctant than the average inmate to report an 
incident because of their age and relative newness to the prison 
system.
    BJS is currently in the middle of its third National Inmate Survey 
collection, which is expected to provide better data regarding 
victimization of under-18 inmates in adult prisons and jails. This 
extensive survey will reach inmates in 600 prisons and jails and is 
designed to specifically address this issue by oversampling for 
facilities that house under-18 inmates, and oversampling such inmates 
within those facilities. BJS expects to provide national-level 
estimates in early 2013.
    The Department's review of State procedures indicates that at least 
28 States have laws, regulations, or policies that restrict the 
confinement of youth in adult facilities to varying degrees. Some 
jurisdictions house these youth in juvenile facilities until they reach 
a threshold age and then transfer them to an adult facility. Other 
jurisdictions require physical separation or sight and sound separation 
between these youth and adult offenders. Yet other jurisdictions 
maintain dedicated programs, facilities, or housing units for youth in 
the adult system. Overall, there appears to be a national trend toward 
limiting interaction between adult and under-18 inmates. In recent 
years, a number of States have imposed greater restrictions on the 
placement of youth in adult facilities or have passed legislation to 
allow youth tried as adults to be housed in juvenile facilities.\14\
---------------------------------------------------------------------------

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

    Furthermore, several accrediting and correctional associations have 
formulated position statements, issued standards, or provided comments 
urging either that all persons under 18 be held in juvenile facilities 
only, or that the youth be housed separately from adult inmates. For 
example, the National Commission on Correctional Healthcare, the 
American Jail Association, the National Juvenile Detention Association, 
and the National Association of Juvenile Correctional Agencies all 
support separate housing or placement for youth.\15\
---------------------------------------------------------------------------

    \15\ See Letter from Campaign for Youth Justice, et al., to 
Attorney General Holder, 4 (April 4, 2011), available at http://www.campaignforyouthjustice.org/documents/PREA_sign-on_letter.pdf; 
NCCHC Position Statement, Health Services to Adolescents in Adult 
Correctional Facilities, adopted May 17, 1998, available at http://www.ncchc.org/resources/statements/adolescents.html.

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

[[Page 37129]]

    Although many jurisdictions have moved away from incarcerating 
adults with juveniles, a significant number of youth continue to be 
integrated into the adult inmate population. The Department estimates 
that in 2009, approximately 2,778 juveniles were incarcerated in State 
prisons and 7,218 were held in local jails.\16\
---------------------------------------------------------------------------

    \16\ See West, Prison Inmates at Midyear 2009-Statistical 
Tables, Table 21, BJS (Rev. 2011); Minton, Jail Inmates at Midyear 
2010-Statistical Tables, Table 6, BJS (Rev. 2011).
---------------------------------------------------------------------------

    As a matter of policy, the Department supports strong limitations 
on the confinement of adults with juveniles. Under the Federal Juvenile 
Justice and Delinquency Prevention Act (a separate statute from the 
JJDPA), 18 U.S.C. 5031 et seq., ``[n]o juvenile committed, whether 
pursuant to an adjudication of delinquency or conviction for an 
offense, to the custody of the Attorney General may be placed or 
retained in an adult jail or correctional institution in which he has 
regular contact with adults incarcerated because they have been 
convicted of a crime or are awaiting trial on criminal charges.'' 18 
U.S.C. 5039. Accordingly, the Federal Bureau of Prisons contracts with 
juvenile facilities to house the few juvenile inmates in its custody. 
The United States Marshals Service endeavors to place juveniles in 
juvenile facilities; where that is not possible, the juvenile is placed 
in an adult facility, separated by sight and sound from adult inmates. 
In addition, the Department endorsed the Juvenile Justice and 
Delinquency Prevention Reauthorization Act of 2009, which, had it been 
enacted, would have (among other changes) extended the JJDPA's sight 
and sound separation and jail removal core requirements to youth under 
adult criminal court jurisdiction awaiting trial, unless a court 
specifically finds that it is in the interest of justice to incarcerate 
the youth in an adult facility.
    For a variety of reasons, however, the Department has decided 
against adopting a standard that would generally prohibit the placement 
of youth in adult facilities. Most importantly, the Department is 
cognizant that its mandate in promulgating these standards extends only 
to preventing, detecting, and responding to sexual abuse in confinement 
facilities. While some commenters asserted that confining youth in 
adult facilities impedes access to age-appropriate programming and 
services and may actually increase recidivism, the PREA standards 
cannot include a ban on those bases. Rather, the Department must focus 
on the extent to which such a ban would enhance the ability to prevent, 
detect, and respond to sexual abuse. To be sure, implicit in PREA is 
the authority to regulate and restrict well-intentioned interventions 
aimed at preventing sexual abuse that inadvertently lead to other forms 
of harm. Thus, the Department may adopt a standard that governs the 
placement of inmates in isolation, and the concomitant denial of 
programming, where such placement is used as a means of protecting 
vulnerable inmates against sexual abuse.
    In addition, imposing a general ban on the placement of youth in 
adult facilities, or banning such placements unless a court finds that 
the youth has been violent or disruptive in a juvenile facility, would 
necessarily require a fundamental restructuring of existing State laws 
that permit such placement. For example, many States would require 
legislation redefining the age of criminal responsibility, eliminating 
or amending youthful offender statutes, making changes to direct-file 
and transfer laws, or limiting judicial discretion to determine where a 
youth should be placed. Given the current state of knowledge regarding 
youth in adult facilities, and the availability of more narrowly 
tailored approaches to protecting youth, the Department has decided not 
to impose a complete ban at this time through the PREA standards. As 
noted above, BJS is currently collecting additional data regarding this 
issue, and the Department reserves the right to reexamine this question 
if warranted.
    Juveniles in adult facilities can be protected from sexual abuse by 
adult inmates by preventing unsupervised contact with adult inmates. 
The Department adopts a final standard aimed at preventing such 
unsupervised contact without inadvertently causing other harm to youth.
    First, the standard bans the placement of youth in housing units 
where they interact with adults. Youth are vulnerable to abuse not only 
by cellmates, but also by adults in their unit who may have contact 
with them. To be sure, if youth have their own cells, and if the 
housing unit lacks a common day room or shower area, then such dangers 
are sufficiently mitigated. Thus, the standard requires that no 
youthful inmate be placed in a housing unit in which he or she will 
have sight, sound, or physical contact with any adult inmate through 
use of a shared day room or other common space, shower area, or 
sleeping quarters.
    Second, the standard limits interactions between youthful and adult 
inmates in other areas of the facility. The most basic way to limit 
such interaction is to ensure sight and sound separation. However, some 
facilities may find it infeasible to achieve total sight and sound 
separation without resorting to the use of isolation and denial of 
programming, which raise significant concerns of their own, as 
discussed below. Thus, the standard provides additional flexibility by 
allowing youthful inmates to commingle with adult inmates as long as 
direct staff supervision is provided. Such supervision must be 
sufficient to ensure that youth are within sight at all times.
    Third, the standard restricts the use of isolation of youth as a 
means of compliance with the requirements discussed above. While 
confining youth to their cells is the easiest method of protecting them 
from sexual abuse, such protection comes at a cost. Isolation is known 
to be dangerous to mental health, especially among youth. Among other 
things, isolation puts youth at greater risk of committing suicide. A 
recent survey of juvenile suicides in confinement found that 110 
suicides occurred in juvenile facilities between 1995 and 1999. 
Analyzing those suicides for which information was available, the 
survey determined that 50.6 percent of the suicides occurred when 
inmates were confined to their rooms outside of traditional nonwaking 
hours as a behavioral sanction.\17\ (To be sure, the suicide risk may 
be higher among juveniles who are committed to isolation as punishment, 
rather than among juveniles isolated for protection from the general 
population, as is more common in adult facilities.)
---------------------------------------------------------------------------

    \17\ See Lindsay Hayes, Juvenile Suicide in Confinement: A 
National Survey at 10, 28-29 (Feb. 2004).
---------------------------------------------------------------------------

    Youth appear to be at increased risk of suicide in adult 
facilities, although the extent to which isolation is a contributing 
factor is unknown. Based on the BJS Deaths in Custody Reporting 
Program, 2000-2007, 36 under-18 inmates held in local jails died as a 
result of suicide (with the number varying from 3 to 7 each year). The 
suicide rate of youth in jails was 63.0 per 100,000 under-18 inmates, 
as compared to 42.1 per 100,000 inmates overall, and 31 per 100,000 
inmates aged 18-24. (By contrast, in the general population, the 
suicide risk is twice as high for persons aged 18-24 than for persons 
under 18.) The suicide rate of youth was approximately six times as 
high in jails than among 15- to 19-year-olds in the U.S. resident 
population

[[Page 37130]]

with a comparable gender distribution (10.4 per 100,000 in 2007).\18\
---------------------------------------------------------------------------

    \18\ See Margaret E. Noonan, BJS, Deaths in Custody: Local Jail 
Deaths, Table 9 (Oct. 28, 2010); Margaret E. Noonan, BJS, Mortality 
in Local Jails, 2000-2007, Table 9 (July 2010); BJS, 2002 Survey of 
Inmates in Local Jails (unpublished data); BJS, Annual Survey of 
Jails, 2007 (unpublished data); Melonie Heron, Ph.D., National Vital 
Statistics System, Deaths: Leading Causes for 2007, 59 National 
Vital Statistics Reports, No. 8, table 1 (Aug. 26, 2011); BJS, 
Deaths in Custody Reporting Program, 2002-2005, available at http://bjs.ojp.usdoj.gov/content/dcrp/juvenileindex.cfm; Census of 
Juveniles in Residential Placement, 2001, 2003, and 2006, data 
available at http://www.ojjdp.gov/ojstatbb/ezacjrp/asp/selection.asp. Although the rate among 15- to 19-year-olds in the 
U.S. resident population was 6.9 per 100,000, the estimated rate for 
a comparable gender distribution is higher after adjusting for the 
fact that 92.3% of youth held in jails were male.
---------------------------------------------------------------------------

    Accordingly, the standard requires that agencies make their best 
efforts to avoid placing youth in isolation in order to comply with 
this standard. For example, rather than relying on the use of 
isolation, agencies should attempt to designate dedicated units, wings, 
or tiers for confined youth; enter into inter-agency, inter-facility, 
or cooperative agreements for the common placement of youth; 
temporarily house youth in a juvenile facility; construct partitions or 
other low-cost facility alterations; or explore alternatives to 
detention or incarceration for youth in the agency's custody and care. 
If isolation is unavoidable, the final standard requires that, absent 
exigent circumstances, agencies provide youth with daily large-muscle 
exercise and any special education services otherwise mandated by law. 
Youth also shall have access to other programs and work opportunities 
to the extent possible. The Department believes it is not necessary to 
impose the additional requirements suggested by former NPREC members. 
Requiring a facility to abide by the standards for juvenile facilities 
in addition to the standards for adult prisons and jails could lead to 
confusion and is unlikely to have an impact on the safety of the youth. 
Nor is it likely that mandating visits by staff or visual checks would 
provide enhanced protection beyond the basic sight and sound 
separation.
    The Department is mindful of agency concerns regarding cost, 
feasibility, and preservation of State law prerogatives. The final 
standard affords facilities and agencies flexibility in devising an 
approach to protecting youth. Compliance may be achieved by (1) 
Confining youth to a separate unit, (2) transferring youth to a 
facility within the agency that enables them to be confined to a 
separate unit, (3) entering into a cooperative agreement with an 
outside jurisdiction to enable compliance, or (4) ceasing to confine 
youth in adult facilities as a matter of policy or law. Agencies may, 
of course, combine these approaches as they see fit.
    The Department has decided not to incorporate into the standards 
for adult prisons and jails the JJDPA requirements that apply to 
juveniles who are not tried as adults. As noted above, Sec.  115.14 
applies only to juveniles under the jurisdiction of adult courts, 
whereas the JJDPA's separation requirement applies only to juveniles 
who are alleged to be or are found to be delinquent, juveniles who are 
charged with or who have committed an offense that would not be 
criminal if committed by an adult, or juveniles who are not charged 
with any offense at all. See 42 U.S.C 5633(a)(11)-(12).
    The high degree of compliance with the JJDPA indicates that the 
incentives and penalties under the Act are operating successfully to 
ensure that juveniles who are tried as juveniles are not intermingled 
with adults except under the narrow circumstances the JJDPA allows. As 
discussed above, the purposes of the two statutes are different: The 
JJDPA aims to protect youth and discourage delinquency, whereas PREA is 
more narrowly limited to preventing sexual abuse. Thus, only a portion 
of the requirements that States must fulfill in order to receive JJDPA 
grants is relevant to protecting youth from sexual abuse. The 
Department concludes that to import such requirements in a piecemeal 
manner could risk confusion and would not materially increase the 
protection of youth in the juvenile justice system.

Limits to Cross-Gender Viewing and Searches (Sec. Sec.  115.15, 
115.115, 115.215, 115.315)

Summary of Proposed Rule
    The standard contained in the proposed rule (numbered as Sec. Sec.  
115.14, 115.114, 115.214, and 115.314) prohibited cross-gender pat-down 
searches in juvenile facilities, but did not impose a general ban in 
other facilities. The proposed standard did, however, require agencies 
to exempt from non-emergency pat-down searches those inmates who have 
suffered prior cross-gender sexual abuse while incarcerated. That 
provision attempted to address the possibility that an inmate who has 
experienced prior sexual abuse would experience a cross-gender pat-down 
search as particularly traumatizing, even if the search was conducted 
properly.
    The proposed standard also prohibited cross-gender strip searches 
absent an emergency situation or when conducted by a medical 
practitioner, and required documentation for cross-gender strip 
searches.
    Recognizing that transgender inmates may be traumatized by genital 
examinations, the proposed standard prohibited examining a transgender 
inmate to determine genital status, unless genital status is unknown, 
in which case such an examination would be conducted in private by a 
medical practitioner. The proposed standard also required facilities to 
minimize opposite-gender viewing of inmates as they shower, perform 
bodily functions, or change clothes. The standard provided an exception 
for such viewing where incidental to routine cell checks.
    The proposed standard also required agencies to train security 
staff in properly conducting cross-gender pat-down searches, and 
searches of transgender inmates, in a professional and respectful 
manner, and in the least intrusive manner possible, consistent with 
security needs.
Changes in Final Rule
    The most significant change in this standard is the inclusion of a 
ban on cross-gender pat-down searches of female inmates in adult 
prisons and jails and in community confinement facilities, absent 
exigent circumstances. To facilitate compliance, most facilities will 
have three years to comply. Recognizing that this requirement may be 
more difficult for smaller facilities to implement, facilities with a 
rated capacity of less than 50 inmates are provided five years in which 
to implement the ban. The final standard also clarified that women's 
access to programming or out-of-cell opportunities should not be 
restricted to comply with this provision. In addition, the final 
standard requires facilities to document all cross-gender searches of 
female inmates.
    The final standard retains the general rule against cross-gender 
strip searches and body cavity searches and clarifies that ``body 
cavity searches'' means searches of the anal or genital opening. The 
exception for medical practitioners has been retained; the emergency 
exception has been replaced with an exception for ``exigent 
circumstances'' to be consistent with similar changes from 
``emergency'' to ``exigent'' throughout the final standards.
    The final standard imposes a complete ban on searching or 
physically examining a transgender or intersex inmate for the sole 
purpose of determining the inmate's genital status. Rather, if the 
inmate's genital status is unknown, it may be determined during 
conversations with the inmate, by

[[Page 37131]]

reviewing medical records, or, if necessary, by learning that 
information as part of a broader medical examination conducted in 
private by a medical practitioner. The final standard also retains the 
requirement for agencies to train security staff in conducting 
professional and respectful cross-gender pat-down searches and searches 
of transgender inmates, in the least intrusive manner possible, 
consistent with security needs. The final standard extends these 
protections to intersex inmates as well.
    The final standard retains the requirement that each facility 
implement policies and procedures that enable inmates to shower, 
perform bodily functions, and change clothing without nonmedical staff 
of the opposite gender viewing their breasts, buttocks, or genitalia, 
except in the case of emergency (now reworded as ``exigent 
circumstances''), or when such viewing is incidental to routine cell 
checks. The final standard removes ``by accident'' from the list of 
exceptions, and adds a requirement that staff of the opposite gender 
announce their presence when entering an inmate housing unit.
    The final standard retains the ban on cross-gender pat-down 
searches for all residents in juvenile facilities, and narrows the 
exceptions to the ban to include only exigent circumstances.
Comments and Responses
    Comments on cross-gender pat-down searches. The issue of cross-
gender pat-down searches generated a substantial number of comments. In 
general, advocates strongly supported a ban on all cross-gender pat-
down searches, as did two members of Congress. Some correctional 
commenters also noted that same-gender pat-down searches are accepted 
practice, but emphasized the need for an exception that would permit 
cross-gender pat-down searches in exigent circumstances. Advocates 
suggested that a ban on cross-gender pat-down searches could be 
accomplished with minimal expense by limiting pat-down searches to 
areas with a high contraband risk, or assigning a roving officer to 
various posts. Most current and former inmates also supported a ban on 
all cross-gender pat-down searches. Other commenters stated that cross-
gender searches contribute to a sexualized environment. Two commenters 
went further by proposing limits to cross-gender supervision, not just 
cross-gender searches.
    A number of advocates strongly recommended that, at a minimum, the 
final standard prohibit cross-gender pat-down searches of women. Citing 
a 1999 study conducted by the National Institute of Corrections, 
advocates suggested that numerous States currently ban cross-gender 
pat-down searches of female inmates. A handful of commenters 
recommended that such a ban be phased in over a period of two or three 
years to ease the transition.
    In general, agency commenters supported the proposed standard as 
written regarding cross-gender searches. Several State correctional 
agencies remarked that prohibiting cross-gender pat-down searches of 
female inmates was feasible, but that it would be difficult to extend a 
cross-gender ban to male inmates. Other agency commenters stated that 
the training requirement would address any problems with cross-gender 
searches.
    Commenters noted that gender-based requirements could implicate 
laws that bar discrimination in employment on the basis of sex. Of 
these commenters, most expressed concern regarding the possibility of a 
standard that prohibited both male-on-female pat-down searches and 
female-on-male cross-gender pat-down searches. A smaller number of 
commenters expressed similar concerns with regard to the possibility of 
a standard that prohibited only male-on-female searches. A larger 
number, however, expressed confidence that a ban on cross-gender pat-
down searches of female inmates could be implemented in a manner that 
would not violate employment laws. Several correctional agency 
commenters observed that requiring same-gender pat-down searches of 
female inmates, except in exigent circumstances, is already an accepted 
practice in adult prisons and jails.
    Multiple agency commenters expressed concern that a complete 
prohibition on cross-gender pat-down searches could violate collective 
bargaining agreements, which affect staff assignments, if the 
prohibition prevented staff of a particular gender from retaining a 
particular assignment.
    Both advocacy and agency commenters strongly criticized the 
exemption from cross-gender pat-down searches for inmates who have 
suffered documented prior cross-gender sexual abuse while incarcerated. 
Commenters expressed concern that inmates who avail themselves of the 
exemption would be labeled and ostracized, and would possibly be 
putting themselves at greater risk for further abuse. Commenters 
expressed doubt that inmates would be willing to reveal their sexual 
abuse history in such a manner, which would likely become known to a 
significant number of staff and inmates if only victims of prior abuse 
were exempted from cross-gender pat-down searches. A number of former 
inmates also expressed skepticism that requests for exemptions would 
actually be honored.
    Response. The Department is persuaded that adopting a standard that 
generally prohibits cross-gender pat-down searches of female inmates in 
prisons and jails will further PREA's mandate of preventing sexual 
abuse without compromising security in corrections settings, infringing 
impermissibly on the employment rights of officers, or adversely 
affecting male inmates. The final standard prohibits cross-gender pat-
down searches of female inmates and residents in adult prisons, jails, 
and community confinement facilities, absent exigent circumstances, but 
does not prohibit such searches of male inmates. With regard to 
juvenile facilities, the final standard retains the proposed standard's 
prohibition on all cross-gender pat-down searches of either male or 
female residents, absent exigent circumstances.
    Pat-down searches are a daily occurrence in corrections settings 
and, when performed correctly, require staff to have intimate bodily 
contact with inmates. Although most pat-down searches are conducted 
legitimately by conscientious staff, it can be difficult to distinguish 
between a pat-down search conducted for legitimate security purposes 
and one conducted for the illicit gratification of the staff person, 
which would constitute sexual abuse.
    Female inmates are especially vulnerable owing to their 
disproportionate likelihood of having previously suffered abuse. A BJS 
survey conducted in 2004 found that 42 percent of female State 
prisoners and 28 percent of female Federal prisoners reported that they 
had been sexually abused before their current sentence, as compared to 
6 percent of male State prisoners and 2 percent of male Federal 
prisoners. A BJS survey of jail inmates, conducted in 2002, found that 
36 percent of female inmates reported sexual abuse prior to 
incarceration, compared to 4 percent of male inmates.\19\ According to 
studies, women with histories of sexual abuse--including women in 
prisons and jails--are particularly traumatized by subsequent 
abuse.\20\ In addition, even a

[[Page 37132]]

professionally conducted cross-gender pat-down search may be traumatic 
and perceived as abusive by inmates who have experienced past sexual 
abuse. See Jordan v. Gardner, 986 F.2d 1521, 1526 (9th Cir. 1993) (en 
banc) (striking down cross-gender pat-downs of female inmates as 
unconstitutional ``infliction of pain'' where there was evidence that a 
high percentage of the female inmate population had a history of 
traumatic sexual abuse by men and were being re-traumatized by the 
cross-gender pat-down searches). Thus, even a professionally conducted 
male-on-female pat-down search increases the risk of harm to female 
inmates, who have a high prevalence of past prior abuse. See id. at 
1525 (affirming district court holding that there ``is a high 
probability of great harm, including severe psychological injury and 
emotional pain and suffering, to some inmates, from these searches, 
even if it was properly conducted'').
---------------------------------------------------------------------------

    \19\ BJS, unpublished data, 2004 Survey of Inmates in State and 
Federal Correctional Facilities and 2002 Survey of Inmates in Local 
Jails.
    \20\ See Catherine C. Classen, Oxana Gronskaya Palesh, & Rashi 
Aggarwal, Sexual Revictimization: A Review of the Empirical 
Literature, 6 Trauma, Violence, & Abuse 103, 117 (2005) (``There is 
considerable evidence that sexual revictimization is associated with 
more distress compared to one incident of sexual victimization. * * 
* The general finding appears to be that women who are revictimized 
suffer more PTSD symptoms''); Barbara Bloom, Barbara Owen, and 
Stephanie Covington, Gender-Responsive Strategies: Research, 
Practice, and Guiding Principles for Women Offenders, at 37, NIC 
(2003) (``In addition, standard policies and procedures in 
correctional settings (e.g., searches, restraints, and isolation) 
can have profound effects on women with histories of trauma and 
abuse, and often act as triggers to retraumatize women who have 
post-traumatic stress disorder (PTSD).''); Danielle Dirks, Sexual 
Revictimization and Retraumatization of Women in Prison, 32 Women's 
Stud. Q. 102, 102 (2004) (``For women with previous histories of 
abuse, prison life is apt to simulate the abuse dynamics already 
established in these women's lives, thus perpetuating women's 
further revictimization and retraumatization while serving time.''). 
In 2009, the Department's Office of the Inspector General, in a 
report on BOP's efforts at combating sexual abuse by staff, noted 
that ``because female prisoners in particular often have histories 
of being sexually abused, they are even more traumatized by further 
abuse inflicted by correctional staff while in custody.'' OIG, 
United States Department of Justice, The Department of Justice's 
Efforts to Prevent Staff Sexual Abuse of Federal Inmates at 1 
(2009).
---------------------------------------------------------------------------

    Most staff sexual abuse of female inmates is committed by male 
staff. The BJS National Inmate Survey found that 71.8 percent of female 
prisoners who were victims of sexual abuse by staff reported that the 
staff perpetrator was male in every instance, compared to 9.3 percent 
who reported that the staff perpetrators were exclusively female.\21\ 
Furthermore, 36.7 percent of female inmates who reported sexual 
touching indicated that they experienced sexual touching during a pat-
down search.
---------------------------------------------------------------------------

    \21\ See BJS, Sexual Victimization in Prisons and Jails Reported 
by Inmates, National Inmate Survey, 2008-09, at 24. Corresponding 
figures in jails were 62.6% and 27.6%, respectively. Numbers do not 
sum to 100% because some inmates reported being victimized by both 
male and female staff.
---------------------------------------------------------------------------

    An analysis of allegations reported by BOP inmates to BOP's Office 
of Internal Affairs, conducted by the Department's Office of the 
Inspector General (OIG), provides further indication of vulnerability 
of female inmates to sexual abuse at the hands of male staff. OIG found 
that, from fiscal year 2001 through 2008, 45.6 percent of all 
allegations of criminal cross-gender sexual abuse committed by BOP 
staff were lodged by female prisoners, even though women made up less 
than 7 percent of the BOP population.\22\ BOP did not prohibit cross-
gender pat-down searches of female inmates during this time period, and 
OIG reported that ``BOP officials believed that male staff members were 
most often accused of sexual misconduct stemming from pat searches.'' 
\23\
---------------------------------------------------------------------------

    \22\ See OIG, United States Department of Justice, The 
Department of Justice's Efforts to Prevent Staff Sexual Abuse of 
Federal Inmates at 26-28 (2009). Three hundred and twenty-five 
allegations of criminal sexual abuse were made by female inmates 
against male staff, as compared to 382 allegations by male inmates 
against female staff.
    \23\ See id. at 26.
---------------------------------------------------------------------------

    A thorough pat-down search requires staff to engage in intimate 
touching of the inmate's clothed body, including the breasts, buttocks, 
and genital regions. Given that female inmates are significantly more 
likely to be sexually abused by male officers than by female officers, 
the Department determined that it would be prudent, as a prophylactic 
measure to decrease the risk of sexual abuse, to prohibit the 
necessarily intimate touching that occurs during routine cross-gender 
pat-down searches and that may inadvertently contribute to the 
development of a sexualized environment within a facility. A ban on 
cross-gender pat-down searches of female inmates, absent exigent 
circumstances, is consistent with effective corrections policy, as 
evidenced by the fact that a significant number of State and local 
corrections systems already abide by such a restriction, as discussed 
below.
    Currently, as a matter of law or policy, most State prison systems 
do not conduct cross-gender pat-down searches of female inmates, absent 
exigent circumstances. At the request of the Department's PREA Working 
Group, the National Institute of Corrections (NIC) conducted a survey 
of State corrections systems and found that at least 27 States ban the 
practice, and that it is common practice in several other States for 
male officers to perform pat-down searches of female prisoners only 
under exigent circumstances. While comparable data from jails are 
unavailable, representatives of twelve large jail agencies who attended 
a PREA listening session convened by the Department all stated that 
they do not permit cross-gender pat-down searches of females. The 
Department is not aware of any cases successfully challenging the 
practice of banning only cross-gender pat-down searches of female 
prisoners, despite the widespread prevalence of these restrictions.
    The Department believes that laws that prohibit employment 
discrimination on the basis of sex pose no obstacle to the 
implementation of this standard. Rather, the prohibition of cross-
gender pat-down searches of female inmates can (and must) be 
implemented in a manner consistent with Federal laws prohibiting sex 
discrimination in employment, to ensure that implementation has only a 
de minimis impact on employment opportunities, or, if the impact is 
more than de minimis, that any sex-based limitations on employment 
opportunities satisfy the bona fide occupational qualification 
requirement of Federal employment law.
    Notably, female inmates make up a very small proportion of the 
total number of incarcerated individuals.\24\ The small proportion of 
female inmates provides further support for agencies' ability to 
implement a ban on cross-gender pat-down searches of female inmates 
without negatively impacting employment opportunities.
---------------------------------------------------------------------------

    \24\ See BJS, Annual Survey of Jails (2010) (12% of jail inmates 
are female); BJS, Prisoners in 2009 (7% of prison inmates are 
female).
---------------------------------------------------------------------------

    Title VII of the Civil Rights Act of 1964 states that ``it shall 
not be an unlawful employment practice for an employer to hire and 
employ employees * * * on the basis of * * * sex * * * where * * * sex 
* * * is a bona fide occupational qualification [``BFOQ''] reasonably 
necessary to the normal operation of that particular business or 
enterprise.'' 42 U.S.C. 2000e-2(e)(1).\25\ However, employment 
decisions that have only a de minimis effect on the employment 
opportunities of

[[Page 37133]]

correctional employees do not trigger or require a BFOQ analysis.
---------------------------------------------------------------------------

    \25\ The BFOQ language is found in the section of Title VII that 
pertains to private employers and State and local government 
employers. The section of Title VII that applies to executive branch 
agencies such as BOP does not expressly set forth a BFOQ defense. 
See 42 U.S.C. 2000e-16(a). While the Department is not aware of any 
case law on the issue, the Equal Employment Opportunities Commission 
has applied the Title VII BFOQ defense in petitions against Federal 
employers. See, e.g., Gray v. Nicholson, EEOC DOC 0720050093 (Feb. 
9, 2007). Accordingly, the Department believes that the defense 
would be available to BOP and other Federal employers on the same 
terms as other employers.
---------------------------------------------------------------------------

    To establish a BFOQ defense, a facility must show that a gender-
based job qualification is related to the essence or central function 
of the facility, and that the qualification is reasonably necessary to 
the normal operations of the facility. See Dothard v. Rawlinson, 433 
U.S. 321, 332-37 (1977) (holding that exclusion of females in contact 
positions in Alabama's violent male maximum security prisons may 
satisfy BFOQ requirement). However, the requirement that only female 
staff perform pat-down searches on female inmates is unlikely to 
require a BFOQ for single-sex employment positions in a facility 
because, as shown by nationwide experience, facilities will almost 
always be able to implement the requirement in a minimally intrusive 
way that has only a de minimis effect on employment opportunities. See 
Tharp v. Iowa Dep't of Corr., 68 F.3d 223, 226 (8th Cir. 1995) (en 
banc) (holding that a prison employer's reasonable gender-based job 
assignment policy, particularly a policy that is favorable to the 
protected class of women employees, will be upheld if it imposes only a 
minimal restriction on other employees, and therefore a BFOQ analysis 
was unnecessary).
    Sex-based assignment policies in correctional facilities often 
impose only a de minimis restriction on the employment opportunities of 
male officers when facilities preclude male employees from working only 
a small percentage of certain shifts or job posts at particular 
facilities but make numerous comparable shifts or posts available to 
males. See Robino v. Iranon, 145 F.3d 1109, 1110-11 (9th Cir. 1998) 
(restricting six out of 41 guard positions to women had a de minimis 
effect). When only minor adjustments of staff schedules and job 
responsibilities are at issue, the effect on employment rights is de 
minimis. See Jordan, 986 F.2d at 1539 (Reinhardt, J. concurring); 
Tipler v. Douglas Cnty., 482 F.3d 1023, 1025-27 (8th Cir. 2007) 
(temporary reassignments with no effect on promotional opportunities 
had a de minimis effect); Tharp, 68 F.3d at 225-27 (policy requiring 
female residential advisors to staff a women's unit in a mixed-gender 
minimum security had a de minimis effect because the prison's male 
employees did not suffer termination, demotion, or a reduction in pay). 
Agencies may implement a ban on cross-gender pat-down searches of 
female inmates in the manner most appropriate for each facility.
    Facilities and agencies should strive to implement this provision 
in a manner that has a de minimis effect so that a BFOQ inquiry is not 
required. If a facility or agency implements the cross-gender pat-down 
ban in a way that creates materially adverse changes in the terms and 
conditions of employment by precluding staff of either sex from certain 
positions entirely, thereby affecting their promotions, additional pay, 
seniority, or future eligibility for senior positions, then the 
facility would be required to conduct a BFOQ inquiry. As noted above, 
such an inquiry must demonstrate that the manner of implementation is 
both related to the central function of the facility and reasonably 
necessary for the successful operation of the facility. See Dothard, 
433 U.S. at 335-37. There are numerous ways in which facilities can 
eliminate cross-gender pat-down searches of female inmates, in 
conformance with employment laws. For example, agencies can assign or 
rotate female staff to certain key posts within the facility, so long 
as female staff are not limited in their opportunities for advancement 
as compared to similarly situated male staff; provide for female float 
staff who can conduct searches as necessary; allow staff to transfer 
between agency facilities to achieve better gender balance; or 
implement institutional schedules that maximize availability of female 
staff for pat-down searches of female inmates.
    It is important to note that the standard prohibiting cross-gender 
pat-down searches does not, in and of itself, create or establish a 
BFOQ defense to claims of sex discrimination in employment. If a 
correctional facility cannot implement this standard in a manner that 
imposes only a de minimis impact on employment opportunities for either 
sex, it must undertake an individualized assessment of its particular 
policies and practices and the particular circumstances and history of 
its inmates to determine whether altering or reserving job duties or 
opportunities to one sex would justify a BFOQ defense with respect to 
each particular employment position or opportunity potentially affected 
by the agency's implementation of the standards.
    Female-preference sex-based employment assignments in correctional 
facilities can meet the BFOQ standard if such assignments are 
reasonably necessary to the normal operation of the particular 
facilities at which they are used. This is a high standard. For 
example, one agency used its history of rampant sexual abuse of female 
prisoners to justify a BFOQ and designate 250 corrections officer and 
residential unit officer positions in the housing units of State female 
prisons as ``female only.'' The facially discriminatory plan, which 
affected a significant number of male officers, was permissible because 
sex was a BFOQ for these particular facilities based on the facilities' 
histories. See Everson v. Michigan Dep't of Corr., 391 F.3d 737, 747-61 
(6th Cir. 2004). Additionally, based on the totality of the 
circumstances at a specific facility, sex may be a BFOQ for all 
positions in the living units of a women's maximum security prison 
where the practice of employing only female guards in these positions 
is reasonably necessary to the goal of female prisoner rehabilitation. 
See Torres v. Wisconsin Dep't of Health & Human Servs., 859 F.2d 1523, 
1530-32 (7th Cir. 1988) (en banc).
    However, female-preference sex-based staffing polices do not meet 
the high standard necessary to establish a BFOQ defense without a high 
correlation between sex and ability to perform a particular position. 
See Breiner v. Nevada Dep't of Corr., 610 F.3d 1201, 1213 (9th Cir. 
2010). For example, being female was not a BFOQ for all three 
lieutenant positions at a women's correctional facility because the 
facility did not demonstrate that precluding men from serving in 
supervisory positions in women's prisons was necessary to meet its goal 
of reducing instances of sexual abuse of female inmates by male 
correctional officers. See id. at 1210-16. A policy banning male 
officers from all posts in female housing units also did not meet the 
requirements necessary to establish a BFOQ defense when it was 
predicated on a few unspecified past incidents of sexual misconduct and 
generalized arguments that the mere presence of males caused distress 
to past victims of sexual abuse. See Westchester Cnty. Corr. v. Cnty. 
of Westchester, 346 F. Supp. 2d 527, 533-36 (S.D.N.Y. 2004).
    In addition, the final standard allows all facilities with more 
than 50 beds three years from the effective date of the PREA standards 
for implementation, and five years for facilities smaller than 50 beds. 
This extended time frame provides facilities of all sizes and security 
levels with ample opportunity to develop and implement a practice that 
will protect female prisoners without undue burden on the operations of 
the facility. Furthermore, to the extent that agencies want to increase 
their percentage of female staff to facilitate compliance with the 
standards, agencies can take advantage of natural attrition to recruit 
and hire additional female staff without terminating male staff. Most 
agencies will be able to implement the ban in a

[[Page 37134]]

manner that has only a de minimis effect on employment opportunities 
and assignments for male employees. And given the lengthy time period 
allowed to come into compliance, and the level of discretion retained 
by agencies, the Department believes that the standard can be 
implemented in accordance with collective bargaining agreements.
    The Department has chosen not to include in the final standard a 
similar prohibition on female staff conducting pat-down searches of 
male inmates. The Department concludes that the benefit of prohibiting 
cross-gender pat-down searches of male inmates is significantly less 
than the benefit of prohibiting cross-gender pat-down searches of 
female inmates, whereas the costs of the former are significantly 
higher than the costs of the latter. A ban on cross-gender pat-down 
searches only of female prisoners does not violate the Equal Protection 
Clause of the Fourteenth Amendment because male and female prisoners 
are not similarly situated with respect to bodily searches. Male 
inmates are far less likely than female inmates to have a history of 
traumatic sexual abuse and are less likely to experience the 
retraumatization that may affect female inmates due to a cross-gender 
pat-down search. See Laing v. Guisto, 92 Fed. Appx. 422, 423 (9th Cir. 
2004); Timm v. Gunter, 917 F.2d 1093, 1102-03 (8th Cir. 1990); Jordan, 
986 at 1525-27; Tipler, 482 F.3d at 1027-28; Colman v. Vasquez, 142 F. 
Supp. 2d 226, 232 (D. Conn. 2001).
    With regard to cost, the Department reaffirms its assessment, as 
stated in the proposed rule, that a ban on cross-gender pat-down 
searches of male inmates would impose significant financial costs and 
could limit employment opportunities for women. The correctional 
population remains overwhelmingly male: 88 percent of jail inmates and 
93 percent of prison inmates are men. Correctional staff, by contrast, 
are considerably more balanced by sex: according to BJS data, 25 
percent of Federal and State correctional officers were female as of 
2005, and 28 percent of correctional officers in local jails were 
female as of 1999.\26\ Female participation in the correctional 
workforce has been increasing over the past two decades, and it is 
likely that the disparity between the percentage of female correctional 
staff and the percentage of female inmates will continue to grow. In 
addition, there is significant variation across States: The percentage 
of female correctional officers in State prisons ranges from 9 percent 
in Rhode Island to 63 percent in Mississippi. Jurisdiction-level data 
are not available for local jails, but statewide data indicate that the 
comparable aggregate percentages range from 8 percent in Massachusetts 
to 43 percent in Nebraska. In the growing number of correctional 
agencies where the percentage of female correctional staff is 
substantial, but the female inmate population is (as in most places) 
quite small, it could be difficult to implement a ban on female staff 
patting down male inmates without a significant adverse impact on 
employment opportunities for women, who would be unable to occupy 
correctional positions that involve patting down male inmates, and 
whose prospects for advancement could suffer as a result. See Madyun v. 
Franzen, 704 F.2d 954, 962 (7th Cir. 1983) (gender-based distinctions 
allowing women to serve as guards in male prisons and perform tasks 
that are not open to men in female prisons serves the important 
governmental objective of equal job opportunity for women in fields 
traditionally closed to them). In addition, in facilities with a high 
percentage of female staff, there could be an insufficient number of 
male staff to perform pat-down searches on male inmates, given the 
overwhelmingly male nature of the inmate population.
---------------------------------------------------------------------------

    \26\ See James J. Stephan, BJS, Census of State and Federal 
Correctional Facilities, 2005, Appendix Table 12 (Oct. 2008); James 
J. Stephan, BJS, Census of Jails, 1999, at 9, 26 (Aug. 2001).
---------------------------------------------------------------------------

    To be sure, in adopting a one-way ban, the Department does not 
suggest that male inmates are less likely to have experienced cross-
gender sexual abuse while incarcerated than female inmates. In the most 
recent BJS survey, male inmates were somewhat more likely to report 
having experienced staff sexual misconduct than female inmates (in 
prisons, 2.9 percent vs. 2.1 percent; in jails, 2.1 percent vs. 1.5 
percent), and were about as likely as female inmates to report that the 
perpetrator was always of the opposite sex (in prisons, 68.8 percent 
vs. 71.8 percent; in jails, 64.3 percent vs. 62.6 percent).\27\ The 
Department also acknowledges that the same survey indicated that male 
inmates were nearly as likely as female inmates to report sexual 
touching in a pat-down search: 36.3 percent of male inmates who 
reported sexual touching indicated that it had occurred at least once 
during a pat-down search, compared to 36.7 percent of the corresponding 
set of female inmates.\28\ However, when evaluating the prevalence of 
cross-gender sexual abuse of female inmates, this statistic could be 
misleading in light of the fact that, as noted above, many facilities 
nationwide--which may well collectively house a majority of all 
inmates--already prohibit cross-gender pat-down searches of female 
inmates absent exigent circumstances. Therefore, a large percentage of 
female inmates are currently not subject to cross-gender pat-down 
searches as a matter of course. This discrepancy may well explain why 
male and female inmates are roughly equally likely to report sexual 
touching in a pat-down search.
---------------------------------------------------------------------------

    \27\ See Allen J. Beck and Paige M. Harrison, BJS, Sexual 
Victimization in Prisons and Jails Reported by Inmates, 2008-09, at 
12, 24.
    \28\ See id. at 24.
---------------------------------------------------------------------------

    The experience of BOP, which has not prohibited cross-gender pat-
down searches, is illustrative. As noted above, female inmates lodged 
45.6 percent of all allegations of criminal cross-gender sexual abuse 
committed by BOP staff, even though less than 7 percent of the BOP 
population was female. Unlike a majority of State correctional 
agencies, BOP allowed male correctional staff to perform pat-down 
searches of female inmates, which may explain why BOP experienced a 
gender imbalance in allegations that was not shared nationwide. Indeed 
(as also noted above), according to the OIG report, BOP officials 
believed that pat-down searches were the most common source of 
allegations of sexual misconduct against male staff members.
    The final rule does not include a similar restriction on cross-
gender pat-down searches of female detainees in lockups due to the 
smaller size, limited staffing numbers, lack of data on incidence of 
sexual abuse in these institutions, and minimal number of comments 
directed at lockups. In addition, a pat-down search of a lockup 
detainee is often conducted by the same police officer who performed a 
similar search of the detainee upon arrest in the field. Therefore, it 
would be impractical to impose different search rules once the officer 
and detainee reach the lockup doors. While recognizing that a blanket 
restriction would be unworkable, the Department encourages lockups to 
avoid cross-gender pat-down searches of female detainees, to the extent 
feasible.
    Finally, the Department has removed the provision that mandated a 
specific exemption from cross-gender pat-down searches for inmates who 
have suffered documented prior cross-gender sexual abuse while 
incarcerated. The prohibition of cross-gender pat-down searches of 
female inmates largely obviates the need for this exemption, and the 
Department concludes that the potential benefits of retaining the 
exemption only for male inmates are

[[Page 37135]]

outweighed by the disadvantages noted by commenters.
    Comments regarding juvenile cross-gender pat-down searches. 
Agencies generally agreed with the gender-neutral ban on pat-down 
searches in juvenile facilities, so long as exceptions were permitted 
in certain circumstances. One large State expressed significant concern 
regarding the cost of implementing the part of the ban that prohibits 
female staff from conducting pat-down searches of male juveniles. Some 
organizations supported strengthening the standard to limit the 
exceptions to exigent circumstances only.
    Response. The Department concludes that a gender-neutral cross-
gender pat-down search ban in juvenile facilities is required to help 
protect youth from staff sexual misconduct.
    The percentage of staff-on-resident victimization that involves 
female staff and male residents is much higher than the analogous 
percentage in adult facilities. A recent BJS survey indicated that 92 
percent of all youth reporting staff sexual misconduct were males 
reporting victimization exclusively by female staff, compared to 65 
percent in adult prisons and 58 percent in jails.\29\ The Department 
agreed with commenters who recommended allowing such searches only in 
``exigent circumstances.'' The Department removed the exception for 
``other unforeseen circumstances'' because the phrase is too vague and 
could lead to excessive reliance on the exception. The Department 
intends the exception to the cross-gender pat-down search ban to be 
limited to rare instances where truly emergent conditions exist.
---------------------------------------------------------------------------

    \29\ Beck, BJS, Sexual Victimization in Juvenile Facilities 
Reported by Youth, 2008-2009 (Jan. 2010), available at http://bjs.ojp.usdoj.gov/content/pub/pdf/svjfry09.pdf; Beck & Harrison, 
BJS, Sexual Victimization in Prisons and Jails Reported by Inmates, 
2008-09, at 24.
---------------------------------------------------------------------------

    Comments regarding searches of transgender and intersex inmates. A 
number of advocates urged that transgender and intersex inmates be 
allowed to state a preference regarding the gender of the staff 
searching them, or that a presumption be created that transgender or 
intersex inmates be searched by female staff, because transgender and 
intersex persons are often perceived as female and are at high risk of 
being targeted by male staff for sexual violence and harassment. 
Numerous commenters, including both advocates and agency commenters, 
requested guidance on this issue.
    Many advocates urged the Department to prohibit examinations of 
transgender and intersex inmates, even by medical professionals, solely 
to determine genital status. Such examinations can be highly traumatic, 
commenters asserted, whereas the information regarding genital status 
can be obtained by questioning the person or by review of medical 
files. Commenters noted that transgender and intersex juveniles are 
particularly likely to be traumatized by such examinations.
    Response. The Department agrees that guidance is needed on properly 
searching transgender and intersex inmates. This guidance should be 
detailed and workable for facilities, should adequately protect 
transgender and intersex people, and is best provided by the National 
Resource Center for the Elimination of Prison Rape.
    The final standard does not include a provision allowing individual 
inmates to state a preference for the gender of their searcher, because 
such requests have the potential to be arbitrary and disruptive to 
facility administration. Rather, the Department believes that the 
concerns that prompted such a proposal can be addressed by properly 
assigning (or re-assigning) transgender and intersex inmates to 
facilities or housing units that correspond to their gender identity, 
and not making housing determinations based solely on genital status. 
Agencies should also recognize that the proper placement of a 
transgender inmate may not be a one-time decision, but may need to be 
reevaluated to account for a change in the status of the inmate's 
gender transition. For example, an inmate who is initially assigned to 
a male facility or unit may subsequently merit a move to a female 
facility or unit (or vice versa) following hormone treatment or 
surgery. Finally, searches of both transgender and intersex inmates at 
intake, before a housing determination has been made, may present 
special challenges. In such cases, facilities should make individual 
assessments of inmates who may be transgender or intersex and consult 
with the inmate regarding the preferred gender of the staff member who 
will perform the search.
    The final standard does include additional safeguards to protect 
transgender and intersex inmates from examinations solely to determine 
genital status. Such targeted examinations will rarely be warranted, as 
the information can be gathered without the need for a targeted 
examination of a person's genitals. Accordingly, the final standard 
states that, if an inmate's genital status is unknown, a facility 
should attempt to gain the information by speaking with the inmate or 
by reviewing medical records. In the rare circumstances where a 
facility remains unable to determine an inmate's genital status, the 
Department recognizes that the facility may have to conduct a medical 
examination. Any such medical examination, however, should be conducted 
as part of a regular medical examination or screening that is required 
of or offered to all inmates. Transgender and intersex inmates should 
not be stigmatized by being singled out for specific genital 
examinations.
    Comments regarding privacy. Advocates expressed concern that the 
standard allowed nonmedical staff of the opposite gender to view 
inmates as they shower, perform bodily functions, or change clothing, 
as long as such viewing is incidental to routine cell checks. These 
commenters feared that this exception would diminish the effectiveness 
of the Department's intended limitation on cross-gender viewing. Some 
advocates proposed strengthening this limitation by requiring staff of 
the opposite gender to announce their presence when entering a housing 
unit.
    Some agency commenters expressed concern that privacy screens would 
be an unnecessary expense, and others feared that such screens would 
create blind spots and therefore security risks. Other commenters 
approved of privacy screens as a cost-effective means of protecting 
inmates' privacy.
    Response. The final standard maintains the exception to the cross-
gender viewing prohibition, if the viewing is incidental to routine 
cell checks. However, the Department has addressed concerns that this 
exception would lead to widespread cross-gender viewing by adding to 
the standard a requirement that staff of the opposite gender announce 
their presence when entering a housing unit.
    The Department is sensitive to cost concerns and clarifies that the 
rule is not intended to mandate the use of privacy screens. Rather, 
privacy screens may be a safe and cost-effective way to address privacy 
concerns in certain facilities.
    Comments regarding training. Advocates generally supported the 
inclusion of the requirement to train staff in conducting cross-gender 
searches. However, some commenters, especially juvenile advocacy 
commenters, found the requirement confusing because the juvenile 
standard bans cross-gender searches.
    Response. The Department has retained this provision, even for 
juvenile facilities, due to the likelihood that cross-gender searches 
of women and juveniles may occur in exigent circumstances.

[[Page 37136]]

    Comments regarding cross-gender strip searches. Few commenters 
discussed the prohibition on cross-gender strip searches and body 
cavity searches. One commenter was concerned that the prohibition, as 
written, may extend to visual examinations of the mouth and ear, areas 
that are commonly inspected by members of the opposite sex. Several 
agency commenters recommended that all strip searches, not just cross-
gender strip searches conducted under exigent circumstances, be 
documented.
    Response. The final standard clarifies that a body cavity search 
refers to a search of the anal or genital opening, and adopts the 
exigent circumstances language proposed by advocates. The Department 
declined to revise the standard to require documentation of all strip 
searches, out of concern that such a requirement could impose a heavy 
burden on some agencies for no good purpose. The standard aims to 
ensure documentation of those strip searches that carry the greatest 
potential for abuse; agencies may, of course, document all strip 
searches if they so choose.

Inmates with Disabilities and Inmates Who Are Limited English 
Proficient (Sec. Sec.  115.16, 115.116, 115.216, 115.316)

Summary of Proposed Rule
    The standard contained in the proposed rule (numbered as Sec. Sec.  
115.15, 115.115, 115.215, and 115.315) governed the accommodation of 
inmates with disabilities and inmates with limited English proficiency 
(LEP). The proposed standard required that agencies develop methods to 
ensure that inmates who are LEP, deaf, or disabled can report sexual 
abuse and sexual harassment to staff directly, and that agencies make 
accommodations to convey sexual abuse policies orally to inmates with 
limited reading skills or visual impairments. The proposed standard 
allowed for the use of inmate interpreters in exigent circumstances.
Changes in Final Rule
    The final rule revises this standard to be consistent with the 
requirements of relevant Federal civil rights laws: Title II of the 
Americans with Disabilities Act (ADA), 42 U.S.C. 12101, 12131 et seq.; 
Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. 794; and Title 
VI of the Civil Rights Act of 1964, 42 U.S.C. 2000d et seq.
    The final standard requires an agency to take appropriate steps to 
provide inmates with disabilities an equal opportunity to participate 
in and benefit from all aspects of the agency's efforts to prevent, 
detect, and respond to sexual abuse and sexual harassment. An agency is 
not required to take actions that it can demonstrate would result in a 
fundamental alteration in the nature of a service, program, or 
activity, or in undue financial and administrative burdens, as those 
terms are used in regulations promulgated under Title II of the ADA. 
See 28 CFR 35.164.
    The final standard clarifies that the category of ``inmates with 
disabilities'' includes, for example, inmates who are deaf or hard of 
hearing, those who are blind or have low vision, and those with 
intellectual, psychiatric, or speech disabilities. It specifies that 
agencies shall provide access to interpreters when necessary to ensure 
effective communication with inmates who are deaf or hard of hearing, 
consistent with the ADA and its implementing regulations. The standard 
clarifies that such interpreters shall be able to interpret 
effectively, accurately, and impartially, both receptively and 
expressively, using any necessary specialized vocabulary.
    Similarly, with respect to inmates who are LEP, the final standard 
requires agencies to take reasonable steps to ensure meaningful access 
to all aspects of the agency's efforts to prevent, detect, and respond 
to sexual abuse and sexual harassment, consistent with the requirements 
of Title VI of the Civil Rights Act of 1964, 42 U.S.C. 2000d et seq., 
and Executive Order 13166 of August 11, 2000, including steps to 
provide interpreters who can interpret effectively, accurately, and 
impartially, both receptively and expressively, using any necessary 
specialized vocabulary.
    Further, the final standard specifies that an agency cannot rely on 
inmate interpreters, inmate readers, or other types of inmate 
assistants ``except in limited circumstances where an extended delay in 
obtaining an effective interpreter could compromise the inmate's 
safety, the performance of first-response duties under Sec.  115.64, or 
the investigation of the inmate's allegations.'' The quoted phrase 
replaces ``exigent circumstances,'' which has been removed in light of 
the final rule's definition of that term as ``any set of temporary and 
unforeseen circumstances that require immediate action in order to 
combat a threat to the security or institutional order of a facility.'' 
Sec.  115.5.
Note on Intersection With Existing Statutes and Regulations
    The Department emphasizes that the requirements in this standard 
are not intended to relieve agencies of any preexisting obligations 
imposed by the ADA, the Rehabilitation Act of 1973, or the meaningful 
access requirements set forth in Title VI of the Civil Rights Act of 
1964 and Executive Order 13166. The Department continues to encourage 
all agencies to refer to the relevant statutes, regulations, and 
guidance when determining the extent of their obligations.
    The ADA requires State and local governments to make their 
services, programs, and activities accessible to individuals with all 
types of disabilities. See 42 U.S.C. 12132; 28 CFR 35.130, 35.149-
35.151. The ADA also requires State and local governments to take 
appropriate steps to ensure that their communications with individuals 
with disabilities (including, for example, those who are deaf or hard 
of hearing, those who are blind or have low vision, and those with 
intellectual, psychiatric, or speech disabilities) are as effective as 
their communications with individuals without disabilities. See 28 CFR 
35.160-35.164. In addition, the ADA requires each State and local 
government entity to make reasonable modifications to its policies, 
practices, and procedures when necessary to avoid discrimination 
against individuals with disabilities, unless the entity can 
demonstrate that making the modifications would fundamentally alter the 
nature of the relevant service, program, or activity. See 28 CFR 
35.130(b)(7). These nondiscrimination obligations apply to all 
correctional and detention facilities operated by or on behalf of State 
or local governments. See Pennsylvania Dep't of Corr. v. Yeskey, 524 
U.S. 206, 209-10 (1998).
    Similar requirements apply to correctional and detention facilities 
that are federally conducted or receive Federal financial assistance. 
Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. 794, prohibits 
discrimination against persons with disabilities by entities that 
receive Federal financial assistance. Discrimination includes denying 
persons with disabilities the opportunity accorded others to 
participate in the program or activity, or denying an equal opportunity 
to achieve the same benefits that others achieve in the program or 
activity. See 28 CFR 42.503 (implementing Section 504 with respect to 
recipients of Federal financial assistance from the Department of 
Justice); 28 CFR 39.160 (implementing Section 504 with respect to 
programs or activities conducted by the Department of Justice, and 
providing specifically that auxiliary aids and services be furnished 
where necessary to afford an equal opportunity to participate).
    Pursuant to Title VI of the Civil Rights Act of 1964 and its 
implementing

[[Page 37137]]

regulations, all State and local agencies that receive Federal 
financial assistance must provide LEP persons with meaningful access to 
all programs and activities. See Enforcement of Title VI of the Civil 
Rights Act of 1964--National Origin Discrimination Against Persons with 
Limited English Proficiency; Policy Guidance, 65 FR 50123 (2000). 
Pursuant to Executive Order 13166, each agency providing Federal 
financial assistance is obligated to draft Title VI guidance regarding 
LEP persons that is specifically tailored to the agency's recipients of 
Federal financial assistance. The Department's guidance for its 
recipients includes a discussion of LEP issues in correctional and 
detention settings. See Guidance to Federal Financial Assistance 
Recipients Regarding Title VI Prohibition Against National Origin 
Discrimination Affecting Limited English Proficient Persons, 67 FR 
41455 (2002). For further information, agencies are encouraged to 
review Common Language Access Questions, Technical Assistance, and 
Guidance for Federally Conducted and Federally Assisted Programs (Aug. 
2011), available at http://www.lep.gov/resources/081511_Language_Access_CAQ_TA_Guidance.pdf.
    In NPRM Question 17, the Department solicited feedback on whether 
the standards should require facilities to ensure that inmates with 
disabilities and LEP inmates be able to communicate with staff 
throughout the entire investigative and response process. The final 
standard clarifies that an agency must take appropriate steps to ensure 
equal opportunity to participate in and benefit from all aspects of its 
efforts to prevent, detect, and respond to sexual abuse and sexual 
harassment for inmates with disabilities, and take reasonable steps to 
ensure meaningful access to inmates who are LEP. These requirements are 
consistent with agencies' obligations under the ADA and related 
regulations, and provide sufficient protection to individuals with 
disabilities and individuals who are LEP.
    Under the ADA, the nature, length, and complexity of the 
communication involved, and the context in which the communication 
takes place, are factors for consideration in determining which 
``auxiliary aids and services,'' including interpreters, are necessary 
for effective communication. The ADA title II regulation lists a 
variety of auxiliary aids and services, including ``video remote 
interpreting,'' which may potentially afford effective communication. 
Under the ADA title II regulation, however, in determining which types 
of auxiliary aids and services are necessary for effective 
communication, the public entity is to give primary consideration to 
the request of individuals with disabilities. See 28 CFR 35.160(b)(2); 
35.160(b)(2)(d); 35.104 (Definitions--Auxiliary aids and services); 
Appendix A to Part 35, Guidance to Revisions to ADA Regulation on 
Nondiscrimination on the Basis of Disability in State and Local 
Government Services.
Comments and Responses
    Comment. The comments in response to the proposed standard were 
generally positive. Most correctional agency commenters expressed 
support for the standard as written. Many correctional stakeholders and 
inmate advocacy groups answered affirmatively to Question 17, but other 
commenters observed that the ADA already requires facilities to 
accommodate inmates with disabilities and therefore suggested that 
additional requirements were unnecessary.
    Response. The Department recognizes the importance of ensuring that 
all inmates, regardless of disability or LEP status, can communicate 
effectively with staff and are included in each facility's efforts to 
prevent sexual abuse. The final standard, in conjunction with the ADA, 
Section 504, Title VI, and Federal regulations protecting the rights of 
individuals with disabilities and LEP individuals, protects all inmates 
while providing agencies with discretion over how to provide the 
requisite information and interpretation services. The final standard 
does not, nor is intended to, go beyond what is required by the ADA, 
Section 504, or Title VI, but the standard clarifies the agencies' 
specific responsibilities with regard to PREA-related matters and 
individuals who are LEP or who have disabilities.
    Comment. One State correctional agency commended the goals of the 
proposed standard, but expressed concern that ensuring implementation 
would be difficult due to the vast range of communication issues that 
might present themselves.
    Response. The Department appreciates that a range of communication 
issues are implicated by this standard. With respect to inmates with 
disabilities, agencies are encouraged to review the ADA Title II 
regulations and associated technical assistance materials for more 
information addressing the broad spectrum of communication needs. See 
28 CFR 35.160(b)(2); 35.160(b)(2)(d); and 35.104 (Definitions--
Auxiliary aids and services); and The Americans with Disabilities Act, 
Title II Technical Assistance Manual, Covering State and Local 
Government Programs and Services (1993), available at http://www.ada.gov/taman2.html, at II--7.0000-II-7.1200. The agency can 
exercise its discretion regarding how to provide the required 
information or interpretation for individuals who require additional 
communication services with regard to PREA-related issues, including by 
choosing to provide services directly or working with an outside entity 
to ensure effective communication with inmates with disabilities and 
meaningful access for LEP inmates.
    Comment. Some correctional agency commenters stated that the 
availability of technology, internet services, and interpreters makes 
compliance with the standard very reasonable, except in many rural 
facilities. The commenters further noted that major metropolitan 
corrections facilities may detain people from 100 different cultures or 
countries. These commenters requested that the Department offer 
interpretation services 24 hours a day, rather than placing the burden 
on each facility individually. Many correctional stakeholders stated 
that contracting with interpreters can be time-consuming and costly; 
some requested that agencies be required to comply only to the best of 
their abilities. On the other hand, several State correctional agencies 
and local facilities noted that these services are already in place, 
and as such there will be no additional costs associated with 
compliance.
    Response. Numerous interpretation services are available throughout 
the country, including telephone and internet providers that can 
accommodate the needs of small and rural facilities. While the 
Department cannot provide these services to all agencies, the National 
Resource Center for the Elimination of Prison Rape can provide 
technical assistance to help agencies connect with an appropriate 
provider.\30\ Agencies retain the discretion to provide the requisite 
services in the most appropriate manner for the specific facility and 
incident. With regard to cost, the Department notes that all prisons 
and jails are subject to the ADA, and that all State Departments of 
Corrections and many jails are subject to Title VI due to receipt

[[Page 37138]]

of Federal financial assistance. The requirements of this standard are 
informed by the ADA and Title VI; to the extent entities are in 
compliance with those requirements, the Department does not anticipate 
that additional costs will arise.
---------------------------------------------------------------------------

    \30\ Some services may be available free of charge. For example, 
Video Relay Service (VRS) is a form of Telecommunications Relay 
Service (TRS) that enables persons with hearing disabilities who use 
American Sign Language to communicate with voice telephone users 
through video equipment, rather than through typed text. Like all 
TRS calls, VRS is free to the caller. VRS providers are compensated 
for their costs from the Interstate TRS Fund, which the Federal 
Communications Commission oversees. See http://www.fcc.gov/guides/video-relay-services.
---------------------------------------------------------------------------

    Comment. Some juvenile justice administrators suggested that the 
agency document the actions it takes, including notes taken by 
interpreters. These commenters noted that agencies can keep notes and 
records of their efforts, but cannot ensure that perfect communication 
has occurred, even between a victim and investigator speaking the same 
language. An advocacy group also recommended that the standards require 
documentation of the agencies' efforts to comply.
    Response. The Department encourages agencies to keep accurate 
documentation of their efforts to implement and comply with all of the 
PREA standards. Such documentation will facilitate the auditing process 
and ensure accurate compliance assessments. While an agency cannot 
ensure error-free communication in all instances, a valid policy that 
has clearly been implemented to guide investigation protocols with 
regard to ensuring effective communication for individuals with 
disabilities and meaningful access for individuals who are LEP should 
satisfy the requirements of this standard, assuming that the agency 
keeps accurate documentation.
    Comment. Some advocacy groups recommended that the final standard 
include a requirement to enter into a memorandum of understanding with 
agencies providing specific assistance for LEP inmates, who may face 
significant language-related obstacles in navigating facilities' 
grievance and reporting processes.
    Most correctional commenters who addressed this issue stated that 
the Department should not require agencies to enter into formal 
agreements with outside entities to provide the required services, but 
should allow agencies to determine for themselves whether such an 
agreement would help ensure compliance. Other correctional commenters 
noted that such agreements could be beneficial and should be 
encouraged, in order to ensure adequate communication with LEP inmates; 
a few suggested such agreements, or attempts to enter into them, should 
be mandated.
    Response. The Department recognizes that many facilities would 
benefit from a formal agreement or memorandum of understanding to 
ensure that LEP inmates can effectively communicate. Indeed, many State 
correctional agencies noted that they already have these types of 
agreements in place. Other facilities provide many communication 
services in-house or through the agency; some rarely have a need for 
such services. Given the varying needs of different facilities 
throughout the country, the Department determined that it is prudent to 
grant the agencies the discretion to provide the requisite services in 
the manner most appropriate for the specific facility or incident at 
issue.
    Comment. A State correctional agency criticized the proposed 
standard for referencing abuse hotlines as a possible method for LEP, 
deaf, or disabled inmates to report abuse without relying on inmate 
interpreters. The commenter noted that such a hotline would do little 
for deaf, hearing impaired, or LEP inmates, and further noted that, in 
its experience, inmate hotlines prove expensive to operate and generate 
a large number of unfounded calls.
    Response. The final standard no longer references abuse hotlines, 
and does not require an agency to provide any specific type of 
interpretation or communication services. Agencies retain the 
discretion to provide the requisite services in the manner most 
appropriate for the specific facility or incident at issue, so long as 
agencies provide effective communication for inmates with disabilities 
and meaningful access for LEP inmates.
    Comment. Many advocacy groups stated that the standards should 
allow inmate interpreters in adult facilities only in ``exigent 
circumstances and with the expressed voluntary consent of the inmate 
victim,'' and should never allow resident interpreters to be used in 
juvenile facilities. Some agency commenters, by contrast, suggested 
that inmate interpreters be allowed if the inmate consents.
    Response. The final standard requires that agencies not rely on 
inmate interpreters, readers, or assistants ``except in limited 
circumstances where an extended delay in obtaining an effective 
interpreter could compromise the inmate's safety, the performance of 
first-response duties under Sec.  115.64, or the investigation of the 
inmate's allegations.'' The intent of this provision is to discourage 
the use of inmate assistance in investigations unless no other option 
is available in a reasonable timeframe, and where timing is critical to 
prevent physical harm or to reveal the facts. An inmate's consent to 
utilizing another inmate as an interpreter does not guarantee the 
accuracy of the interpretation. While the use of inmate interpreters 
ordinarily is not an appropriate practice, the Department recognizes 
that in certain circumstances such use may be unavoidable.
    Comment. One State correctional agency recommended removing the 
term ``sexual harassment'' from this standard, because it would apply 
to interactions between inmates. The commenter suggested that because 
staff are trained in sexual violence in correctional settings, and 
therefore recognize the influence such verbalizations play, instances 
of inmate-on-inmate sexual harassment are best addressed through each 
facility's reporting and investigation processes, and should not be 
subject to additional regulations.
    Response. To the extent that incidents are to be reported, as 
sexual harassment is, inmates must be able to communicate effectively 
throughout the process, regardless of disability or LEP status.
    Comment. The American Jail Association, an association of county 
wardens, and a local sheriff's department recommended that the 
Department encourage jails without resources to provide the required 
services to enter into memoranda of agreement with larger facilities to 
house victims with disabilities or victims who are LEP.
    Response. Given the varying needs of different facilities 
throughout the country, agencies should be afforded discretion to 
provide the requisite services in the manner most appropriate for the 
specific facility or incident at issue. If an agency cannot provide the 
necessary services to an inmate within its custody, the agency is not 
precluded from contracting to house such an inmate in another, more 
appropriate facility. However, agencies should be aware that ADA 
regulations provide that, ``[u]nless it is appropriate to make an 
exception, a public entity . . . [s]hall not deprive inmates or 
detainees with disabilities of visitation with family members by 
placing them in distant facilities where they would not otherwise be 
housed.'' 28 CFR 35.152(b)(2)(iv).
    Comment. The National Disability Rights Network (NDRN), a nonprofit 
membership organization consisting of federally mandated Protection and 
Advocacy (P&A) Systems and Client Assistance Programs (CAP), provided 
extensive comments suggesting effective methods for agencies to comply 
with the proposed standards. NDRN noted that the proposed standards did 
not impose any new burdens or mandates on facilities, but rather 
reaffirmed the applicability of existing accommodations. In order to 
meet their legal and constitutional obligations, NDRN stated, 
confinement facilities

[[Page 37139]]

must provide effective communication accommodations when a need for 
such accommodations is known, based on requests from individual inmates 
as well as other information sources. NDRN suggested several best 
practices for communicating with special needs inmates, and recommended 
adopting ``universal precautions'' for communicating with all inmates, 
such as using a sixth-grade reading level for written materials 
intended for adults, and a third-grade reading level for confined 
juveniles. NDRN suggested, in addition to restricting the use of other 
inmates as interpreters, that family members and acquaintances should 
not be used as interpreters, except in emergency situations when no 
viable alternative option exists, in order to protect the 
confidentiality, privacy, dignity, and safety of inmates, and to ensure 
objectivity and fidelity of interpretation. NDRN also noted that each 
State has a designated Protection & Advocacy office, which can be a 
resource for facilities on disability issues, including how to provide 
accessible formats for inmate education and effective communication 
accommodations during responses to and investigations of sexual abuse 
or harassment reports.
    Response. The Department appreciates the detailed suggestions for 
best practices included in NDRN's comment and encourages all agencies 
to consider implementing a variety of strategies to ensure effective 
communication with all inmates. The National Resource Center for the 
Elimination of Prison Rape will develop training modules and provide 
technical assistance to help agencies educate staff concerning 
communication with inmates who are LEP and inmates who have 
disabilities. While the Department allows the agencies the discretion 
to provide the requisite services in the most appropriate manner for 
the specific facility or incident at issue, the Department encourages 
agencies to reach out to community providers and State offices as 
resources. As NDRN notes, each State has a federally mandated 
Protection & Advocacy office, initially created pursuant to 
Developmental Disabilities Assistance and Bill of Rights Act of 1975, 
codified as amended at 42 U.S.C. 15001 et seq. These offices can serve 
as valuable resources in helping facilities comply with the standards 
and with disability law more generally.
    Comment. One State correctional agency recommended that the 
facilities establish an early identification system as part of the 
reception process to ``flag'' inmates with disabilities and inmates who 
are LEP, and then develop a tracking mechanism that ensures the 
designation follows the inmate throughout his or her incarceration.
    Response. In order to ensure proper communication for inmates who 
have disabilities or are LEP, facilities will need to know which 
individuals require additional assistance. A formal early 
identification system, as suggested by the commenter, is a promising 
method of managing this information. Under the final standards, 
however, the agencies retain the discretion to develop a system to 
provide the requisite services in the most appropriate manner for the 
specific facility or individuals at issue, so long as effective 
communication for inmates with disabilities and meaningful access for 
LEP inmates are provided.
    Comment. One State correctional agency suggested extra time should 
be allotted for agencies to come into compliance.
    Response. The final standard requires each agency to provide 
communication and information services that are consistent with the 
agency's responsibilities pursuant to the ADA and applicable 
regulations. Agencies may exercise discretion in how to provide such 
services, but the Department declines to afford additional time to 
comply with an obligation that, in large part, is already mandated by 
Federal law.
    Comment. A group that advocates for people with mental illness 
noted that the proposed standard was limited to protecting individuals 
with sensory disabilities but did not include protections for 
individuals with psychiatric or intellectual disabilities. The 
commenter recommended that the Department consider clarifying the 
proposed standard to ensure that administrators understand that they 
must provide auxiliary aids and services to inmates with a broader 
range of disabilities.
    Response. The final standard clarifies that agencies must take 
appropriate steps to ensure equal opportunity to participate in and 
benefit from all aspects of their efforts to prevent, detect, and 
respond to sexual abuse and sexual harassment for inmates with 
disabilities, including those with intellectual or psychiatric 
disabilities.

Hiring and Promotion Decisions (Sec. Sec.  115.17, 115.117, 115.217, 
115.317)

Summary of Proposed Rule
    The standard contained in the proposed rule (numbered as Sec. Sec.  
115.16, 115.116, 115.216, and 115.316) prohibited the hiring of anyone 
who has engaged in sexual abuse in an institutional setting; who has 
been convicted of engaging in sexual activity in the community 
facilitated by force, the threat of force, or coercion; or who has been 
civilly or administratively adjudicated to have engaged in such 
activity. The proposed standard also required agencies to perform a 
criminal background check on new hires and to run checks on current 
employees at least every five years or have in place a system for 
otherwise capturing such information for current employees. The 
proposed standard required agencies to ask about previous misconduct in 
any applications, interviews, or self-evaluations, and provided that 
material omissions would be grounds for termination. The proposed 
standard also provided that, unless prohibited by law, the agency must 
provide information on substantiated allegations of sexual abuse or 
sexual harassment involving a former employee upon receiving a request 
from an institutional employer for whom such employee has applied to 
work.
Changes in Final Standard
    The final standard is largely similar to the proposed standard, but 
makes several changes. First, the final standard narrows its 
application to employees who may have contact with inmates, but expands 
it to include contractors within its scope. Second, the final standard 
encompasses attempts to engage in improper sexual activity, which is 
now defined more expansively as sexual activity that is ``facilitated 
by force, overt or implied threats of force, or coercion, or if the 
victim did not consent or was unable to consent or refuse.'' Third, the 
final standard requires agencies to consider any incidents of sexual 
harassment in making decisions regarding employees and contractors, and 
to provide information regarding such incidents to possible future 
institutional employers unless prohibited by law. Fourth, the final 
standard clarifies that an agency need only ask applicants about their 
prior abuse history in applications or interviews, rather than in both. 
Fifth, for juvenile facilities, the final standard requires a check of 
any child abuse registry maintained by the State or locality in which 
the employee would work.
Comments and Responses
    Comment. Several commenters noted that the prohibition of hiring 
and promoting anyone with a history of sexual abuse may be too 
burdensome to implement, and may not be necessary for staff who have no 
contact with inmates.

[[Page 37140]]

    Response. The final standard exempts staff who do not have contact 
with inmates, in order to focus agencies' efforts on the relevant set 
of employees.
    Comment. Several commenters noted that contractors were not 
included in this standard.
    Response. The Department agrees that this standard should address 
contractors who have contact with inmates and has revised it 
accordingly.
    Comment. Several commenters recommended adding convictions or 
restraining orders for domestic violence offenses to this list of prior 
actions that would preclude employment.
    Response. The Department agrees that agencies should have policies 
addressing a history of domestic violence in relation to employment and 
promotions. However, given the wide range of factual circumstances, 
varied State and local statutory definitions, and the lack of a clear 
nexus to sexual abuse in correctional settings, the Department has 
declined to expand the prohibition as suggested. By contrast, the 
Department has added to the final standard a requirement that the 
agency check any child abuse registry maintained by the State or 
locality in which the employee would work. This added requirement is 
appropriate for applicants to work in juvenile facilities due to the 
unique nature of these facilities, and the particular need to safeguard 
this population.
    Comment. One commenter noted that sexual abuse can occur in 
institutional settings other than corrections or detention facilities, 
and that the standard should clarify that such abuse is covered.
    Response. The Department agrees that sexual abuse that occurs in 
other custodial situations should be included in this standard. 
Accordingly, the final standard refers to sexual abuse in a prison, 
jail, lockup, community confinement facility, juvenile facility, or 
other ``institution,'' as that term is defined in the Civil Rights of 
Institutionalized Persons Act (CRIPA), 42 U.S.C. 1997 et seq. Beyond 
correctional and pretrial detention facilities, CRIPA defines 
``institution'' to include State facilities for persons who are 
mentally ill, disabled, or retarded, or chronically ill or handicapped; 
residential care or treatment facilities for juveniles; and facilities 
that provide skilled nursing, intermediate or long-term care, or 
custodial or residential care. See 42 U.S.C. 1997(1).
    Comment. Several commenters recommended that the standard's 
prohibition on hiring include prior incidents of sexual harassment as 
well as sexual abuse.
    Response. Sexual harassment can include a wide range of behaviors, 
and incidents are often addressed without criminal, civil, or 
administrative adjudication, making verification difficult. Therefore, 
the Department has not revised the standard to include an absolute 
prohibition on hiring or promotions of persons who have engaged in 
sexual harassment. The final standard does, however, require that an 
agency consider any incidents of sexual harassment in determining 
whether to hire or promote anyone, or to enlist the services of any 
contractor, who may have contact with inmates. For similar reasons, the 
Department has also added a requirement that agencies provide other 
institutional employers with information on substantiated incidents of 
sexual harassment--the proposed standards referenced only sexual 
abuse--unless prohibited by law.
    Comment. One commenter requested clarification regarding the scope 
of the ``criminal background check'' referenced in the proposed 
standard.
    Response. At a minimum, agencies should access the standardized 
criminal records databases maintained and widely used by law 
enforcement agencies. The final standard clarifies this requirement by 
referring to a ``criminal background records check.''
    Comment. One commenter recommended that the standard require 
contacting prior institutional employers not only to learn about 
substantiated allegations of sexual abuse, but also to inquire about 
resignations during a pending investigation into an allegation of 
sexual abuse.
    Response. The Department agrees with this suggestion, and has 
incorporated the requirement into the standard.
    Comment. Several commenters suggested that criminal background 
record checks for employees should occur more frequently than once 
every five years and should be required for promotions as well. 
Correctional agency commenters, however, expressed concern that 
increasing criminal background record checks would impose an excessive 
burden. One commenter suggested that if criminal background record 
checks are not required to occur more frequently than once every five 
years, then the final standard should mandate that agencies require 
staff members to report any incident of sexual abuse that they have 
committed.
    Response. The Department concludes that the proposed standard 
appropriately balanced the need for criminal background record checks 
with the concerns regarding the burden of carrying out this 
requirement. The Department agrees that an affirmative staff reporting 
requirement would be beneficial, and has revised the standard 
accordingly.

Upgrades to Facilities and Technologies (Sec. Sec.  115.18, 115.118, 
115.218, 115.318)

Summary of Proposed Rule
    The standard contained in the proposed rule (numbered as Sec. Sec.  
115.17, 115.117, 115.217, and 115.317) required agencies to take into 
account how best to combat sexual abuse when designing or expanding 
facilities and when installing or updating video monitoring systems or 
other technology.
Changes in Final Rule
    The Department is adopting the regulation as proposed.
Comments and Responses
    Comment. One commenter suggested that the regulation should 
affirmatively prohibit an agency from making any changes that would 
diminish its ability to protect inmates from sexual abuse.
    Response. Improving agency performance in combating sexual abuse 
should be an important goal when making any physical changes or 
adopting new technology. However, a change may be offset by an agency 
intending to use other methods to combat sexual abuse (e.g., a physical 
change made in conjunction with increased staff supervision). The 
commenter's concern is further addressed in the requirements in 
Sec. Sec.  115.13, 115.113, 115.213, and 115.313 to conduct assessments 
of physical layout and technology as part of an overall review of 
supervision and monitoring in conjunction with other contributing 
factors.
    Comment. A commenter requested clarification as to the 
documentation requirements concerning this regulation.
    Response. The regulation does not entail a regular separate 
reporting requirement, but issues concerning physical layouts and 
technology should be addressed as appropriate in assessments required 
under Sec. Sec.  115.13, 115.113, 115.213, 115.313, and Sec. Sec.  
115.88, 115.188, 115.288, 115.388. Agencies may demonstrate compliance 
through a variety of means--e.g., through planning meeting minutes, 
statements of work, design specifications, or contracting documents.
    Comment. One commenter would have the regulation require agencies 
to use video-monitoring as a deterrent to sexual abuse and an aid to 
prosecutions. Another commenter noted that a

[[Page 37141]]

mandate to use video technology would be cost-prohibitive.
    Response. As discussed in greater depth in its responses to 
comments regarding Sec.  115.13, the Department agrees that video 
technology can be extremely helpful, yet is also sensitive to the cost 
of mandating such technology.

Evidence Protocol and Forensic Medical Examinations (Sec. Sec.  115.21, 
115.121, 115.221, 115.321)

Summary of Proposed Rule
    The standard contained in the proposed rule required agencies 
responsible for investigating allegations of sexual abuse to adopt an 
evidence protocol to ensure all usable physical evidence is preserved 
for administrative or criminal proceedings, based on the Department of 
Justice's Office on Violence Against Women publication, ``A National 
Protocol for Sexual Assault Medical Forensic Examinations, Adults/
Adolescents'' (SAFE Protocol), or similarly comprehensive and 
authoritative protocols published after 2011.
    The proposed standard expanded the NPREC's recommendation by 
requiring access to exams not only in cases of penetration but whenever 
evidentiarily or medically appropriate. For example, if an inmate 
alleges that she was strangled in the course of a sexual assault that 
did not result in penetration, a forensic exam might provide evidence 
to support (or refute) her contention.
    The proposed standard took into account the fact that some agencies 
are not responsible for investigating alleged sexual abuse within their 
facilities and that those agencies may not be able to dictate the 
conduct of investigations conducted by outside entities. In such 
situations, the proposed standard required the agency to inform the 
investigating entity about the standard's requirements with the hope 
that the investigating entity will look to the standard as a best-
practices guideline. In addition, the standard applied to any outside 
State entity or Department of Justice component that investigates such 
allegations.
    In all settings except lockups, the proposed standard required that 
the agency offer all sexual abuse victims access to a person either 
inside or outside the facility who can provide support to the victim. 
Specifically, the proposed standard required that the agency make 
available to the victim either a victim advocate from a community-based 
organization that provides services to sexual abuse victims or a 
``qualified agency staff member,'' defined as a facility employee who 
been screened for appropriateness to serve in this role and has 
received education concerning sexual assault and forensic examination 
issues in general.
Changes in Final Rule
    The final standard instructs facilities to use a Sexual Assault 
Nurse Examiner (SANE) or Sexual Assault Forensic Examiner (SAFE) where 
possible to perform the exams. Facilities in areas where there is not a 
SANE or SAFE available must document their efforts to provide SAFEs or 
SANEs and then provide other qualified medical professionals.
    The final standard specifies the use of a developmentally 
appropriate protocol where the victim is a prepubescent minor, and 
clarifies that the protocol used in adult facilities shall be 
developmentally appropriate for youth, where applicable.
    The final standard also recognizes the unique role of rape crisis 
center advocates in supporting victims throughout the forensic 
examination and investigatory interviews. Recognizing that many 
facilities are in rural areas where there may not be a rape crisis 
center available or where the rape crisis center may lack the resources 
to assist the facility, the standard requires an agency to document its 
efforts to secure advocacy services from a rape crisis center. If it 
fails to obtain such services in spite of reasonable efforts, it may 
provide either a qualified agency staff member or a qualified 
community-based organization staff member. Particularly in rural areas, 
there often are community-based organizations that, while not focused 
on rape crisis services, may provide similar social services, such as 
general counseling services or advocacy, counseling, and supportive 
services to victims of domestic violence. Individuals from these 
organizations may not have the training and expertise that individuals 
from a rape crisis center have to serve victims, but in the absence of 
available rape crisis services, they may still be a useful source of 
outside support for victims, some of whom may be reluctant to trust 
agency staff. In the case of community-based organizations or agency 
staff, the final standard requires that the staff person serving in the 
support role be screened for appropriateness and receive education 
concerning sexual assault and forensic examination issues in general. 
Ideally, the staff person would receive the same training as that 
required for victim advocates in the State, which is usually a forty-
hour training and is offered by many State sexual assault coalitions, 
usually several times throughout the year and at a reasonable cost. A 
list of coalitions is available on the Web site of the Department's 
Office on Violence Against Women at http://www.ovw.usdoj.gov/statedomestic.htm.
    To the extent the agency itself is not responsible for 
investigating allegations of sexual abuse, the final standard requires 
the agency to request that the investigating entity follow the relevant 
investigatory requirements set out in the standard.
    For lockups, the final standard adds a requirement that if the 
victim is transported to an outside hospital for forensic examinations 
and that hospital offers advocacy services, the detainee shall be 
allowed to use the services to the extent available, consistent with 
security needs.
Comments and Responses
    Comment. Many advocacy groups commented that the SAFE Protocol is 
not appropriate for prepubescent minors.
    Response. For this reason, the final standard specifies the use of 
a protocol that is ``developmentally appropriate for youth'' and based 
on the National Protocol only ``as appropriate.''
    Comment. Some groups recommended specifying in the standard that 
the protocol for prepubescent minors must include such specific topics 
as policies and procedures for mandatory reporting, consent to 
treatment, parental notification, and scope of confidentiality.
    Response. The Department recognizes that these topics are important 
in responding to sexual abuse in all settings. However, the Department 
believes that knowledge of these topics, which are often governed by 
State laws, should be a prerequisite for qualification as an examiner 
rather than a mandatory part of the protocol. Accordingly, the 
Department has not made this change.
    Comment. Many victim advocacy groups recommended that the 
Department require the use of SANEs or SAFEs because they are best 
qualified to provide a proper forensic examination. Some specifically 
recommended a protocol that includes transport to facilities that 
perform exams through SANEs or SAFEs or a requirement that an agency 
document its decision whether to transport victims outside or perform 
the examination internally.
    Response. The final standard recognizes that the state of the art 
in sexual assault forensic examinations is to utilize a specially 
trained and

[[Page 37142]]

certified examiner, such as a SANE or SAFE, to perform the exams. SANEs 
and SAFEs have specialized training and experience so that they are 
more sensitive to victim needs, and are highly skilled in the 
collection of evidence, resulting in more successful prosecutions. 
Accordingly, the final standard instructs facilities to use SANEs or 
SAFEs where possible, while recognizing that they may not always be 
available. The Department does not believe it is necessary to dictate 
to facilities how to utilize SANEs or SAFEs or to impose additional 
documentary requirements beyond documenting their efforts to make SANEs 
or SAFEs available.
    Comment. Two other such groups specifically recommended the Sexual 
Assault Response Team (SART) model for response during the exam as well 
as the use of SANEs/SAFEs.
    Response. As discussed above, the final standard instructs 
facilities to use SANEs or SAFEs where possible. Although the final 
standard does not specifically require the SART model for response, 
Sec.  115.64 requires agencies to follow specific first responder 
duties to protect the victim and preserve evidence and Sec.  115.65 
requires agencies to develop a written institutional plan to coordinate 
actions taken in response to an incident of sexual abuse among staff 
first responders, medical and mental health practitioners, 
investigators, and facility leadership. These standards will help 
ensure an appropriate response to sexual assault incidents, while 
preserving agency discretion to coordinate such responses in the manner 
best suited to the particular situation.
    Comment. One inmate commented that the exams should be performed by 
an outside medical practitioner.
    Response. The Department believes that the choice of an internal or 
outside practitioner is less important than making an effort to obtain 
the services of a SANE/SAFE and otherwise providing a qualified medical 
practitioner. Accordingly, the Department does not mandate the use of 
an outside practitioner.
    Comment. One correctional association and one State sheriffs' 
association expressed concerns about the cost of paying for the exams, 
particularly for jails that would have to pay an outside entity.
    Response. Under the Violence Against Women Act (VAWA) of 1994, as 
reauthorized in 2006, all States must certify as a condition of certain 
formula grant funding that victims of sexual assault have access to a 
forensic medical examination regardless of the decision to cooperate 
with the criminal justice system and that the State or another 
governmental entity bears the full out of pocket costs of such exams. 
See 42 U.S.C. 3796gg-4. This certification requirement applies 
throughout the entire State, including to victims who are incarcerated. 
All States, pursuant to their receipt of funds through the STOP 
Violence Against Women formula grant program, are required to cover the 
costs of the exams, including exams for victims in correctional 
facilities. The Department encourages States and correctional agencies 
to work together to craft effective strategies for funding and 
administering these examinations. A list of the administering agencies 
for each State for the formula grant funding, which should have 
information about the payment mechanism, is available on the 
Department's Web site at http://www.ovw.usdoj.gov/stop-contactlist.htm.
    Comment. One State correctional agency noted that it is in 
compliance with the current SAFE Protocol, but that it is a guideline 
for suggested practices, rather than a list of requirements.
    Response. This is the correct understanding of the SAFE Protocol, 
which is a tool to be used for developing individual protocols. The 
Department will be soon issuing a companion to the SAFE Protocol that 
will specifically assist correctional facilities in adapting the SAFE 
Protocol to their needs.
    Comment. One sheriff's office expressed concern that the use of the 
SAFE Protocol could be a moving target if agencies were required to 
comply with updates.
    Response. As discussed above, the SAFE Protocol is a guideline for 
best practices, rather than a list of requirements.
    Comment. A number of advocacy organizations and inmates expressed 
concerns with the use of ``qualified staff'' to serve in an advocacy 
role. Concerns included lack of inmate trust in staff, including fear 
of staff bias against inmates who are lesbian, gay, bisexual, 
transgender, or intersex (LGBTI); conflict between security and support 
roles; lack of sufficient time to spend with the victim; and 
confidentiality. Specific recommendations included using a qualified 
staff member only when no rape crisis center is available; documenting 
efforts to enter into agreements with rape crisis centers; screening 
staff for appropriateness to serve in the role of a support person, 
including assessing whether the staff member has a nonjudgmental 
attitude toward sexual assault victims and LGBTI individuals; ensuring 
round-the-clock coverage; providing the staff member the full forty 
hours of training that most rape crisis center advocates are required 
to receive; and providing the staff member opportunities to debrief 
experts in the victim advocacy field. Some advocacy groups suggested 
that it was inconsistent for this standard to allow the use of 
qualified staff members to perform these functions, given that a 
separate standard required agencies to attempt to enter into memoranda 
of understanding with community groups to provide confidential 
emotional support services related to sexual abuse. These commenters 
recommended that a ``qualified staff member'' be allowed to serve as a 
victim advocate only where the agency has not been able to enter into 
an agreement with a community-based agency to provide such services.
    Some correctional agencies supported the decision to allow for a 
qualified staff person, but others expressed concerns over the cost of 
training and supervising such staff.
    Response. After considering the wide range of comments, the 
Department has decided to require agencies to attempt to make available 
a rape crisis center advocate, which the final standard defines as ``an 
entity that provides intervention and related assistance, such as the 
services specified in 42 U.S.C. 14043g(b)(2)(C), to victims of sexual 
assault of all ages.'' \31\ The Department is sensitive to concerns 
that inmate victims may be reluctant to confide in a ``qualified staff 
member'' from the agency due to real or perceived bias and fear of 
retaliation. In addition, the Department believes that an advocacy 
organization that is specifically dedicated to providing assistance to 
victims of sexual abuse is best suited to address victims' needs. A 
victim will most benefit from a trained, confidential support person, 
who can focus on the victim and to whom the

[[Page 37143]]

victim will feel safe talking. However, the Department recognizes that 
a rape crisis center advocate will not always be available, whether due 
to geographic distance or simply because the local rape crisis center 
lacks sufficient resources to serve the facility. If so, the agency has 
the option of using either staff from other community-based agencies or 
qualified agency staff, as long as such persons have been screened for 
appropriateness to serve in this role and the agency has documented its 
attempts to secure services from a rape crisis center. Other 
``community-based agencies'' may include any entity--such as faith-
based groups, non-profit organizations, or community counseling 
services--that can provide appropriate victim assistance when a rape 
crisis center is not available. In addition, although the final 
standard does not mandate a specific number of training hours, it 
requires that agencies ensure that the victim advocate has received 
education concerning sexual assault and forensic examination issues in 
general. The Department recognizes that these precautions will not 
allay all concerns regarding use of a person who is not a rape crisis 
center advocate, but anticipates that these safeguards will help ensure 
that these options are available as a backstop where such an advocate 
is truly unavailable. In providing two fallback options, the Department 
entrusts agencies with discretion to utilize whichever option provides 
the most effective and timely assistance to the victim.
---------------------------------------------------------------------------

    \31\ 42 U.S.C. 14043g(b)(2)(C) specifies the following services:
    (i) 24-hour hotline services providing crisis intervention 
services and referral;
    (ii) accompaniment and advocacy through medical, criminal 
justice, and social support systems, including medical facilities, 
police, and court proceedings;
    (iii) crisis intervention, short-term individual and group 
support services, and comprehensive service coordination and 
supervision to assist sexual assault victims and family or household 
members;
    (iv) information and referral to assist the sexual assault 
victim and family or household members;
    (v) community-based, linguistically and culturally specific 
services and support mechanisms, including outreach activities for 
underserved communities; and
    (vi) the development and distribution of materials on issues 
related to the services described in clauses (i) through (v).
---------------------------------------------------------------------------

    With regard to training, the Department encourages agencies to draw 
upon outside expertise. Even in the absence of local rape crisis 
centers, each State has a State Sexual Assault Coalition, which may be 
a useful resource in developing screening tools and training. Many 
coalitions will be able to provide the forty-hour advocate training for 
a reasonable cost to facility personnel. A list of coalitions is 
available on the Web site of the Department's Office on Violence 
Against Women at http://www.ovw.usdoj.gov/statedomestic.htm.
    Comment. One agency commenter construed the draft standard to 
require a qualified staff person to be employed by the facility where 
the incident occurred.
    Response. The final standard refers to a ``qualified agency staff 
member,'' making clear that the staff member need not work at the 
facility where the incident occurred.
    Comment. One commenter suggested that the National Resource Center 
for the Elimination of Prison Rape make available an approved 
curriculum to assist individuals in becoming qualified staff members.
    Response. The Resource Center will do so.
    Comment. Some commenters expressed uncertainty regarding the 
meaning of the phrase ``during the investigatory process.''
    Response. For clarification, this phrase has been changed to 
``during investigatory interviews.''
    Comment. One correctional agency expressed concern that the 
standard would hold it responsible for the actions of an outside 
individual over whom they have no authority.
    Response. This concern is misplaced: The agency is not responsible 
for the actions of the victim advocate--only for making one available 
to the victim. The Department recommends that agencies enter into an 
agreement with a rape crisis center that describes the scope of the 
services and the terms of their relationship.
    Comment. One sheriff's office suggested separating this standard 
into separate components for criminal and administrative investigation.
    Response. The Department has not made this change, because the 
references to investigations in the standard apply to either criminal 
or administrative investigations. If the agency is responsible for 
either type of investigation, it would be required to follow this 
standard. If it is not responsible for any investigations, and the 
responsible entity is a State agency or Department component, the State 
entity or Department component would be responsible. If the agency is 
not responsible for any type of investigation and the responsible 
entity is not a State agency or Department component--i.e., another 
local entity is responsible--then the agency would notify the 
responsible entity of the requirements of this standard.
    Comment. Some correctional agencies expressed concern about the 
requirements in paragraphs (f) and (g) regarding outside entities that 
investigate sexual assault cases because the agencies do not control 
such entities.
    Response. This standard does not require agencies to exert control 
over such outside entities. Paragraph (g) separately regulates State 
agencies that investigate these crimes; paragraph (f) requires only 
that correctional agencies that do not conduct such investigations 
notify the entity that does. Other than the obligation to notify, the 
standard does not require a local agency to take any affirmative steps 
to ensure the compliance of the other entities.
    Comment. One correctional agency requested clarification regarding 
the provision that this standard applies to any ``State entity'' 
outside of the correctional agency that is responsible for 
investigating allegations of sexual abuse in institutional settings.
    Response. The reference to ``State entity'' is meant to include any 
relevant division of the State government, as opposed to local 
government entities.
    Comment. One correctional agency requested clarification regarding 
the meaning of ``these policies'' referenced in paragraph (f).
    Response. The final standard clarifies that this refers back to the 
requirements of paragraphs (a) through (e).
    Comment. Numerous victim advocacy organizations and organizations 
advocating for the rights of inmates recommended that the proposed 
standard be revised to require lockups to provide a victim advocate or 
qualified staff member. These commenters stated that victims in lockups 
should have the same access to advocates as victims in the other types 
of facilities.
    Response. The Department declines to amend the proposed standard to 
mandate this requirement for lockups, largely for reasons stated in the 
NPRM. First, because lockups are leanly staffed, complying with this 
requirement could well require the hiring of an additional staff 
person. Second, there is little evidence of a significant amount of 
sexual abuse in lockups that would warrant such expenditure. Third, 
lockup inmates are highly transient, and thus, in some cases, victims 
of sexual abuse already will have been transferred to a jail before the 
forensic exam can be conducted.
    Because lockups do not have on-site medical services, a victim 
would be taken to the hospital for exams. In Sec.  115.121(d), the 
final standard includes language specifying that, after reaching the 
hospital, such victims must have the same access to advocates as other 
victims, barring any security risks.
    Comment. NPRM Question 18 asked whether the standards adequately 
provide support for victims of sexual abuse in lockups upon transfer to 
other facilities, and if not, how the standards should be modified. The 
majority of correctional organizations were satisfied that the 
standards addressed the needs of victims in lockups. Additional 
comments are discussed below.
    Comment. One State correctional agency noted that some tribes use 
lockups for longer-term court orders, which may raise additional 
concerns.
    Response. Except to the extent that tribes contract with State or 
local facilities to house non-tribal inmates,

[[Page 37144]]

this rule does not apply to tribal facilities. With regard to 
confinement facilities in Indian country, BIA, like other Federal 
agencies whose operations involve confinement facilities, will work 
with the Attorney General to issue rules or procedures that will 
satisfy the requirements of PREA.
    Comment. Some correctional organizations recommended that the 
standard specify that the processing of the inmate to a larger facility 
should be expedited in order to ensure access to the services available 
at the larger facility.
    Response. While the Department certainly supports this goal, such 
expedited treatment may not always be feasible--and should not be 
attempted if doing so delays the provision of medical care at hospitals 
or other offsite treatment centers.
    Comment. One State expressed the view that a lockup should be 
responsible for aiding a detainee who is victimized in the lockup, even 
if the victim has been subsequently transferred to another facility.
    Response. As a practical matter, it is not feasible to require a 
lockup to provide support to a victim who is confined elsewhere. To the 
extent the concern is over who pays for the victim's care, it is best 
left to the individual States and localities to determine whether and 
how to require a shifting of costs.

Policies To Ensure Referrals of Allegations for Investigations 
(Sec. Sec.  115.22, 115.122, 115.222, 115.322) \32\
---------------------------------------------------------------------------

    \32\ The standard numbered in the proposed rule as Sec. Sec.  
115.22, 115.222, and 115.322, titled ``Agreements with outside 
public entities and community service providers,'' has been deleted 
and its contents, as modified, have been moved to Sec. Sec.  115.51, 
115.53, 115.251, 115.253, 115.351, and 115.353.
---------------------------------------------------------------------------

Summary of Proposed Rule
    The standard contained in the proposed rule (numbered as Sec. Sec.  
115.23, 115.123, 115.223, and 115.323) mandated that each agency have 
in place a policy to ensure that allegations of sexual abuse or sexual 
harassment are investigated by an agency with the legal authority to 
conduct criminal investigations. The standard mandated that the policy 
be published on the agency's Web site, or otherwise made available, 
and, if a separate entity is responsible for investigating criminal 
investigations, that the publication delineate the responsibilities of 
the agency and the investigating entity. The standard also required 
that that any State entity or Department of Justice component that 
conducts such investigations have in place policies governing the 
conduct of such investigations.
Changes in Final Rule
    The final standard contains no substantive changes, although it 
adds language that makes explicit what was implicit in the proposed 
standard: ``The agency shall ensure that an administrative or criminal 
investigation is completed for all allegations of sexual abuse and 
sexual harassment.''
Comments and Responses
    Comment. Some commenters recommended that the Department restore 
the NPREC's recommendations that agencies attempt to enter into 
memoranda of understanding with outside investigative agencies and with 
prosecutorial agencies.
    Response. The Department recognizes that such memoranda of 
understanding have benefited certain agencies, and encourages agencies 
to explore the viability of attempting to enter into such agreements. 
However, due to burden concerns, the Department does not believe that 
the standard should require agencies to make such efforts. In comments 
submitted in response to the ANPRM, a number of agency commenters 
expressed concern that a standard requiring agencies to enter into 
memoranda, as the NPREC had recommended, would impose significant 
burdens, especially in State systems where investigations and 
prosecutions are conducted by numerous different agencies at the county 
or municipal level. In light of these concerns, the Department declines 
to revise the standard to mandate attempts to enter into such 
memoranda.
    Comment. A few agencies commented that the requirement to ensure 
completion of an investigation is duplicative because many agencies 
already require the investigation of any crime that occurs.
    Response. To the extent that an agency has such a policy, the 
requirement should not require extra effort to implement.
    Comment. Some agency commenters expressed concern that the standard 
required allegations of sexual harassment to be forwarded on to an 
outside agency to conduct criminal investigations even if the 
allegation does not rise to the level of criminal conduct.
    Response. This concern is misplaced. As stated in paragraph (b) of 
the relevant sections, there is no need to refer an investigation to an 
outside criminal investigation agency if the allegation does not 
involve potentially criminal behavior.
    Comment. One commenter asserted that local agencies must be allowed 
to promptly address sexual harassment complaints and not send 
complaints to outside agencies.
    Response. As noted above, agencies need not refer an investigation 
to an outside criminal investigation agency if the allegation does not 
involve potentially criminal behavior. And even if criminal behavior is 
alleged, the agency may still take administrative action during the 
pendency of a criminal investigation.
    Comment. Some agency commenters objected to the requirement that 
agency Web sites describe the responsibilities of both the confining 
agency and (where different) the agency investigating allegations of 
abuse. A small number of such commenters noted that they did not have a 
Web site and lacked the resources or support to develop one, and some 
asked if the policy must be presented in full.
    Response. The final standard allows agencies without a Web site to 
make the information available by other means, which should facilitate 
full publication of the policy.
    Comment. A few agencies objected that it was outside their agency's 
authority to publish any information describing the responsibilities of 
another agency.
    Response. The Department does not agree with the assertion that an 
agency lacks the authority to explain what responsibilities it bears, 
and what investigatory responsibilities will be carried out by an 
outside agency.
    Comment. A commenter recommended revising the standard from ``[t]he 
agency shall have in place a policy to ensure that allegations of 
sexual abuse * * * are investigated by an agency with the legal 
authority to conduct criminal investigations'' to ``[t]he agency shall 
have in place a policy to ensure that allegations of sexual abuse * * * 
are referred to an agency with the legal authority to conduct criminal 
investigations.''
    Response. The Department has adopted this change, and Sec.  
115.22(b) now requires agencies to have a policy to ensure that 
allegations are ``referred for'' investigation by an agency with the 
legal authority to conduct criminal investigations.
    Comment. Some agencies expressed concern that they would be 
responsible for monitoring the compliance of an outside entity's 
investigation, noting that they did not typically have control over the 
manner in which law enforcement conducts investigations.
    Response. As the amended text makes clear, agencies are responsible 
only for

[[Page 37145]]

referring the investigation to the outside entity, not for monitoring 
the outside entity's investigation.
    Comment. One State correctional agency commented that proposed 
standard Sec.  115.23(a) would be impossible to implement because 
criminal investigation entities in its State lack sufficient funding to 
take on the volume of investigations. The commenter asserted that it 
would be impossible to divide investigations between law enforcement 
and the correctional agency at the beginning of a case because it is 
often difficult to predict, at the outset of an investigation, whether 
evidence of criminal behavior will be obtained. Another agency 
commenter objected to the requirement that it determine whether 
behavior was ``potentially criminal'' because, in its view, such a 
determination can be made only by prosecutors and courts.
    Response. As the amended standard makes clear, a correctional 
agency's sole responsibility is to refer allegations of potentially 
criminal behavior to entities with the authority to investigate 
criminal matters. An agency need not definitively determine whether 
behavior is actually criminal; it need only refer allegations of 
potentially criminal behavior to the appropriate law enforcement 
agency. The Department is confident that the ability to determine 
whether an allegation might involve criminal acts is well within the 
competence of agency officials.
    Comment. A private individual recommended that criminal 
investigations be conducted by outside agencies, and that inmates have 
the opportunity to appeal the results of these investigations.
    Response. The standard requires agencies to refer investigations 
regarding potentially criminal behavior involving sexual abuse or 
sexual harassment to an agency with the legal authority to conduct 
criminal investigations. State or local law may dictate which entity 
has the legal authority to conduct such investigations, and it would 
not be appropriate for the standards to require that an outside 
jurisdiction conduct such investigations. With regard to criminal 
investigations, alleged victims of crimes do not ordinarily have the 
right to appeal the results of criminal investigations, and the 
Department declines to revise the standard to mandate such a right 
here.
    Comment. A number of advocates noted that delay can result where 
multiple investigations are not well coordinated, and recommended 
requiring that facilities establish clear responsibilities when 
overlapping investigations occur, so that staff members understand 
their roles and how to collaborate with other agencies to ensure timely 
resolution of all investigations. Specifically, they recommended adding 
the following language to the standard: ``The agency shall coordinate 
internal investigations of alleged sexual abuse and sexual harassment 
with any external investigations by law enforcement, child protective 
services, or other entities charged with investigating alleged abuse. 
The agency shall establish an understanding between investigative 
bodies with overlapping responsibilities so that staff have a clear 
understanding of their roles in evidence collection, interviewing, 
taking statements, preserving crime scenes, and other investigative 
responsibilities that require clarification.''
    Response. The Department recognizes the importance of coordinating 
investigations. However, the Department concludes that details of how 
to coordinate investigative efforts most effectively are best left to 
the agencies involved, and do not warrant specific reference within the 
standards.
    Comment. One stakeholder suggested removing sexual harassment from 
the ambit of this standard, while a number of other commentators 
suggested adding sexual harassment to sections of the proposed 
standards that referenced only sexual abuse.
    Response. Although PREA does not reference sexual harassment, it 
authorizes the NPREC, and by extension the Attorney General, to propose 
standards relating to ``such other matters as may reasonably be related 
to the detection, prevention, reduction, and punishment of prison 
rape.'' 42 U.S.C. 15606(e)(2)(M). Referencing sexual harassment in 
certain standards is appropriate to combat what may be a precursor to 
sexual abuse. Upon reconsideration, the Department has added sexual 
harassment to the portions of the standard that reference policies of 
State entities and Department of Justice components, in order that 
these provisions parallel the remainder of the standard.
    Comment. Two agencies expressed uncertainty as to the meaning of 
``State entity'' in the proposed standard, and suggested adding a 
specific definition.
    Response. The reference to ``State entity'' is meant to refer to 
any division of the State government, as opposed to local government. 
The Department does not believe that a definition is necessary.

Employee Training (Sec. Sec.  115.31, 115.131, 115.231, 115.331)

Summary of Proposed Rule
    The standard contained in the proposed rule required that all 
employees who have contact with inmates receive training concerning 
sexual abuse in facilities, including specified topics, with refresher 
training to be provided on an annual basis thereafter. The proposed 
standard included all training topics proposed by the NPREC, and added 
requirements that training be provided on how to avoid inappropriate 
relationships with inmates, that training be tailored to the gender of 
the inmates at employees' facilities, that training cover effective and 
professional communication with LGBTI residents, and that training in 
juvenile facilities be tailored to the juvenile setting.
    The proposed standard required that agencies document that 
employees understand the training they have received, and that all 
current employees be trained within one year of the effective date of 
the PREA standards.
    In lockups, the proposed standard, consistent with the NPREC's 
corresponding standard, did not specify training requirements beyond 
requiring that the agency train all employees and volunteers who may 
have contact with lockup detainees to be able to fulfill their 
responsibilities under agency sexual abuse prevention, detection, and 
response policies and procedures, and to communicate effectively and 
professionally with all detainees.
Changes in Final Rule
    The Department has added language in Sec. Sec.  115.31(a)(10), 
115.131(a)(6), and 115.231(a)(10), and made conforming changes to Sec.  
115.331(a)(10), to require relevant staff training in all facilities on 
laws related to the mandatory reporting of sexual abuse to outside 
authorities.
    The final standard adds sexual harassment to paragraphs (a)(2), 
(a)(4), (a)(5), and (a)(6), which previously referenced only sexual 
abuse, and adds ``gender nonconforming inmates'' to paragraph (a)(9), 
which previously referenced only LGBTI inmates.
    In an effort to reduce the costs associated with providing 
training, the Department has reduced the required frequency of staff 
``refresher training'' from annual to every two years, while adding a 
requirement that ``refresher information'' be provided to staff in the 
years in which they do not receive training.

[[Page 37146]]

Comments and Responses
    Comment. Most agency commenters responded positively to the staff 
training standards, with some stating that that they were already in 
compliance. A number of agency commenters identified concerns with the 
cost of development and the frequency of required training. Other 
commenters expressed concern specifically with regard to the costs 
associated with providing training on effective communication with 
LGBTI inmates.
    Response. The Department's National Resource Center for the 
Elimination of Prison Rape intends to develop training tools for use by 
all types of correctional agencies. Therefore, costs for training 
development should not be burdensome, and agencies should be able to 
integrate this training into their training protocols in a cost-
effective manner. In response to comments regarding the frequency of 
refresher training, the Department modified the requirement so that 
agencies need provide such training only every two years, which will 
reduce the cost of such training. However, the Department notes that 
such refresher training is quite valuable: In addition to helping 
ensure that staff know their responsibilities and agency policies, the 
periodic repetition of this training will foster the development of an 
agency and facility culture that prioritizes efforts to combat sexual 
abuse.
    Comment. Advocate and former inmate commenters requested increased 
and specific training for staff on effective and professional 
communication with all inmates, and specifically with LGBTI and gender 
nonconforming inmates.
    Response. The final standard requires staff to receive training in 
effective and professional training with inmates in general, and 
specifically with respect to LGBTI and gender nonconforming inmates. 
The Department does not believe that the standard itself need provide 
greater detail regarding the precise contours of such training. Rather, 
the Department expects that agencies will learn from each other and 
will adapt the Resource Center's training materials as needed.
    Comment. Some commenters recommended that the standard require 
training of all employees rather than, as in the proposed standard, 
only employees who may have contact with inmates.
    Response. While agencies are free to train all employees, the 
Department reaffirms its determination that it would not be appropriate 
for the standard to require agencies to train employees who have no 
documentable inmate contact.
    Comment. Some commenters requested that training be expanded to 
include sexual harassment in addition to sexual abuse.
    Response. The Department has added sexual harassment to certain 
training requirements, where particularly relevant. Specifically, the 
final standard requires training on inmates' right to be free from 
retaliation for reporting sexual harassment, the dynamics of sexual 
harassment in confinement, and the common reactions of sexual abuse and 
sexual harassment victims. Adding sexual harassment to these training 
categories, which in the proposed standard referenced only sexual 
abuse, is unlikely to increase costs and may help combat what is often 
a precursor to sexual abuse.
    Comment. An advocate commenter recommended that staff receive 
training on how histories of sexual abuse and domestic violence affect 
women. Additionally, one agency commenter suggested that all training 
should be ``gender informed.'' Various other commenters expressed 
concern that gender-specific training would be interpreted to mean that 
training should be tailored solely to the gender of the inmates in the 
employee's current work assignment, which these commenters stated could 
be problematic if the employee is later reassigned. Instead, they 
requested that all staff be trained on the gender-specific needs of 
both genders with regard to sexual abuse.
    Response. The proposed standard already mandated training on these 
topics, by requiring training on the dynamics of sexual abuse in 
confinement and the common reactions of sexual abuse victims, and by 
requiring that training be tailored to the gender of the inmates at the 
employee's facility. The final standard retains these requirements, and 
clarifies the last provision by requiring that staff transferring 
between gender-specific facilities receive gender-appropriate training. 
Requiring gender-specific training is unlikely to complicate employee 
transfers; it should not prove burdensome for an employee transferring 
from a male facility to a female facility, or vice versa, to undergo a 
training module related to the needs of the population at the staff 
member's new facility.
    Comment. Some advocate commenters recommended that agencies be 
required to use the incident review process to make adjustments to 
training curriculums.
    Response. While the Department agrees that incident reviews may be 
instructive as to training needs, it does not believe it is necessary 
to mandate such a connection. Instead, the Department leaves the issue 
to the discretion of agency officials.
    Comment. A rape crisis center recommended that agencies partner 
with local rape crisis centers to provide the most current training 
materials regarding sexual abuse.
    Response. The Department encourages such linkages, but declines to 
mandate them. Such a mandate could be difficult for certain agencies to 
comply with, depending upon the availability and interest of local rape 
crisis centers.
    Comment. Several advocacy groups proposed requiring that staff be 
trained in State mandatory reporting laws.
    Response. The Department agrees, and has added a requirement in 
Sec. Sec.  115.31(a)(10), 115.131(a), and 115.231(a)(10) that staff be 
trained in how to comply with relevant laws relating to mandatory 
reporting of sexual abuse to outside authorities. The Department has 
modified the analogous requirement under Sec.  115.331(a)(10) for 
consistency. Jurisdictions must determine their responsibilities under 
applicable laws and train staff accordingly.
    Comment. Many commenters expressed concern that the proposed 
standard for lockups specified a smaller set of training topics than 
the proposed standards for other categories of facilities.
    Response. The final standard expands the training requirements for 
lockups, adding requirements that training be provided on the agency's 
zero-tolerance policy; detainees' right to be free from sexual abuse 
and sexual harassment; the dynamics of sexual abuse and harassment in 
confinement settings, including which detainees are most vulnerable in 
lockup settings; the right of detainees and employees to be free from 
retaliation for reporting sexual abuse or harassment; how to detect and 
respond to signs of threatened and actual abuse; and how to comply with 
relevant laws related to mandatory reporting of sexual abuse to outside 
authorities.
    Comment. Juvenile justice agencies and juvenile advocacy groups 
recommended that the final standard require staff training specific to 
age of consent laws and how to distinguish between consensual and 
abusive sexual contact between residents.
    Response. The Department recognizes that juveniles may have sexual 
development issues that are distinct from adult behaviors. Accordingly, 
the final standard includes these training

[[Page 37147]]

topics in Sec.  115.331(a)(7) and (11). Juvenile facilities will need 
to identify applicable State laws regarding age of consent and train 
staff accordingly.
    Comment. A significant number of commenters requested the inclusion 
of staff training in adolescent development, behavioral manifestations 
of trauma, the particular needs and vulnerabilities of juveniles, 
sexual health, sexual development, healthy staff-youth relationships, 
and other topics.
    Response. Many of these topics are covered in the final standard, 
which requires training on, among other topics, the dynamics of sexual 
abuse and sexual harassment in juvenile facilities, the common 
reactions of juvenile victims of sexual abuse and sexual harassment, 
how to detect and respond to signs of threatened and actual sexual 
abuse and how to distinguish between consensual sexual contact and 
sexual abuse between residents, and how to avoid inappropriate 
relationships with residents. While staff may benefit from training on 
sexual health and sexual development, such training is not essential to 
combating sexual abuse in juvenile facilities.
    Comment. Some commenters recommended that the agencies be required 
to train all employees within one year, rather than 90 days, upon 
enactment of the final standards.
    Response. The Department believes that one year is a suitable 
amount of time, in consideration of the wide variety in facility sizes, 
population, and resources.
    Comment. Some commenters criticized the Department for not 
including the NPREC's recommended supplemental immigration standard ID-
2, which would require additional training for employees at facilities 
that hold immigration detainees. These commenters requested that the 
final standards require specific training regarding cultural 
sensitivity and issues unique to immigration detainees.
    Response. The Department recognizes that State and local facilities 
often confine very diverse populations, as do BOP facilities, even if 
they do not hold immigration detainees. The Department believes that 
the final standard requires training that is appropriate and responsive 
to this diversity. By mandating that agencies train their employees, 
for example, on how to detect and respond to signs of threatened and 
actual sexual abuse and to communicate effectively and professionally 
with inmates, the standard implicitly contemplates training to account 
for any relevant linguistic, ethnic, or cultural differences. Because 
the requirement is broad and inclusive, the Department concludes that 
it is not necessary to require additional training regarding cultural 
sensitivity to particular populations. Instead, the Department leaves 
the issue to the discretion of agency officials.

Volunteer and Contractor Training (Sec. Sec.  115.32, 115.132, 115.232, 
115.332)

Summary of Proposed Rule
    The standard contained in the proposed rule mandated that all 
volunteers and contractors who have contact with inmates be trained on 
their responsibilities under the agency's sexual abuse and prevention, 
detection, and response policies and procedures, in recognition of the 
fact that contractors and volunteers often interact with inmates on a 
regular, sometimes daily, basis. The level and type of training 
provided to volunteers and contractors would be based on the services 
they provide and level of contact they have with inmates; at the very 
least, all volunteers and contractors who have contact with inmates 
would be notified of the agency's zero-tolerance policy regarding 
sexual abuse and sexual harassment and informed how to report such 
incidents.
    With regard to lockups, the proposed standards mandated, in Sec.  
115.132, that attorneys, contractors, and any inmates who work in the 
lockup must be informed of the agency's zero-tolerance policy regarding 
sexual abuse. (As noted above, Sec.  115.131 governs training of lockup 
volunteers.)
Changes in Final Rule
    The final standard adds sexual harassment to the scope of training 
for volunteers and contractors. For lockups, the final standard removes 
attorneys from the scope of persons to be notified of the agency's 
zero-tolerance policy. The proposed standard did not require such 
notification of attorneys in any other type of facility, and upon 
reconsideration the Department concludes that the purposes of 
notification are not served by requiring notification of attorneys in 
lockups.
Comments and Responses
    Comment. Commenters supported training for volunteers; some 
requested greater specificity in the categories of training required.
    Response. The Department believes that the training categories 
included in the final standard are sufficient for agencies to identify 
training as appropriate for each type of volunteer.

Inmate Education (Sec. Sec.  115.33, 115.233, 115.333)

Summary of Proposed Rule
    The proposed standard required that information about combating 
sexual abuse be provided to individuals in custody upon intake and that 
comprehensive education be provided within 30 days of intake in person 
or through video. In addition, the proposed standard required that 
agencies ensure that key information is continually and readily 
available or visible to inmates through posters, inmate handbooks, or 
other written formats. The proposed standard required annual refresher 
information, except for community confinement facilities, which were 
required to provide refresher information only when a resident is 
transferred to a different facility.
Changes in Final Rule
    The final standard replaces the requirement that inmates receive 
annual refresher information with a requirement that inmates receive 
additional education upon transfer to a different facility to the 
extent that the policies and procedures of the inmate's new facility 
differ from those of the previous facility. In addition, juvenile 
facilities are now required to provide comprehensive education within 
10 days of intake, rather than 30 days, which remains the timeframe for 
other facilities.
Comments and Responses
    Comment. Jail agency commenters were most critical of the 
requirement for inmate education, indicating that the training of a 
population with rapid turnover was difficult to deliver and document. 
Jail agency commenters also criticized the requirement to provide 
inmate education during the intake process; some noted that jail 
booking processes were not equivalent to intake in prisons, because 
jail inmates are more likely to be suffering from increased stress, to 
be less stable emotionally, and to be under the influence of drugs or 
alcohol at the time of intake. These commenters also remarked that 
smaller jails are not equipped to provide inmate education.
    Response. The Department recognizes that jails have a unique 
population and rapid turnover rate. The final standard clarifies that 
information can be provided at intake through a handout or other 
written material. The documentation requirement has not been changed, 
as this can be easily added to an intake/admission checklist or other 
form of documentation. Indeed,

[[Page 37148]]

several agency commenters, including jails, stated that they already do 
so.
    Comment. Agency commenters criticized the yearly refresher 
requirement as unwieldy, citing the difficulty of delivery, 
documentation, and tracking of this activity.
    Response. The Department has removed the annual refresher 
requirement, substituting language requiring that inmates receive 
education upon transfer between facilities to the extent that the 
policies and procedures differ. This revision is better tailored to the 
goal of ensuring that inmates are always aware of relevant procedures, 
consistent with the requirement in Sec.  115.33(f) that agencies ensure 
that key information is continuously and readily available or visible 
to inmates through posters, inmate handbooks, or other written formats.
    Comment. One former inmate stated that inmates do not take video 
education seriously. The commenter recommended that inmate training be 
tailored to the type of inmate, including separate trainings for first-
time inmates, who may need more information than is currently provided.
    Response. The Department encourages agencies to offer in-person 
education and tailored trainings to the extent that resources allow, 
but concludes that the standard need not mandate either in order to 
serve the purpose of educating inmates. The National Resource Center 
for the Elimination of Prison Rape intends to develop training tools 
for use by all types of correctional agencies and may be able to 
provide such tailoring.
    Comment. Juvenile justice advocates criticized as too long the 30-
day timeframe in Sec.  115.333(b) for providing comprehensive education 
regarding sexual abuse and harassment in juvenile facilities.
    Response. The Department agrees, and has shortened the timeframe 
for comprehensive education in juvenile facilities to ``within 10 days 
of intake.'' The Department notes that Sec.  115.333(a) separately 
requires that residents receive information upon intake explaining the 
agency's zero-tolerance policy regarding sexual abuse and sexual 
harassment and how to report incidents or suspicions of sexual abuse or 
sexual harassment.
    Comment. Some commenters requested inclusion of a lengthy list of 
additional topics for juveniles, such as basic sexual education, sexual 
anatomy, sexual orientation, and gender roles.
    Response. While juvenile residents may benefit from learning about 
such topics, these topics appear to be better suited for inclusion in a 
facility's school curriculum rather than in a set of mandated topics 
aimed at combating sexual abuse.
    Comment. Some advocate commenters requested that the Department 
mandate ``peer-to-peer education'' for inmates.
    Response. The Department recognizes that some correctional systems, 
including the California Department of Corrections and Rehabilitation, 
have instituted pilot peer-to-peer education programs. While the 
Department encourages further development of such programs, it believes 
that at this point in time the nationwide imposition of such a 
requirement would be too resource-intensive.
    Comment. Some commenters proposed that the Department include the 
NPREC's recommended supplemental immigration standard ID-3, which would 
require that education regarding sexual abuse be culturally appropriate 
and given to immigration detainees separately from information 
regarding their immigration cases.
    Response. The Department believes that the final standard is 
sufficient to address concerns that immigration detainees in State, 
local, and BOP facilities receive meaningful education regarding 
combating sexual abuse. The final standard requires that education be 
accessible to all inmates, including those who do not speak English, 
and that educational materials be continuously and readily available to 
inmates regardless of their immigration status. The Department believes 
that facilities need not be required to tailor such education to the 
culture of the detainees, or deliver it separately from case-related 
information, in order to ensure that it is meaningful.
    Comment. Several commenters suggested that agencies be required to 
distribute an ICE Detainee Handbook, as recommended by the NPREC in its 
supplemental immigration standard ID-4.
    Response. The final rule does not include this change. The NPREC 
recommended that the handbook include information regarding the 
agency's sexual abuse policies, as well as information regarding how to 
contact community services organizations, consular officials, and DHS 
officials. These issues are already addressed in this standard as well 
as in the final standards on Inmate Reporting (Sec. Sec.  115.51, 
115.151, 115.251, 115.351) and Access to Outside Confidential Support 
Services (Sec. Sec.  115.53, 115.253, 115.353), which collectively 
provide appropriate guidance to State, local, and BOP facilities that 
hold immigration detainees.

Specialized Training: Investigations (Sec. Sec.  115.34, 115.134, 
115.234, 115.334)

Summary of Proposed Rule
    The proposed standard required that agencies that conduct their own 
sexual abuse investigations provide specialized training for their 
investigators in conducting such investigations in confinement 
settings, in addition to the general training required for all 
employees, and that any State entity or Department of Justice component 
that investigates sexual abuse in confinement settings do the same.
Changes in Final Rule
    No changes have been made.
Comments and Responses
    Comment. Advocate commenters generally supported revising the 
standard to require training on distinguishing between abusive and 
consensual sexual contact. Some advocates identified this training as 
essential to determining whether what may appear to be consensual 
activity is in fact coercive, while others expressed an opposite 
concern: That too many incidents would be considered abusive unless 
investigators were properly trained.
    Response. While not specifically mentioned, this topic should be 
considered part of the relevant training in conducting sexual abuse 
investigations in confinement settings as mandated by Sec.  115.34(a). 
The same paragraph requires that investigators receive the general 
training provided to all inmates pursuant to Sec.  115.31, which 
includes training on the dynamics of sexual abuse in confinement. 
Additionally, with regard to juvenile facilities, Sec.  115.331 
specifically mandates training in how to distinguish between consensual 
sexual contact and sexual abuse between residents.
    The question of whether sexual contact was consensual is a 
threshold determination in investigating any allegation of sexual abuse 
between inmates. The investigator is unlikely to have observed direct 
contact between the victim and alleged abuser, but will need to make 
this determination based on interviews and the evidence collected. The 
final standard requires investigators to have specialized training in 
conducting sexual abuse investigations in confinement settings, 
including training on techniques for interviewing sexual abuse victims 
and the evidence required to substantiate a case. Such training will 
help enable investigators to assess whether sexual contact was abusive. 
The National Resource Center for the Elimination of

[[Page 37149]]

Prison Rape will develop training modules that will assist the 
provision of such specialized training to investigators.
    Comment. Advocate commenters also requested a requirement that 
investigators receive specialized instruction in accessing LEP 
resources.
    Response. Sections 115.16, 115.116, 115.216 and 115.316 address LEP 
inmates and, as revised, require equal access to all aspects of efforts 
to prevent, detect, and respond to sexual abuse and sexual harassment 
for inmates who are LEP. The Department has not specified within 
individual standards how agencies are to implement this standard, 
preferring to leave it to agency discretion.

Specialized Training: Medical and Mental Health Care (Sec. Sec.  
115.35, 115.235, 115.335)

Summary of Proposed Rule
    The standard contained in the proposed rule required specialized 
training, and documentation thereof, for all medical staff employed by 
the agency or facility. The standard exempted lockups, which usually do 
not employ or contract for medical staff. The proposed standard also 
required that any agency medical staff who conduct forensic evaluations 
receive appropriate training.
Changes in Final Rule
    The final standard clarifies that medical and mental health care 
practitioners shall also receive the training mandated for employees 
under Sec.  115.31 or for contractors and volunteers under Sec.  
115.32, depending upon the practitioner's status at the agency. The 
final standard also adds a requirement that medical staff receive 
training in how to detect, respond to, and report sexual harassment.
Comments and Responses
    Comment. Many comments regarding paragraph (b) of the proposed 
standard, which required that any agency medical staff who conduct 
forensic evaluations receive appropriate training, appeared to 
misunderstand the intent of this requirement. Agency commenters 
expressed concern about the potential expense of providing advanced 
forensic training, whereas advocate commenters criticized the notion 
that agency medical staff would conduct forensic examinations, and 
seemed to assume that any training provided to them would be 
inadequate.
    Response. Paragraph (b) is meant to direct agencies to obtain 
appropriate and proper training for in-house medical staff if they 
decide to perform forensic examinations on-site. This direction is not 
intended to encourage agencies to create in-house forensic programs, 
but rather to call attention to the specialized training required to 
perform adequate examinations. The Department recommends that on-site 
medical staff conducting forensic examinations meet or exceed the 
training guidelines found in the Department's National Training 
Standards for Sexual Assault Medical Forensic Examiners.
    Comment. Advocate commenters suggested that medical and mental 
health care practitioners should receive the same training as all other 
staff.
    Response. The Department agrees, and has added language 
accordingly.
    Comment. One agency commenter stated that specialized training for 
medical and mental health contractors would be costly and burdensome.
    Response. The Department does not find this comment persuasive. 
Many medical and mental health contractors will already have such 
training, in which case the agency need not supplement it (beyond the 
standard training for staff and contractors). To the extent medical and 
mental health contractors do not have such training, it is essential 
that they receive it. The National Resource Center for the Elimination 
of Prison Rape is able to develop training modules that will assist the 
provision of such training.

Screening for Risk of Sexual Victimization and Abusiveness (Sec. Sec.  
115.41, 115.141 115.241, 115.341)

Summary of Proposed Rule
    The standard contained in the proposed rule required that prisons, 
jails, and community confinement facilities screen inmates during 
intake and during an initial classification process for risk of being 
sexually abused by other inmates or being sexually abusive toward other 
inmates. The standard required that such screening be conducted using 
an objective screening instrument, taking into account a list of 
enumerated factors, and mandated that blank copies of the screening 
instrument be made available to the public upon request,
    The proposed standard further required that the screening be 
conducted within 30 days of intake, and required re-screening when 
warranted. The standard prohibited discipline of inmates who refuse to 
answer specific questions during the screening process, and required 
protection of sensitive inmate information.
    With regard to juveniles, the proposed standard did not include a 
timeframe, except to state that the facility should attempt to 
ascertain such information during intake and periodically throughout 
the resident's confinement.
    The proposed standard did not include a screening requirement for 
lockups.
Changes in Final Rule
    Rather than require a screening during intake and again during an 
initial classification process, the final standard requires an initial 
intake screening to occur ordinarily within 72 hours of intake in 
prisons, jails, and community confinement facilities, and requires that 
the facility reassess the inmate's risk of victimization or abusiveness 
within a set time period, not to exceed 30 days from the inmate's 
arrival at the facility, based upon any additional, relevant 
information received by the facility subsequent to the intake 
screening. For juvenile facilities, the standard requires the initial 
screening to occur within 72 hours.
    In the list of factors to consider, the requirement to assess 
whether the inmate is LGBTI has been revised by adding consideration of 
whether the inmate would be perceived to be so, and whether the inmate 
is or would be perceived to be ``gender nonconforming,'' which is 
defined in Sec.  115.5 as ``a person whose appearance or manner does 
not conform to traditional societal gender expectations.''
    The final standard eliminates the requirement that a facility's 
screening instrument be made publicly available, and clarifies that the 
prohibition on disciplining inmates who refuse to answer screening 
questions applies only to specific sensitive questions required by the 
standard.
    For lockups, the final standard adds an abbreviated risk screening 
process for facilities that do not hold detainees overnight, and a more 
extensive risk screening process for detainees in lockups that do hold 
inmates overnight.
Comments and Responses
    Comment. Advocates and correctional agencies alike expressed 
concern over the requirement in the proposed standard that the initial 
classification occur within 30 days of the inmate's confinement. 
Advocates feared that allowing facilities up to 30 days to complete an 
initial classification would place many inmates at unnecessarily high 
risk of abuse for an extended period of time. Advocates preferred that 
information be gathered during the intake process to the extent 
possible,

[[Page 37150]]

and expressed the view that much of the required information should be 
readily available.
    Agency commenters expressed the concern slightly differently, 
noting that a large percentage of jail inmates are released within 30 
days, and thus 30 days was too long to allow an inmate to wait until an 
initial classification. Some jail commenters, including the American 
Jail Association, also expressed concern about conducting screening at 
intake, when inmates are often under the influence or under great 
stress. In addition, these commenters stated that a high percentage of 
those arrested are released directly from the ``booking floor'' and 
suggested that a jail intake screening should look similar to those 
conducted at lockup facilities until a determination has been made that 
the arrestee will not be released. The National Sheriffs Association, 
plus several State sheriffs' associations, commented that the standard 
in the proposed rule would be difficult to implement in a jail. Several 
commenters suggested that jail booking operations are more similar to 
processes in lockup facilities than to prison intake.
    Response. Upon reconsideration, including a review of comments 
submitted in response to NPRM Question 22, which asked whether the 
final rule should provide greater guidance regarding the required scope 
of the intake screening, the Department has decided to make significant 
changes to this standard.
    In order to protect all inmates regardless of when they arrive at a 
facility or where they are located within the facility, at least 
minimal information must be collected quickly to inform decisions about 
where the arrestee should be held awaiting the intake procedure and 
where he or she will be housed initially.
    The Department recognizes that some jail inmates spend limited time 
in the booking area, at a time when certain information needed for 
appropriate classification may not be immediately available. However, 
the brevity of the booking process and the possible lack of background 
information do not obviate the need to identify potentially vulnerable 
or abusive individuals and ensure they do not become victims or 
perpetrators. The final standard addresses jails' concerns by making a 
clearer distinction between the initial process of collecting risk 
information upon intake to make provisional decisions about protection 
and placement, and the subsequent reassessment of the inmate's risk 
after receiving fuller information.
    The final standard uses the term ``intake screening'' to describe 
the collecting of information from a person brought to a facility. 
Facilities should be able to readily obtain the information referenced 
in the enumerated criteria, and this intake screening can and should 
occur within 72 hours of the person's arrival at the facility. 
Facilities are strongly encouraged to conduct the intake screening 
sooner, to the extent circumstances permit. The ten criteria enumerated 
in the standard usually will be available through staff observation, 
direct questioning, or records checks within the 72-hour timeframe.
    Inmates who are unable to post a bond or are held subsequent to 
other warrants or court orders usually remain in custody pending a 
court appearance. The final standard requires that inmates who remain 
in custody undergo a more extensive classification process. Within a 
set period of time, not to exceed 30 days, the facility is to reassess 
the inmate's risk of victimization or abusiveness based upon any 
additional, relevant information received by the facility since the 
intake screening. This requirement recognizes that information relevant 
to the risk and classification needs will become available as staff 
interview, assess, and observe the inmate, and as the facility receives 
information from other agencies and sources.
    These revisions take into account the differences between--and 
among--prisons and jails, as well as the fact that information relevant 
to a more comprehensive inmate classification may not be immediately 
accessible. The Department recognizes that the time limits in this 
standard imply that some inmates will be screened twice, some once, and 
some--hopefully very few--not at all. These variations are inevitable 
when crafting a system with sufficient structure and flexibility to 
ensure that classifications are both effective and efficient.
    Comment. Some jail commenters noted that certain inmates are 
``frequent flyers'' who rotate in and out of the jail on a regular 
basis. The commenters stated that an inmate screening would be 
unnecessary for such inmates, given that the jail would already possess 
a significant amount of information from their prior admissions.
    Response. A facility is free to rely on information previously 
gathered with regard to a returning inmate; however, the facility 
should ensure that its assessment captures any changes in risk factors 
that may have occurred subsequent to the facility's prior gathering of 
information regarding that inmate.
    Comment. Some agency commenters recommended that the final standard 
defer to State or local laws regarding the screening of inmates.
    Response. The final standard provides a set of requirements that 
can be implemented in a manner consistent with State and local laws; to 
defer entirely to such laws would abdicate the Department's 
responsibility to ensure that the standard is satisfied only by 
screening procedures that provide sufficient protection against abuse.
    Comment. Some advocacy commenters recommended that the standard add 
gender nonconformance to the list of risk factors, on the ground that 
gender nonconformance gives rise to the same risk of victimization as 
the inmate's internal identification.
    Response. The Department agrees, and has made two additions to this 
standard. First, the final standard includes consideration of whether 
the inmate is ``gender nonconforming,'' which is defined in Sec.  115.5 
as ``a person whose appearance or manner does not conform to 
traditional societal gender expectations.'' Second, the standard 
instructs agencies to take into account not only whether the inmate is 
LGBTI, but whether the inmate is perceived to be so.
    Comment. Some agency commenters feared confusion between Sec.  
115.41, which in the proposed rule required that all inmates be 
screened during the intake process and during initial classification, 
and Sec.  115.81, which required that inmates be asked about prior 
victimization and abusiveness during intake or classification 
screenings. One jail stated that implementing the standards as written 
would require the hiring of one additional officer per shift, at an 
additional annual cost of $840,000. Other agency commenters also 
expressed budget concerns; some stated that requiring two separate 
screenings is overly burdensome and that the two standards should be 
combined.
    Response. The Department agrees that, as written, the two standards 
could cause confusion, and has amended Sec.  115.81 accordingly. 
Instead of requiring a separate interview to collect information about 
sexual victimization and abusiveness, the requirements of Sec.  115.81 
are triggered only if the screening mandated by Sec.  115.41 indicates 
that an inmate has experienced prior sexual victimization or 
perpetrated sexual abuse. This adjustment should eliminate the need for 
additional staff to conduct separate interviews.
    Comment. One agency commenter expressed uncertainty over whether 
the

[[Page 37151]]

``PREA screening'' should be incorporated into the initial 
classification instrument, and suggested that such incorporation could 
be problematic because the agency requires inmates to answer questions 
during its classification process, in contravention of the proposed 
standard, which provided that ``[i]nmates may not be disciplined for 
refusing to answer particular questions or for not disclosing complete 
information.'' The agency therefore recommended that the ``PREA 
screening'' be separate and distinct from the initial classification 
process.
    Response. This comment indicates that the proposed standard was 
worded too broadly and inadvertently caused confusion. The intent of 
the no-discipline phrase was not to grant immunity from discipline for 
failure to cooperate with intake, but rather to ensure that inmates who 
are fearful of disclosing sensitive information about risk factors are 
not punished for failing to disclose such information. Accordingly, the 
final standard revises this language to clarify that it applies only to 
questions about disabilities, LGBTI status, gender nonconformance, 
previous sexual victimization, and the inmate's self-perception of 
vulnerability.
    Comment. A small number of State correctional agencies expressed 
concern that staffing levels may need to increase to manage additional 
intake interviews.
    Response. As noted above, the clarification of the distinction 
between intake screening and classification should negate the need for 
additional classification staff.
    Comment. A few agency commenters also expressed concerns that 
making blank copies of their screening instruments available to the 
public could compromise their operations; one suggested that if the 
blank forms were made available, inmates could manipulate the 
information. The commenter recommended that the standard instead 
require agencies to identify and publicize the general types of 
information collected.
    Response. Upon reconsideration, the Department concludes that it is 
unnecessary to require agencies to make available blank copies of their 
screening instruments, and has removed this requirement from the 
standard.
    Comment. A State correctional agency expressed concern that the 
screening instrument would collect and rely on items that have not been 
validated as predictors of risk. The commenter recommended that any 
instrument used to classify inmates be validated and that funding be 
provided to develop such an instrument and to revalidate the instrument 
after three years of use.
    Response. To account for the range of agency types and available 
resources, the Department has chosen not to include a validation 
requirement. Pre-implementation validation and follow-up validation of 
risk screening instruments is a commendable practice and, in State 
systems and other large jurisdictions, comports with generally accepted 
professional standards. However, some agencies, such as small county 
jails, may lack sufficient resources to engage in a comprehensive 
validation study. Because risk factors may have varying degrees of 
predictive correlation in different jurisdictions, small agencies may 
need to rely upon reasonable assumptions in developing an objective 
screening instrument and classification process. Although research into 
risk factors for institutional sexual victimization and abusiveness 
remains ongoing, the factors listed in the standard have sufficient 
bearing upon the risk of victimization or abusiveness to warrant their 
use when assessing inmates. A validation process, where used, can 
assist in determining the weight of each identified factor for purposes 
of informing the housing classification process.
    Comment. Some advocates expressed concern that the proposed 
standard would allow intake and security staff to ask sensitive 
questions of residents without requiring the appropriate level of 
training to conduct such interviews. Several commenters urged the 
Department to adopt the NPREC's recommendation that only medical or 
mental health providers be allowed to ask such questions, at least in a 
facility where such providers work on-site. One agency remarked that 
its screening instrument was developed by a mental health professional, 
and suggested that an accurate determination of a resident's level of 
emotional and cognitive development, intellectual capabilities, and 
self-perception of vulnerability would not be possible without the 
involvement of such professionals.
    Response. The Department remains of the view that appropriately 
trained intake staff may be competent to ask residents sensitive 
questions in a professional and effective manner, and thus the final 
standard leaves to agency discretion how to use staff resources most 
effectively at intake. The Department expects that the training 
required in these standards will benefit intake staff who are tasked 
with such responsibilities.
    Comment. One juvenile detention association expressed concern over 
the lack of distinction between short-term juvenile detention 
facilities and long-term juvenile correctional facilities. The 
commenter noted that in detention settings, the facility may have no 
information about the inmate other than a court order. The commenter 
warned that asking questions about sexual victimization or abusiveness 
upon the resident's arrival at the facility could be viewed as 
intrusive, could produce anxiety, and could ``set the wrong tone for 
the stay in detention.''
    Response. The Department recognizes that an agency will not always 
be able to ascertain information about each of the enumerated factors. 
For example, the resident may choose not to answer certain screening 
questions, or the facility may not otherwise have access to certain 
criteria. The standard accounts for these considerations by making 
clear that the agency shall only ``attempt to ascertain'' the 
information. The Department expects that an agency will make necessary 
and reasonable efforts to obtain information. For example, an agency 
can work cooperatively with law enforcement and social service agencies 
to obtain information about the resident.
    The Department disagrees with the commenter that it is 
inappropriate to inquire about the resident's prior sexual 
victimization or abusiveness. First, this information is important in 
informing housing and programming decisions with the goal of keeping 
residents safe from abuse. Second, as discussed above, appropriately 
trained staff can make the inquiries in a professional and sensitive 
manner. Third, the standard makes clear that residents are not required 
to provide this information and may not be punished for refusing to 
provide this information.
    Comment. The same commenter indicated that unless the screening 
instrument is developed by a mental health professional, it will be 
difficult to assess accurately the resident's level of emotional and 
cognitive development, intellectual capabilities, and the resident's 
own perception of vulnerability, and that the development of such a 
screening instrument could be expensive.
    Response. The Department encourages agencies to develop their risk 
screening instrument and process utilizing a multi-disciplinary team, 
including input from an appropriate mental health professional. Because 
agencies and facilities typically employ or contract with mental health 
professionals, the Department does not believe that such input would be 
cost prohibitive. In addition, the National Resource Center for the 
Elimination of

[[Page 37152]]

Prison Rape and other agencies and technical assistance providers can 
assist with the development of a risk-screening program that may be 
applicable or adaptable across systems.
    Comment. NPRM Question 21 asked whether, given that lockup 
detention is usually measured in hours, and that lockups often have 
limited placement options, the final standard should mandate 
rudimentary screening requirements for lockups. Advocates strongly 
favored screening requirements, and suggested that many police lockups 
already employ basic measures aimed at protecting inmates from sexual 
abuse. Noting that a full classification process may not be necessary, 
advocates recommended that lockups be required to collect information 
similar to what the proposed standard required longer-term facilities 
to gather, especially if lockups hold multiple inmates in the same 
cell. Commenters also recommended that lockups conduct a basic 
screening to ensure that highly vulnerable inmates are not left alone 
with likely perpetrators even for short periods of time.
    Advocates proposed adding a list of known indicators of 
vulnerability, including mental and physical disability, young age, 
slight build, nonviolent history, identification as LGBTI, gender 
nonconforming appearance, and prior victimization. Some also proposed 
requiring lockups to ask detainees about their own perception of 
vulnerability and to provide heightened protection to detainees who 
perceive themselves to be vulnerable.
    Few agency commenters responded to the question; those that did 
mostly supported requiring lockups to administer some type of screening 
instrument or process. Some remarked that lockups were so small, and 
lengths of stay so brief, that the standards should not mandate a 
screening, and that any such standard should allow maximum flexibility.
    Response. The Department has added screening requirements for 
lockup facilities, distinguishing between lockups that hold detainees 
for a few hours, such as court holding facilities, and lockups where 
individuals may be held overnight, such as police stations. This 
revision adds protections for lockup detainees while recognizing that 
lockups are situated very differently from prisons and jails and often 
do not conduct intake as that term is traditionally understood.
    In lockups that are not used to house detainees overnight, before 
placing any detainees together in a holding cell, staff must consider 
whether, based on the information before them, a detainee may be at a 
high risk of being sexually abused and, when appropriate, must take 
necessary steps to mitigate any such danger to the detainee.
    In lockups that are utilized to house detainees overnight, all 
detainees must be screened to assess their risk of being sexually 
abused by other detainees or sexually abusive toward other detainees, 
and all detainees must be asked about their own perception of 
vulnerability. The screening process in such lockups shall also 
consider--to the extent that the information is available--whether the 
detainee has a mental, physical, or developmental disability; the age 
of the detainee; the physical build and appearance of the detainee; 
whether the detainee has previously been incarcerated; and the nature 
of the detainee's alleged offense and criminal history. In an effort to 
minimize the number of screening requirements in lockups, given that 
there may be no privacy to ask individuals screening questions, the 
standard does not explicitly include identification as LGBTI, gender 
nonconforming appearance, or prior victimization in its list of known 
indicators of vulnerability. However, these indicators may be 
ascertainable through other listed factors, such as physical build and 
appearance, and the detainee's own perception of risk.

Use of Screening Information (Sec. Sec.  115.42, 115.242, 115.342)

Summary of Proposed Rule
    The standard contained in the proposed rule required that agencies 
use the risk screening process to inform housing, bed, work, education, 
and program assignments with the goal of keeping inmates determined to 
be at risk of sexual victimization separate from inmates at risk of 
being sexually abusive. The proposed standard provided that agencies 
shall make individualized determinations about how to ensure the safety 
of each inmate, and required that, in placing transgender or intersex 
inmates, the agency consider on a case-by-case basis whether a 
placement would ensure the inmate's health and safety, and whether the 
placement would present management or security problems. The proposed 
standard also provided that transgender and intersex inmate placement 
be reassessed at least twice each year, and that such inmates' own 
views as to their safety be given serious consideration.
    For community confinement facilities, the proposed standard 
generally mirrored the standard for prisons and jails, but omitted the 
requirement that transgender and intersex residents be reassessed twice 
per year.
    For juvenile facilities, the proposed standard required the use of 
the risk screening process and additional information in order to 
determine appropriate placement to keep the residents safe from sexual 
abuse. The proposed standard also limited the use of isolation for 
purposes of protecting residents, and provided that LGBTI residents may 
not be placed in a particular housing location based solely on such 
identification.
    The standard in the proposed rule did not apply to lockups.
Changes in Final Rule
    The final standard makes two changes applicable to prisons, jails, 
and community confinement facilities. First, transgender and intersex 
inmates must be given the opportunity to shower separately from other 
inmates. Second, the final standard prohibits placing LGBTI inmates in 
a dedicated unit or facility solely on the basis of LGBTI 
identification unless such placement is pursuant to a legal requirement 
for the purpose of protecting such inmates.
    The final standard makes multiple changes for juvenile facilities. 
First, to avoid duplication and confusion, the final standard for 
juvenile facilities no longer enumerates placement factors but requires 
the facility to use the types of information obtained pursuant to Sec.  
115.341(c) to make housing, bed, program, education, and work 
assignments for residents, with the goal of keeping all residents safe 
and free from sexual abuse. Second, the final standard contains added 
protections for residents who are isolated for purposes of protection. 
During any period of isolation, agencies shall not deny residents daily 
large-muscle exercise or any legally required educational programming 
or special education services. Residents in isolation shall receive 
daily visits from a medical or mental health care clinician, and shall 
have access to other programs and work opportunities to the extent 
possible. Third, agencies may not consider a resident's LGBTI 
identification as a predictor of likelihood of being sexually abusive. 
Fourth, the final standard replaces the requirement that agencies make 
individualized determinations about the placement of transgender and 
intersex residents with language identical to corresponding language in 
the standard for adult facilities: That agencies determine, on a case-
by-case basis, housing and programming assignments for transgender and

[[Page 37153]]

intersex residents for purposes of ensuring the residents' health and 
safety, as well as any management or security concerns, that such 
placement decisions shall be reassessed at least twice per year, and 
that the views of transgender and intersex residents regarding their 
own safety be given serious consideration. Finally, if a resident is 
isolated for protective purposes, the agency shall be required to 
document its justification, and review the continued need for isolation 
at least every 30 days.
Comments and Responses
    Comment. Some agency commenters requested definitions of 
``transgender'' and ``intersex.''
    Response. As noted above, the final rule includes definitions of 
these terms in Sec.  115.5.
    Comment. Many advocacy commenters urged the inclusion of ``gender 
nonconforming'' and ``perceived to be'' LGBTI as screening factors.
    Response. As discussed above, the Department has made this change.
    Comment. Many advocate commenters opposed the omission from the 
proposed standard of the NPREC's recommended ban on assigning inmates 
to particular units based solely on their sexual orientation or gender 
identity. Commenters noted that it is impossible to state categorically 
that such units are safer and expressed concern that occupants might 
not be afforded programs and services equal to those of other inmates. 
Commenters also worried that such units could be used to punish inmates 
for their sexual orientation or gender identity.
    Several commenters remarked that these designated units can be 
successful only in certain circumstances. Some asserted that the unit 
operated by the Los Angeles County Jail for gay male and transgender 
inmates, specifically mentioned in the discussion of this standard in 
the proposed rule, is the exception rather the norm. These commenters 
stated that inmates in this unit retain access to substantial 
programming--often more than what is available in the general 
population--and that the jail has a sufficiently large gay male and 
transgender population to fill multiple wings, thus allowing these 
inmates to be segregated without experiencing isolation. The commenters 
suggested that successfully maintaining a unit based solely on sexual 
orientation or gender identity requires a demonstrated need, sufficient 
facility size and LGBTI inmate population, a basic level of cultural 
competence among staff, and an institutional commitment to safety and 
fairness toward these populations.
    Many commenters proposed language that would allow such units only 
under narrowly defined circumstances, such as where placement is based 
on a finding made by a judge or outside expert or is pursuant to a 
consent decree, legal settlement, or legal judgment--an exception 
apparently designed to encompass the Los Angeles County Jail.
    Other commenters supported including the NPREC's recommendation 
that the standard prohibit such units entirely; one law professor 
disputed the notion that the Los Angeles County Jail was effective at 
protecting inmates or otherwise worthy of emulation.
    Response. Upon reconsideration, the Department concludes that 
agencies should retain the option of using dedicated facilities, units, 
or wings to house LGBTI inmates. However, the Department agrees that to 
do so carries its own risk, and that it should be undertaken only in 
limited contexts. Because it would not be feasible for the Department 
to anticipate every case or circumstance that might warrant such 
placements, the Department has chosen to adopt a final standard that 
allows use of this practice only where the dedicated facility, unit, or 
wing is established in connection with a consent decree, legal 
settlement, or legal judgment.
    Comment. By contrast, the proposed standard did not allow such 
placements in juvenile facilities. One juvenile agency expressed 
concern about this prohibition, asserting that it would present 
operational challenges and might put residents at risk.
    Response. The Department respectfully disagrees with this 
assessment, which was not shared by advocacy groups. Despite good 
intentions, the practice of using dedicated facilities, units, or wings 
to house LGBTI inmates may result in youth being unable to access the 
same privileges and programs as others in general population housing, 
effectively punishing youth for their LGBTI status. The Department 
adheres to the assessment expressed in the NPRM: ``Given the small size 
of the typical juvenile facility, it is unlikely that a facility would 
house a large enough population of such residents so as to enable a 
fully functioning separate unit, as in the Los Angeles County Jail. 
Accordingly, the Department believes that the benefit of housing such 
residents separately is likely outweighed by the potential for such 
segregation to be perceived as punishment or as akin to isolation.'' 76 
FR 6258. While some LGBTI residents may require protective measures, 
such an assessment should occur only after a holistic assessment of the 
risk confronting the specific inmate, and should not be implemented 
automatically as a matter of facility policy.
    Comment. Some advocates recommended that the final standard ensure 
that transgender and intersex inmates have an opportunity to shower 
separately, owing to the unique risks that such inmates face in 
facilities.
    Response. The final standard adds such a requirement.
    Comment. Some commenters suggested several additional safeguards to 
protect against excessive use of isolation, including reviewing the 
status of a youth in isolation every 24 hours, limiting use of 
isolation to no more than 72 hours, and ensuring that isolated 
residents are provided access to programs and services.
    Response. The Department agrees that long periods of isolation have 
negative and, at times, dangerous consequences for confined youth. 
However, in limited situations, protective isolation longer than 72 
hours may be necessary to keep youth safe from sexual abuse, especially 
in small facilities with limited housing options and programming space. 
While not imposing a specific limit on the duration of any such 
protective isolation, the final standard contains a number of 
provisions limiting the use of isolation and providing enhanced 
protections for youth when they are isolated. First, the final standard 
prohibits the use of protective isolation except as a last resort when 
less restrictive measures are inadequate to keep them and other 
residents safe, and then only until an alternative housing option can 
be arranged. Second, for any such placement, agencies must document the 
need for isolation, and reassess its use at least every 30 days. In 
addition to requiring the agency to justify the use of isolation and to 
periodically reassess it, this provision will provide a mechanism for 
the PREA auditor to examine whether the use of isolation is being used 
appropriately. Third, the final standard provides that any youth in 
protective isolation must receive daily large-muscle exercise, any 
legally required education and special education programming and 
services, and daily visits from medical care or mental health care 
clinicians. In addition, agencies must provide isolated youth with 
access to other programming to the extent possible.
    Comment. One State juvenile justice agency expressed strong 
concerns about proposed standard Sec.  115.342(b), arguing

[[Page 37154]]

that the specification of information that agencies are required to 
consider exceeds PREA's scope and improperly dictates agency placement 
policy. The comment recommended that the standard provide only that the 
risk of abuse upon or by a resident be considered when making placement 
decisions.
    Response. The risk-screening factors enumerated in Sec.  115.341 
(and incorporated by reference into Sec.  115.342) may yield 
information that is predictive of a resident's risk of sexual 
victimization or sexual abusiveness. Requiring consideration of such 
factors in no way dictates agency placement policy; the standard does 
not require that a resident meeting specific screening criteria be 
housed in a specific placement. Nor does the standard mandate the 
weight to be assigned to any of the enumerated factors in making 
placement or classification decisions. Rather, the standard provides 
that the agency shall attempt to ascertain specific information about 
the resident, and that the agency develop an objective, rather than 
subjective, process for using that information with the goal of keeping 
residents safe from sexual abuse.
    Comment. Juvenile justice advocates requested that the final 
standards clarify that being LGBTI is a risk factor for being 
victimized by sexual abuse, not for committing sexual abuse.
    Response. The Department is not aware of any evidence to suggest 
that LGBTI identification or status is a risk factor for perpetrating 
sexual abuse. For this reason, and to prevent negative stereotypes of 
such juveniles from affecting placement decisions, the final standard 
specifically prohibits considering LGBTI identification or status as a 
predictor of sexual abusiveness in juvenile facilities.
    Comment. Some advocates criticized the Department for failing to 
adopt NPREC supplemental immigration standard ID-6, which would require 
immigration detainees to be housed separately from other inmates.
    Response. The final standards addressing screening (Sec. Sec.  
115.41, 115.141, 115.241, 115.341) require that agencies develop a 
screening instrument that measures risk of sexual victimization 
according to numerous criteria, including whether the inmate is 
detained solely for civil immigration purposes. The Department believes 
that the requirement that agencies use that screening information to 
make individualized determinations regarding housing, bed, work, 
education, and program assignments is sufficient to protect immigration 
detainees in State, local, and BOP facilities without a specific 
requirement that they be housed separately in every instance, 
particularly when weighed against the substantial burden that such a 
mandate would impose.

Protective Custody (Sec. Sec.  115.43, 115.68, 115.368)

Standards in Proposed Rule
    Section 115.43 in the proposed rule provided that inmates at high 
risk of sexual victimization, or who are alleged to have suffered 
sexual abuse, may be placed in involuntary segregated housing only 
after an assessment of all available alternatives has been made--and 
only until an alternative housing arrangement can be implemented. The 
proposed standard also specifically defined the assessment process, 
specified required documentation, and set a presumptive timeframe for 
placement in protective custody. In addition, the proposed standard 
provided that, to the extent possible, involuntary protective custody 
should not limit access to programming.
    Section 115.66 in the proposed rule (now renumbered as Sec.  
115.68) provided that any use of segregated housing to protect an 
inmate who is alleged to have suffered sexual abuse shall be subject to 
the requirements of Sec.  115.43.
Changes in Final Rule
    The standard contained in the final rule clarifies that inmates 
shall not be placed involuntarily in protective custody, unless an 
assessment of available alternatives has been made, and a determination 
has been made that no other alternative means of separating the inmate 
from the abuser exist. The final standard adopts a 24-hour timeframe to 
make this initial assessment.
    The final standard also adds a requirement that if the facility 
restricts access to programs, privileges, education, or work 
opportunities, it must document the opportunities that have been 
limited, the duration of the limitation, and the reasons for such 
limitations.
    Finally, the final standard shortens the presumptive time limit for 
involuntary protective custody from 90 days to 30 days, and shortens 
the timeframe for periodic reviews for the need for continued 
separation from 90 days to 30 days.
Comments and Responses
    Comment. One advocacy group commented that, although the proposed 
standard required programming to be provided to inmates in protective 
custody to the extent possible, such programming could still be 
routinely denied. The commenter suggested that agencies be required to 
document the programming opportunities that have been limited, the 
duration of the limitation, and the reasons for the limitation.
    Response. The Department agrees that a documentation requirement 
will assist in auditing this standard, and would provide agencies a 
formal mechanism to use in making programming assessments, and has 
amended the standard accordingly.
    Comment. Several commenters criticized as too lengthy the 90-day 
presumptive time limit for productive custody, as well as the 
requirement for periodic reviews every 90 days. Commenters suggested 
changing both to 30 days.
    Response. Upon reconsideration, the Department concludes that 30 
days should ordinarily suffice to arrange for alternate means of 
separation from likely abusers. In addition, the final standard 
requires that a review be provided at least every 30 days thereafter, 
in order to ensure that the situation is being actively monitored 
should the initial placement in protective custody be extended.
    Comment. A number of inmate, advocate, and individual commenters 
indicated that involuntary protective custody was, in effect, punitive, 
because inmates subject to this type of classification are sometimes 
isolated or otherwise denied essential programming and services. These 
commenters suggested that the conditions of protective custody housing 
may deter the reporting of sexual abuse or the threat of sexual abuse.
    Response. In certain circumstances, involuntary protective custody 
may be necessary to keep inmates safe from sexual abuse. However, the 
final standard makes clear that this type of housing should only be 
used when, pursuant to an administrative assessment, no better 
alternative is available. The standard also requires that any denial of 
programming to inmates in protective custody be documented and 
justified.
    Comment. A number of advocates commented that an inmate's gender 
identity should not be the sole basis for placement of the inmate in 
involuntary protective custody.
    Response. Sections 115.42, 115.242, and 115.342 provide that 
housing placement determinations for LGBTI inmates shall be made on a 
``case-by-case'' basis. This would preclude automatic placement in 
involuntary

[[Page 37155]]

protective custody on the basis of gender identity.

Inmate Reporting (Sec. Sec.  115.51, 115.151, 115.251, 115.351)

Summary of Proposed Rule
    In the proposed rule, Sec. Sec.  115.22(a), 115.222(a), and 
115.322(a) stated that agencies should maintain or attempt to enter 
into memoranda of understanding or other agreements with an outside 
public entity or office that is able to receive and immediately forward 
inmate reports of sexual abuse and sexual harassment to agency 
officials pursuant to Sec. Sec.  115.51, 115.251, or 115.351 unless the 
agency enables inmates to make such reports to an internal entity that 
is operationally independent from the agency's chain of command, such 
as an inspector general or ombudsperson who reports directly to the 
agency head. The proposed standards also required agencies to maintain 
or attempt to enter into memoranda of understanding or other agreements 
with community service providers that are able to provide inmates with 
confidential emotional support services related to sexual abuse. 
Finally, agencies were required to maintain copies of agreements or 
documentation showing attempts to enter into agreements.
    Sections 115.51, 115.151, 115.251, and 115.351 required agencies to 
enable inmates to privately report sexual abuse and sexual harassment 
and related misconduct. Specifically, this standard required that 
agencies provide multiple internal ways for inmates to privately report 
sexual abuse and sexual harassment, retaliation by other inmates or 
staff for reporting sexual abuse and sexual harassment, and staff 
neglect or violation of responsibilities that may have contributed to 
sexual abuse. The proposed standard also required that agencies make 
their best efforts to provide at least one way for inmates to report 
abuse or harassment to an outside governmental entity that is not 
affiliated with the agency or that is operationally independent from 
agency leadership, such as an inspector general or ombudsperson.
    The proposed standard also mandated that agencies establish a 
method for staff to privately report sexual abuse and sexual harassment 
of inmates.
    Finally, the proposed standard required that juvenile residents be 
provided access to tools necessary to make written reports, whether 
writing implements or computerized reporting.
Changes in Final Rule
    The final standard requires prisons, jails, and juvenile facilities 
to provide at least one way for inmates to report abuse or harassment 
to a public or private entity or office that is not part of the agency, 
and that is able to receive and immediately forward inmate reports of 
sexual abuse and sexual harassment to agency officials. By contrast, 
the proposed standard required only that facilities make their ``best 
efforts'' to provide such access, and did not allow a private entity to 
serve this function. By expanding the outside reporting option to 
include private entities, the final standard allows an agency, in its 
discretion, to utilize a private rape crisis center or similar 
community support service for these purposes, as appropriate.
    The final standard also specifies that the outside entity must 
allow the victim to remain anonymous upon request.
    Consistent with these revisions, the final standard no longer 
requires agencies to maintain or attempt to enter into agreements with 
an outside public entity that is able to receive and immediately 
forward inmate reports of sexual abuse. Such a requirement is no longer 
necessary now that agencies are required to provide reporting access to 
an outside entity, which may be public or private.
    In lockups and community confinement facilities, the ``best 
efforts'' requirement of the proposed standard has been replaced with a 
requirement that agencies inform detainees or residents of at least one 
way to report abuse or harassment to a public or private entity or 
office that is not part of the agency.
    The standard no longer contemplates the use of an internal entity 
that is operationally independent from the agency's chain of command. 
If the agency designates a government office to accept reports for the 
purposes of this standard, it must be outside of and completely 
independent from the correctional agency.
    Finally, for inmates detained solely for civil immigration purposes 
in jails, prisons, and juvenile facilities operated by States, 
localities, and BOP, the final standard requires that the facility also 
provide information on how to contact relevant consular officials and 
relevant officials at the Department of Homeland Security.
Comments and Responses
    Comment. Section 115.22 appeared to engender some confusion because 
it covered agreements for the purpose of outside reporting as well as 
agreements for the purpose of providing support services for victims. 
In addition, commenters were unclear as to how Sec.  115.22 interacted 
with Sec. Sec.  115.51 and 115.53, given the topical overlap.
    Response. For clarity, the subject matter covered by proposed 
standard Sec.  115.22 has been moved into Sec. Sec.  115.51 and 115.53, 
as appropriate.
    Comment. The proposed standards evoked a strong response from 
current and former inmates, who expressed the view that an outside 
reporting mechanism is essential to encourage reporting incidents of 
sexual abuse, because inmates often do not feel comfortable reporting 
to staff and may fear retaliation, especially when the abuser is a 
staff member. Thus, inmates may be reluctant to trust any internal 
entity, even if it is ``operationally independent'' from the agency's 
chain of command. Various advocacy groups and rape crisis centers, as 
well as a United States Senator, agreed with this reasoning. Many 
stated that some inmates are unlikely to understand or trust the 
distinction between an operationally independent entity, including an 
internal inspector general's office, and other agency offices. These 
commenters expressed the view that a reporting entity that answers to 
the same agency head could be perceived as part of the system that 
failed to protect the inmate in the first place. Many inmates commented 
that reports to allegedly independent entities, such as an 
ombudsperson, were routinely ignored.
    Some correctional agencies argued that requiring an outside 
reporting mechanism would constitute an unfunded mandate. Commenters 
stated that local support services may not be available to county jails 
in rural areas, and that staffing a hotline can be expensive. They also 
asserted that BJS data demonstrate that sexual abuse is less likely in 
rural jails, and that they would be paying for a service to respond to 
an event that rarely occurs. One correctional agency stated that an 
internal hotline to a facility investigator should be sufficient given 
improvements in staff training and increased focus on combating sexual 
abuse within facilities.
    Response. The final standard requires all prisons, jails, and 
juvenile facilities to provide at least one way for inmates to report 
abuse or harassment to a public or private entity or office that is not 
part of the agency. The standard no longer allows compliance by relying 
on an internal entity that is operationally independent from the 
agency's chain of command. However, an agency may designate a 
government office that is outside of and completely independent from 
the correctional agency. For example, if a State has an inspector

[[Page 37156]]

general's office that sits outside of, and does not report to, the 
State correctional agency, the agency may satisfy this standard by 
designating that office as the external reporting entity. An inspector 
general's office within the agency would not qualify under these 
standards, even if it is ``operationally independent'' from the 
facility administration. While this change may increase the burden on 
some agencies, inmates must feel comfortable reporting any incident of 
sexual abuse and may be loath to do so if their only option is 
reporting to an entity they view as part of the agency in which they 
suffered the abuse.
    The Department does not believe that this will impose a significant 
cost burden. The final standard does not require a hotline or a formal 
agreement between the facility and any specific outside entity. Rather, 
the agency need only establish an avenue for inmates to make contact 
with an outside entity--whether public or private--that can receive and 
forward reports of sexual abuse or sexual harassment to the agency. For 
example, an agency may choose to provide access to an external 
reporting hotline, or may provide a method for inmates to send 
confidential correspondence to an external entity. The standard thus 
provides flexibility for a facility to choose or develop the most 
appropriate external reporting mechanism to fit its needs.
    To be sure, the Department recognizes the value of internal 
hotlines and encourages their use. Indeed, the final standards require 
multiple internal ways for inmates to privately report sexual abuse and 
sexual harassment. However, the Department agrees with advocates and 
inmates who argued that an external reporting mechanism is necessary to 
address situations in which victims do not feel safe reporting to 
anyone inside the correctional system.
    The standard requires lockups and community confinement facilities 
to inform detainees or residents of at least one way to report abuse or 
harassment to a public or private entity or office that is not part of 
the agency, but does not require them affirmatively to provide 
detainees and residents with access, as is the case for prisons, jails, 
and juvenile facilities. Unlike adult prisons and jails and juvenile 
facilities, lockups typically hold inmates briefly before release or 
transfer to a jail, and community confinement facility residents 
usually are able to leave the facility during the day for various 
reasons and generally have greater access to community resources. 
Hence, the populations of the latter facilities will generally have 
greater access to make contact outside these of these facilities.
    Comment. Many advocates, as well as former and current inmates, 
commented that the standards must allow confidential reporting because 
some inmates may be too afraid of retaliation to report otherwise, even 
when reporting to an outside entity. One inmate recommended that 
allegations be forwarded to the facility only with the victim's 
consent. Many rape crisis centers and other community support groups 
commented that confidential reporting is important because, in their 
experience, victims are much more likely to report sexual abuse and 
cooperate with the investigation when they feel safe in doing so.
    A number of inmates and advocates suggested that some victims would 
not report an incident if the facility would learn of the report, even 
if the victim's identity was not revealed, and therefore requested 
complete confidentiality as an option. In contrast, many correctional 
agencies expressed concern that such an option would prevent them from 
learning about problems within their facilities and would preclude 
thorough investigations into allegations, in tension with the goals of 
a zero-tolerance policy.
    One commenter recommended that, in case agency officials are not 
responsive, the outside entity should have the option to take 
information to outside law enforcement if deemed in the victim's best 
interest and should be allowed not to disclose that information to the 
agency.
    Response. The Department recognizes the potential tension between 
encouraging inmates to report sexual abuse and ensuring that facilities 
have sufficient information to investigate allegations and address 
safety concerns. The final standard includes language requiring the 
outside reporting entity to allow the victim to remain anonymous upon 
request and retains the language from the proposed standard that 
requires facility staff to accept anonymous reports. Allowing anonymity 
protects the inmate's identity, but still provides the facility with 
basic information about the allegation. Ideally, a facility would 
receive complete information about every alleged incident of sexual 
abuse, including a first-hand report from the victim. But an anonymous 
report about an incident is preferable to no report at all. As many 
commenters noted, reports made anonymously are otherwise unlikely to be 
reported; thus, providing this avenue should actually increase the 
amount of information available to the facility. In addition, even if 
such a report may not allow for a full investigation into the incident, 
providing information about an incident generally, without the identity 
of the victim, will alert staff to potential concerns and may help 
reveal unsafe areas within the facility.
    With regard to reporting to law enforcement, nothing precludes an 
outside reporting entity from reporting allegations of abuse to the 
relevant law enforcement authorities or other entities, as appropriate. 
The outside entity should also have the discretion to report specific 
incidents at different administrative levels within a facility. If, for 
example, the facility investigator is the subject of an inmate report, 
the outside entity should forward that report to the facility 
superintendent or other agency administrator, instead of to the 
investigator.
    Comment. Some advocacy groups requested that the standards mandate 
entering into a memorandum of understanding with an outside agency to 
serve as a third-party reporting entity, and allow reliance on an 
independent, internal reporting option only if documented attempts to 
enter into such agreements are unsuccessful. On the other hand, many 
correctional agencies opposed any requirement for a formal agreement 
with an outside entity as unnecessary, expensive, and burdensome. Some 
facilities noted that finding a third party to provide such a service 
might be difficult in rural areas.
    Response. Many facilities would benefit from a formal agreement or 
memorandum of understanding to ensure that inmates can effectively 
report allegations of sexual abuse and sexual harassment. Indeed, some 
correctional agencies noted that they already have in place these types 
of agreements. Other facilities are able to provide outside services 
without such an agreement, whether through a private entity or through 
a government office that is external to and independent from the 
correctional agency. Given the varying needs and abilities of different 
facilities, the Department has opted to grant agencies discretion to 
provide the requisite external reporting mechanism in the most 
appropriate manner for the specific facility or incident at issue.
    Comment. Some correctional agencies expressed concern that the 
proposed standard would conflict with applicable State law. For 
example, the Florida Department of Corrections stated that, under 
Florida law, it maintains authority over investigations within the 
prison system, and that requiring inmates to report allegations to an 
entity that has no jurisdiction would conflict with a State statute.

[[Page 37157]]

    Response. The standard does not require the external reporting 
entity to investigate the allegations of sexual abuse. Rather, the 
external entity should receive and immediately forward inmate reports 
of sexual abuse and sexual harassment to agency officials, keeping the 
name of the inmate anonymous upon request.
    Comment. A juvenile justice agency and the Council of Juvenile 
Correctional Administrators requested that Sec.  115.351(e) be revised 
to require agencies to provide a method for staff to ``officially'' 
report sexual abuse and sexual harassment of residents, instead of 
allowing for staff to report ``privately.'' These commenters stated 
that because staff are legally obliged to report sexual abuse and 
harassment of youth, there should be no provision for ``private'' 
reporting.
    Response. The Department does not believe that private reporting 
conflicts with the obligation to comply with mandatory reporting laws. 
In requiring agencies to provide a method for staff to report sexual 
abuse and sexual harassment ``privately,'' the Department means that 
agencies must enable staff to report abuse or harassment directly to an 
investigator, administrator, or other agency entity without the 
knowledge of the staff member's direct colleagues or immediate 
supervisor. A private reporting mechanism may provide a level of 
comfort to staff who are concerned about retaliation, especially where 
the staff member reports misconduct committed by a colleague. As some 
advocates noted, a private reporting option, partnered with zero 
tolerance for sexual abuse, may encourage staff who would otherwise 
remain silent, despite mandatory reporting laws, to report sexual abuse 
and sexual harassment.
    Comment. In the NPRM, the Department noted that the Department of 
Defense provides a ``restricted reporting'' option that allows service 
members to confidentially disclose the details of a sexual assault to 
specified employees or contractors and receive medical treatment and 
counseling without triggering the official investigative process and, 
subject to certain exceptions, without requiring the notification of 
command officials or law enforcement. See Department of Defense 
Directive 6495.01, Enclosure Three; Department of Defense Instruction 
6495.02. NPRM Question 23 asked whether the final standards should 
mandate that agencies provide inmates with the option of making a 
similarly restricted report to an outside public entity, and to what 
extent, if any, such an option would conflict with applicable State or 
local law.
    Correctional agencies that responded to this question were 
generally opposed to a reporting option that would prohibit an official 
investigation. Agencies stressed the need to adequately investigate any 
potential abuse in order to ensure inmate safety and compliance with 
other standards. Some stated that a restricted reporting option would 
conflict with the goals of a zero-tolerance policy; others suggested it 
could conflict with State laws requiring mandatory reporting. One 
commented that a restricted reporting option would be contrary to the 
intent of the Prison Litigation Reform Act, which seeks to encourage 
issues to be brought to the attention of prison administrators before 
litigation occurs. Advocacy groups generally did not focus on Question 
23, but many advocate comments recommended that the standards return to 
the NPREC's proposed language that allowed inmates to request 
confidentiality or permit confidential reports ``to the extent 
allowable by law.'' One law student stated that inmates should be 
entitled to separate their need for medical care from the investigation 
process, particularly if the inmate believes an investigation is 
unlikely to positively affect the situation or may lead to danger.
    Response. Restricted reporting represents a tradeoff between the 
victim's interest in privacy and preventing retaliation and, on the 
other hand, the institution's interest in identifying the abuser for 
purposes of discipline and preventing further abuse. In some cases, a 
victim will be too fearful to report if he or she knows that the 
information will be disseminated beyond medical staff. The Department 
recognizes that, in the absence of a restricted reporting policy, some 
victims will not seek needed care.
    The cost of a restricted reporting policy, however, is that the 
institution cannot take steps to prevent the recurrence of the abuse. 
The dynamics of sexual abuse in correctional facilities make it quite 
likely that an abuser will subsequently abuse other inmates. An agency 
that learns of such abuse is far better equipped to prevent future 
incidents.
    Given the competing costs and benefits of restricted reporting 
policies, the Department chooses not to include in the standards a 
requirement to adopt a restricted reporting option. Instead, provisions 
in other standards are designed to mitigate the risks that inmates may 
be too fearful to come forward. The final standard requires each 
prison, jail, and juvenile facility to provide multiple ways for 
inmates to report sexual abuse and sexual harassment, including at 
least one external reporting mechanism. Anonymous reports must be 
accepted, but all reports will be forwarded to the facility for 
investigation. These requirements will enable some inmates who are 
reluctant to report to facility authorities some ability to find 
support, and may lead them to reconsider their initial decision not to 
come forward. In addition, this system should ensure that the facility 
is made aware of allegations of abuse, while protecting the identities 
of those inmates who would not come forward if they were not permitted 
to report anonymously. Finally, Sec. Sec.  115.82 and 115.83 provide 
that facilities may not condition any medical or mental health care on 
the victim's cooperation with any ensuing investigation. A victim who 
needs care but is reluctant to name the perpetrator of the abuse--or 
who may not even admit that the injury occurred as result of a sexual 
assault--must be offered the same level of care as any other inmate 
presenting similar injuries. Given these requirements, the Department 
has determined it is not necessary to include a restricted reporting 
option.
    Comment. Some advocacy organizations recommended that the 
Department include NPREC supplemental immigration standard ID-7, which 
would require agencies to provide contact information for relevant 
consular and DHS officials to immigration detainees. These commenters 
noted that, for these detainees, the DHS Office of the Inspector 
General and the Office for Civil Rights and Civil Liberties, as well as 
consular offices, serve the ombudsperson function that is contemplated 
in the final standard and thus should be made available to immigration 
detainees who complain of sexual abuse.
    Response. The final standard requires that individuals detained 
solely for civil immigration purposes in State, local, or BOP 
facilities be provided with information on how to contact relevant 
consular officials as well as relevant DHS officials.

Exhaustion of Administrative Remedies (Sec. Sec.  115.52, 115.252, 
115.352)

Summary of Proposed Rule
    Paragraph (a) of the standard contained in the proposed rule 
governed the amount of time allotted inmates to file a request for 
administrative remedies (typically known as grievances) following an 
incident of

[[Page 37158]]

sexual abuse. The proposed standard set this time at 20 days, with an 
additional 90 days available if an inmate provides documentation, such 
as from a medical or mental health provider or counselor, that filing 
sooner would have been impractical due to trauma, removal from the 
facility, or other reasons.
    Paragraph (b) of the proposed standard governed the amount of time 
that agencies have to resolve a grievance alleging sexual abuse before 
it is deemed to be exhausted, in order to ensure that the agency is 
allotted a reasonable amount of time to investigate the allegation, 
after which the inmate may seek judicial redress. Paragraph (b) 
required that agencies take no more than 90 days to resolve grievances 
alleging sexual abuse, unless additional time is needed, in which case 
the agency may extend up to 70 additional days. The proposed standard 
did not count time consumed by inmates in making appeals against these 
time limits.
    Paragraph (c) required that agencies treat third-party 
notifications of alleged sexual abuse as a grievance or request for 
informal resolution submitted on behalf of the alleged inmate victim 
for purposes of initiating the agency administrative remedy process. 
The proposed standard required reports of sexual abuse to be channeled 
into the normal grievance system (including requests for informal 
resolution where required) unless the alleged victim requested 
otherwise. This requirement exempted reports from other inmates in 
order to reduce the likelihood that inmates would attempt to manipulate 
staff or other inmates by making false allegations. The proposed 
standard permitted agencies to require alleged victims to perform 
properly all subsequent steps in the grievance process, unless the 
alleged victim of sexual abuse is a juvenile, in which case a parent or 
guardian could continue to file appeals on the juvenile's behalf unless 
the juvenile does not consent.
    Paragraph (d) governed procedures for dealing with emergency claims 
alleging imminent sexual abuse. The proposed standard required agencies 
to establish emergency grievance procedures resulting in a prompt 
response--unless the agency determined that no emergency exists, in 
which case the grievance could be processed normally or returned to the 
inmate, as long as the agency provides a written explanation of why the 
grievance does not qualify as an emergency. To deter abuse, the 
proposed standard provided that an agency could discipline an inmate 
for intentionally filing an emergency grievance where no emergency 
exists.
Changes in Final Rule
    The final standard includes numerous changes.
    First, the final standard requires that agencies not impose any 
deadline on the submission of a request for administrative remedies 
regarding sexual abuse incidents.
    Second, the final standard no longer requires agencies to treat 
third-party notifications of alleged sexual abuse as a grievance or 
request for informal resolution submitted on behalf of the alleged 
inmate victim for purposes of initiating the agency administrative 
remedy process. Rather, the final standard requires agencies to allow 
third parties to submit grievances on behalf of inmates. If a third 
party submits such a request on behalf of an inmate, the facility may 
require as a condition of processing the request that the alleged 
victim agree to have the request submitted on his or her behalf, and 
may also require the alleged victim to personally pursue any subsequent 
steps in the administrative remedy process. The final standard also 
provides that third parties, including fellow inmates, staff members, 
family members, attorneys, and outside advocates, shall be permitted to 
assist inmates in filing requests for administrative remedies relating 
to allegations of sexual abuse.
    Third, the final standard revises the emergency-grievance 
provision, which allows an inmate to seek an expedited response where 
the inmate alleges that he or she is subject to a substantial risk of 
imminent sexual abuse. As in the proposed standard, the final standard 
requires an initial agency response within 48 hours and a final 
decision within five days. However, the standard no longer requires 
that, if the agency determines that no emergency exists, it must 
process the grievance as a non-emergency grievance.
    The final standard forbids agencies from requiring inmates to seek 
informal resolution of a grievance alleging sexual abuse as a 
prerequisite to submitting a formal request for administrative 
remedies.
    The final standard provides that agencies shall ensure that inmates 
may submit requests for administrative remedies without needing to 
submit the request to the alleged abuser, and that no request will be 
referred to an alleged abuser.
    The final standard states expressly that an agency that lacks 
administrative procedures to address inmate grievances regarding sexual 
abuse need not create such procedures in order to comply with the 
standard.
Comments and Responses
    Comment. Several State correctional agencies asserted that imposing 
a standard governing the exhaustion of administrative remedies would 
undermine or violate the Prison Litigation Reform Act (PLRA).
    Response. The final standard is not inconsistent with the PLRA. The 
PLRA does not require a State to impose any particular administrative 
exhaustion requirements. Rather, the PLRA requires that an inmate 
exhaust ``such administrative remedies as are available'' before 
bringing an action under Federal law. 42 U.S.C. 1997e(a). The PLRA thus 
affords States a procedural defense in court by requiring inmates with 
grievances to satisfy such administrative exhaustion requirements as 
States may adopt. Providing a State with an incentive to structure an 
administrative remedy in a particular manner would not relieve an 
inmate of the PLRA's requirement that he or she exhaust whatever 
administrative remedies a State ultimately chooses to make available. 
Furthermore, the PLRA does not immunize from change any exhaustion 
requirements that States may adopt, nor does it bar the use of Federal 
financial incentives, such as the incentives provided by PREA, to 
induce States to revise their requirements.
    Comment. Several correctional agency commenters noted that they 
either do not have administrative remedy proceedings at all, or 
otherwise do not apply their administrative remedy proceedings to 
allegations or grievances involving sexual abuse. Some such commenters, 
joined by a number of advocacy organizations, suggested that 
administrative remedy procedures are not appropriate for grievances 
involving sexual abuse.
    Response. Paragraph (a) of the final standard clarifies that an 
agency need not create administrative procedures to address grievances 
involving allegations of sexual abuse if it currently lacks such 
procedures. This standard is meant to govern only the contours of 
administrative remedy procedures, due to the fact that under the PLRA, 
exhaustion of any such procedures is a prerequisite to access to 
judicial remedies. The Department leaves to agency discretion whether 
to utilize such administrative remedies as part of its procedures to 
combat sexual abuse. As noted in Sec.  115.51 and its counterparts, 
agencies must provide multiple internal ways to report abuse, as well 
as access to an external reporting channel. A grievance system cannot 
be the only method--and should not be expected to be the primary 
method--for

[[Page 37159]]

inmates to report abuse. Agencies should remain aware that inmates' 
concern for confidentiality and fear of retaliation, whether or not 
well-founded, may discourage inmates from availing themselves of 
administrative remedies.
    An inmate in an agency that lacks any administrative remedies may 
proceed to court directly. Accordingly, this standard is inapplicable 
to agencies that lack administrative remedy schemes. Likewise, if an 
agency exempts sexual abuse allegations from its administrative 
remedies scheme, an inmate who alleges sexual abuse may proceed to 
court directly with regard to such allegations, and this standard would 
not apply. Some agencies exempt sexual abuse allegations from their 
remedial schemes entirely, such as the West Virginia Division of 
Corrections,\33\ while others exempt only such allegations against 
staff, such as the City of New York Department of Correction.\34\ In 
the latter case, this standard would continue to apply to allegations 
against inmates.
---------------------------------------------------------------------------

    \33\ See W.Va. Code 25-1A-2(c); White v. Haines, 618 SE.2d 423, 
431 (W. Va. 2005).
    \34\ See City of New York Department of Correction, Directive 
3375R-A, at 2 (2008), available at http://www.nyc.gov/html/doc/downloads/pdf/3375R-A.pdf.
---------------------------------------------------------------------------

    Comment. Many advocates recommended that the final standard require 
that agencies not impose any time limit for submitting administrative 
grievances alleging sexual abuse. These commenters opined that inmates 
may take months or even years to report sexual abuse, perhaps waiting 
until their abuser is no longer housed or posted in their vicinity. 
Commenters stressed that the time limits would pose particular 
difficulties for juveniles, who may be more hesitant than adults to 
report abuse. Some advocates recommended eliminating the deadline 
altogether, while others suggested that if a deadline were required, it 
should be 180 days.
    The 90-day extension provision received significant criticism. 
Advocates asserted that obtaining the documentation required by the 
proposed standard to justify such an extension would be difficult at 
best and often impossible. Many correctional agency commenters agreed 
with advocates that the 90-day extension was unworkable. One State 
correctional agency commented that such a requirement might well 
subject its counselors and mental health providers to complaints and 
lawsuits for failing to provide requested documentation in a timely 
manner.
    Response. After considering the many comments on this issue, the 
Department has revised the standard to require that agencies not impose 
any time limit on the filing of a grievance alleging sexual abuse. 
While some inmates will submit false grievances, it is unlikely that 
the number of such false grievances will rise appreciably if an inmate 
is granted more time to submit a grievance regarding sexual abuse. Even 
in an agency with a 20-day limit, an inmate who is inclined to invent 
an incident of sexual abuse could simply allege that it occurred within 
20 days. The Department found merit in comments that expressed concern 
that inmates may require a significant amount of time in order to feel 
comfortable filing a grievance, and might need to wait until their 
abuser is no longer able to retaliate. Requiring the removal of time 
limits increases the ability of such inmates to obtain legal redress 
and increases the chance that litigation will play a beneficial role in 
ensuring that correctional systems devote sufficient attention to 
combating sexual abuse.
    The Department considered revising the standard to allow a lengthy 
time limit, such as 180 days, but concluded that no interest is served 
by allowing the filing of grievances up until that point but not 
beyond. Importantly, one key time limit will still apply: The statute 
of limitations. Federal suits filed against State officials under 42 
U.S.C. 1983 are governed by the general State personal injury statute 
of limitations, see Owens v. Okure, 488 U.S. 235 (1989), which in the 
vast majority of States is three years or less.\35\ Paragraph (b)(4) 
clarifies that this standard does not restrict an agency's ability to 
defend a lawsuit on the ground that any applicable statute of 
limitations has expired. Thus, if the applicable State statute of 
limitations is three years, an inmate who files a grievance alleging 
that abuse occurred four years ago will be unable to seek judicial 
redress after exhausting administrative remedies if the agency asserts 
a statute of limitations defense. The statute of limitations provides a 
backstop against the filing of stale claims, as it does for analogous 
claims of sexual abuse experienced in the community at large.
---------------------------------------------------------------------------

    \35\ See Martin A. Schwartz, 1 Section 1983 Litigation Sec.  
12.02[B][5] (2007 ed.). Several courts of appeals have held that the 
same statute of limitations should apply to actions against Federal 
officials filed under Bivens v. Six Unknown Named Agents of the 
Federal Bureau of Narcotics, 403 U.S. 388 (1971). See Kelly v. 
Serna, 87 F.3d 1235, 1238 (11th Cir. 1996) (citing cases).
---------------------------------------------------------------------------

    Paragraph (b)(2) has been added to make clear that paragraph (b)(1) 
applies only to those portions of a grievance that actually involve 
allegations of sexual abuse. In other words, if an agency applies time 
limits to grievances that do not involve allegations of sexual abuse, 
inmates may not circumvent those timelines by including such 
allegations in a grievance that also alleges sexual abuse.
    Comment. Several advocacy groups recommended that the final 
standard mandate that agencies allow inmates to submit a formal 
grievance without first requiring them to avail themselves of informal 
grievance processes. Commenters noted that, in cases where an inmate 
alleges sexual abuse by a staff member, informal resolution may require 
the inmate to interact with the perpetrator or with a person who may be 
complicit in the abuse.
    Response. The final standard prohibits requiring inmates to seek 
informal resolution of a grievance alleging sexual abuse as a 
prerequisite to submitting a formal request for administrative 
remedies. Informal resolution typically requires the inmate to discuss 
the subject of the grievance with staff. In the case of sexual abuse, 
this process is unlikely to resolve the grievance, and may force the 
inmate to discuss the grievance with the abuser or with a staff member 
who works closely with the abuser.
    Comment. Several advocates recommended that the final standard 
require that agencies ensure that inmates may file grievances without 
having contact with their alleged abusers.
    Response. The final standard makes clear that agencies shall 
establish procedures pursuant to which inmates can submit grievances 
alleging sexual abuse to staff members who are not subjects of the 
complaint, and that such grievances may not be referred to any subject 
of the complaint. These explicit protections will help ensure that 
inmates are not dissuaded from submitting grievances following sexual 
abuse, and that staff members who are subjects of such grievances 
cannot influence the administrative process that ensues.
    Comment. Few comments were received on the elements of the proposed 
standard that governed the amount of time to resolve administrative 
grievances involving allegations of sexual abuse. A few commenters 
believed the timeframe was too long, while one State correctional 
agency recommended extending the presumptive time limit from 90 days to 
100.
    Response. The final standard retains the basic structure of this 
provision, with certain changes. Paragraph (d)(2) clarifies that the 
90-day time period does not include time consumed by

[[Page 37160]]

inmates ``in preparing any administrative appeal,'' rather than merely 
``in appealing any adverse ruling.'' The revised language is more 
accurate and inclusive, because in some cases inmates may appeal 
rulings that are not necessarily or entirely ``adverse,'' but that do 
not afford the inmate the full remedy sought.
    The Department added paragraph (d)(4) in the final standard to 
address comments that the proposed standard, as written, could be 
interpreted to mean that a grievance might not be considered exhausted 
if a correctional agency adopted the 90/160-day time limits but 
nevertheless failed to timely respond to a grievance alleging sexual 
abuse. Paragraph (d)(4) makes clear that, when an agency fails to 
respond to an administrative grievance alleging sexual abuse according 
to its guidelines, an inmate may consider that failure a denial at the 
corresponding level of administrative review, including at the final 
level (in which case, the inmate may consider the absence of a timely 
response as the final agency decision for purposes of exhaustion).
    Comment. Several agency commenters stated that the proposed 
standard's requirement that an agency treat any notification of an 
alleged sexual assault as a grievance, regardless of the method by 
which notification was made (other than by notification by a fellow 
inmate), would pose administrative difficulties, particularly when such 
notification came from a third party. Commenters suggested that it 
would be burdensome and impracticable to require staff to complete a 
grievance form on behalf of an inmate whenever staff learns of an 
allegation of sexual abuse.
    Conversely, several commenters supported a requirement that 
agencies treat any notification of alleged sexual assault as a 
grievance, including notifications by other inmates. These commenters 
stated that complicated administrative processes could frustrate the 
ability of victims of sexual abuse to exhaust their remedies and seek 
redress in court. Commenters noted that difficulties in filing and 
exhausting grievances were particularly acute for complaints involving 
sexual abuse. Further, many commenters (including correctional agency 
commenters) noted that juveniles may be more susceptible to peer 
pressure or other factors that might dissuade them from pursuing a 
valid grievance alleging sexual abuse. These commenters expressed 
concern over the provision in the proposed standard that allowed 
agencies not to treat a notification as a grievance if the alleged 
victim requests that it not be processed as such.
    Response. The final standard does not require agencies to treat any 
notification as a grievance. Rather, paragraph (e)(1) provides that 
third parties shall be allowed to submit such grievances on behalf of 
inmates (and to assist inmates in submitting grievances alleging sexual 
abuse). If a third party files such a request on behalf of an inmate, 
the facility may require as a condition of processing the request that 
the inmate agree to have the request filed on his or her behalf, and 
may also require the inmate to pursue personally any subsequent steps 
in the administrative remedy process. If the inmate declines to have 
the request processed on his or her behalf, the standard requires that 
the agency document the inmate's decision.
    With regard to juvenile facilities, the final standard requires 
that agencies accept third-party grievances submitted by parents or 
guardians regardless of the juveniles' acquiescence. This revision 
addresses concerns that juveniles may be particularly reluctant to 
agree to the filing of a grievance by a third party. Because parents 
and guardians represent reliable sources for such complaints, it is 
appropriate to require their complaints to be treated as grievances, 
even where the juvenile requests otherwise.
    The Department is sympathetic to agency concerns that the 
requirement in the proposed standard was impractical. In light of other 
changes to the proposed standard, there is less need to require that a 
third-party notification be treated as a grievance. By requiring that 
agencies not impose a deadline on submitting an administrative 
grievance alleging sexual abuse, allowing third parties to submit 
grievances on an inmate's behalf, allowing third parties to assist 
inmates in filing their own grievances, and requiring agencies to 
implement procedures to avoid the submission or referral of complaints 
to their subjects, the Department has made it significantly easier for 
sexual abuse grievances to be filed by the victim or by someone acting 
expressly on the victim's behalf. As a result of these changes, the 
Department concludes that it is no longer worthwhile to require agency 
staff to file grievances whenever they hear of an allegation.
    Comment. Some commenters expressed concern that inmates may attempt 
to circumvent otherwise applicable rules by piggybacking grievances 
that are governed by those rules onto allegations involving sexual 
abuse, which may be treated differently.
    Response. The final standard addresses this concern in three 
places. As noted above, paragraph (b)(2) states that the agency may 
apply otherwise applicable time limits on any portion of a grievance 
that does not allege an incident of sexual abuse. The addition of ``any 
portion of'' in paragraph (d)(1) makes clear that the 90-day time limit 
applies only to those portions of grievances that actually allege 
sexual abuse. These changes ensure that inmates cannot circumvent 
stricter deadlines for grievances that do not involve sexual abuse by 
bootstrapping such grievances onto a grievance that also alleges sexual 
abuse. Finally, paragraph (f)(2) clarifies that only the portion of a 
grievance that involves an allegation of substantial risk of imminent 
sexual abuse need be treated as an emergency grievance.
    Comment. Some correctional agency commenters remarked that the 
emergency procedures required in these standards will be difficult to 
implement.
    Response. The Department believes that the time limits in the 
emergency procedures provision are reasonable. As noted in the NPRM, 
these procedures are modeled on emergency procedures already in place 
in several State correctional agencies. Numerous correctional agencies 
(and many other commenters) emphasized the need for an immediate 
response to serious allegations of imminent sexual abuse, and this 
provision should assist such efforts.
    Comment. The proposed standard, in paragraphs (d)(3) and (d)(4), 
would have permitted agencies to make an initial determination that an 
emergency grievance did not involve a substantial risk of imminent 
sexual abuse, and thereafter treat the grievance not as an emergency 
grievance but rather as an ordinary grievance. Numerous commenters 
objected to this provision of the proposed standard, noting that 
agencies could make such an initial determination and thus not be 
required to provide an initial response within 48 hours or a final 
agency decision within 5 calendar days. These commenters expressed 
concern that this escape valve for agencies could essentially swallow 
the entire rule by allowing agencies to make an initial determination 
in response to any emergency grievance and thereafter ignore the 
truncated timelines designed to address such grievances. In cases in 
which the agency's initial determination was erroneous, these 
commenters argued, the consequences could be disastrous for the inmate 
involved.
    Response. The final standard requires the agency to treat all 
grievances alleging the substantial risk of imminent sexual abuse as 
emergency grievances,

[[Page 37161]]

even if the agency determines that no such risk exists. In the event 
the agency makes that determination, it shall document that decision, 
but it must do so within the timeframes required by the emergency 
grievance procedure.
    Comment. Numerous commenters objected to paragraph (d)(5) of the 
proposed standard, noting that it would permit agencies to discipline 
inmates who submitted emergency grievances while fearing imminent 
sexual abuse, but where the agency determined that no such danger 
existed. Commenters stated that such a rule would have a chilling 
effect on valid grievances, because inmates would fear reprisal if an 
agency made a factual determination that the grievance did not meet the 
threshold required for an emergency grievance, even where the inmate 
believed he or she was in danger. Some commenters recommended that no 
disciplinary measures should be allowed.
    Response. Paragraph (g) of the final standard provides that an 
agency may discipline an inmate for submitting a grievance alleging 
sexual abuse only where the agency can demonstrate that the inmate 
submitted the grievance in bad faith. Upon reconsideration, the 
Department agrees that the proposed standard erred in allowing 
discipline whenever an emergency was found not to exist, without 
requiring a showing of bad faith.
    However, the Department declines to revise the standard to disallow 
disciplinary measures entirely. Agencies should have the discretion to 
discipline inmates who are not victims of sexual abuse but who attempt 
to circumvent agency rules by making intentionally frivolous 
allegations. Such allegations not only waste agency time and resources 
but also may make correctional officials more dubious about allegations 
of sexual abuse in general, which could lead to valid allegations 
receiving insufficient attention.

Access to Outside Support Services (Sec. Sec.  115.53, 115.253, 
115.353)

Summary of Proposed Rule
    In the standard contained in the proposed rule, paragraphs (b) and 
(c) of Sec. Sec.  115.22, 115.222, and 115.322 required agencies to 
maintain or attempt to enter into memoranda of understanding or other 
agreements with community service providers that could provide inmates 
with confidential emotional support services related to sexual abuse. 
The proposed standard also required agencies to maintain copies of 
agreements or documentation showing attempts to enter into agreements.
    Sections 115.53, 115.253, and 115.353 required agencies to provide 
inmates access to outside victim advocacy organizations for emotional 
support services related to sexual abuse, similar to the NPREC's 
recommended standard. The proposed standard required that such 
communications be as confidential as possible consistent with agency 
security needs. In addition, the proposed standard required that 
juvenile facilities be instructed specifically to provide residents 
with access to their attorneys or other legal representation and to 
their families, in recognition of the fact that juveniles may be 
especially vulnerable and unaware of their rights in confinement. The 
proposed standard mandated that juvenile facilities provide access that 
is reasonable (and, with respect to attorneys and other legal 
representation, confidential) rather than unimpeded.
Changes in Final Rule
    The final standard includes several small changes.
    First, the language from Sec.  115.22(b) and (c) and its 
counterparts has been moved into Sec.  115.53(c) and the latter's 
counterparts. Only one substantive change has been made in this area: 
The final standard requires all juvenile agencies to maintain or 
attempt to enter into memoranda of understanding or other agreements 
with community service providers that are able to provide residents 
with emotional support services related to sexual abuse. The proposed 
standard had exempted juvenile agencies that were legally required to 
provide such services to all residents.
    Second, the final standard includes, in the standards for prisons/
jails and juveniles, access to immigrant services agencies for persons 
detained solely for civil immigration purposes in State, local, and BOP 
facilities.
    Third, where the proposed standard required that the facility 
enable reasonable communications with such organizations ``as 
confidential as possible, consistent with agency security needs,'' the 
final standard requires that such communication be ``in as confidential 
a manner as possible.'' The facility is also required to inform the 
victim of the extent to which communications will be monitored and the 
extent to which reports of abuse will be forwarded to authorities in 
accordance with mandatory reporting laws.
Comments and Responses
    Comment. As noted above, Sec.  115.22 of the proposed standards 
appeared to cause confusion because it covered both agreements 
regarding outside reporting and agreements regarding support services 
for victims. In addition, commenters were unclear as to how Sec.  
115.22 interacted with Sec.  115.53, given the topical overlap.
    Response. For clarity, the subject matter covered by proposed 
standard Sec.  115.22 has been moved into Sec. Sec.  115.51 and 115.53, 
as appropriate.
    Comment. Numerous nonprofit organizations and some inmates 
supported the requirement in the proposed standard that agencies 
maintain or attempt to enter into memoranda of understanding or other 
agreements with community service providers that could provide inmates 
with confidential emotional support services related to sexual abuse. 
These organizations recommended that the agreements between 
correctional agencies and victim advocacy organizations clarify the 
services that the organizations can provide and the limits to 
confidentiality.
    Response. The Department agrees that such clarifications are a best 
practice and will assist the facilities in meeting their obligation to 
inform victims of the extent to which reports of abuse will be 
forwarded to authorities in accordance with mandatory reporting laws. 
As many service providers noted, affording victims the opportunity for 
confidential discussions with advocates will help them feel more 
supported and thus more likely to report abuse and cooperate with its 
investigation and prosecution.
    Comment. A few service providers recommended expanding this 
standard to include sexual harassment. One organization also 
recommended requiring agreements with agencies that ``help victims of 
sexual abuse during their transition from incarceration into the 
community.''
    Response. The Department welcomes agencies' participation in these 
activities. However, the need is greatest with regard to victims of 
sexual abuse who are currently incarcerated. Transitioning into the 
community is, of course, extremely important, but other programs 
currently exist to serve the needs of reentry more generally.
    Comment. Some correctional agencies expressed concern that this 
standard could threaten the Victims of Crime Act (VOCA) funding of 
victim services organizations.
    Response. Through a separate rulemaking process, the Department

[[Page 37162]]

intends to propose removing the current ban on VOCA funding for 
treatment and rehabilitation services for incarcerated victims of 
sexual abuse. In addition, even under current requirements, victim 
services organizations can use other funding to serve incarcerated 
victims without violating the VOCA requirements.
    Comment. The AJA noted that many jails are in rural areas and do 
not have local agencies to assist.
    Response. In such cases, the jail would need only to document its 
efforts to obtain such assistance and show that there are no local 
programs that can help.
    Comment. One State juvenile justice agency recommended expanding 
the exception in proposed standard Sec.  115.322, which required 
juvenile facilities to attempt to enter into memoranda of understanding 
with community service providers to provide residents with emotional 
support services related to sexual abuse. The proposed standard 
contained an exception for facilities that were already legally 
required to provide such services; the commenter recommended excepting 
all agencies that in fact provide such services, whether or not they 
are legally required to do so.
    Response. The final standard removes this exception. A facility's 
own support services may be helpful, but are inherently limited in this 
context--through no fault of their own--by being situated in and run by 
the facility in which the abuse occurred, and in which the abuser 
either lives or works. Whether or not a facility provides such 
services, therefore, does not affect the need to allow access to 
outside support.
    Comment. Most commenters, including some correctional agencies, 
expressed support for the requirement that agencies provide inmates 
with access to outside victim advocates for emotional support services 
related to sexual abuse. Many advocates, inmates, and a United States 
Senator expressed concern regarding language in the proposed standard 
requiring confidentiality only if ``consistent with agency security 
needs.'' These commenters noted that victims who receive confidential 
support are more likely to report their assault and cooperate with the 
investigation. Some advocacy organizations proposed replacing that 
phrase with ``to the extent allowed by the law.'' On the other hand, 
one sheriff's department expressed concern about allowing confidential 
communications, because it might lead to incidents being reported to 
outside organizations without enabling the facility to learn of the 
incidents.
    Response. The Department believes that it is important for victims 
to have access to confidential services. The Department concludes that 
``consistent with agency security needs'' should be removed because the 
broad phrasing could create a significant potential for overuse by 
agencies. The final standard requires agencies to ``enabl[e] reasonable 
communication between inmates and these organizations, in as 
confidential a manner as possible.'' The final standard does not add 
the phrase ``to the extent allowed by law,'' because it may be 
difficult for agencies to ensure complete confidentiality with all 
forms of communication due to factors such as the physical layout of 
the facility or the use of automatic phone monitoring systems, which 
may be difficult to suspend for support calls without requiring the 
inmate to make a specific request.
    Comment. Some advocacy groups also recommended that the juvenile 
standard include access to family members and opportunities for family 
involvement.
    Response. While the Department welcomes agencies and victims 
service organizations who are able to integrate family members into the 
counseling process, the logistical challenges of doing so counsel 
against adding such a requirement to the standard.
    Comment. Various inmates and one sheriff's office expressed 
concerns with the logistics of allowing victims to contact outside 
support services. Many facilities are set up with open phone banks in 
common day rooms, and the inmate would have to specifically request to 
use a private phone in order to make a completely confidential phone 
call.
    Response. Providing access to outside support services may involve 
surmounting logistical hurdles, but the potential benefits of such 
access should make the effort worthwhile. The National Resource Center 
for the Elimination of Prison Rape is available to help facilities 
develop ways to provide such access.
    The Department encourages agencies to establish multiple avenues 
for inmate victims of sexual abuse to contact external victim services 
agencies. While not ensuring optimal privacy, phones may provide the 
best opportunity for inmates to seek help in a timely manner. Privacy 
concerns may be allayed through other methods of contacting outside 
organizations, such as allowing confidential correspondence, 
opportunities for phone contact in more private settings, or the 
ability of the inmate to make a request to contact an outside victim 
advocate through a chaplain, clinician, or other service provider.
    Comment. Another inmate stated that, because he is incarcerated for 
a sex crime, he was not able to receive assistance from a sexual 
assault services provider.
    Response. The Department expects that organizations that enter into 
such memoranda of understanding should help victims of sexual abuse 
without regard to whether they may have perpetrated sexual abuse in the 
past.
    Comment. One inmate expressed a preference for in-person 
counseling.
    Response. The Department is aware that some correctional systems 
have been able to offer in-person counseling, and encourages systems to 
consider doing so. However, logistical challenges militate against 
making this a requirement in the standard.
    Comment. One State juvenile justice agency recommended that contact 
with outside services be at the discretion of agency mental health 
staff.
    Response. The purpose of this standard is for victims to be able to 
reach out for help without seeking staff approval, which may require 
disclosing information to staff that the resident may prefer, at least 
for the time being, to remain confidential.
    Comment. A regional jail association recommended providing specific 
actions or checklists to help guide auditors.
    Response. The National Resource Center for the Elimination of 
Prison Rape will do so.
    Comment. Some advocacy organizations commented that the Department 
should adopt NPREC supplemental immigration standard ID-8, which would 
require agencies with immigration detainees to provide those 
individuals with access to community service providers that specialize 
in immigrant services, as well as supplemental standard ID-1, which 
would mandate agreements or memoranda of understanding with these 
organizations. These commenters noted that immigration detainees who 
suffer from sexual abuse may have unique needs that only specialized 
service providers can meet.
    Response. The Department agrees that agencies covered by these 
standards should provide immigration detainees with access to service 
providers that can best meet their needs. The final standards require 
that State, local, or BOP facilities that detain individuals solely for 
civil immigration purposes provide those individuals with access to 
immigrant services agencies. It also requires agencies to enter into, 
or attempt to enter into, agreements with

[[Page 37163]]

organizations that provide these services.

Third-Party Reporting (Sec. Sec.  115.54, 115.154, 115.254, 115.354)

Summary of Proposed Rule
    The standard contained in the proposed rule required facilities to 
establish a method to receive third-party reports of sexual abuse and 
to distribute publicly information on how to report sexual abuse on 
behalf of an inmate. In addition, the proposed standard required 
juvenile facilities to distribute such information to residents' 
attorneys and parents or legal guardians.
Changes in Final Rule
    The final standard includes the proposed requirements and adds 
sexual harassment to its scope. The final standard also references 
``agency'' instead of ``facility.''
Comments and Responses
    Comment. A State association of juvenile justice agencies commented 
that the requirement to distribute information on reporting to the 
residents' attorneys and their parents or legal guardians would 
significantly increase postage expenses and suggested instead that the 
information could be posted on a facility's Web site.
    Response. This standard does not require mailings. The agency may, 
in its discretion, make such information readily available through a 
Web site, postings at the facility, printed pamphlets, or other 
appropriate means.
    Comment. Some advocacy groups for juveniles recommended adding 
other family members to the list of people who will receive this 
information, because it is common for youth in juvenile facilities to 
have been raised by grandparents or other family members.
    Response. The Department encourages facilities to provide notice to 
other family members at its discretion, but believes that requiring the 
provision of such notice to parents and legal guardians, plus 
attorneys, is sufficient for the purposes of a national standard.
    Comment. Some advocacy organizations recommended adding sexual 
harassment to this standard.
    Response. Because sexual harassment can lead to further abusive 
behavior, the Department agrees that it is appropriate to allow third 
parties to report incidents of sexual harassment, as well as sexual 
abuse, and has made this change.

Staff and Agency Reporting Duties (Sec. Sec.  115.61, 115.161, 115.261, 
115.361)

Summary of Proposed Rule
    The standard contained in the proposed rule required that staff be 
trained and informed about how to properly report incidents of sexual 
abuse while maintaining the privacy of the victim. The proposed 
standard also required that staff immediately report (1) Any knowledge, 
suspicion, or information regarding incidents of sexual abuse that take 
place in an institutional setting, (2) any retaliation against inmates 
or staff who report abuse, and (3) any staff neglect or violation of 
responsibilities that may have contributed to the abuse. The proposed 
standard also required that the facility report all allegations of 
sexual abuse to the facility's designated investigators, including 
third-party and anonymous reports.
Changes in Final Rule
    The final standard includes several small changes. In paragraph 
(a), the staff reporting requirements have been expanded to add sexual 
harassment, in addition to sexual abuse. This paragraph no longer 
refers to incidents that occur in an ``institutional setting,'' but 
rather refers to incidents that occurred in a ``facility, whether or 
not it is part of the agency.'' In Sec. Sec.  115.61(e), 115.261(e), 
and 115.361(f), the final standard requires that the facility report 
all allegations of sexual harassment, as well as sexual abuse, to the 
facility's designated investigators.
    In paragraph (b) of Sec. Sec.  115.61, 115.161, and 115.261, and in 
paragraph (c) of Sec.  115.361, the Department has clarified the 
exception that allowed staff to reveal information relating to a report 
of sexual abuse to ``those who need to know, as specified in agency 
policy, to make treatment, investigation and other security and 
management decisions.'' The Department has replaced ``those who need to 
know'' with ``to the extent necessary'' in order to clarify that staff 
should not share information relating to a sexual abuse report unless 
necessary for the limited purposes listed in the rule.
    In Sec. Sec.  115.61(c) and 115.261(c), the final standard requires 
medical and mental health practitioners to inform inmates and residents 
of ``the limitations of confidentiality,'' as well as of their duty to 
report.
    For precision and consistency, the Department has qualified 
``victim'' with ``alleged'' in Sec. Sec.  115.61(d), 115.161(c), 
115.261(d), and 115.361(d).
    Finally, the Department has made several changes to Sec.  
115.361(e)(3). The final standard no longer requires that courts 
retaining jurisdiction over a juvenile be notified of any allegations 
of sexual abuse. Rather, it requires that, where a court retains 
jurisdiction over an alleged juvenile victim, the juvenile's attorney 
or other legal representative of record be notified within 14 days of 
receiving the allegation.
Comments and Response
    Comment. Several commenters recommended that the standard apply to 
reports relating to sexual harassment as well as sexual abuse.
    Response. Sexual harassment can be a predictor of and precursor to 
sexual abuse, and should be brought to the attention of agency and 
facility leadership who can determine the appropriate response, if any. 
The final standard therefore mandates that staff be required to report 
any knowledge, suspicion, or information regarding an incident of 
sexual harassment that occurred in a facility, retaliation against 
inmates or staff who reported such an incident, and any staff neglect 
or violation of responsibilities that may have contributed to an 
incident of sexual harassment. In addition, the final standard requires 
that facilities report allegations of sexual harassment to their 
designated investigators.
    Comment. A State juvenile justice agency noted that the phrase 
``institutional setting'' is undefined and recommended replacing it 
with ``facility.''
    Response. The Department agrees, and has changed Sec. Sec.  
115.61(a), 115.261(a), and 115.361 to clarify that staff must report 
any knowledge, suspicion, or information regarding an incident of 
sexual abuse or sexual harassment that occurred in a facility, whether 
or not it is part of the agency.
    Comment. Several commenters requested that the standard allow for 
greater confidentiality between inmates and medical and mental health 
staff. A State child services agency observed that the requirement that 
clinicians disclose their duty to report before providing services 
could have a chilling effect on youth's willingness to report, and may 
prevent necessary investigation and treatment. An advocacy group 
recommended that the standards afford inmates an opportunity to speak 
confidentially with medical and mental health staff about sexual abuse. 
Other advocacy groups recommended removing the requirement under 
Sec. Sec.  115.61(c), 115.161(c), and 115.261(c) that medical and 
mental health practitioners report sexual abuse unless otherwise 
precluded by State or Federal law. Instead, these commenters would

[[Page 37164]]

require practitioners to determine whether, consistent with Federal, 
State, or local law and the standards of their professions, they are 
required to report sexual abuse and to disclose these reporting 
requirements to patients. In addition, these groups requested that the 
standards compel providers to inform patients of any duty to report, as 
well as the limits of confidentiality, both at the initiation of 
services ``and each time the practitioner makes the determination that 
he or she is required or permitted to breach confidentiality.'' 
Finally, these organizations would add language requiring that the 
agency specify in a written policy the extent of health care providers' 
obligations to report sexual abuse.
    Response. The Department agrees with commenters that it is 
essential that victims of sexual abuse feel comfortable seeking medical 
and mental health care services, and recognizes that some individuals 
may choose not to do so upon learning of their provider's duty to 
report. However, it is also critical that incidents of sexual abuse be 
brought to the attention of facility and agency staff to enable the 
appropriate response measures detailed elsewhere in these standards. 
The Department has therefore maintained the reporting requirement for 
medical and mental health practitioners, unless otherwise precluded by 
law. Because this language is preserved, a requirement that the agency 
specify in a written policy the extent of health care providers' 
obligations to report sexual abuse is unnecessary. The Department has, 
however, accepted the commenters' recommendation that practitioners be 
required to inform patients of ``the limitations of confidentiality,'' 
as well as of the practitioners' duty to report, in order to emphasize 
that, while inmates should never be discouraged from reporting abuse, 
they must understand that correctional medical and mental health 
practitioners cannot ensure complete confidentiality.
    Comment. Advocates also recommended adding language to Sec. Sec.  
115.61(b), 115.161(b), and 115.261(b) to clarify that personnel who 
need to receive information related to a sexual abuse report in order 
to make treatment, investigation, and other security and management 
decisions shall receive only the information necessary for them to 
perform their job functions safely and effectively. These commenters 
stated that the fact that a staff member needs some information about a 
sexual abuse report does not mean that all such information must, or 
should, be shared.
    Response. The Department agrees that it is important to limit, to 
the extent possible, the information shared relating to a sexual abuse 
report. An individual who needs to know certain information relating to 
a sexual abuse report should receive only the information necessary to 
make treatment, investigation, and other security and management 
decisions--and no more. The Department has therefore replaced the 
phrase ``other than those who need to know'' under Sec. Sec.  
115.61(b), 115.161(b), 115.261(b), and 115.361(c) with ``other than to 
the extent necessary.'' This revision makes clear that the standard 
requires facilities to prohibit the sharing of any more information 
than is necessary to make treatment, investigation, or other security 
and management decisions.
    Comment. One State correctional agency recommended clarifying that 
the facility head is the person responsible for ensuring that all 
allegations of sexual abuse, including third-party and anonymous 
reports, are reported to appropriate investigative staff.
    Response. The Department does not believe clarification is 
necessary. To the extent the facility head is responsible for all 
facility operations, he or she is responsible for ensuring that 
allegations are reported appropriately. The facility head may, of 
course, delegate responsibilities to other supervisory staff who 
ultimately report to the facility head.
    Comment. An inmate and an advocacy organization recommended that 
agencies be required to take disciplinary action against staff who do 
not report their knowledge, suspicion, or information relating to 
sexual abuse.
    Response. The Department agrees that discipline may be warranted in 
such contexts, but believes that is adequately addressed under 
Sec. Sec.  115.76, 115.176, 115.276, and 115.376, which govern 
disciplinary sanctions for staff. That standard provides, in paragraph 
(a), that ``[s]taff shall be subject to disciplinary sanctions up to 
and including termination for violating agency sexual abuse or sexual 
harassment policies.''
    Comment. A State office of juvenile justice suggested replacing 
``promptly'' with ``immediately'' under Sec.  115.361(e)(1), because 
``promptly'' is ambiguous and subject to interpretation.
    Response. The Department trusts that facilities will accurately 
interpret ``promptly'' to mean ``without delay.''
    Comment. One commenter recommended that States pursue and 
investigate allegations of violence against children through the 
relevant agency, such as child welfare agencies, that investigate 
analogous allegations in the community.
    Response. Each State has its own reporting system for allegations 
of child abuse and neglect, and the final standard requires agencies 
and staff to comply with the State's child abuse reporting laws. The 
final standard allows States appropriate discretion in determining 
which agency conducts the investigation; a bright-line rule requiring a 
child welfare agency to conduct the investigation would not necessarily 
ensure that investigations are conducted optimally.
    Comment. Several commenters raised concerns about Sec.  
115.361(e)(3). State juvenile justice agencies urged clarification that 
notice to the court is required only where the court retains 
jurisdiction over an alleged juvenile victim, rather than jurisdiction 
over an alleged juvenile perpetrator, in order to avoid undermining the 
alleged perpetrator's due process rights. The same commenters 
questioned the value of court notification of unsubstantiated 
allegations. One agency asked whether notice to a juvenile's attorney 
is required; an advocacy group recommended that such notification be 
required to facilitate post-dispositional representation.
    Response. The final standard clarifies that the notification 
requirement in Sec.  115.361(e)(3) applies only to alleged victims, not 
alleged perpetrators. The Department agrees that where a court retains 
jurisdiction over an alleged juvenile victim, notifying the juvenile's 
attorney or other legal representation of record of the allegation is 
appropriate, and has added this requirement. Given this revision, the 
Department concludes that court notification is no longer necessary. 
The Department has therefore replaced the court notification 
requirement under Sec.  115.361(e)(3) with a requirement that, where a 
juvenile court retains jurisdiction over an alleged juvenile victim, 
the facility must report an allegation of sexual abuse to the 
juvenile's attorney or other legal representative of record within 14 
days of receiving the allegation.
    Comment. A coalition of juvenile advocacy organizations proposed 
revising the parent/guardian notification exception in Sec.  
115.361(e)(1) from ``unless the facility has official documentation 
showing the parents or legal guardians should not be notified'' to 
``unless the facility has official documentation of parental 
termination, or has notice of other circumstances related to a youth's 
physical or emotional well-being which indicate that parents or legal 
guardians should not be notified.''
    Response. The Department concludes that requiring ``official 
documentation''

[[Page 37165]]

appropriately defines the scope of agency discretion, and helps ensure 
that decisions will be objective and not influenced by a desire to 
withhold information that could reflect poorly upon the facility.
    Comment. A number of advocates expressed concern that the proposed 
standard fails to provide guidance regarding age of consent laws as 
they relate to how juvenile facilities should handle the reporting of 
incidents of voluntary sexual contact between residents.
    Response. The Department believes these concerns are addressed 
under the staff training requirements of Sec.  115.331, which requires 
specific training on, among other topics, distinguishing between 
consensual sexual contact and sexual abuse between residents, relevant 
laws regarding the applicable age of consent, and how to comply with 
relevant laws related to mandatory reporting of sexual abuse to outside 
parties.

Agency Protection Duties (Sec. Sec.  115.62, 115.162, 115.262, 115.362)

    The Department has added this standard, which did not appear in the 
proposed rule, in order to make explicit what was implicit in the 
proposed rule: That an agency must act immediately to protect an inmate 
whenever it learns that he or she faces a substantial risk of imminent 
sexual abuse.

Reporting to Other Confinement Facilities (Sec. Sec.  115.63, 115.163, 
115.263, 115.363)

Summary of Proposed Rule
    The standard contained in the proposed rule (numbered as Sec. Sec.  
115.62, 115.162, 115.262, and 115.362) required that a facility that 
receives an allegation that one of its inmates was sexually abused at 
another facility must inform that other facility of the allegation 
within 14 days. The proposed standard also required the facility 
receiving the information to investigate the allegation.
Changes in Final Rule
    The Department has made several small changes to this standard. In 
order to ensure that facilities report allegations promptly, the 
Department has removed reference to the 14-day timeframe in paragraph 
(a) and has added a new paragraph (b) requiring that such notification 
be provided as soon as possible, but no later than 72 hours after 
receiving the allegation. The final standard no longer requires that 
notification be in writing.
    In paragraph (a), the Department has removed the word ``central'' 
from the phrase, ``the head of the facility or appropriate central 
office of the agency.'' In the paragraph formerly designated as (b), 
now designated as (d), the Department has replaced ``central office'' 
with ``agency office.''
    The Department intends for all facilities, including community 
confinement facilities, to report allegations of sexual abuse occurring 
at any other facility. Accordingly, in Sec.  115.263, the Department 
has replaced the phrase ``while confined at another community 
corrections facility'' with ``while confined at another facility.''
    In Sec.  115.163, the Department has replaced the phrase ``while 
confined at another facility or lockup'' with ``while confined at 
another facility,'' to clarify that the definition of facility includes 
lockups.
Comments and Responses
    Comment. Numerous commenters, including both advocacy groups and 
correctional agencies, recommended shortening the 14-day timeframe. 
Several commenters suggested replacing ``Within 14 days of * * *'' with 
``Immediately upon * * *'' One advocacy group recommended requiring 
that verbal notice be provided within one business day, followed by 
notice in writing within three business days. However, one county 
probation department recommended extending the timeframe by allowing 
for a written report within 30 days, noting that there may be occasions 
where the initial fact-gathering takes additional time, especially if 
the complaint is against the facility manager.
    Response. The Department is persuaded that a 14-day timeframe for 
reporting to other facilities is too long, and that facilities should 
be required to report allegations of sexual abuse occurring at other 
facilities to those facilities as soon as possible to encourage and 
facilitate a prompt investigation. The Department has therefore revised 
the standard to require that facilities provide notification as soon as 
possible, but no later than 72 hours after receiving an allegation. 
Because written notification may not be as prompt as other means of 
notification, the Department has removed the requirement that 
notification be in writing. Facilities are encouraged, however, to 
document such notification in writing as a supplement to other 
notification.
    Comment. Several commenters expressed concern about the logistics 
of the notification requirement in paragraph (a). A juvenile detention 
center and an association of juvenile justice administrators remarked 
that they would not necessarily be able to identify the appropriate 
investigative staff at the other facility, and did not believe they 
should have to attempt to do so. A county sheriff's office suggested 
clarifying that notification be made to the other facility's PREA 
coordinator.
    Response. Commenters' confusion about whom to contact may stem from 
the reference to the ``appropriate central office.'' The Department has 
therefore removed the term ``central'' from the phrase ``appropriate 
central office of the agency'' in paragraph (a), and has replaced 
``central'' with ``agency'' in paragraph (c). The Department has also 
removed the word ``central'' from Sec.  115.61(e)(1).
    The Department does not expect facilities to be able to identify 
the appropriate investigative staff, especially at facilities operated 
by other agencies. Where a facility is uncertain about whom to contact, 
it may simply contact the facility head.

Staff First Responder Duties (Sec. Sec.  115.64, 115.164, 115.264, 
115.364)

Summary of Proposed Rule
    The standard contained in the proposed rule (numbered as Sec. Sec.  
115.63, 115.163, 115.263, and 115.363) set forth staff first responder 
responsibilities, recognizing that staff must be able to adequately 
counsel victims while maintaining security and control over the crime 
scene so that any physical evidence is preserved until an investigator 
arrives. Specifically, the standard required that the first responder 
separate abuser and victim, seal and preserve any crime scene, and 
request that the victim not take any actions that could destroy 
physical evidence. Where the first staff responder is not a security 
staff member, the proposed standard required that the responder be 
required to request that the victim not take any actions that could 
destroy physical evidence, and then notify security staff.
Changes in Final Rule
    The Department has made several clarifying changes to this 
standard. The Department has removed the phrase ``within a time period 
that still allows for the collection of physical evidence'' from 
paragraph (a) and added language to paragraphs (a)(3) and (a)(4) 
stating: ``If the abuse occurred within a time period that still allows 
for the collection of physical evidence.''
    The Department has replaced ``seal and preserve any crime scene'' 
in paragraph (a)(2) with ``preserve and protect any crime scene,'' 
which is more

[[Page 37166]]

appropriate for non-law-enforcement staff members, and has clarified 
that any evidence must be preserved until appropriate steps can be 
taken to collect it. In paragraph (a)(3), the Department has clarified 
that victims must be instructed to avoid actions that could destroy 
physical evidence, such as urinating or defecating, only where 
appropriate given the incident alleged. The Department has also added a 
new paragraph (a)(4), which requires the responder to ensure that the 
abuser not take any actions that could destroy physical evidence.
    Finally, the Department has clarified that the standard applies 
after learning ``of an allegation'' that an inmate was sexually abused, 
and, as elsewhere in the final standards, has qualified ``victim'' with 
``alleged.''
Comments and Responses
    Comment. Two advocacy groups expressed concern over the phrase 
``within a time period that still allows for the collection of physical 
evidence,'' noting that physical evidence may persist for a long time 
and urging that staff assume that evidence may still be available in 
all cases.
    Response. The Department agrees that paragraph (a)(1), which 
requires the first responder to separate the alleged victim and the 
alleged abuser, and paragraph (a)(2), which requires that any crime 
scene be protected until appropriate steps can be taken to collect any 
evidence, should not be contingent upon the amount of time that has 
passed between the alleged incident of sexual abuse and the allegation. 
However, the Department remains of the view that it is appropriate to 
request that the alleged victim, and ensure that the alleged abuser, 
not take certain actions--such as brushing teeth, urinating, or 
drinking--only when the abuse occurred within a time period that still 
allows for the collection of physical evidence. Accordingly, the 
Department has removed the phrase ``within a time period that still 
allows for the collection of physical evidence'' from paragraph (a) and 
has added comparable language to paragraphs (a)(3) and (a)(4).
    Comment. An inmate recommended that the final standard require that 
first responders make arrangements to have the victim transported 
within 4-6 hours of notification for screening, evidence collection, 
and treatment for sexually transmitted diseases.
    Response. The Department agrees that it is critical that victims 
receive emergency medical care after an incident of sexual abuse, but 
believes that this need is adequately addressed under Sec. Sec.  
115.82, 115.182, 115.282, and 115.382.
    Comment. A State juvenile justice agency recommended that Sec.  
115.364(c) remove smoking from the list of activities that victims 
should be requested to avoid post-incident. The commenter suggested 
that references to smoking would be inapplicable in juvenile 
facilities.
    Response. Because juveniles are sometimes able to smuggle 
contraband cigarettes into facilities, the Department has retained 
language requiring first responders to request alleged juvenile victims 
and abusers not to take any actions that could destroy physical 
evidence, including smoking.
    Comment. A county juvenile justice agency suggested that this 
standard conflicts with Sec.  115.351(e), which requires agencies to 
provide a method for staff to privately report sexual abuse and sexual 
harassment of residents. The commenter inquired whether a staff member 
could choose to abandon the responsibilities outlined in this standard 
and privately report the matter instead.
    Response. The requirement that agencies provide a method for staff 
to privately report sexual abuse and sexual harassment of residents is 
consistent with the staff first responder duties outlined in this 
standard. By ``first responder,'' the Department means the first 
security staff member to respond to a report of sexual abuse. The first 
responder need not be the same staff member who initially reports the 
allegation. For example, if a staff member privately reports alleged 
sexual abuse to an investigator pursuant to Sec. Sec.  115.51, 115.151, 
115.251, or 115.351, the investigator would then initiate protocols for 
responding to the allegation, including assigning appropriate staff to 
fulfill the requirements set out in Sec. Sec.  115.64, 115.164, 
115.264, and 115.364.

Coordinated Response (Sec. Sec.  115.65, 115.165, 115.265, 115.365)

Summary of Proposed Rule
    The standard contained in the proposed rule (numbered as Sec. Sec.  
115.64, 115.164, 115.264, and 115.364) required a coordinated response 
among first responders, medical and mental health practitioners, 
investigators, and facility leadership whenever an incident of sexual 
abuse occurs.
Changes in the Final Rule
    The final standard requires the development of a written 
institutional plan to coordinate responses.
Comments and Responses
    Comment. NPRM Question 25 asked whether the proposed standard 
provided sufficient guidance as to how compliance would be measured. 
Many commenters, including both agency commenters and advocacy 
organizations, suggested that having a written plan would be a good way 
to assess compliance. Other suggestions included documentation of 
responses or meeting minutes.
    Response. After reviewing the responses to this question, the 
Department concludes that requiring a written plan would be the 
simplest and most effective way to document compliance, and has revised 
the standard accordingly.
    Comment. Former members of the NPREC recommended that specific 
details be added to the standard, such as a list of actions to be 
coordinated, and that victim advocates be included where the victim is 
a juvenile.
    Response. The Department believes that it is not necessary to 
specify the set of actions to be coordinated. As a general guide to 
ensuring that the victim receives the best possible care and that 
investigators have the best chance of apprehending the perpetrator--and 
as noted in the discussion of this standard in the NPRM--the Department 
recommends, but does not mandate, coordination of the following 
actions, as appropriate: (1) Assessing the victim's acute medical 
needs, (2) informing the victim of his or her rights under relevant 
Federal or State law, (3) explaining the need for a forensic medical 
exam and offering the victim the option of undergoing one, (4) offering 
the presence of a victim advocate or a qualified staff member during 
the exam, (5) providing crisis intervention counseling, (6) 
interviewing the victim and any witnesses, (7) collecting evidence, and 
(8) providing for any special needs the victim may have. The use of 
victim advocates is discussed in response to the comments on Sec.  
115.21 and its counterparts.
    Comment. Other advocate commenters recommended that the Department 
specifically require formal coordinated response teams and that the 
written plan include a specific list of staff positions that make up 
the teams and their duties.
    Response. While facilities are encouraged to formalize the 
composition of their response teams, the Department believes that it is 
not necessary to mandate a specific list of staff positions and duties, 
which may change based upon experience and personnel adjustments.

[[Page 37167]]

    Comment. Many agency commenters supported the standard, but some 
expressed concerns. One agency commenter suggested that the eight 
actions to be coordinated might fall exclusively within the purview of 
the outside criminal investigating agency.
    Response. This standard would not require any agency to take 
actions outside the scope of its own authority, but only to coordinate 
with all responders involved.
    Comment. Another agency commenter requested a definition of ``first 
responder.''
    Response. The Department intends for this term to have its usual 
meaning: the staff person or persons who first arrive at the scene of 
an incident.
    Comment. One correctional agency stated that the use of a sexual 
assault response team should be a recommendation rather than a mandate.
    Response. As noted in the NPRM, this standard was modeled after 
coordinated sexual assault response teams (SARTs), which are widely 
accepted as a best practice for responding to rape and other incidents 
of sexual abuse. However, whether a facility formally designates its 
responders as a SART is at its discretion. As noted in the NPRM, 
agencies are encouraged to work with existing community SARTs or may 
create their own plan for a coordinated response.
    Comment. In response to NPRM Question 25, which asked whether this 
standard provided sufficient guidance as to how compliance would be 
measured, many commenters, including agency commenters and advocacy 
organizations, suggested that the existence of a written plan should 
constitute compliance. Other suggestions recommended using 
documentation of responses or meeting minutes as proof of compliance.
    Response. The final standard requires facilities to develop a 
written institutional plan to coordinate responsive actions. An auditor 
will measure compliance by ensuring that a facility has such a plan in 
place and that the plan is sufficient to ensure a coordinated response. 
For example, the auditor will assess whether the plan includes 
appropriate personnel or whether additional facility staff should be 
involved.

Preservation of Ability To Protect Inmates From Contact With Abusers 
(Sec. Sec.  115.66, 115.166, 115.266, 115.366)

Summary of Proposed Rule
    A paragraph within a standard contained in the proposed rule 
(numbered as Sec. Sec.  115.65(d), 115.165(d), 115.265(d), and 
115.365(d)) prohibited agencies from entering into or renewing any 
collective bargaining agreements or other agreements that limit the 
agency's ability to remove alleged staff abusers from contact with 
victims pending an investigation.
Changes in Final Rule
    The final rule breaks out this provision as a separate standard, 
and strengthens the standard by (1) covering the agency's ability to 
limit contact with any inmate, not only alleged victims; and (2) 
extending the period of time within which the agency may remove staff 
from contact with victims to include the pendency of a determination of 
whether and to what extent discipline is warranted. In addition, the 
final standard extends to any government agency negotiating collective 
bargaining agreements on the correctional agency's behalf, in 
recognition of the fact that correctional agencies often do not conduct 
their own collective bargaining.
    The final standard adds language to clarify that this standard is 
not intended to restrict agreements that govern the conduct of the 
disciplinary process or that address whether a no-contact assignment 
that is imposed pending the outcome of an investigation shall be 
expunged from or retained in the staff member's personnel file 
following a determination that the allegation of sexual abuse is not 
substantiated.
Comments and Responses
    Comment. One county sheriff's office suggested that this provision 
be converted into a separate standard.
    Response. The Department agrees that it is more appropriate to 
treat this requirement as a separate standard, as it is a precursor to 
the requirement in Sec.  115.67 that the agency take protective 
measures against retaliation.
    Comment. Two State correctional agencies and a county sheriff's 
office commented that correctional agencies typically are not 
responsible for negotiating employee contracts.
    Response. The Department has revised the standard to apply to any 
governmental entity responsible for collective bargaining on an 
agency's behalf.
    Comment. One advocacy group recommended amending the proposed 
standard to make clear that agencies may not enter into or renew 
contracts with private prison companies that limit the agency's ability 
to remove the alleged staff abusers from contact with victims pending 
an investigation.
    Response. While the standard emphasizes collective bargaining 
agreements, the standard also expressly includes any ``other agreement 
that limits the agency's ability to remove alleged staff abusers from 
contact with inmates pending the outcome of an investigation or of a 
determination of whether and to what extent discipline is warranted.'' 
The Department intends the standard to preclude agencies from entering 
into any agreements that would limit the agency's ability to place 
alleged staff abusers on no-contact status during the investigatory or 
disciplinary process.
    Comment. One sheriff's office predicted that this standard will 
limit collective bargaining agreements.
    Response. The Department does not believe that this standard will 
impede agencies and unions from reaching agreements. To the extent that 
it does, such an (unlikely) outcome is necessary in order to ensure 
that alleged staff abusers are kept out of contact with alleged 
victims.
    Comment. A State juvenile justice agency recommended that the 
contract language in collective bargaining agreements include the 
following specific language: ``prohibit alleged staff abusers from 
contact with residents pending the results of an investigation or 
placing a staff abuser on administrative leave pending the results of 
the investigation.''
    Response. The Department does not find it necessary to require 
agencies to adopt specific contract language in order to meet their 
obligations under this standard.
    Comment. A legal services organization asserted that the proposed 
standard would be ineffective because it aimed only at preserving 
agencies' ability to protect inmates from contact with abusers pending 
an investigation. In the commenter's view, investigations are often 
little more than whitewashes and only a small fraction of complaints 
are substantiated. Moreover, the commenter asserted that corrections 
officials will still claim that they cannot remove staff from a bid 
position unless an arbitrator agrees with their position. The commenter 
recommended that the standard require facilities to prevent contact 
between staff and an inmate when the administrator has an objectively 
reasonable belief that the staff member poses a risk to the inmate's 
safety. If the facility cannot do so because of an employment contract, 
the commenter recommended that the agency be required to take all legal 
steps to re-negotiate that contract during its term and, at a minimum, 
be directed not to enter again into such a contract.
    Response. Upon reconsideration, the Department concludes that the 
proposed

[[Page 37168]]

standard was insufficiently broad in that it applied only ``pending an 
investigation.'' In addition, the proposed standard did not 
appropriately address agencies' ability to provide such protection to 
all inmates. The Department has therefore extended the standard to 
prohibit agencies, or governmental entities negotiating on the agency's 
behalf, from entering into or renewing agreements that limit the 
agency's ability to remove alleged staff abusers from contact with any 
inmate pending the outcome of an investigation or a disciplinary 
determination.
    This standard does not mandate that an agency take any specific 
action against alleged staff abusers; rather, it requires that the 
agency not tie its hands by entering into a collective bargaining 
agreement that limits the agency's ability to remove a staff member 
from a post that involves contact with inmates, as a prophylactic 
measure, while the agency determines what happened and what measure of 
discipline is warranted. An agency may determine, consistent with the 
standard, that it is best to decide on a case-by-case basis, taking 
into account the gravity and credibility of the allegations, whether to 
place a staff member in a no-contact status pending such 
determinations. The Department notes that placing staff accused of 
sexual misconduct or other serious inmate abuse on no-contact status is 
a common practice in many facilities and is consistent with best 
practices. This is particularly true in the context of juvenile justice 
facilities, where it would be extremely unusual to permit staff accused 
of serious resident abuse to continue supervising residents pending the 
outcome of an administrative assessment and, if appropriate, an 
internal or criminal investigation.
    This standard is limited in scope in that it does not purport to 
govern agreements regarding the conduct of the disciplinary process, as 
long as such agreements are consistent with Sec. Sec.  115.72, 115.172, 
115.272, and 115.372, which forbid imposition of a standard higher than 
a preponderance of the evidence in determining whether allegations of 
sexual abuse or sexual harassment are substantiated, and with 
Sec. Sec.  115.76, 115.176, 115.276, and 115.376, which generally 
govern disciplinary sanctions for staff and which provide that 
termination shall be the presumptive disciplinary sanction for staff 
who have engaged in sexual abuse. In addition, the standard does not 
restrict entering into agreements that address whether and in what form 
the record of the staff member's no-contact assignment will be retained 
in the employee's personnel file if the allegations against the 
employee are not substantiated.
    The Department declines to impose further restrictions on the use 
of arbitration in discipline determinations. What is crucial is 
establishing proper ground rules to govern the disciplinary process, 
pursuant to Sec. Sec.  115.72, 115.172, 115.272, and 115.372, and 
Sec. Sec.  115.76, 115.176, 115.276, and 115.376, and ensuring that the 
agency has the ability to take prophylactic action while the 
disciplinary process runs its course. With those conditions in place, 
the Department does not believe that the final standards need restrict 
the use of arbitrators to review factual findings or disciplinary 
determinations in order to ensure that the interests of inmates are 
protected.

Agency Protection Against Retaliation (Sec. Sec.  115.67, 115.167, 
115.267, 115.367)

Summary of Proposed Rule
    The standard contained in the proposed rule (numbered as Sec. Sec.  
115.65, 115.165, 115.265, and 115.365) required that the agency protect 
all inmates and staff from retaliation for reporting sexual abuse or 
for cooperating with sexual abuse investigations, in recognition of the 
fact that retaliation for reporting instances of sexual abuse and for 
cooperating with sexual abuse investigations is a serious concern in 
correctional facilities. The proposed standard required agencies to 
adopt policies that help ensure that persons who report sexual abuse 
are properly monitored and protected, including but not limited to 
providing information in training sessions, enforcing strict reporting 
policies, imposing strong disciplinary sanctions for retaliation, 
making housing changes or transfers for inmate victims or abusers, 
removing alleged staff or inmate abusers from contact with victims, and 
providing emotional support services for inmates or staff who fear 
retaliation.
    The proposed standard also required that agencies monitor the 
conduct and treatment of inmates and staff who have reported sexual 
abuse or cooperated with investigations for at least 90 days to see if 
there are changes that may suggest possible retaliation by inmates or 
staff, and act promptly to remedy any such retaliation. In addition, 
the proposed standard required that monitoring continue beyond 90 days 
if the initial monitoring conducted during the initial 90-day period 
indicated concerns that warranted further monitoring.
Changes in Final Rule
    In paragraph (a), the final standard specifies that an agency shall 
``establish a policy'' to protect against retaliation, ``and shall 
designate which staff members or departments are charged with 
monitoring retaliation.''
    In paragraph (c), the final standard clarifies that the agency must 
monitor the conduct and treatment of inmates who have been reported to 
have suffered sexual abuse, in addition to inmates and staff who have 
reported sexual abuse directly. The final standard adds language in 
Sec. Sec.  115.67(d), 115.267(d), and 115.367(d) requiring that 
monitoring of inmates include periodic status checks.
    In addition, the final standard specifies that an agency need not 
continue monitoring if it determines that an allegation is unfounded.
    The final standard also includes various clarifying changes. In 
paragraph (b), the phrase ``including housing changes or transfers'' 
has been changed to ``such as housing changes or transfers,'' and in 
Sec. Sec.  115.67(c), 115.267(c), and 115.367(c), ``including any 
inmate disciplinary reports, housing or program changes'' has been 
changed to ``[i]tems the agency should monitor include any inmate 
disciplinary reports * * *'' In Sec. Sec.  115.67(c), 115.267(c), and 
115.367(c), the list of actions that should be considered possible 
evidence of retaliation now includes examples of retaliation against 
staff.
Comments and Responses
    Comment. A few correctional agencies recommended replacing ``[t]he 
agency shall protect all inmates and staff who report'' with ``the 
agency shall reasonably protect'' or ``shall establish an adequate 
level of protection against retaliation.'' Two advocacy organizations 
recommended requiring that the agency establish a written policy on 
retaliation and designate who is responsible for monitoring.
    Response. In order to make the requirements of this standard more 
concrete, the Department has revised this language to require agencies 
to establish a policy to protect all inmates and staff, including 
designating which staff members or departments are charged with 
monitoring retaliation.
    Comment. While many correctional agencies expressed general 
satisfaction with the proposed standard, several expressed concern that 
the requirement that agencies monitor for 90 days all individuals who 
have cooperated with an investigation was excessively burdensome, 
particularly in large prison systems where hundreds of people

[[Page 37169]]

could be involved in investigations at any given time. One sheriff's 
office stated that identifying for monitoring purposes all inmates who 
have cooperated with an investigation could raise confidentiality 
concerns.
    Commenters offered a range of suggestions for limiting the scope of 
monitoring requirements. Some correctional agencies recommended that 
monitoring not be required where allegations are determined to be 
unfounded; another agency recommended that monitoring not be required 
either for unfounded or unsubstantiated allegations. Some agency 
commenters suggested that monitoring be required only of persons who 
``materially'' cooperate with investigations, and recommended 
clarifying that the provision applies to inmates who report abuse 
during their present term of incarceration. Another agency would limit 
the monitoring requirement to the inmate or staff member who made the 
report, or, if the report was made by a third party, to the alleged 
victim if he or she cooperated with the investigation.
    Response. Upon reconsideration, the Department has modified the 
monitoring requirements in order to focus resources where monitoring is 
likely to be most important.
    First, the Department has removed the requirement that agencies 
automatically monitor all individuals who cooperate with an 
investigation. Instead, the final standard requires agencies to take 
appropriate measures to protect any individual who has cooperated with 
an investigation and expresses a fear of retaliation. The final 
standard retains the requirement to monitor inmates and staff who have 
reported sexual abuse, and adds a requirement to monitor victims who 
have been reported to have suffered sexual abuse.
    Second, the Department has added language terminating the agencies' 
obligation to monitor if the agency determines that the allegation is 
unfounded. Monitoring remains appropriate where an agency has 
classified an allegation as ``unsubstantiated''--which means, as 
defined in Sec.  115.5, that the investigation produced insufficient 
evidence to enable the agency to make a final determination as to 
whether or not the event occurred.
    The Department understands the concern that identifying individuals 
for monitoring may raise confidentiality issues, but believes that this 
risk can be managed. The Department encourages agencies, in developing 
their policies, to limit the number of staff with access to the names 
of individuals under monitoring and to be mindful of situations in 
which a staff member who poses a threat of retaliation may also be 
entrusted with monitoring responsibilities.
    Comment. Several commenters suggested adding the NPREC's 
recommended language requiring that the agency discuss any changes in 
treatment of inmates or staff with the appropriate inmate or staff 
member as part of its efforts to determine if retaliation is occurring.
    Response. The Department agrees that monitoring of inmates who have 
reported sexual abuse or who have been reported to have suffered sexual 
abuse should also include periodic status checks, and has revised the 
standard accordingly.
    Comment. A few agencies, joined by the AJA, recommended that the 
standards account for the physical limitations of smaller jails and 
juvenile detention centers. The AJA recommended adding language to 
clarify that housing changes would occur ``to the extent the physical 
layout of the jail will allow.'' Another commenter suggested 
substituting ``such as'' for ``including'' in paragraph (b), to account 
for facilities that cannot make housing changes.
    Response. The Department recognizes that, because of space 
constraints, some facilities will not be able to accommodate housing 
changes, and may need to employ alternative protection measures. To 
clarify that the measures included in the standard are examples rather 
than requirements, the final standard replaces ``including'' with 
``such as.''
    Comment. Several agency commenters recommended clarifying how staff 
should be protected from retaliation. One suggested that negative 
performance reviews or reassignment could indicate retaliation against 
cooperating staff.
    Response. To better clarify what monitoring of staff should entail, 
the Department has added ``negative performance reviews or 
reassignments of staff'' to Sec. Sec.  115.67(c), 115.267(c), and 
115.367(c) as examples of conduct or treatment that might indicate 
retaliation against staff. Of course, these are merely examples; 
agencies should be mindful that retaliation may be manifested in other 
ways.
    Comment. The Department received numerous responses to NPRM 
Question 26, which asked whether the standard should be revised to 
provide additional guidance regarding when continuing monitoring is 
warranted. Most commenters found the current language sufficient, 
including many agency commenters. However, several State correctional 
agencies requested additional guidance. Specific requests included: 
clarification of what monitoring consists of and how it differs from 
general monitoring of offenders and staff; examples of what level of 
monitoring would be acceptable to meet the standard and what incidents 
would warrant continued monitoring; and detailed training on how to 
monitor. In addition, an advocacy organization suggested that agencies 
restart the 90-day clock after each new incident of retaliation; an 
inmate recommended that monitoring be mandated for eight months; an 
anonymous commenter proposed that the standard require that monitoring 
continue until the agency is reasonably certain that retaliation has 
ceased; and an agency asked whether the 90-day monitoring needed to be 
documented in any particular way.
    Response. In light of the fact that most commenters expressed 
satisfaction with the level of detail included in this standard, and in 
order to afford agencies flexibility to develop a monitoring policy 
consistent with their existing operations and professional judgment, 
the Department declines to provide a detailed definition of monitoring 
or to list scenarios in which continuing monitoring would be warranted. 
However, the Department expects that the final standards' addition of 
examples of how staff might experience retaliation, as well as the new 
requirement that monitoring for certain individuals include periodic 
status checks, will assist agencies in developing their policies to 
protect against retaliation.
    The Department does not find it necessary to specify that a new 
incident of retaliation must restart the 90-day clock, as the final 
standard requires agencies to continue monitoring beyond 90 days if the 
initial monitoring indicates a continuing need. The Department trusts 
that agencies will recognize that an incident of retaliation indicates 
a continuing need for monitoring. Finally, in light of the requirement 
that agencies continue monitoring beyond 90 days if the initial 
monitoring indicates a continuing need, as well as agencies' concerns 
about the cost and burden of a monitoring requirement, the Department 
declines to revise the standard to require agencies to monitor for 
eight months.

[[Page 37170]]

Criminal and Administrative Agency Investigations (Sec. Sec.  115.71, 
115.171, 115.271, 115.371)

Summary of Proposed Rule
    The standard contained in the proposed rule required that agencies 
that conduct their own investigations do so promptly, thoroughly, and 
objectively. The proposed standard required investigations whenever an 
allegation of sexual abuse is made, including third-party and anonymous 
reports, and prohibited the termination of an investigation on the 
ground that the alleged abuser or victim is no longer employed or 
housed by the facility or agency. The proposed standard required that 
investigators gather and preserve all available direct and 
circumstantial evidence.
    The proposed standard required that investigators be trained in 
conducting sexual abuse investigations in compliance with Sec. Sec.  
115.34, 115.134, 115.234, and 115.334.
    To ensure an unbiased evaluation of witness credibility, the 
standard required that credibility assessments be made objectively 
rather than on the basis of the individual's status as an inmate or a 
staff member.
    In addition, the proposed standard required that all 
investigations, whether administrative or criminal, be documented in 
written reports, which must be retained for as long as the alleged 
abuser is incarcerated or employed by the agency, plus five years.
Changes in Final Rule
    The final standard contains several small changes.
    In paragraph (a), the duty to investigate allegations promptly, 
thoroughly, and objectively has been extended to sexual harassment in 
addition to sexual abuse.
    In paragraph (e) of Sec. Sec.  115.71, 115.171, and 115.271, and 
paragraph (f) of Sec.  115.371, the final standard provides that no 
agency shall require an inmate who alleges sexual abuse to submit to a 
polygraph examination or other truth-telling device as a condition for 
proceeding with the investigation of such an allegation.
    In paragraph (f) of Sec. Sec.  115.71, 115.171, and 115.271, and 
paragraph (g) of Sec.  115.371, the final standard provides that 
administrative investigations should endeavor to determine whether 
staff actions or failures to act ``contributed to'' the abuse, rather 
than ``facilitated to'' as in the proposed standard.
    In paragraph (i) of Sec. Sec.  115.71, 115.171, and 115.271, the 
final standard provides that the duty to retain documents applies to 
``all written reports referenced in paragraphs (f) and (g),'' rather 
than ``such investigative records'' as in the proposed standard. The 
final standard for juvenile facilities makes a similar change in Sec.  
115.371(j).
    In paragraph (j) of the standard for juvenile facilities, the final 
standard allows for a shorter retention period for written reports 
regarding abuse committed by residents where the retention for the time 
period otherwise required by the standard is prohibited by law.
Comments and Responses
    Comment. One commenter expressed concern that the restriction on 
conducting compelled interviews until prosecutors are consulted failed 
to account for the fact that it is not always known if a criminal 
prosecution is a possibility when an investigation begins.
    Response. This standard requires consultation with prosecutors 
before conducting compelled interviews when the quality of existing 
evidence would support a criminal prosecution. The standard would not 
prohibit an administrative investigation when evidence does not support 
a criminal prosecution. If that assessment changes during the course of 
an administrative investigation due to new evidence, prosecutors should 
be consulted at that time. In case of doubt at any point in the 
investigation, prosecutors should be consulted.
    Comment. Some advocates suggested strengthening this standard in 
various ways, including by requiring consultation with prosecutors to 
determine whether the quality of evidence appears to support criminal 
prosecution.
    Response. While the Department recommends consultations with 
prosecutors in case of doubt, it is not necessary to require such 
consultation during all investigations. Agencies usually will be able 
to determine whether the contours of an incident indicate that criminal 
wrongdoing may have occurred, and are encouraged to consult with 
prosecutors in case of doubt.
    Comment. Some advocates suggested requiring that a preliminary 
investigation commence immediately upon receiving an allegation of 
sexual abuse.
    Response. The standard requires investigations to be conducted 
``promptly,'' which is intended to emphasize the importance of 
investigating without delay.
    Comment. Some advocates suggested requiring agencies to rely on 
available, accepted sexual assault protocols.
    Response. Section 115.21 requires that agencies responsible for 
investigating allegations of sexual abuse follow a uniform evidence 
protocol that maximizes the potential for obtaining usable physical 
evidence for administrative proceedings and criminal prosecutions. 
Section 115.21 requires that the protocol be adapted from or otherwise 
based on the Department's SAFE Protocol, or similarly comprehensive and 
authoritative protocols developed after 2011.
    Comment. Some advocates recommended requiring a comprehensive 
written plan--including a memorandum of understanding--to guide the 
coordination of administrative and criminal investigations.
    Response. In the interest of affording agencies flexibility in 
implementing these standards, the Department declines to mandate such a 
plan or memorandum, although it encourages agencies to consider whether 
doing so will help coordinate its investigatory efforts.
    Comment. A number of inmates stressed the importance of the 
provision requiring that credibility be assessed on an individual 
basis, as opposed to the person's status as inmate or staff, given 
that, in their view, agencies inappropriately favor staff over inmates 
when their statements conflict. One agency commenter recommended that 
this standard be removed, on the grounds that it is not measurable and 
constitutes a best practice.
    Response. Objective assessments of credibility are crucial in 
investigations of sexual abuse in correctional settings, especially 
when abuse by staff is alleged. While this standard is not easily 
quantifiable, it is quite possible that a blatant failure to abide by 
it will be readily evident. For example, when an inmate makes an 
allegation of staff abuse, and there is no objective evidence that the 
allegation is false, the investigator should attempt to find other 
avenues to corroborate or disprove the allegation rather than assessing 
the allegation in a vacuum. In such cases, indications in the 
investigative file as to whether the investigator interviewed 
witnesses, reviewed the staff member's disciplinary history, and 
reviewed the inmate's history of lodging complaints would assist the 
auditor in determining whether the accuser's status as an inmate 
compromised the investigation's objectivity.
    Comment. An inmate recommended that the standards be amended to 
allow victims the opportunity to take a

[[Page 37171]]

polygraph test to prove the truth of their statements. However, many 
advocates opposed polygraph testing because it often yields inaccurate 
results and can be traumatizing for a victim. They also noted that the 
Department prohibits States receiving grants under the STOP (Services, 
Training, Officers, Prosecutors) Violence Against Women Formula Grant 
Program from using polygraph testing for victims of sexual violence. 
These advocates recommended that the standard be amended to explicitly 
prohibit polygraph testing for inmates who report abuse.
    Response. The Department has amended the standard so that it 
prohibits agencies from requiring inmates who allege sexual abuse to 
submit to a polygraph examination or other truth-telling device as a 
condition for proceeding with the investigation of such an allegation. 
This requirement corresponds to a similar condition on the receipt of 
certain VAWA grants awarded by the Department. See 42 U.S.C. 3796gg-8. 
The Department recognizes that polygraph examinations are imperfect 
assessors of credibility. Given that States are precluded from 
receiving certain funds if they condition investigations upon the 
alleged victim's agreement to submit to a polygraph test, the 
Department concludes that a corresponding requirement is appropriate in 
the PREA context. However, this does not prohibit the administration of 
such tests to victims who request them.
    Comment. A few inmates recommended that the standard be 
strengthened by adding language expressly prohibiting staff from 
attempting to coerce inmates into not reporting sexual abuse.
    Response. A prohibition against coercion of inmates is implicit in 
the standards, including in the requirement in this standard to 
investigate all inmate accusations of sexual abuse, and in the standard 
that provides for protection against retaliation.
    Comment. A number of advocates recommended that the standard also 
encompass investigations into allegations of sexual harassment.
    Response. The Department agrees that the requirement to investigate 
allegations promptly, thoroughly, and objectively should apply to 
allegations of sexual harassment as well, and has amended paragraph (a) 
accordingly.
    Comment. Some stakeholders commented that the use of the word 
``facilitated'' in Sec. Sec.  115.71(f)(1), 115.171(f)(1), 
115.271(f)(1), and 115.371(g)(1) appears to require a determination of 
whether staff acted in a manner that encouraged or directly resulted in 
the occurrence of the abuse.
    Response. The final standard clarifies this provision by replacing 
``facilitated'' with ``contributed to.''
    Comment. A State correctional agency commented that its 
administrative investigations determine facts, but do not result in 
``findings.''
    Response. For clarity, the Department has amended Sec. Sec.  
115.71(f)(2), 115.171(f)(2), 115.271(f)(2), and 115.371(g)(2) to 
include both investigative ``facts'' as well as ``findings.''
    Comment. A number of correctional commenters asserted that the 
record retention requirements in paragraph (h) of the proposed standard 
(paragraph (i) in the juvenile standard) conflicted with applicable 
State or local law, including State or local records retention 
schedules. One noted that records may not be under the full control of 
the agencies. In some States, the commenter noted, juvenile records are 
under the control of the juvenile court and can be purged at the 
request of the juvenile offender. Another commenter suggested that this 
requirement would be difficult to implement, as the juvenile facility 
would not know when or if a person incarcerated in an adult facility is 
released. A number of such commenters recommended allowing agencies to 
retain records in a manner consistent with State law. One commenter 
expressed concern about the cost and administrative burden of 
maintaining all investigative records beyond the period of employment 
or incarceration, and recommended that it should suffice to retain the 
final report. Another recommended that the standard require that such 
records be kept confidential and not be subject to public inspection 
under the Freedom of Information Act or similar State laws.
    Response. The recordkeeping requirement of this standard, now 
contained in paragraph (i) (paragraph (j) in the juvenile standard) 
applies only to records generated pursuant to paragraphs (f) and (g) 
(paragraphs (g) and (h) in the juvenile standard), which are within the 
agencies' control. There is no barrier to retaining these records 
beyond the length of time mandated by this standard if required by 
State or local regulation (or if the agency chooses to do so for its 
own reasons). To the extent that State or local laws mandate the 
disposal of these records within a shorter period, agencies are 
encouraged to seek revisions of such laws to the extent necessary in 
order to retain these documents. To reduce potential conflicts, the 
Department has amended the standard to allow for a shorter retention 
span when the abuser is a juvenile resident and when retention of 
records for the time period mandated by the standard is prohibited by 
law.
    The Department does not believe that the requirement of maintaining 
the records generated pursuant to paragraphs (f) and (g) will prove 
overly burdensome, especially in light of the clarification in the 
final standard that only the written reports documenting investigations 
need be retained.
    Finally, the Department lacks the authority to determine whether 
these records should be subject to public inspection under freedom of 
information laws, which will depend upon the relevant laws of the 
jurisdiction in which the custodian of the records is located.
    Comment. One agency recommended defining ``State entity'' in Sec.  
115.71(k) to make clear to which specific entity this requirement 
applies.
    Response. As noted above, the use of ``State entity'' in this 
context refers to any division of the State government, as opposed to 
local government.

Evidentiary Standard for Administrative Investigations (Sec. Sec.  
115.72, 115.172, 115.272, 115.372)

Summary of Proposed Rule
    The standard contained in the proposed rule required that agencies 
not impose a standard higher than a preponderance of the evidence in 
determining whether allegations of sexual abuse are substantiated.
Changes in Final Rule
    The final standard encompasses allegations of sexual harassment.
Comments and Responses
    Comment. Correctional agencies and advocates generally supported 
this standard, though a few agencies expressed uncertainty as to 
whether it applied to criminal investigations as well as administrative 
investigations.
    Response. As the title of the standard indicates, this standard 
applies only to administrative investigations.
    Comment. Some advocates recommended that sexual harassment be added 
to this standard, noting that allegations of sexual harassment 
typically would be dealt with through administrative investigations.
    Response. Upon reconsideration, the Department agrees with this 
recommendation and has amended the standard to include sexual 
harassment.

[[Page 37172]]

Reporting to Inmates (Sec. Sec.  115.73, 115.273, 115.373)

Summary of Proposed Rule
    The standard contained in the proposed rule required that, upon 
completion of an investigation into an inmate's allegation that he or 
she suffered sexual abuse in an agency facility, the agency must inform 
the inmate whether the allegation was deemed substantiated, 
unsubstantiated, or unfounded. If the agency itself did not conduct the 
investigation, the proposed standard required that the agency request 
the relevant information from the investigating entity in order to 
inform the inmate. The proposed standard further provided that, if an 
inmate alleges that a staff member committed sexual abuse, the agency 
must inform the inmate whenever (1) The staff member is no longer 
posted in the inmate's unit, (2) the staff member is no longer employed 
at the facility, (3) the staff member has been indicted on a charge 
related to the reported conduct, or (4) the indictment results in a 
conviction. The proposed standard did not apply to allegations that 
have been determined to be unfounded, and did not apply to lockups, due 
to the short-term nature of lockup detention.
Changes in Final Rule
    The final standard adds a requirement that all such notification or 
attempted notification must be documented. The final standard also 
expands the requirement to inform the inmate if his or her abuser is 
indicted or convicted to apply where the abuser is a fellow inmate. In 
addition, the final standard clarifies that the agency's duty to report 
to an alleged victim terminates if the victim is released from the 
agency's custody, and terminates with regard to notifications regarding 
staff reassignments, departures, indictments, or convictions if the 
allegation is determined to be unfounded.
Comments and Responses
    Comment. Several agency commenters expressed concern with the 
proposed standard on human resource practice, security, or privacy 
grounds. These commenters questioned the wisdom of providing written 
information to victims and third-party complainants given that, in 
their view, such information could easily become widely known 
throughout the facility, possibly endangering other inmates or staff.
    Response. The Department does not believe that notifying an inmate 
that a staff member is no longer posted within the unit or facility 
would imperil other inmates or staff.
    Comment. Some agency commenters asserted that privacy laws may 
restrict the dissemination of certain information about staff members.
    Response. The Department does not believe that the disclosure of 
information referenced in this standard implicates any privacy 
interests. Importantly, this standard does not require that the 
facility disclose the reason why the staff member is no longer posted 
within the inmate's facility or unit. Thus, the facility need not 
reveal whether the staff member's absence is due to a voluntary 
departure or an adverse employment action. Indictments and convictions, 
of course, are public facts in which an employee or former employee has 
no privacy interest.
    Comment. Other agency commenters suggested that gathering this 
information would impose administrative difficulties, and some 
recommended that the investigating or prosecuting agency be tasked with 
informing the inmate about indictments or convictions. One commenter 
recommended that the information reported to the inmate be limited to 
information that was publicly available.
    Response. It is highly unlikely that an indictment or conviction 
would result without the agency learning about it. Even so, the 
standard does not impose any affirmative burden upon agencies to gather 
information for the purpose of informing inmates. Rather, it requires 
that the agency inform the inmate whenever ``[t]he agency learns'' that 
a staff member has been indicted or convicted on a charge related to 
sexual abuse within the facility (emphasis added).
    Comment. A number of advocates recommended that the standard be 
amended to provide additional information to inmates. They recommend 
requiring that the agency, in the case of substantiated claims, inform 
the victim what the agency has done in response to the abuse, whether 
administrative sanctions have been imposed, whether the agency has 
reported the abuse to prosecutors, and the results of any criminal 
proceeding. These advocates also recommended requiring disclosure to 
third-party complainants.
    Response. The final standard does not incorporate these 
suggestions. First, while the Department encourages agencies to 
communicate with victims regarding remedial action taken, it would be 
an inappropriate intrusion upon agency operations to require agencies 
to disclose the actions they have taken. Second, disclosing the 
imposition of administrative sanctions may implicate employees' privacy 
rights under governing laws. The victim's interests in safety are 
served by requiring disclosure of whether the staff member is no longer 
posted on the victim's unit or in the victim's facility, and the 
victim's interest in justice is served by requiring disclosure of any 
indictments or convictions. Third, for similar reasons, the Department 
declines to revise the standard to mandate disclosure of whether the 
agency has reported the abuse to prosecutors, or of the results of 
criminal proceedings beyond the fact of a conviction. Fourth, such 
interests do not support requiring disclosure to third-party 
complainants, who are not similarly situated to the victim. Of course, 
agencies may choose to disclose additional information, even if such 
disclosure is not covered by this standard.
    Comment. Advocates recommended requiring documentation, signed by 
the inmate, that he or she received the required information.
    Response. The Department finds merit in the suggestion that such 
notifications be documented and has incorporated this into the final 
standard. However, the Department does not believe it is necessary to 
require that the inmate sign such notifications.
    Comment. Some commenters expressed concern that the standard could 
be read to require that information be reported to the accuser as the 
investigation unfolds.
    Response. The final standard requires an agency to report to an 
inmate who has alleged sexual abuse when the allegation has been 
determined to be substantiated, unsubstantiated, or unfounded, if the 
abuser has been indicted or convicted on a charge related to sexual 
abuse within the facility, and, if the alleged abuse was committed by a 
staff member, when the staff member is no longer posted within the 
inmate's unit or is no longer employed at the facility. While agencies 
may determine it is prudent to provide an inmate with additional 
updates if an investigation is prolonged, the standard does not require 
an agency to provide information during the course of the 
investigation.
    Comment. Some commenters recommended that the standard define 
``unfounded'' and ``unsubstantiated.''
    Response. Section 115.5 contains definitions of ``unfounded 
allegation'' and ``unsubstantiated allegation.''
    Comment. Some commenters asserted that the terms ``substantiated'' 
and ``unsubstantiated'' apply only to

[[Page 37173]]

administrative investigations and therefore recommended that paragraph 
(a) be amended to apply only to administrative investigations.
    Response. These terms, as defined in the final rule, are applicable 
to all types of investigations. Indeed, the BJS Survey of Sexual 
Violence, which for several years has been collecting data from 
agencies regarding substantiated, unsubstantiated, and unfounded 
allegations, does not limit its inquiries to administrative 
investigations.
    Comment. Some commenters recommended that staff be required to 
explain to inmates the meaning of substantiated, unsubstantiated, and 
unfounded.
    Response. The Department believes that the reporting requirement 
implicitly requires staff to ensure that inmates understand the result 
of the investigation.
    Comment. Other commenters recommended that the Department adopt a 
standard requiring juvenile facilities to report this information to 
parents and legal guardians of juvenile victims.
    Response. The Department encourages juvenile facilities to share 
such information with parents and legal guardians in accordance with 
the facility's general policies regarding communication with parents 
and legal guardians. However, because the interests implicated in these 
disclosures most directly impact the victim, the Department declines to 
require agencies to do so.
    Comment. Some advocates recommended requiring notifications 
analogous to those required by paragraph (c) when the perpetrator is 
another inmate.
    Response. Because staff members exert complete authority over 
inmates, safety interests compel the notification of inmates regarding 
the transfer or departure of a staff member. Because fellow inmates 
lack such authority over other inmates, the Department has chosen not 
to require similar notification when the perpetrator is another inmate. 
However, the final standard expands the indictment/conviction 
notification requirement to cover cases in which the defendant abuser 
is an inmate.
    Comment. One correctional commenter recommended that the standard 
require only ``reasonable efforts'' to inform an inmate, because the 
inmate may be released while an investigation is still ongoing and may 
be difficult to locate.
    Response. The final standard states that an agency has no 
obligation to report to inmates who have been released from its 
custody.
    Comment. A few correctional commenters recommended that this 
standard exempt allegations that have been determined to be 
unsubstantiated.
    Response. The Department disagrees with this recommendation. By 
definition, an unsubstantiated allegation is one in which there is 
insufficient evidence to determine whether or not the event occurred. 
The possibility that the event occurred justifies the minimal burden of 
informing the inmate that the staff member is no longer posted within 
the inmate's unit. In addition, an inmate who is informed that his or 
her allegation is unsubstantiated may wish to provide, or attempt to 
obtain, additional evidence that would benefit the investigation.

Disciplinary Sanctions for Staff (Sec. Sec.  115.76, 115.176, 115.276, 
115.376)

Summary of Proposed Rule
    The standard contained in the proposed rule provided that staff 
shall be subject to disciplinary sanctions up to and including 
termination for violating agency sexual abuse or sexual harassment 
policies, and that termination shall be the presumptive disciplinary 
sanction for staff who have engaged in sexual touching.
    The proposed standard further provided that sanctions be 
commensurate with the nature and circumstances of the acts committed, 
the staff member's disciplinary history, and the sanctions imposed for 
comparable offenses by other staff with similar histories. If a staff 
member is terminated for violating such policies, or if a staff member 
resigns in lieu of termination, the proposed standard required that a 
report be made to law enforcement agencies (unless the activity was 
clearly not criminal) and to any relevant licensing bodies.
Changes in Final Rule
    The final standard provides that termination shall be the 
presumptive disciplinary sanction for staff who have engaged in sexual 
abuse, not only sexual touching.
Comments and Responses
    Comment. Several advocate commenters stated that termination should 
be the mandatory sanction for employees that have engaged in sexual 
abuse, rather than a presumptive sanction.
    Response. The Department believes that a change is not warranted, 
for the reasons stated by the NPREC in the discussion section that 
accompanied its corresponding standard, labeled as DI-1:

    This standard requires that termination be the ``presumptive'' 
but not the mandatory sanction for certain types of sexual abuse in 
recognition of the fact that disciplinary sanctions must be 
determined on a case-by-case basis. Establishing termination as a 
presumption places a heavy burden on the staff person found to have 
committed the abuse to demonstrate why termination is not the 
appropriate sanction. This presumption also requires that 
termination should be the rule for the referenced types of sexual 
abuse, with exceptions made only in extraordinary circumstances.\36\
---------------------------------------------------------------------------

    \36\ NPREC, Standards for the Prevention, Detection, Response, 
and Monitoring of Sexual Abuse in Adult Prisons and Jails, 47, 
available at http://www.ncjrs.gov/pdffiles1/226682.pdf.

    Comment. A number of agency commenters expressed concern that 
collective bargaining agreements may limit their ability to assure 
termination.
    Response. The Department is aware that, pursuant to collective 
bargaining agreements, final decisions regarding termination may rest 
in the hands of an arbitrator. This standard is intended to govern the 
sanction sought by the agency, recognizing that, in some circumstances, 
the agency may not have the authority to make the final determination.
    Comment. A large number of commenters across all commenter types 
requested that the standard be revised to provide that termination 
shall be the presumptive disciplinary sanction not only for staff who 
have engaged in sexual touching, but also for staff who have engaged in 
other types of sexual misconduct such as indecent exposure and 
voyeurism.
    Response. The Department has changed the term ``sexual touching'' 
to ``sexual abuse.''
    Comment. Some advocate commenters expressed concern that the range 
of discipline contemplated in paragraph (c) was too broad. In addition, 
one agency commenter suggested that the inclusion of a range of 
discipline was not consistent with a zero-tolerance policy.
    Response. The Department has revised paragraph (c) to make clear 
that it refers to policy violations that do not constitute sexual 
abuse. Coupled with the shift from ``sexual touching'' to ``sexual 
abuse'' in paragraph (b), the final standard draws a line between 
sexual abuse by staff, for which termination is the presumptive 
sanction, and other policy violations, for which agencies are afforded 
discretion to impose discipline as warranted. Such violations may 
include, for example, a failure to take required responsive

[[Page 37174]]

actions following an incident, negligent supervision that led to or 
could have led to an incident, or willfully ignoring evidence that a 
colleague has abused an inmate.
    Comment. An advocate commenter suggested that the final standard 
mandate disciplinary sanctions for staff who regularly work on shifts 
when incidents of sexual abuse occur, noting that ``standing by while 
assaults happen is a violation of staff responsibility.''
    Response. The Department agrees that a staff member's failure to 
act to prevent sexual abuse merits discipline. However, a blanket rule 
mandating sanctions for staff who work on shifts when incidents occur 
would not be appropriate. Rather, a determination whether to impose 
discipline should be made on a case-by-case basis.
    Comment. Commenters in all categories requested that this standard 
be expanded to include volunteers and contractors.
    Response. The final rule adds a new standard, discussed immediately 
below, to address this concern.

Corrective Action for Contractors and Volunteers (Sec. Sec.  115.77, 
115.177, 115.277, 115.377)

    The final rule adds a new standard requiring that an agency or 
facility prohibit from contact with inmates any contractor or volunteer 
who engages in sexual abuse. The standard also requires that any 
incident of sexual abuse be reported to law enforcement agencies, 
unless the activity was clearly not criminal, and to relevant licensing 
bodies. With regard to any other violation of agency sexual abuse or 
sexual harassment policies by a contractor or volunteer, the new 
standard requires that the facility take appropriate remedial measures 
and consider whether to prohibit further contact with inmates.
    The wording of this standard takes into account that contractors 
and volunteers are not employees and thus are not subject to 
termination or discipline as those terms are typically construed. 
However, the consequences set forth in this standard parallel the 
consequences for staff members, with discretion left to agencies and 
facilities to take appropriate remedial measures commensurate with the 
nature of the violation.

Disciplinary Sanctions, Interventions, and Prosecutorial Referrals for 
Inmates (Sec. Sec.  115.78, 115.178, 115.278, 115.378)

Summary of Proposed Rule
    The standard contained in the proposed rule (numbered as Sec. Sec.  
115.77, 115.177, 115.277, and 115.377) mandated that inmates be subject 
to disciplinary sanctions pursuant to a formal disciplinary process 
following a finding that the inmate sexually abused another inmate. The 
standard mandated that sanctions be appropriate for the offense, taking 
into account the inmate's history and whether any mental disabilities 
or mental illness contributed to the behavior.
    As with sanctions against staff, the proposed standard required 
that sanctions against inmates be fair and proportional, taking into 
consideration the inmate's actions, disciplinary history, and sanctions 
imposed on other inmates in similar situations. The proposed standard 
also required that the disciplinary process take into account any 
mitigating factors, such as mental illness or mental disability, and 
that it consider whether to incorporate therapy, counseling, or other 
interventions that might help reduce recidivism.
    The proposed standard provided that inmates shall not be 
disciplined for sexual contact with staff without a finding that the 
staff member did not consent to such contact. The standard further 
provided that inmates may not be punished for making good-faith 
allegations of sexual abuse, even if the allegation is not 
substantiated following an investigation. Finally, the standard 
provided that an agency must not consider consensual sexual contact 
between inmates to constitute sexual abuse.
    With regard to lockups, which generally do not hold inmates for 
prolonged periods of time and thus do not impose discipline, the 
proposed standard required a referral to the appropriate prosecuting 
authority when probable cause exists to believe that one lockup 
detainee sexually abused another. If the lockup is not responsible for 
investigating allegations of sexual abuse, the standard required that 
it inform the responsible investigating entity. The proposed standard 
also applied to any State entity or Department of Justice component 
that is responsible for investigating sexual abuse in lockups.
Changes in Final Rule
    The final standard makes clear that it does not limit an agency's 
ability to prohibit sexual activity among inmates, or to discipline 
inmates for violating such a prohibition.
Comments and Responses
    Comment. A large number of advocate commenters objected to the 
provision that allowed discipline of inmates for sexual contact with 
staff ``upon a finding that the staff member did not consent to such 
contact.'' Commenters criticized this language as easily exploitable by 
an abusive staff member, who could coerce an inmate into sexual 
activity and then falsely claim that she or he did not consent to sex 
with the inmate. Fearing that the language in the proposed standard 
could discourage inmates from reporting staff sexual abuse, several 
advocate commenters recommended allowing discipline of inmates for 
sexual contact with staff only if the inmate used or threatened to use 
force against the staff member.
    Response. As stated in the NPRM, the responsibility for preventing 
inmate-staff sexual contact presumptively rests with the staff member, 
due to the vast power imbalance between staff and inmates. Even if it 
appears that a staff member and an inmate willingly engaged in sexual 
activity, the very real possibility that the inmate was coerced into 
doing so militates against automatically disciplining both parties for 
such behavior. Otherwise, inmates may be reluctant to report being 
coerced into sexual activity by staff, for fear of discipline. For this 
reason, the proposed standard required the facility to make a finding 
that the staff member did not consent, rather than merely taking the 
word of the staff member.
    However, exempting from discipline non-consensual activity that did 
not involve force or threat of force would tilt too far in the opposite 
direction. Such a rule would exempt from discipline, for example, a 
large and muscular inmate who did not use or threaten force but who 
coerced a physically slight staff member into sexual activity by 
trapping her in a confined space. Likewise, an inmate who drugged a 
staff member and sexually abused her while she was unconscious would be 
immune from discipline. Finally, it is doubtful that the language 
suggested by advocates would eliminate the risk of false allegations by 
staff members. A staff member who would falsely allege that he or she 
did not consent to sexual activity with an inmate could, if this 
language were adopted, instead falsely assert that the inmate had 
threatened to use force. For these reasons, the Department rejects this 
proposed change.
    Comment. Many commenters, of various types, expressed confusion 
over the requirement in the proposed standard that ``[a]ny prohibition 
on inmate-on-inmate sexual activity shall not consider consensual 
sexual activity to constitute sexual abuse.'' A number of commenters 
appeared to interpret the

[[Page 37175]]

use of ``consensual'' in the proposed standard as indicating a 
permissive attitude toward inmates engaging in sexual activity.
    Response. The Department did not intend to limit agencies' ability 
to prohibit or otherwise restrict inmate sexual activity. Rather, the 
Department meant to ensure that such activity is not automatically 
classified as ``sexual abuse.'' The Department recognizes that it may 
be difficult to discern whether sexual activity between inmates is 
truly consensual; activity that may seem to be voluntary may actually 
be coerced. Yet it is essential that staff make individualized 
assessments regarding each inmate's behavior, and not simply label as 
an abuser every inmate caught having sex with another inmate. The 
Department has revised this language to make clear that the standard 
does not limit an agency's ability to prohibit sexual activity among 
inmates, or to discipline inmates for violating such a prohibition. 
However, while consensual sexual activity between inmates may be 
prohibited, it should not be viewed as sexual abuse unless the activity 
was coerced.
    Comment. Many commenters, including advocates and agencies alike, 
criticized the proposed standard for juveniles as setting an 
inappropriately punitive tone. Some comments interpreted the proposed 
standard to require disciplinary sanctions for residents.
    Response. Unlike many adult correctional systems, juvenile agencies 
typically operate on a rehabilitative model, and focus on positive 
programming and treatment rather than punishment. The Department agrees 
that juvenile agencies should have discretion as to the types of 
interventions they find most appropriate in responding to sexually 
abusive behavior. For example, rather than imposing a disciplinary 
sanction, the agency might choose to direct the juvenile perpetrator to 
a sex offender treatment program aimed at rehabilitation.
    In consideration of these concerns, Sec.  115.378 is now titled 
``Interventions and disciplinary sanctions for residents.'' Further, 
the Department has reworded Sec.  115.378 to make clear that the 
standard does not require any particular type of intervention or 
discipline, and that juvenile agencies retain discretion to determine 
the most appropriate response. When agencies choose to impose 
discipline, the sanction must be commensurate with the nature of the 
offense and must take into consideration other relevant factors.
    Comment. Advocate commenters strongly objected to the lack of 
restrictions on the use of isolation in disciplining juveniles in the 
proposed standards. Some specifically requested a 72-hour time limit on 
the use of isolation in juvenile facilities.
    Response. The final standard requires that residents in isolation 
shall not be denied daily large-muscle exercise or access any to 
legally required education programming or special education services. 
In addition, such residents must receive daily visits from a medical or 
mental health care clinician, as well as access to other programs and 
work opportunities to the extent possible.
    The Department did not incorporate a time limit into the final 
standard, recognizing that agencies must balance the well-being of 
sexually abusive youth with that of other youth in its custody. In rare 
cases, a facility may find it necessary to isolate youth beyond 72 
hours due to safety and security concerns. However, isolated youth 
remain subject to the protections discussed above. The Department 
encourages facilities to minimize their reliance on isolation for 
juveniles to the greatest extent possible.
    Comment. Advocate commenters also objected to language in Sec.  
115.378(d) of the proposed standards regarding a facility's ability to 
limit access to programming for abusers who refuse to participate in 
therapy, counseling or interventions designed to address or correct 
underlying reasons for the abuse.
    Response. In recognition of the fact that some sex offender 
treatment programs require admission of the underlying act, and that 
such an admission could have consequences for any subsequent criminal 
case, the Department believes that youth should not be punished for 
failing to participate. Accordingly, the Department has revised Sec.  
115.378(d) to clarify that a facility may limit an abuser's access to 
rewards-based management or behavior-based incentives due to their 
failure to participate in therapeutic interventions, but may not limit 
access to general programming and education. This revision is 
consistent with a rehabilitative approach to juvenile corrections.
    Comment. Many advocate commenters expressed concern with the 
Department's lack of guidance to juvenile agencies regarding adherence 
to and interpretation of State age of consent laws and mandatory 
reporting requirements.
    Response. The Department believes it has appropriately addressed 
these concerns by expanding and specifying the training requirements in 
Sec.  115.331, which now mandates training on how to distinguish 
between abusive and non-abusive sexual contact between residents and on 
how to comply with relevant age of consent laws and mandatory 
reporting. The Department intends for these standards to be read in 
conjunction with, rather than to supersede, existing State laws 
regarding mandatory reporting and age of consent.

Medical and Mental Health Screenings (Sec. Sec.  115.81, 115.381)

Summary of Proposed Rule
    The standard in the proposed rule required that inmates be asked 
about any prior history of sexual victimization and abusiveness during 
intake or classification screenings. The proposed standard further 
required that inmates be offered a follow-up meeting with a medical or 
mental health practitioner within 14 days of the intake screening. The 
proposed standard also limited the inquiry required in jails by not 
requiring an inquiry about prior sexual abusiveness.
    The proposed standard did not apply to lockups, given the 
relatively short time that they are responsible for inmate care, or to 
community confinement facilities, which do not undertake a similar 
screening process.
Changes in Final Rule
    The final standard no longer requires that facilities make these 
inquiries during intake screenings. Rather, the Department has replaced 
this language with a reference to the screening conducted pursuant to 
Sec. Sec.  115.41 and 115.341. The Department has also revised the 
standard to require that inmates be offered a follow-up meeting when 
screening indicates that they have experienced prior sexual 
victimization or perpetrated sexual abuse, rather than only when the 
inmate discloses such information. Finally, for clarity, the Department 
has changed ``follow-up reception'' to ``follow-up meeting.''
Comments and Responses
    Comment. Numerous commenters, including correctional agencies and 
advocacy organizations, asserted that the screening requirements under 
Sec. Sec.  115.81(a) and 115.381(a) were duplicative of--and 
inconsistent with--the screening requirements under Sec. Sec.  115.41 
and 115.341. These commenters requested that the two standards be 
consolidated.
    Response. The Department is persuaded that the separate screening 
requirement under Sec. Sec.  115.81(a) and 115.381(a) is unnecessary in 
light of

[[Page 37176]]

Sec. Sec.  115.41 and 115.341. Accordingly, the Department has replaced 
this screening requirement with a reference to screenings conducted 
pursuant to Sec. Sec.  115.41 and 115.341.
    Comment. Several commenters criticized the 14-day timeframe for a 
follow-up meeting where there is an indication of prior sexual 
victimization or abusiveness. Several advocates and a State council on 
juvenile detention suggested that 14 days was too long for victims and 
abusers to wait for treatment; some commenters requested that, at a 
minimum, the timeframe be shortened in juvenile facilities because of 
the urgency of addressing these issues among juveniles and because of 
the shorter average length of stay at juvenile facilities. A State 
juvenile justice agency recommended that, for youth in short-term 
facilities, the standard mandate a follow-up meeting within 10 days of 
release from the facility or within 14 days of intake for youth that 
remain in the facility. A State correctional agency recommended that 
treating victims receive priority, and criticized the proposed standard 
for providing the same 14-day timeframe for victims and abusers, 
without distinguishing between the two.
    Finally, some juvenile justice agencies asserted that the 14-day 
timeframe under Sec. Sec.  115.81 and 115.381 is inconsistent with the 
requirement under Sec. Sec.  115.83 and 115.383 that facilities conduct 
a mental health evaluation of all known abusers within 60 days of 
learning of such abuse history.
    Response. The Department agrees that an inmate with a history of 
victimization or abuse should receive a follow-up meeting with a health 
care practitioner as soon as possible. However, some facilities, 
particularly smaller facilities, have limited access to medical and 
mental health practitioners. While the Department encourages facilities 
to arrange for follow-up meetings as soon as possible, the final 
standard preserves the 14-day deadline in order to accommodate these 
staffing challenges.
    The requirement that prisons provide follow-up meetings within 14 
days for inmates whose intake screenings indicate prior abusiveness is 
distinct from--and consistent with--the requirement that prisons 
attempt to conduct mental health evaluations within 60 days. The 
follow-up meeting is intended to emphasize immediate mental health 
needs and security risks, while the evaluation is a comprehensive 
mental health assessment intended to inform future treatment plans.
    Comment. A State correctional agency argued that it is appropriate 
to require facilities to offer a follow-up meeting to an inmate with a 
history of victimization but that it should be left to the facility's 
discretion to determine whether to offer a follow-up meeting to an 
inmate whose screening indicates prior abusiveness.
    Response. The Department believes that the potential for reducing 
future incidents of sexual abuse and creating an improved overall sense 
of safety within a facility justifies the burden of requiring the 
facility to offer a follow-up meeting to an inmate whose screening 
indicates prior abusiveness. However, as reflected in Sec. Sec.  
115.83, 115.283, and 115.383, the Department agrees that it should be 
left to the discretion of a mental health practitioner to determine, 
following a mental health evaluation, whether treatment is appropriate 
for a known inmate-on-inmate or resident-on-resident abuser.
    Comment. Advocacy organizations and a county sheriff's office 
questioned the Department's decision to exclude jails from the 
requirement to inquire about past sexual abusiveness. The sheriff's 
office asserted that, in light of the safety risks posed by an 
individual who has previously perpetrated abuse, it is especially 
critical that jails consider that history. By contrast, several 
juvenile justice agencies and advocacy groups requested an analogous 
carve-out for short-term juvenile facilities.
    Response. The Department has preserved the exemption for jails from 
the requirement under Sec.  115.81 that inmates whose screenings 
indicate prior sexual abusiveness be offered a follow-up meeting with a 
medical or mental health practitioner within 14 days, as well as the 
requirement under Sec.  115.83 that known inmate-on-inmate abusers be 
offered a mental health evaluation and treatment, where deemed 
appropriate. Because of the smaller capacity of many jails and high 
inmate turnover, it would be overly burdensome to require jails to 
provide mental health follow-up meetings or evaluations for individuals 
whose screenings indicate prior sexual abusiveness.
    In light of the importance of providing mental health support to 
youth who have reported sexual abusiveness--a point underscored by 
numerous commenters who requested that the 14-day timeframe for a 
follow-up meeting be reduced for juveniles--the final standard does not 
exempt any juvenile facilities from the medical and mental health care 
requirements for abusers.
    Comment. Two State juvenile justice agencies raised concerns about 
the standard's interaction with mandatory reporting laws. One 
recommended that the standard require staff members conducting 
screenings to provide appropriate notice regarding the agency's 
mandatory reporting obligations under State law; another suggested that 
the standards offer guidance on following such laws.
    Response. The Department recognizes the importance of providing 
staff with guidance on how to comply with State-mandated reporting 
laws. However, given the range of State mandatory reporting laws and 
agency policies for complying with such laws, the Department is not in 
a position to provide detailed instructions for compliance. Instead, 
the Department has revised Sec. Sec.  115.31, 115.131 and 115.231 to 
require that staff receive training on how to comply with relevant laws 
relating to mandatory reporting of sexual abuse.
    Comment. A State juvenile justice agency recommended adding 
language to the standard to specify the distinction between previously 
reported and never-before-reported sexual victimization.
    Response. The Department does not find it necessary to distinguish 
in the standard between new reports of sexual victimization and 
previously reported sexual victimization. A resident's history of prior 
sexual victimization or abusive behavior may contribute to medical or 
mental health concerns, regardless of whether such victimization was 
previously reported upon a prior admission to the facility. The 
resident should be offered a follow-up meeting with a medical or mental 
health practitioner within 14 days of the new intake screening, but if 
the practitioner determines through such follow-up meeting that 
treatment is not warranted, the facility need not provide such 
services. The requirements relating to mandatory reporting laws, 
confidentiality, and informed consent under the paragraphs newly 
designated as Sec.  115.381(c) and (d) adequately address any legal 
issues that could arise pertaining to a new report of sexual 
victimization.
    Comment. Two commenters raised concerns about confidentiality. A 
State juvenile justice agency recommended modifying the confidentiality 
provisions (designated in the final rule as Sec. Sec.  115.81(c) and 
115.381(c)) to specify that any information relating to sexual 
victimization or abusiveness may be provided to staff only on a need-
to-know basis to inform treatment plans and security and management 
decisions. A county sheriff argued that an inmate should not be able to 
maintain confidentiality regarding his or her prior abusiveness in 
institutional settings, as it could imperil other inmates.

[[Page 37177]]

    In addition, a State sheriffs' association raised concerns that 
inquiring about an inmate's sexual history in a public setting, where 
intake screenings are currently conducted, would violate the inmate's 
privacy. The association expressed apprehension that facilities would 
be required to build private screening rooms, which the association 
suggested would raise issues of cost and space.
    Response. The final standard requires that dissemination of 
information related to sexual victimization or abusiveness be 
``strictly limited'' to medical and mental health practitioners and 
other staff, as necessary, to inform treatment plans and security and 
management decisions, or as otherwise required by Federal, State, or 
local law. The Department interprets this to mean that such information 
shall be shared only to the extent necessary to ensure inmate safety 
and proper treatment and to comply with the law. The facility retains 
discretion in how to provide the necessary degree of confidentiality 
while still accounting for safety, treatment, and operational issues.
    Sections 115.41, 115.141, 115.241, and 115.341 do not require that 
intake screenings occur in private rooms. However, the Department 
expects that screening will be conducted in a manner that is conducive 
to eliciting complete and accurate information.
    Comment. A State juvenile probation commission requested that the 
Department define the terms ``abusiveness'' and ``victimization.''
    Response. In light of the rule's detailed definition of sexual 
abuse, the Department does not find it necessary to define sexual 
abusiveness or sexual victimization.
    Comment. A State juvenile justice agency recommended replacing 
``follow-up reception'' with ``follow-up appointment,'' and suggested 
adding a requirement to paragraph (b) that staff ensure that the inmate 
or resident is offered a follow-up appointment with a medical or mental 
health provider ``and is referred to a medical practitioner when 
indicated.''
    Response. The Department agrees that the phrase ``follow-up 
reception'' is unclear and has changed ``reception'' to ``meeting.'' As 
discussed above, the Department intends for a ``follow-up meeting,'' in 
contrast to an evaluation, to entail an interaction between a health 
care provider and inmate or resident in which the provider focuses on 
mitigating immediate mental health concerns and assessing security 
risks, as well as informing decisions with regard to further treatment. 
In light of the requirements for ongoing medical and mental health care 
under Sec. Sec.  115.83 and 115.383, the Department does not find it 
necessary for the standard to require that inmates or residents be 
referred to a medical practitioner when indicated.

Access to Emergency Medical and Mental Health Services (Sec. Sec.  
115.82, 115.182, 115.282, 115.382)

Summary of Proposed Rule
    The standard contained in the proposed rule required that victims 
of sexual abuse receive free access to emergency medical treatment and 
crisis intervention services.
Changes in Final Rule
    The Department has added a requirement for prisons, jails, 
community confinement facilities, and juvenile facilities that victims 
of sexual abuse while incarcerated be offered timely information about 
and timely access to emergency contraception, in accordance with 
professionally accepted standards of care.
    In addition, the Department has made four clarifying changes. 
First, the Department has specified that sexually transmitted 
infections prophylaxis must be offered where ``medically'' appropriate, 
to clarify that the assessment of whether to offer prophylaxis should 
be based solely on a medical judgment. Second, the final standard 
specifies that such prophylaxis must be offered in accordance with 
professionally accepted standards of care. Third, the final standard 
clarifies that a victim cannot be charged for any of the services 
described in this standard, or required to name the abuser as a 
condition of receipt of care. Finally, the Department has qualified the 
word ``access'' with ``timely'' to underscore the time-sensitive nature 
of emergency contraception and sexually transmitted infections 
prophylaxis and to ensure that drugs are provided within their window 
of efficacy.
Comments and Responses
    Comment. A number of advocacy organizations commented that major 
medical organizations and sexual assault treatment guides recommend the 
provision of emergency contraception as a standard part of treatment 
for rape victims. These commenters requested (1) that the standards 
provide specific guidance regarding the provision of emergency 
contraception at no cost to inmate victims who may be at risk of 
pregnancy, and (2) in light of the contraceptive's time-sensitive 
nature, that the standards explicitly require facilities to stock an 
adequate supply of emergency contraception so that it will be 
immediately available. In addition, an advocacy organization requested 
that the Department clarify that pregnancy-related services and 
sexually transmitted infections prophylaxis be offered without cost, 
and recommended that the phrase ``where appropriate'' be replaced with 
``where medically appropriate.'' Finally, one commenter remarked that 
the requirement that female victims be given access to pregnancy-
related services is duplicative of Sec. Sec.  115.83, 115.283, and 
115.383.
    Response. The Department agrees that it is essential that inmates 
at risk of pregnancy following an incident of sexual abuse be given 
timely access to emergency contraception. Accordingly, the Department 
has modified the standard to specify that such inmates shall be offered 
timely information about and timely access to emergency contraception, 
in accordance with professionally accepted standards of care, where 
medically appropriate. The Department declines to specify that 
facilities must stock a particular drug, but has clarified that access 
to emergency contraception must be ``timely''; certainly, timeliness is 
achieved only if the contraceptive is provided within its window of 
efficacy. To ensure that emergency contraception and sexually 
transmitted infections prophylaxis are available at no cost to the 
victim, the Department has moved to the end of the standard the clause 
requiring that treatment services be provided to the victim without 
financial cost; the Department intends for the phrase ``treatment 
services'' to encompass the provision of medical drugs. The Department 
has also clarified that the determination of whether emergency 
contraception or sexually transmitted infections prophylaxis should be 
offered to a victim must be based solely on whether the drug is 
``medically'' appropriate. Finally, to avoid duplication of Sec. Sec.  
115.83, 115.283, and 115.383, the Department has eliminated the 
reference to pregnancy-related services in this standard.
    Comment. Some advocacy groups recommended expanding the lockup 
standard to require facilities to offer detainee victims of sexual 
abuse timely information about and access to all pregnancy-related 
services and sexually transmitted infections prophylaxis, where 
appropriate.
    Response. In light of the very short-term nature of lockup 
detention, the Department does not believe that it is necessary to 
require lockups to provide emergency contraception or sexually 
transmitted infections prophylaxis. Consistent with its obligation to 
provide

[[Page 37178]]

appropriate emergency care, a lockup would transfer such a detainee to 
an appropriate emergency medical provider, which would be expected to 
provide such care as appropriate.
    Comment. One State correctional agency remarked that ``unimpeded 
access'' is nearly impossible to ensure, even in the community.
    Response. The Department has preserved the requirement that access 
to emergency medical and mental health care services for sexual abuse 
victims be ``unimpeded'' to make clear that agencies may not impose 
administrative hurdles that could delay access to these critical 
services.
    Comment. A State correctional agency recommended that the 
Department define the term ``sexually transmitted infections 
prophylaxis.''
    Response. The Department intends for ``sexually transmitted 
infections prophylaxis'' to encompass appropriate post-incident 
treatment to reduce the risk of sexually transmitted diseases resulting 
from an incident of sexual abuse, and does not find it necessary to 
include a definition for that term in the final rule.

Ongoing Medical and Mental Health Care for Sexual Abuse Victims and 
Abusers (Sec. Sec.  115.83, 115.283, 115.383)

Summary of Proposed Rule
    The standard contained in the proposed rule required that victims 
of sexual abuse receive access to ongoing medical and mental health 
care, and that abusers receive access to care as well. The standard 
required facilities to offer ongoing medical and mental health care 
consistent with the community level of care for as long as such care is 
needed.
    The standard also required that known inmate abusers receive a 
mental health evaluation within 60 days of the facility learning that 
the abuse had occurred.
    In addition, with respect to victims, the standard required that 
agencies provide, where relevant, pregnancy tests and timely 
information about and access to all pregnancy-related medical services 
that are lawful in the community. The Department also proposed 
requiring the provision of timely information about and access to 
sexually transmitted infections prophylaxis where appropriate.
Changes in Final Rule
    The Department has expanded the duty to provide non-emergency 
medical and mental health care to victims of sexual abuse by requiring 
care for individuals who were victimized in any prison, jail, lockup, 
or juvenile facility rather than only for those who were victimized 
``during their present term of incarceration.'' However, the Department 
has clarified that such care need not be ``ongoing'' but need be 
provided only ``as appropriate.''
    The final standard adds a requirement that victims of sexual abuse 
while incarcerated be offered tests for sexually transmitted infections 
as medically appropriate, and clarifies that information about 
pregnancy-related medical services must be ``comprehensive'' and access 
to pregnancy-related medical services must be ``timely.''
    For clarity, the Department has replaced the reference to access to 
``all pregnancy-related medical services that are lawful in the 
community'' with ``all lawful pregnancy-related medical services.''
    The Department has also added language, identical to a provision in 
Sec.  115.82, that requires that all treatment services under this 
standard be made available without financial cost to the victim and 
regardless of whether the victim names the abuser or cooperates with 
any investigation arising out of the incident.
    Finally, the Department has made several clarifying changes to the 
requirement that facilities conduct mental health evaluations of inmate 
abusers and offer treatment when deemed appropriate: The final standard 
specifies that facilities need only ``attempt'' to conduct mental 
health evaluations; indicates that this clause applies only to inmate-
on-inmate abusers; and no longer requires that only ``qualified'' 
mental health practitioners be permitted to determine whether it is 
appropriate to offer treatment. The final standard also clarifies the 
wording of references to sexual abuse victims.
Comments and Responses
    Comment. A State juvenile justice agency noted that the phrase 
``resident victims'' could refer to individuals who were victimized 
prior to placement in the facility. For clarity, the commenter also 
requested that the standard uniformly refer to victims of sexual abuse 
as ``residents who, during their term of incarceration, have been 
victimized.''
    Response. The Department intends for the standard to encompass 
individuals who were victimized while in another facility. Accordingly, 
the final standard clarifies that medical and mental health evaluation 
and, as appropriate, treatment must be offered to all inmates or 
residents who have been victimized by sexual abuse in any facility.
    Comment. A county sheriff predicted that a large percentage of 
inmates will claim to have been victimized, which would overload the 
system and impose substantial additional costs.
    Response. The final standard requires an evaluation and treatment 
``as appropriate.'' To the extent that an inmate falsely alleges prior 
victimization, such treatment would not be appropriate. Furthermore, 
all facilities are already obligated to provide adequate care to meet 
inmates' serious mental health needs. See Estelle v. Gamble, 429 U.S. 
97, 104 (1976). By providing evaluation and treatment to sexual abuse 
victims ``as appropriate,'' facilities are simply providing 
constitutional conditions of care.
    Comment. Numerous commenters expressed support for the requirement 
that women who become pregnant as a result of rape receive access to 
pregnancy tests and timely information about and access to pregnancy-
related services. Several commenters requested that the standard be 
clarified to reflect the fact that female inmates retain the right to 
an abortion. These commenters recommended modifying the standard to 
ensure that victims who become pregnant as a result of sexual abuse 
receive adequate information to make decisions about their pregnancy as 
well as any assistance necessary to carry out those decisions.
    In particular, a group of women's rights organizations requested 
that a woman who becomes pregnant as a result of sexual abuse while 
incarcerated be provided with comprehensive and unbiased counseling on 
options, including information on how pregnancy will affect the 
conditions of her confinement and information on the full spectrum of 
her parental rights and responsibilities.
    These commenters also requested that the standards specify that an 
incarcerated rape victim be able to terminate her pregnancy at no 
financial cost, and that counseling include an explanation that she 
will not have to pay for her medical care, whether she chooses to 
terminate the pregnancy or carry to term. In addition, these commenters 
requested that facilities be required to protect from coercion and 
retaliation women who accuse staff members of rape and then choose to 
carry to term, and that the standards specify that facilities must 
provide transportation for abortion care, distance and cost 
notwithstanding.
    Finally, the commenters criticized as excessively vague the 
proposed standard's requirement that pregnant

[[Page 37179]]

rape victims receive timely information about and access to all 
pregnancy-related medical services ``that are lawful in the 
community.'' Commenters expressed concern that facility staff may take 
an unduly narrow view in evaluating which services are ``lawful in the 
community,'' possibly concluding that because there is no abortion 
provider in the county, abortion services are not ``lawful in the 
community.'' These commenters requested that the standard be revised to 
clarify that victims have access to all pregnancy-related medical 
services, including the right to terminate a pregnancy or carry to 
term.
    Response. The Department agrees that women who are sexually abused 
while incarcerated and become pregnant as a result must receive 
comprehensive information about and meaningful access to all lawful 
pregnancy-related medical services at no financial cost. The final 
standard includes several clarifying revisions. First, the Department 
has specified that such victims must receive timely and comprehensive 
information about all lawful pregnancy-related medical services, and 
that access to pregnancy-related medical services must be timely. 
Second, the Department has removed the phrase ``that are lawful in the 
community'' and instead required facilities to provide information 
about and access to ``all lawful'' pregnancy-related medical services. 
Third, the Department has added a requirement that treatment services 
provided under this standard be made available without financial cost 
and regardless of whether the victim names the abuser. This provision 
mirrors the requirement under Sec. Sec.  115.82, 115.282, and 115.382 
that emergency services must be made available at no financial cost to 
the victim.
    The Department believes that the commenters' requests regarding the 
provision of specific information are encompassed by the requirement 
that facilities provide ``comprehensive'' information about all lawful 
pregnancy-related medical services, and that additional guidance on 
transportation is unnecessary given the requirement that victims be 
provided ``timely access'' to all lawful pregnancy-related medical 
services--which necessarily includes transportation. Finally, while the 
Department appreciates commenters' concern about the risk of coercion 
or retaliation by staff members accused of sexual abuse in cases where 
a victim becomes pregnant, the Department believes that the protections 
against retaliation provided in Sec. Sec.  115.67, 115.167, 115.267, 
and 115.367 are adequate to address this risk.
    Comment. A national coalition of LGBTI advocacy organizations 
recommended that the standards expressly require facilities to offer 
testing for HIV and other sexually transmitted infections, accompanied 
by counseling before and after the test and contingent upon written 
consent from the inmate. However, they urged that victims should not be 
required to undergo testing and not be punished for declining testing. 
A State juvenile justice agency also recommended testing for sexually 
transmitted infections.
    Response. The Department agrees that the standards should expressly 
require that facilities offer testing for sexually transmitted 
infections, and has added a new paragraph (f) that requires facilities 
to offer such tests, as medically appropriate, to victims of sexual 
abuse while incarcerated. The language stating that victims ``shall be 
offered'' tests makes clear that victims are not required to undergo 
such testing. The Department trusts that medical practitioners 
administering such tests will adhere to professionally accepted 
standards for pre- and post-test counseling and written consent.
    Comment. Several State correctional agencies, sheriff's offices, 
and sheriff's associations asserted that conducting a mental health 
evaluation of abusers and offering treatment where deemed appropriate 
would be prohibitively costly. A State correctional agency stated that 
the mental health care requirements for abusers could be burdensome and 
that victims should remain the top priority. However, an advocacy 
organization agreed with the Department's statement in the NPRM that 
the benefit of reducing future abuse by known abusers justifies the 
additional costs.
    Response. The Department remains of the view that the benefit of 
reducing future abuse by known inmate-on-inmate or resident-on-resident 
abusers--by avoiding incidents and improving the perception of safety 
within the facility--justifies the cost of mental health evaluations 
and, where appropriate, treatment. However, the Department underscores 
that, as stated in the NPRM, the standard is not intended to require a 
specialized comprehensive sex offender treatment program, which could 
impose a significant financial burden. The Department believes that 
requiring agencies to offer reasonable treatment, when deemed 
appropriate by a mental health practitioner, is justifiable in light of 
the anticipated costs and benefits.
    The Department agrees that mental health care for victims should be 
the priority and accordingly has provided more detail on the minimum 
standards of care for victims than for abusers. The standard specifies 
that evaluation and treatment of sexual abuse victims shall include, as 
appropriate, follow-up services, treatment plans, and, when necessary, 
referrals for continued care following their transfer to, or placement 
in, other facilities, or their release from custody. The standard 
further requires that facilities provide victims of sexual abuse with 
medical and mental health services consistent with the community level 
of care.
    Comment. Numerous commenters expressed concern over the requirement 
that facilities provide a mental health evaluation of all known inmate-
on-inmate abusers within 60 days. Several correctional agency 
commenters suggested that 60 days is too long, and recommended reducing 
the timeframe to 30 days, 14 days, 7 days, or 72 hours. An advocacy 
organization stated that the 60-day requirement is incompatible with 
the shorter average length of stay in juvenile facilities and 
recommended a seven-day timeframe for juveniles, which the commenter 
asserted is in line with the relevant standards established by the 
National Commission on Correctional Healthcare.
    Several commenters took the opposite position, and recommended 
extending the timeframe or removing it all together. A State 
correctional agency observed that this requirement might pose 
difficulties for smaller agencies, which may lack in-house staff 
capable of conducting a mental health evaluation; as a compromise, the 
commenter recommended requiring agencies to arrange for an evaluation 
within 60 days and to conduct the evaluation as soon as practicable 
thereafter.
    One State correctional agency suggested that conducting an 
evaluation within 60 days is unrealistic due to a State law requirement 
that, where a determination that an inmate is a sex offender is made 
pursuant to procedures established by the State department of 
corrections, such determination must be made following an adversarial 
hearing conducted by a licensed attorney serving as an administrative 
hearing officer.
    Response. The Department has preserved the 60-day requirement as 
the best balance of the various concerns noted by commenters. The 
Department acknowledges that certain inmates with a history of 
abusiveness will be transferred or released from the facility before 
undergoing a mental health

[[Page 37180]]

evaluation or receiving treatment. However, smaller facilities may find 
it challenging to find a practitioner equipped to provide treatment to 
abusers, and very short-term treatment is likely to be ineffective. The 
Department has therefore constructed the standard so as to afford 
facilities some flexibility.
    The 60-day clock starts only upon the agency's ``learning of such 
abuse history''; thus, where an agency is required to hold a hearing in 
order to determine whether an inmate is an abuser, the treatment need 
not be offered until the determination is made.
    Comment. Two State correctional agencies recommended that 
facilities be required only to perform mental health assessments, 
rather than evaluations, on known inmate-on-inmate abusers.
    Response. An assessment is unlikely to provide a mental health 
practitioner with sufficient information on which to base a 
determination about future treatment. Thus, the final standard retains 
the evaluation requirement.
    Comment. Several agency commenters raised concerns about the 
requirement that known abusers be offered treatment where deemed 
appropriate by a mental health practitioner, asserting that many 
facilities lack the time or expertise to provide effective treatment to 
abusers. One agency suggested that ``supportive therapy'' would be a 
better requirement than ``treatment.'' Another State correctional 
agency worried about the legal implications of compelling an alleged 
abuser with a criminal case pending to participate in this program.
    Response. The final standard requires only that the facility offer 
an evaluation and, if the inmate consents to that evaluation, offer 
treatment ``when deemed appropriate by mental health practitioners.'' 
The standard does not mandate the type or extent of treatment, but 
leaves it to the discretion of the mental health practitioner to 
recommend therapy, a structured treatment program, medication, or 
whatever course of action is best suited for the needs of the specific 
inmate and the capabilities of the facility. The standard does not 
require that abusers be compelled to participate in treatment.
    The Department notes that the standard only requires that a known 
inmate-on-inmate or resident-on-resident abuser be offered treatment 
where deemed appropriate by a mental health practitioner. The standard 
does not require the agency to compel participation.
    Comment. A county correctional agency asked how long a facility 
would be required to provide treatment.
    Response. The standard's reference to treatment that is 
``appropriate'' leaves it to the facility's mental health practitioners 
to determine the length of treatment.
    Comment. A State sheriff's association and a county correctional 
agency asked whether the standard requires the agency to provide 
treatment for abuse that did not occur in the facility. A State 
juvenile justice agency observed that the standard does not distinguish 
between abuse that occurred prior to incarceration and abuse that 
occurred during incarceration.
    Response. The final standard clarifies that facilities must offer 
medical and mental health evaluation and, as appropriate, treatment to 
all inmates or residents who have been victimized by sexual abuse in 
any prison, jail, lockup, or juvenile facility.
    Comment. A State correctional agency suggested that the standard 
refer to ``inmate-on-inmate'' and ``resident-on-resident abusers'' 
rather than ``inmate abusers'' and ``resident abusers''. One State 
correctional agency wondered why the standard seemingly applied to 
staff members who have abused inmates or residents. An individual 
commenter proposed classifying individuals as ``known resident 
abusers'' by three measures: Criminal history indicating that the 
resident has been found guilty of a felony sex offense or a misdemeanor 
sex offense involving sexual abuse; an admission at any time to having 
committed sexual abuse regardless of prosecution; or a finding of abuse 
following a sexual abuse allegation and subsequent investigation. A 
State department of corrections asked whether ``known inmate abuser'' 
includes someone who committed inmate-on-inmate abuse many years ago. 
An organization that advocates for disability rights proposed adding a 
statement that the relevant abuse be defined as having occurred within 
the past two years in the facility in which the individual is currently 
confined, and two State juvenile justice agencies requested revising 
the standard to define ``known resident abusers'' as residents who have 
committed sexual abuse or sexual harassment during their present term 
of incarceration.
    Response. The final standard clarifies that evaluation and 
treatment for abusers is intended for ``known inmate-on-inmate 
abusers'' or ``known resident-on-resident abusers.'' It does not 
encompass inmates or residents who committed a sex offense in the 
community, or staff who have abused inmates or residents. However, the 
Department declines to impose a time limit on classification as an 
inmate-on-inmate or resident-on-resident abuser, or a requirement that 
the abuse must have occurred in the facility in which the individual is 
currently confined. The safety risks posed by an individual who has 
previously committed sexual abuse while in a confinement facility, and 
the need for mental health care, may persist regardless of where or 
when the incident occurred.
    Finally, in light of the unfortunate reality that sexual harassment 
is pervasive among inmates and residents, the Department believes that 
a requirement to provide mental health evaluations and treatment for 
all inmates and residents who have committed sexual harassment would 
impose an excessive burden upon facilities.
    Comment. A State correctional agency requested that the standard 
allow for mental health evaluations to be conducted by staff other than 
medical and mental health practitioners.
    Response. While the standard does not specify that only medical and 
mental health practitioners may conduct the mental health evaluation, 
generally accepted professional standards dictate that only a qualified 
and trained medical or mental health practitioner can adequately 
evaluate an individual's mental health needs and determine when it is 
appropriate to offer treatment.
    Comment. A company that owns and manages prisons and detention 
centers asserted that the requirement that mental health practitioners 
have special qualifications is too great a burden to meet. A State 
correctional agency recommended expanding the definition of ``qualified 
mental health practitioner'' to include a provider ``who has also 
successfully completed specialized training for treating sexual 
abusers.''
    Response. The Department agrees that it may be challenging for 
smaller facilities to employ mental health practitioners with 
documented expertise in sexual victimization or sexual abuse, and has 
removed the phrase ``qualified mental health practitioner.'' The final 
standard requires facilities to offer treatment to an inmate-on-inmate 
or resident-on-resident abuser when deemed appropriate by ``mental 
health practitioners.''
    Comment. The AJA and a State jail wardens' association commented 
that it would be difficult for small, rural jails to provide treatment 
to abusers. They stated that jails are unlikely to have on-site mental 
health services, and that the nearest mental health facility may object 
to treating inmates on their premises

[[Page 37181]]

due to the lack of a secure area. On the other hand, a county sheriff's 
office questioned why jails were excluded from the provision relating 
to the evaluation and treatment of abusers.
    Response. The Department agrees it may be difficult for some jails 
to evaluate and treat abusers. Accordingly, the final standard 
preserves the exemption for jails from the provision requiring 
facilities to attempt to conduct a mental health evaluation for known 
abusers and to offer treatment when deemed appropriate by mental health 
practitioners.
    Comment. A State juvenile justice agency recommended that treatment 
of resident-on-resident abusers in juvenile facilities not be 
identified as sex offender treatment unless the resident has been 
adjudicated for the offense.
    Response. The Department trusts that facilities will refer to the 
treatment of known resident-on-resident abusers in a manner that is 
accurate and considerate of the resident's privacy needs.
    Comment. A juvenile detention center recommended that the 
Department promulgate separate standards for short- and long-term 
juvenile facilities.
    Response. The Department concludes that it is essential that all 
juvenile facilities comply with the standard for ongoing medical and 
mental health care, including the provisions relating to treatment for 
known resident-on-resident abusers. The final standard requires 
agencies to attempt to conduct a mental health evaluation of known 
abusers within 60 days, recognizing that facilities that house inmates 
for shorter periods of time may not be able to provide such an 
evaluation. While ideally all known abusers would be offered such 
evaluations, the Department notes also that those who are confined for 
shorter periods of time present a smaller risk of committing further 
abuse.

Sexual Abuse Incident Reviews (Sec. Sec.  115.86, 115.186, 115.286, 
115.386)

Summary of Proposed Rule
    The standard contained in the proposed rule set forth requirements 
for sexual abuse incident reviews, including when reviews should take 
place and who should participate. Unlike the sexual abuse 
investigation, which is intended to determine whether the abuse 
occurred, the sexual abuse incident review is intended to evaluate 
whether the facility's policies and procedures need to be changed in 
light of the alleged incident. The Department proposed that a review 
occur at the conclusion of every investigation of an alleged incident, 
unless the investigation concludes that the allegation was unfounded. 
The Department further required the review to consider: (1) Whether 
changes in policy or practice are needed to improve the prevention, 
detection, or response to sexual abuse incidents similar to the alleged 
incident; (2) whether race, ethnicity, sexual orientation, gang 
affiliation, or group dynamics in the facility played a role; (3) 
whether physical barriers in the facility contributed to the incident; 
(4) whether staffing levels need to be changed in light of the alleged 
incident; and (5) whether more video monitoring is needed.
Changes in Final Rule
    In order to ensure that an incident review results in timely 
action, the final standard includes a new paragraph (b) specifying that 
the review should ordinarily occur within 30 days of the conclusion of 
the investigation. In the paragraph formerly designated as (b), now 
designated as (c), the Department has replaced ``upper'' with ``upper-
level.'' In what was paragraph (c)(2), now (d)(2), the Department has 
revised the list of factors to be considered during the review by 
replacing ``sexual orientation'' with ``gender identity; lesbian, gay, 
bisexual, transgender, or intersex identification, status, or perceived 
status.'' In what was paragraph (c)(6), now (d)(6), ``PREA coordinator, 
if any'' has been changed to ``PREA compliance manager,'' and the 
Department has clarified that the review team's report must include any 
determinations made pursuant to paragraphs (d)(1)-(d)(5). In addition, 
the final standard requires the facility either to implement the review 
team's recommendations for improvement or document its reasons for not 
doing so.
Comments and Responses
    Comment. Several commenters recommended that the standard specify a 
timeline for the review. Two advocacy organizations suggested, in 
particular, that the Department implement measurable benchmarks, 
including a timeline, in order to ensure that the results of an 
incident review translate into action and to assist the auditor in 
measuring compliance with the review provision.
    Response. The final standard states that the sexual abuse incident 
review shall ordinarily occur within 30 days of the conclusion of the 
sexual abuse investigation.
    Comment. An advocacy group recommended requiring the facility head 
and PREA coordinator to determine, after receiving the report, which 
recommendations to carry out and to document benchmarks and a timeline 
for doing so as an addendum to the report.
    Response. The Department believes that the timeline added as the 
new paragraph (b) will suffice to ensure timely compliance with the 
standard. The required submission of the report of the review team's 
findings and any recommendations to both the facility head and the PREA 
compliance manager also ensures effective oversight. In addition, 
facilities must either implement the recommendations for improvement or 
document the reasons for not doing so, which will encourage thoughtful 
reform. While the Department encourages facilities to develop a plan 
for implementing any revisions to their policies, the Department 
concludes that it is not necessary to require documentation of 
benchmarks and a timeline.
    Comment. Some commenters recommended that the Department add sexual 
harassment to this standard, because sexual harassment is often a 
precursor to sexual abuse.
    Response. The Department has incorporated coverage of sexual 
harassment into the final standards where feasible. The Department 
concludes that adding sexual harassment to the incidents requiring 
review would needlessly complicate the process by introducing a 
separate process for sexual harassment incidents. Under Sec.  115.11, 
facilities are already required to maintain a written zero-tolerance 
policy toward sexual harassment. The Department believes that the cost 
of requiring review of sexual harassment incidents, which may be far 
more numerous than incidents of sexual abuse, could impose an 
unnecessary burden upon facilities and make compliance with the 
standard more difficult.
    Comment. Commenters recommended defining ``substantiated,'' 
``unsubstantiated,'' and ``unfounded'' to ensure that the meaning of 
the findings is understood.
    Response. Section 115.5 contains definitions of ``substantiated 
allegation,'' ``unfounded allegation,'' and ``unsubstantiated 
allegation.''
    Comment. Some commenters recommended that the Department require 
review teams to consider, in addition to the areas listed in the 
standard, whether training curricula should be modified or expanded. A 
juvenile advocacy organization also recommended that incident reviews 
include input from victims, witnesses, family members, and guardians on 
how

[[Page 37182]]

to improve the investigation and response processes.
    Response. The Department concludes that the limited benefits from 
these recommended revisions would be outweighed by the additional 
burdens that would be imposed by adding such requirements for every 
post-incident review. Of course, the Department encourages facilities 
to reexamine training curricula periodically based upon accumulated 
knowledge gleaned from the facilities' experience in combating sexual 
abuse. And, as the commenter suggests, facilities may wish to solicit 
input from victims and witnesses as a guide to improving their 
practices.
    Comment. Several commenters recommended that the Department clarify 
who constitutes an ``upper-level management official'' for purposes of 
participating in a sexual abuse incident review.
    Response. This term cannot be defined with precision; it properly 
affords facilities discretion to make reasonable judgments as to which 
officials should participate.
    Comment. A victim services organization recommended requiring that 
the upper-level management responsible for review be independent from 
the investigation and have authority to make agency-level changes in 
response to information received from the reviews.
    Response. The Department believes that it is unnecessary for the 
standard to regulate at this level of detail. Rather, it is preferable 
to leave sufficient flexibility to the facility to organize its staff 
and resources to conduct an effective review. In particular, it is 
impractical to require the involvement of an administrator with the 
authority to make agency-level changes, given that the review is 
intended to occur at the facility level.
    Comment. Commenters suggested that, in order to ensure compliance 
with the review's findings, the review team should include the 
facility's PREA coordinator, and the report should be submitted to the 
agency head for review and implementation of recommended changes.
    Response. The Department declines to revise the relevant provision, 
which requires that the review team's findings and recommendations for 
improvement be submitted to the facility head and to the PREA 
coordinator (renamed as the PREA compliance manager in the final 
standards). The Department believes that oversight by the facility head 
and PREA compliance manager will ensure implementation without 
needlessly micromanaging the facility's review process.
    Comment. Some commenters questioned whether the consideration of 
race, ethnicity, sexual orientation, gang affiliation, and other group 
dynamics as possible motivations for an alleged incident may require 
special training and, if so, whether the cost of that training would 
hinder compliance.
    Response. The Department believes that additional training is 
unnecessary in light of the range of training topics already required 
in Sec.  115.31.
    Comment. A juvenile justice agency questioned whether the review 
should make such a determination if a criminal investigation is 
proceeding at the same time.
    Response. The final standard states that the incident review should 
occur at the conclusion of every sexual abuse investigation, unless the 
allegation has been determined to be unfounded. If the facility's 
investigation is put on hold during a criminal investigation, the 
facility can wait to conduct the incident review until the 
investigation has concluded. Furthermore, the incident review required 
by this standard is intended to allow the facility to identify systemic 
problems in policies, practices, dynamics, physical barriers, staffing 
levels, and monitoring that may have contributed to an incident or 
allegation of sexual abuse, so that the facility can improve conditions 
to avoid future incidents or allegations. Such a review should not 
interfere with a criminal investigation.
    Comment. Several advocates recommended that gender identity be 
included in the list of possible motivating factors to be considered.
    Response. The Department has added gender identity to the list of 
possible motivating factors to be considered.

Data Collection (Sec. Sec.  115.87, 115.187, 115.287, 115.387)

Summary of Proposed Rule
    The standard contained in the proposed rule specified the incident-
based data that each agency is required to collect in order to detect 
possible patterns and to help prevent future incidents. The Department 
proposed that the agency be required to collect, at a minimum, 
sufficient data to answer fully all questions in the most recent 
revision of the Survey of Sexual Violence (SSV) conducted by BJS. The 
Department further proposed that the agency collect data from multiple 
sources (e.g., reports, investigation files, and sexual abuse incident 
reviews), that it aggregate the data at least annually, that it obtain 
the corresponding data from all private facilities with which it 
contracts for confinement, and that it make this data available to the 
Department upon request.
Changes in Final Rule
    The final standard includes three small changes. Paragraph (c) now 
refers to the Department as whole rather than BJS. In paragraph (d), 
``collect data from multiple sources'' has been changed to ``maintain, 
review, and collect data as needed from all available incident-based 
documents.'' In paragraph (f), ``calendar'' has been added before 
``year.''
Comments and Responses
    Comment. Several commenters asserted that the data collection and 
review requirements in this standard, and in Sec. Sec.  115.88 and 
115.89, would be overly burdensome. Some State correctional agencies 
and a county sheriffs' association suggested that the large collection 
of data would require significant hiring of new staff or staff 
reallocation. A State juvenile justice agency stated that meeting the 
standard would require it to redesign its computer systems and purchase 
data collection software.
    A county juvenile justice agency suggested that this standard would 
be especially burdensome for smaller juvenile facilities such as group 
homes and private placement facilities. The commenter remarked that if 
those facilities are deemed non-compliant with the PREA standards due 
to an inability to provide data under Sec.  115.387, the agency would 
likely need to cancel contracts with those facilities in order to 
protect itself and the county from liability. The commenter suggested 
that canceling contracts with such facilities would exacerbate 
difficulties in placing minors ordered removed from parents' custody. 
Furthermore, the commenter stated, delays could result in longer waits 
in juvenile detention facilities and in the occupation of beds needed 
for pre-adjudication minors, and the cost of having to provide more 
beds long-term would be substantial. Two State correctional agencies 
objected that the standard would require the agencies to increase or 
realign staff, without funding to match.
    Response. The Department acknowledges that facilities may need to 
incur costs to comply with the standards for data review and 
collection. Yet these costs should be manageable, and exceeded by the 
benefits that will accrue from managing and publishing the data in 
accordance with these standards. Many, if not all, of these agencies 
have existing reporting

[[Page 37183]]

requirements and may, therefore, have existing support staff that can 
be trained to fulfill the functions outlined in these standards. The 
Department is not persuaded that this standard will impose a 
disproportionate cost on smaller agencies and facilities--which, in 
keeping with their size, should have correspondingly fewer allegations 
to document and report.
    Comment. Several commenters recommended adding sexual harassment to 
this standard.
    Response. The Department declines to make this change, largely for 
the same reasons discussed above with respect to Sec.  115.86. While 
sexual harassment may be a precursor to sexual abuse, it is both more 
frequent and less damaging than sexual abuse. Requiring the collection 
of incident-based data on sexual harassment would therefore impose a 
greater burden and result in fewer benefits than requiring the same 
data for incidents of sexual abuse.
    Comment. Some commenters expressed concern that because the data 
collection requirement applies to all allegations regardless of 
legitimacy, it could overburden facilities. One juvenile agency 
recommended restricting the requirement to substantiated allegations.
    Response. For allegations that are not substantiated, the data 
collection burden is minimal: to collect data necessary to answer all 
questions from the most recent version of the SSV.\37\ The SSV requests 
detailed information only for substantiated incidents; for incidents 
that are determined to be unsubstantiated or unfounded, or subject to 
an ongoing investigation, the current SSV requires only that the 
facility list the number of each type of allegation, divided into 
sexual abuse and sexual harassment.
---------------------------------------------------------------------------

    \37\ The latest version of the SSV can be found at http://bjs.ojp.usdoj.gov/index.cfm?ty=dcdetail&iid=406.
---------------------------------------------------------------------------

    Comment. A few juvenile agencies questioned the requirement in 
paragraph (d) that data be collected from multiple sources, because 
multiple sources may not always be needed to compile the requisite 
aggregate data.
    Response. The Department agrees and has revised paragraph (d) 
accordingly.
    Comment. An administrative office of the courts suggested that 
``Survey of Sexual Violence'' should read ``Survey on Sexual 
Violence.''
    Response. The Department has not made this change; the BJS data 
collection is titled ``Survey of Sexual Violence.''
    Comment. Some commenters suggested broadening the scope of who is 
deemed in compliance with the regulation. A State juvenile justice 
agency recommended, in particular, that jurisdictions that currently 
use standardized instruments such as the Performance-based Standards 
(PbS) and Community-based Standards (CbS) should be deemed 
automatically in compliance for purposes of data collection. The 
commenter noted that standardized instruments and uniform sexual abuse 
definitions are already used by PbS and CbS programs operating in 28 
States and the District of Columbia and suggested that States 
participating in PbS or CbS programs should be considered to be in 
compliance with this standard by virtue of their participation.
    Response. The Department sees no reason for States that have PbS 
and CbS programs to be deemed automatically in compliance. However, 
such States, like all entities that currently compile data, may not 
need to make significant adjustments to their data collection policies 
if their collections currently include, as required by the standard, 
data necessary to answer all questions from the most recent version of 
the SSV.
    Comment. A county sheriff's office noted that paragraph (e) 
requires agencies to collect data from private facilities with which 
they contract for confinement, whereas the most recent revision to the 
SSV excludes contracted facilities because BJS contacts these 
facilities directly.
    Response. The Department believes that making public agencies 
responsible for collecting data from facilities that they supervise 
directly and from private facilities with whom they contract for 
confinement is the best way to ensure compliance. Centralizing data 
collection in this way will maximize the likelihood of effective 
oversight by the agency and the Department.
    Comment. The same commenter requested clarification as to whether 
paragraph (f) requires a separate report or the information will be 
provided by BJS to the relevant Department components. The commenter 
also inquired as to whether, if the Department intends to contact 
agencies directly, it will request information different from the 
information required by the SSV.
    Response. Pursuant to the wording of the standard, the Department 
reserves the right to request all data compiled by the agency. The data 
will not be obtained from BJS. Under its authorizing legislation, BJS 
is not allowed to release publicly information that could identify 
victims or perpetrators. In addition, PREA provides that BJS must 
ensure the confidentiality of participants in the PREA-related surveys 
that it conducts. See 42 U.S.C. 15603(a)(1).
    Comment. A State juvenile justice agency recommended deleting 
paragraph (f) as duplicative of reporting requirements in other 
standards. If the paragraph is retained, the commenter recommended that 
the Department define ``all such data'' and clarify facilities' 
reporting obligations by specifying how far in advance and under what 
circumstances a request for data may be made (e.g., annually or only in 
connection with an audit). The commenter further proposed amending the 
paragraph to provide a specific timeframe for an agency to prepare and 
provide its responses. Additionally, the commenter recommended that the 
Department require that (as in Sec.  115.89(c)) ``when data is 
aggregated, confidential information shall be redacted and personal 
identifiers shall be removed.''
    Response. The Department does not believe that paragraph (f) is 
duplicative. Rather, it serves an additional function in requiring that 
the agency make its data available to the Department upon request. By 
``all such data,'' the Department references all data collected 
pursuant to this standard. The Department declines to create a separate 
framework for the timing of requests from the Department, which could 
unnecessarily hamper the Department's flexibility in obtaining data as 
needed. Furthermore, pursuant to Sec.  115.88, each agency will be 
required to review the data, prepare an annual report of its findings, 
and make that report available to the public through the agency's Web 
site. Finally, the Department declines to add a redaction requirement--
the interest in confidentiality regarding a release of data to the 
public does not apply to the release of information to the Department.
    Comment. The same agency recommended that the Department add 
``calendar'' after ``previous'' in paragraph (f) to clarify the meaning 
of ``previous year.'' Because the SSV requires aggregated data for the 
previous calendar year, the commenter suggested that the Department use 
the same period for data collection.
    Response. The Department agrees and has revised paragraph (f) 
accordingly.
    Comment. A State juvenile justice agency asked that data collected 
by the State agency from private facilities be limited to those that 
are in the same jurisdiction, because allegations of abuse reported 
from an out-of-State provider will be investigated by that 
jurisdiction's law enforcement. The commenter further recommended that

[[Page 37184]]

data requested by the Department be limited to information provided in 
the SSV and that the Department provide sufficient advance time to 
submit this information.
    Response. The Department believes that proper oversight of the 
collection and review of data must come through the agencies, in 
conjunction with the Department. Because agencies contract with private 
entities for confinement, they are responsible for reviewing the data 
from these entities, even where a private facility may belong to a 
different jurisdiction. The Department further observes that limiting 
the information that the Department can seek to what is required by the 
SSV, and limiting the timeframe in which this information can be 
sought, would diminish the Department's effectiveness in assessing data 
collected by agencies under this standard.
    Comment. Several advocates recommended that the Department adopt 
NPREC supplemental immigration standard ID-11, which would require 
that, for each incident of alleged sexual abuse, data be collected 
regarding whether the alleged perpetrator or victim is an immigration 
detainee.
    Response. The most recent version of the SSV does not contain 
``immigration detainee'' as a data point, and the Department declines 
to impose this additional burden on correctional agencies.

Data Review for Corrective Action (Sec. Sec.  115.88, 115.188, 115.288, 
115.388)

Summary of Proposed Rule
    The standard contained in the proposed rule described how the 
collected data should be analyzed and reported. The Department proposed 
that agencies be required to use the data to identify problem areas, to 
take ongoing corrective action, and to prepare an annual report for 
each facility and for the agency as a whole. In order to promote agency 
accountability, the proposed standard further mandated that the report 
compare the current year's data with data from prior years and provide 
an assessment of the agency's progress in addressing sexual abuse. The 
proposed standard required that the agency make its report publicly 
available through its Web site or other means. The proposed standard 
allowed agencies to redact specific material when publication would 
present a clear and specific threat to the safety and security of a 
facility, as long as the nature of the redacted material is indicated.
Changes in Final Rule
    The Department has reviewed and considered commenters' suggested 
changes to this standard but has made no substantive changes.
Comments and Responses
    Comment. A State sheriffs' association contended that making 
agencies include an annual comparison would be labor-intensive; the 
association recommended that, instead, the Department set a broader 
timeframe for evaluating an agency's progress in addressing sexual 
abuse. The commenter noted that annual reports may be appropriate for 
agencies with higher incidence of sexual abuse, but would be 
impracticable for smaller facilities.
    Response. The Department has weighed the costs and benefits of 
various timelines for reporting and believes that an annual report will 
best fit the various purposes of the reporting requirements, including 
effective oversight, transparency in making information regularly 
available to the public, and uniformity across agencies and facilities. 
Because data collection is keyed to the calendar year, it is 
appropriate for the reporting requirement to be annual as well. To vary 
the timelines of the reporting requirement on the basis of facility 
size would introduce needless complexity and make it more difficult for 
agencies that supervise facilities of varying sizes to perform the 
essential task of reviewing data to implement needed improvements in 
policies and practices. Additionally, facilities of all sizes already 
have annual review requirements in a wide range of other areas. 
Requiring an annual report will ensure consistency with other reporting 
requirements and will help assess progress in meeting the goals of 
PREA.
    Comment. A State juvenile justice agency suggested that the 
Department specify what ``other means'' would be acceptable for making 
the annual report readily available to the public. A State sheriffs' 
association also noted that the preparation of the annual report would 
impose extra costs for support staffing and that additional funds would 
be needed to cover the cost of changing the Web site and adding 
material to it.
    Response. Posting the annual report online will maximize public 
visibility and accessibility. Only agencies that lack a Web site may 
make the report available to the public through other means. Such means 
might include, for example, submitting the report to the relevant 
legislative body.
    The Department recognizes that the preparation of the report will 
incur support staff time and effort, but believes that the cost of 
adding material to the Web site will be minimal and outweighed by the 
benefits of public accessibility.
    Comment. Various commenters recommended that the Department revise 
the standard to encourage facilities to implement changes in response 
to sexual abuse incidents in an ongoing manner, rather than in response 
to data aggregated annually. An advocacy organization stated that if 
agencies are required to compile aggregate data only once per year, 
they might miss critical opportunities to implement changes to 
practices, policies, staffing, training, and monitoring. Accordingly, 
the commenter recommended that paragraph (a) be revised by adding at 
the beginning ``[a]nnually and after significant incidents.'' A 
juvenile advocacy organization suggested deleting ``and aggregated'' 
and encouraging facilities to make appropriate changes to policies and 
practices on an ongoing, rather than yearly, basis.
    Response. The requirement that data be collected and aggregated 
annually is a floor, not a ceiling. Requiring an annual report will 
properly facilitate compliance with the data reporting and review 
requirements without overly burdening agencies. Mandating a more 
frequent review could prove costly for some agencies and may be of 
little additional benefit. The standard appropriately leaves to agency 
discretion whether to collect aggregate data more frequently and how to 
respond to incidents and concerns in an ongoing way. Implementing the 
commenters' proposals would restrict agencies' ability to comply with 
the standard in a manner that most effectively utilizes their limited 
resources.

Data Storage, Publication, and Destruction (Sec. Sec.  115.89, 115.189, 
115.289, 115.389)

Summary of Proposed Rule
    The standard contained in the proposed rule provided guidance on 
how to store, publish, and retain data. The Department proposed that 
data must be securely retained for at least ten years after the date of 
initial collection unless Federal, State, or local law requires 
otherwise. In addition, the proposed standard required that agencies 
make aggregated data publicly available through their Web sites or 
other means, after removing all personal identifiers.

[[Page 37185]]

Changes in Final Rule
    The Department has added language to clarify that ``sexual abuse 
data'' in paragraph (d) refers to data collected pursuant to Sec. Sec.  
115.87, 115.187, 115.287, and 115.387.
Comments and Responses
    Comment. A county sheriff's office questioned whether ``sexual 
abuse data'' refers to the sexual abuse incident review, the data 
reported to BJS through the SSV, or the public reports published on the 
agency's Web site. The commenter noted that if ``sexual abuse data'' 
refers to all records created during the sexual abuse investigation, 
then the standard would conflict with the record-retention requirement 
of Sec.  115.71.
    Response. The Department has revised the standard to clarify that 
``data'' refers to data that the agency collects pursuant to Sec.  
115.87. Section 115.71 covers a different set of records and therefore 
does not conflict with Sec.  115.87. Specifically Sec.  115.71 requires 
that agencies retain written reports that document administrative and 
criminal investigations for the duration of the alleged abuser's 
incarceration or employment by the facility, plus five years. Section 
115.89, by contrast, requires that the agency retain for at least ten 
years after the date of its initial collection (unless otherwise 
required by law) accurate uniform data for each allegation, using a 
standardized instrument and set of definitions, including at a minimum 
the data necessary to answer all questions from the most recent version 
of the SSV. Put differently, Sec.  115.71 covers written reports and 
the associated records; Sec.  115.89 covers statistics. While it is 
true that the agency can consult investigative findings as part of its 
review and collection of incident-based and aggregate data, the latter 
data are separate from the investigative records themselves and give 
rise to the different reporting requirements contained in this 
standard. The differing retention requirements, therefore, do not 
conflict.
    Comment. Two juvenile justice agencies recommended deleting 
paragraph (b) on the basis that the requirement in Sec.  115.388 to 
publish an annual report and to make the report available on the 
agency's Web site already includes a requirement to publish the 
aggregated sexual abuse data.
    Response. Section 115.388 requires agencies to create an annual 
report documenting their findings and corrective actions based on the 
aggregated data, but does not require publication of the actual data. 
The instant standard, by contrast, governs the retention and 
publication of the data. Specifying a separate requirement for the 
publication of the data will ensure that agencies can be held 
accountable for their findings and corrective actions by allowing the 
public to inspect the data on which these findings and actions were 
based.

Auditing and State Compliance (Sec. Sec.  115.93, 115.193, 115.293, 
115.393, 115.401, 115.402, 115.403, 115.404, 115.405, 115.501)

Summary of Proposed Rule
    In the proposed rule, the Department declined to resolve how 
frequently, and on what basis, audits should be conducted. Determining 
that further discussion was necessary in order to assess these issues, 
the Department included in the NPRM several questions regarding the 
nature and scope of audits.
    The standard contained in the proposed rule did specify the 
requirements for an audit to be considered independent. If an agency 
uses an outside auditor, the proposed standard required that the agency 
ensure that it not have a financial relationship with the auditor for 
three years before or after the audit, other than payment for the audit 
conducted. The proposed standard also specified that the audit may be 
conducted by an external monitoring body that is part of, or authorized 
by, State or local government, such as a government agency or nonprofit 
entity whose purpose is to oversee or monitor correctional facilities. 
In addition, the proposed standard allowed an agency to utilize an 
internal inspector general or ombudsperson who reports directly to the 
agency head or to the agency's governing board.
    The proposed standard further stated that the Department will 
prescribe methods governing the conduct of such audits, including 
provisions for reasonable inspections of facilities, review of 
documents, and interviews of staff and inmates, as well as the minimal 
qualifications for auditors.
    The proposed standard provided that an agency shall enable the 
auditor to enter and tour facilities, review documents, and interview 
staff and inmates to conduct a comprehensive audit.
    Finally, the proposed standard provided that an agency shall ensure 
that the auditor's final report is published on the agency's Web site 
if it has one, or is otherwise made readily available to the public.
Changes in Final Rule
    In the final rule, the Department creates a single, unified 
auditing system for all facilities, except for lockups that do not hold 
detainees overnight, such as court holding facilities. The final 
standard addresses the frequency and scope of audits, required auditor 
qualifications, audit report contents and findings, audit corrective 
action plans, the audit appeals process, and the effect of the audit 
results on the Governor's certification of compliance.
    The final standard provides that audits shall be conducted on a 
three-year cycle, with the first auditing period commencing one year 
after the effective date of the standards. Each year, the agency shall 
ensure that at least one-third of each facility type operated by the 
agency, or by a private organization on behalf of the agency, is 
audited. During the three-year cycle, the agency shall ensure that each 
facility operated by the agency, or by a private organization on behalf 
of the agency, is audited at least once. In some cases, the Department 
may recommend that an agency conduct an expedited audit if the 
Department has reason to believe that a particular facility may be 
experiencing problems relating to sexual abuse. The recommendation may 
also include referrals to resources that may assist the agency with 
PREA-related issues.
    The Department will develop and issue an audit instrument that will 
provide guidance on the conduct of and contents of the audit.
    The auditor shall review all relevant agency-wide policies, 
procedures, reports, internal and external audits, and accreditations 
for each facility type, as well as, at a minimum, a sampling of 
relevant documents and other records and information for the most 
recent one-year period. The auditor shall be permitted to request and 
receive copies of any relevant documents (including electronically 
stored information), and shall retain and preserve all documentation 
(such as video tapes and interview notes) relied upon in making audit 
determinations. Such documentation shall be provided to the Department 
upon request. The auditor shall interview a representative sample of 
inmates, staff, supervisors, and administrators, and shall have access 
to and observe all areas of the audited facilities.
    The auditor shall be permitted to conduct private interviews with 
inmates, and inmates shall be permitted to send confidential 
information or correspondence to the auditor in the same manner as if 
they were

[[Page 37186]]

communicating with legal counsel. Auditors shall attempt to communicate 
with community-based or victim advocates who may have insight into 
relevant conditions in the facility.
    The final standard provides that an audit shall be conducted by: 
(1) A member of a correctional monitoring body that is not part of, or 
under the authority of, the agency (but may be part of, or authorized 
by, the relevant State or local government); (2) a member of an 
auditing entity such as an inspector general's or ombudsperson's office 
that is external to the agency; or (3) other outside individuals with 
relevant experience. Thus, the final standard differs from the proposed 
standard in that it does not allow audits to be conducted by an 
internal inspector general or ombudsperson who reports directly to the 
agency head or to the agency's governing board.
    Auditors shall be certified by the Department, pursuant to 
procedures to be developed, including training requirements.
    For each standard, the auditor shall determine whether the audited 
facility reaches one of the following findings: ``Exceeds Standard'' 
(substantially exceeds requirement of standard); ``Meets Standard'' 
(substantial compliance; complies in all material ways with the 
standard for the relevant review period); or ``Does Not Meet Standard'' 
(requires corrective action). The audit summary shall indicate, among 
other things, the number of provisions the facility has achieved at 
each grade level.
    A finding of ``Does Not Meet Standard'' with one or more standards 
shall trigger a 180-day corrective action period. The auditor and the 
agency shall jointly develop a corrective action plan to achieve 
compliance. The auditor shall take necessary and appropriate steps to 
verify implementation of the corrective action plan, such as reviewing 
updated policies and procedures or re-inspecting portions of a 
facility. After the 180-day corrective action period ends, the auditor 
shall issue a final determination as to whether the facility has 
achieved compliance with those standards requiring corrective action. 
If the agency does not achieve compliance with each standard, it may 
(at its discretion and cost) request a subsequent audit once it 
believes that it has achieved compliance.
    An agency may lodge an appeal with the Department regarding any 
specific audit finding that it believes to be incorrect. If the 
Department determines that the agency has stated good cause for a re-
evaluation, the agency may commission a re-audit by an auditor mutually 
agreed upon by the Department and the agency, at the agency's cost. The 
findings of the re-audit shall be final.
    Section 115.501(a) provides that, in determining pursuant to 42 
U.S.C. 15607(c)(2) whether the State is in full compliance with the 
PREA standards, the Governor shall consider the results of the most 
recent agency audits. Section 115.501(b) provides that the Governor's 
certification shall apply to all facilities in the State under the 
operational control of the State's executive branch, including 
facilities operated by private entities on behalf of the State's 
executive branch.
Comments and Responses
    Comment. A wide range of comments were received on the question of 
whether audits should be conducted at set intervals or, alternatively, 
whether audits should be conducted only for cause, based upon a reason 
to believe that a particular facility or agency is materially out of 
compliance with the standards. Many comments recommended audits be 
conducted at set intervals; most such comments recommended audits occur 
on a three-year cycle, as the NPREC had recommended. A number of 
comments proposed a combination of automatic periodic audits plus for-
cause audits. Two commenters recommended that audits be conducted both 
at random intervals and for cause. A number of comments recommended 
that audits be performed for cause only, or where a facility has 
received a large number of complaints regarding sexual abuse.
    Several comments recommended various hybrid thresholds and 
timeframes for required audits. Some suggested a combination of 
``streamlined'' audits and full audits, more frequent or less frequent 
audits depending upon prior audit results or reasons to suspect 
noncompliance, and different audit timelines for smaller agencies.
    Several comments recommended audits only for a random sampling of 
all facilities, or of facilities not otherwise subject to 
accreditation. Several comments suggested that all facilities be 
audited. A number of other comments suggested various hybrid 
approaches, including: statistical reporting with random audits to 
confirm data; auditing of all large facilities and random sampling of 
small facilities; differential auditing cycles for large and small 
facilities; auditing of all facilities during the first auditing cycle 
with various triggers or random selection for subsequent audits; or 
annual internal audits with random sampling for external PREA audits or 
as requested by the agency.
    A comment submitted by former members of the NPREC recommended that 
all facilities be audited within the first three years to establish a 
``baseline'' that would guide future audits. Performance on the 
baseline audit would determine when the next regular audit would occur. 
The members suggested that if an agency or facility's compliance with 
the standards was determined to exceed 85 percent, the subsequent audit 
would occur five years later. If compliance was between 50 and 85 
percent, the next audit would be in three years, and if compliance was 
less than 50 percent the next audit would be one year later. Former 
NPREC members further recommended that a random sample of agencies and 
facilities receive unscheduled audits after the initial baseline audit. 
In addition, the members recommended for-cause audits based upon 
reasons to suspect problems in specific agencies or facilities.
    Response. The Department has determined that all facilities should 
be subject to audits, and that audits should occur at all facilities at 
least every three years, and at least one third of the facilities 
operated by an agency must be audited every year. The standard thus 
allows agencies substantial flexibility in scheduling audits within 
each three-year cycle while ensuring that facility audits occur 
regularly.
    The Department has chosen not to require audits only for cause, as 
this would make it difficult to determine whether a broad range of 
facilities are complying with the standards, and would make it harder 
to assess whether a State is in full compliance with the statute. Under 
PREA, certification of full compliance by the Governor of a State is 
necessary in order to avoid a reduction in certain grant funding from 
the Department, unless the Governor commits to using the amount that 
otherwise would be forfeited for the purpose of enabling the State to 
achieve full compliance in future years. See 42 U.S.C. 15607(c)(2). In 
addition, requiring audits to be conducted only for cause could 
discourage agencies from strengthening their reporting and 
investigating procedures, for fear that revelation of incidents could 
result in an audit that the facility would otherwise escape.
    The final standard does incorporate the concept of a for-cause 
audit by providing a mechanism through which the Department can 
recommend to an agency that an expedited audit be conducted on any 
facility if the Department has reason to believe that

[[Page 37187]]

the facility is experiencing problems related to sexual abuse. However, 
the Department concludes that a hybrid audit scheme would prove 
unnecessarily complex and would lack the required predictability and 
flexibility to permit agencies to budget and plan for the audits.
    The Department believes that audits conducted through random 
sampling would be insufficient to assess the scope of compliance with 
the PREA standards. The Department is cognizant of the burden that 
audits pose on institutions but believes that the triennial cycle 
appropriately balances the level of effort and resources that will need 
to be expended. In addition, the Department anticipates that the actual 
audit complexity and duration will be scaled to the size and type of 
facility.
    Comment. Many agency commenters recommended that agencies be 
allowed to audit themselves; by contrast, many advocacy commenters 
criticized the proposed standard for allowing internal inspectors 
general or ombudspersons to conduct audits, out of concern that 
permitting agency employees to audit the agency's facilities could 
compromise the objectivity and credibility of the auditing process. One 
commenter suggested that audits performed by an auditor within the 
agency should be subject to review by an independent agency or elected 
body.
    Response. While internal audits may prove helpful in assessing an 
institution's performance, the Department believes that external audits 
are necessary to ensure that the audits are conducted, and are 
perceived to be conducted, independently and objectively. Accordingly, 
the final standard requires that the audit be performed by an auditor 
external to the agency. An audit may, however, be conducted by a sister 
governmental agency, including by an entity that ultimately reports to 
the same overarching department as the agency under audit.
    Comment. Comments varied in response to NPRM Question 32, which 
asked to what extent, if any, agencies should be able to combine a PREA 
audit with an audit performed by an accrediting body or with other 
types of audits. A number of comments recommended that audits not be 
combined with other types of audits. Several comments suggested that 
PREA audits should be incorporated with accreditation or other audit 
types. A number of comments stated that State bodies that inspect local 
jails should be able to include PREA audits in the inspection process.
    Response. The final standard places no restriction on auditor 
certification for individuals who are employed by an accrediting or 
oversight entity that is separate and independent from the agency. For 
example, a qualified individual within a State office of inspector 
general (if outside the agency) or a member of an accrediting body 
could obtain Department certification and, if not otherwise conflicted, 
would be permitted to conduct the PREA audit, or incorporate the PREA 
audit as part of a more comprehensive facility inspection program.
    Comment. NPRM Question 33 asked whether the wording of any of the 
substantive standards should be revised in order to facilitate a 
determination of whether a jurisdiction is in compliance with the 
standard. Some comments suggested that the standards be expressed using 
objective criteria. Other comments recommended that the standards be 
written in a performance-based format, or subject to specific outcome 
measures. Still others suggested a combination of qualitative and 
quantitative standards. A number of comments suggested requiring that 
agencies fully document their efforts to comply with the standards. 
Finally, one comment recommended that the auditor have discretion to 
determine whether a facility is complying with the standard.
    Response. The Department has attempted to incorporate objective 
criteria and written documentation requirements wherever practicable, 
although auditors will necessarily have some discretion to determine 
compliance regarding certain standards. The Department intends to 
jointly develop, with the National Resource Center for the Elimination 
of Prison Rape, comprehensive auditing instruments for the various 
facility types and sizes that will provide guidance to the auditor on 
determining compliance. In addition, the Department will develop 
uniform training and certification requirements for individual 
auditors, and may periodically issue interpretive guidance regarding 
the PREA standards.
    The Department declines to incorporate into the standards specific 
outcome measures. While performance-based standards facilitate 
compliance assessments, it is difficult to employ such standards 
effectively to combat sexual abuse in confinement facilities. An 
increase in incidents reported to facility administration may reflect 
increased abuse due to the facility's inability to protect inmates from 
harm. Alternatively, it might reflect inmates' increased willingness to 
report abuse, due to the facility's success at assuring inmates that 
reporting abuse will yield positive outcomes and not result in 
retaliation.
    Comment. Several commenters recommended that auditors have 
expertise in, or receive specialized training in, such topics as 
working with victims of sexual abuse, applicable civil rights laws, 
adolescent and child development, and crisis counseling.
    Response. The Department intends to develop and issue auditor 
training requirements, and will work with the National Resource Center 
for the Elimination of Prison Rape (or other contracted entity) to 
develop an audit training curriculum.
    Comment. A number of comments recommended that the auditor receive 
unfettered facility access, including access to inmates, full access to 
a facility's physical plant and documents, the ability to consult with 
the PREA coordinator, access to facility personnel, and the ability to 
conduct unannounced inspections.
    Response. The final standard incorporates many of these elements to 
enable thorough audits. However, the Department declines to require 
that auditors be permitted to conduct unannounced facility audits, as 
this could prove inordinately burdensome for facility and agency 
personnel.
    Comment. Former NPREC members recommended that the Department's 
Office of the Inspector General conduct audits of BOP facilities.
    Response. BOP facilities will be audited pursuant to the auditing 
standard. However, the Department declines to mandate in the standard 
the specific entity that will conduct BOP audits.
    Comment. Two commenters recommended that the audit reports describe 
the auditor's methodology, the evidence used to support each audit 
finding, and recommendations for any required corrective action.
    Response. The final standard includes these elements.
    Comments. NPRM Question 35 asked to what extent, if any, audits 
should bear on determining whether a State is in full compliance with 
PREA. Several comments recommended that the audits be the primary basis 
for determining ``full compliance.'' A number of other comments 
suggested that the audit results be one of a number of factors in 
determining ``full compliance.'' Some comments suggested that audit 
results have only a marginal bearing on the determination, or be 
relevant to determining only State-level compliance. A number of 
comments suggested that audit results, combined with appropriate and 
verified corrective

[[Page 37188]]

action, determine State-level ``full compliance.'' One comment 
suggested that the audit results, combined with an appropriate 
explanation from the Governor, enable the State to certify ``full 
compliance.''
    Response. The Department intends the audits to be a primary factor 
in determining State-level ``full compliance.'' Accordingly, the final 
rule requires the Governor to consider the most recent audit results in 
making his or her certification determination, which shall apply to 
facilities under the operational control of the State's executive 
branch, including facilities operated by private entities on behalf of 
the State's executive branch.

IV. Regulatory Certifications

Executive Orders 13563 and 12866--Regulatory Planning and Review

    This final rule has been drafted and reviewed in accordance with 
Executive Order 12866, ``Regulatory Planning and Review,'' as recently 
reaffirmed and supplemented by Executive Order 13563, ``Improving 
Regulation and Regulatory Review.'' The Department has determined that 
this final rule is a ``significant regulatory action'' under Executive 
Order 12866, Sec.  3(f)(1), and accordingly has submitted it to the 
Office of Management and Budget (OMB) for review.
    Executive Order 12866 requires Federal agencies to conduct a 
regulatory impact assessment (benefit-cost analysis) for any 
``significant regulatory action'' likely to result in a rule that may 
have an annual impact on the economy of $100 million or more or 
adversely affect in a material way the economy, a sector of the 
economy, productivity, competition, jobs, the environment, public 
health or safety, or State, local, or tribal governments or 
communities. See Executive Order 12866, Sec. 6(a)(3)(C).
    The Department has concluded that the economic impact of its 
adoption of the final rule, if complied with by all entities to which 
it applies, is likely to exceed this $100 million threshold. Assuming 
full nationwide compliance, the standards would affect the management 
of all State, local, privately operated, and Department of Justice 
confinement facilities, which collectively house over 2.4 million 
individuals at any given time and which spent more than $79.5 billion 
in 2008. See BJS, Justice Expenditure and Employment Extracts 2008, 
advance estimate (unpublished).
    The final rule, moreover, ``materially alters * * * the rights and 
obligations of grant recipients,'' and ``raise[s] novel legal or policy 
issues.'' Executive Order 12866, Secs. 3(f)(3), (4). Accordingly, in 
compliance with OMB Circular A-4, the Department has prepared a 
Regulatory Impact Assessment (RIA) to accompany the final rule.
Regulatory Impact Assessment
    The RIA is available in full at http://www.ojp.usdoj.gov/programs/pdfs/prea_ria.pdf and is summarized here. The RIA assesses, and 
monetizes to the extent feasible, the benefits of combating rape and 
sexual abuse in America's prisons, jails, lockups, community 
confinement facilities, and juvenile facilities, and the costs of full 
nationwide compliance with the final rule. It also summarizes the 
comments relating to the costs and benefits of the standards that the 
Department received in response to the NPRM and the Initial Regulatory 
Impact Assessment (IRIA).
    The cost estimates set forth in the RIA are the costs of full 
nationwide compliance with all of the standards and their 
implementation in all covered facilities. The Department concludes that 
full nationwide compliance with the standards would cost the 
correctional community, in the aggregate, approximately $6.9 billion 
over the period 2012-2026, or $468.5 million per year when annualized 
at a 7 percent discount rate. The average annualized cost per facility 
of compliance with the standards is approximately $55,000 for prisons, 
$50,000 for jails, $24,000 for community confinement facilities, and 
$54,000 for juvenile facilities. For lockups, the average annualized 
cost per agency is estimated at $16,000.
    However, these figures are potentially misleading. PREA does not 
require full nationwide compliance with the Department's standards, nor 
does it enact a mechanism for the Department to direct or enforce such 
compliance; instead, the statute provides certain incentives for State 
(but not local or privately operated) confinement facilities to 
implement the standards. Fiscal realities faced by confinement 
facilities throughout the country make it virtually certain that the 
total actual outlays by those facilities will, in the aggregate, be 
less than the full nationwide compliance costs calculated in this RIA. 
Actual outlays incurred will depend on the specific choices that State, 
local, and private correctional agencies make with regard to adoption 
of the standards, and correspondingly on the annual expenditures that 
those agencies are willing and able to make in choosing to implement 
the standards in their facilities. The Department has not endeavored in 
the RIA to project those actual outlays.
Summary of Cost Justification Analysis
    In developing the final rule, the Department was constrained by two 
separate and independent limitations relating to the potential costs of 
the standards. The first was the requirement, set forth in Executive 
Order 12866, that each agency ``propose or adopt a regulation only upon 
a reasoned determination that its benefits justify its costs,'' 
recognizing that some benefits and costs are difficult to quantify. 
Executive Order 12866, Sec. 1(b)(6). Executive Order 13563, moreover, 
directs agencies ``to use the best available techniques to quantify 
anticipated present and future benefits and costs as accurately as 
possible.'' Executive Order 13563, Sec. 1(c). The second was the 
provision, set forth in PREA itself, prohibiting the Attorney General 
from adopting any standards ``that would impose substantial additional 
costs compared to the costs presently expended by Federal, State, and 
local prison authorities.'' 42 U.S.C. 15607(a)(3). The RIA addresses 
both sets of limitations and concludes that the final rule does not 
contravene either constraint, and is in fact fully justified under both 
analyses.
    With respect to the analysis called for by the Executive Orders, 
the RIA undertakes a break-even analysis to demonstrate that the 
anticipated costs of full nationwide compliance with the PREA standards 
are amply justified by the anticipated benefits. The results of this 
break-even analysis are summarized in Table 2. As shown there, using 
the Department's preferred estimation method, for the costs of full 
nationwide compliance to break even with the monetized benefits of 
avoiding prison rape, the standards would have to be successful in 
reducing the annual number of prison sexual abuse victims by about 
1,671, for a total reduction from the baseline over fifteen years of 
about 25,000 victims.\38\ As a

[[Page 37189]]

comparison, the RIA estimates that in 2008 more than 209,400 persons 
were victims of sexual abuse in America's prisons, jails, and juvenile 
centers, of which at least 78,500 prison and jail inmates and 4,300 
youth in juvenile facilities were victims of the most serious forms of 
sexual abuse, including forcible rape and other nonconsensual sexual 
acts involving injury, force, or high incidence.
---------------------------------------------------------------------------

    \38\ These figures include all facility types and all types of 
sexual abuse (from the most to the least severe), and take into 
account the fact that many victims are victimized multiple times 
(i.e., an avoided victim subsumes all of the incidents of sexual 
abuse that victim experiences). In the RIA, the Department 
calculates the break-even figures in six different ways 
corresponding to different methods of calculating the baseline 
prevalence of prison sexual abuse and different approaches to 
monetizing the value of avoiding prison sexual abuse. The figures in 
Table 2 reflect the Department's preferred approach among these six 
alternatives. When reflected as a range, the six approaches 
collectively provide that, for the costs of full nationwide 
compliance to break even with the monetized benefits of avoiding 
prison rape, the standards would have to be successful in reducing 
the annual number of prison sexual abuse victims by between 1,667 
and 2,329, for a total reduction from the baseline over fifteen 
years of about 25,000-35,000 victims.

                                             Table 2--Summary of Break-Even Analysis for PREA Standards \39\
                                                                [In millions of dollars]
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                      Community confinement
                                             Prisons       Jails                Lockup                      facilities            Juvenile      Total
--------------------------------------------------------------------------------------------------------------------------------------------------------
Prevalence...............................       89,688      109,181  Unknown.....................  Unknown....................       10,553      209,422
Value of 1% Reduction....................       $206.4       $260.1  Unknown.....................  Unknown....................        $52.4
Value of 1 Victim Avoided................  ...........  ...........  $0.25.......................  $0.25......................  ...........  ...........
Cost.....................................        $64.9       $163.4  $95.5.......................  $12.8......................       $131.9       $468.5
Breakeven Percent........................        0.32%        0.64%  Unknown.....................  Unknown....................        2.55%  ...........
Breakeven Number of Victims..............          282          686  385.........................  52.........................          266         1671
--------------------------------------------------------------------------------------------------------------------------------------------------------

    The Department believes it reasonable to expect that the standards, 
if fully adopted and complied with, would achieve at least this level 
of reduction in the prevalence of prison sexual abuse. Taking into 
account the considerable non-monetized benefits of avoiding prison 
rape, the justification for the standards becomes even stronger. Of 
course, if the nation's confinement facilities spend less annually than 
full nationwide compliance is estimated to require, then the annual 
reduction in the number of prison sexual abuse victims that would need 
to be achieved in order for actual outlays to break even with benefits 
would be correspondingly lower.
---------------------------------------------------------------------------

    \39\ Prevalence figures reflect the Department's ``principal'' 
approach to determining prevalence (among the three alternative 
approaches discussed below) and include all forms of sexual abuse. 
As explained in the RIA, prevalence figures for lockups and 
community confinement facilities are unknown; the total for prisons, 
jails, and juvenile centers under the principal approach is 209,422.
    The ``value of 1% reduction'' row sets forth the RIA's estimate 
of the monetizable value (in millions of dollars) of the benefit of 
a 1% reduction from the baseline annual prevalence of sexual abuse 
in prisons, jails, and juvenile centers, using the Department's 
preferred methodology, the victim compensation model, and taking 
into account the fact that many victims of prison rape are 
victimized multiple times. The ``value of 1 victim avoided'' row 
sets forth the corresponding estimate for lockups and community 
confinement facilities, but sets forth the value (again in millions) 
of avoiding a single victim of abuse.
    Cost figures represent the cost of full nationwide compliance 
with all of the PREA standards, in the aggregate, in millions of 
dollars. ``Breakeven percent,'' for prisons, jails, and juvenile 
centers, shows the total percentage reduction from the baseline 
annual prevalence of prison sexual abuse that the standards would 
have to achieve in each sector in order for their annual benefits, 
in monetary terms, to break even with their annual costs, again 
assuming full nationwide compliance. ``Breakeven Number of Victims'' 
shows how many individual victims of prison sexual abuse the 
standards would have to be successful in preventing each year, in 
each sector (again taking into account the phenomenon of serial 
victimization), for the standards' annual benefits, in monetary 
terms, to break even with the annual costs of full nationwide 
compliance.
---------------------------------------------------------------------------

    With respect to the analysis that Congress required in PREA, the 
RIA concludes that the costs of full nationwide compliance do not 
amount to ``substantial additional costs'' when compared to total 
national expenditures on correctional operations. In the most recent 
tabulation, correctional agencies nationwide spent approximately $79.5 
billion on correctional operations in 2008. As noted, the RIA estimates 
that full nationwide compliance with the final standards would cost 
these agencies approximately $468.5 million per year, when annualized 
over 15 years at a 7 percent discount rate, or a mere 0.6 percent of 
total annual correctional expenditures in 2008. The Department 
concludes that this does not amount to substantial additional costs.
Measuring the Relevant Baseline
    As a starting point, the RIA measures the baseline level of prison 
rape and sexual abuse in prisons, jails, and juvenile facilities. It 
estimates the annual prevalence of six categories of inappropriate 
sexual contact in adult prisons and jails, and five different 
categories in juvenile facilities. The precise definitions of these 
categories are set forth in detail in the RIA, but these types of 
sexual contact are essentially differentiated based on the existence 
and nature of force or threat of force, the nature and intrusiveness of 
the physical contact, and how often the victim has experienced abuse 
(i.e., whether the victim has experienced a low or high incidence of 
contact), among other factors.
    Relying largely on tabulations made by BJS and the Office of 
Juvenile Justice and Delinquency Prevention, the RIA examines the 
available statistics on the prevalence of each type of inappropriate 
sexual contact \40\ and addresses a number of issues with those 
statistics, including the problem of serial victimization (prevalence 
vs. incidence),\41\ cross-section vs. flow,\42\ underreporting of 
sexual victimization (false negatives), and false allegations 
(overreporting). The RIA also describes difficulties in measuring the 
prevalence of sexual abuse in community confinement facilities and 
lockups.\43\
---------------------------------------------------------------------------

    \40\ See BJS, Sexual Victimization in Prisons and Jails Reported 
by Inmates, 2008-09 (NCJ 231169) (Aug. 2010); BJS, Sexual 
Victimization in Juvenile Facilities Reported by Youth, 2008-09 (NCJ 
228416) (Jan. 2010).
    \41\ Prevalence essentially measures the number of victims of 
sexual abuse over a period of time, whereas incidence refers to the 
number of discrete victimizations over that period. The difference 
between the two arises from the fact that many prison rape victims 
are victimized many times.
    \42\ The estimates of prevalence are based on surveys of 
inmates, who are asked to state whether, as of the date the survey 
is administered, they have experienced sexual abuse in that facility 
during the previous twelve months. If the answer is affirmative, the 
inmate is asked follow-up questions about the nature and frequency 
of the abuse. In a cross-section (also known as ``stock'') approach 
to estimating prevalence, the estimates are based on the responses 
given by the inmates who happen to be at the facility on the day the 
survey was administered. However, this approach risks significantly 
understating the actual prevalence, especially in jails, because the 
majority of inmates remain in their facility for less than one year, 
and there will have been many inmates who were at the facility 
earlier during the twelve-month survey period but who are no longer 
there when the survey is administered. A flow approach to estimating 
prevalence compensates for this phenomenon by extrapolating from the 
cross-sectional figures an estimate of the total number of victims 
among the total population of inmates who flowed through the 
facility during the twelve-month period.
    \43\ At the time the RIA was prepared, the Department lacked 
data regarding the prevalence of sexual abuse in community 
confinement facilities. A BJS study of former State prisoners that 
was finalized in May 2012, too late for incorporation into the 
prevalence assessments of the RIA, provides for the first time some 
data regarding such prevalence. See BJS, Sexual Victimization 
Reported by Former State Prisoners, 2008 (NCJ 237363) (May 2012). 
The Department remains unaware of any data regarding the prevalence 
of sexual abuse in lockups.

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

[[Page 37190]]

    The RIA presents three alternatives for estimating the prevalence 
of sexual abuse, each relying on different assumptions to account for 
the possibility of underreporting (false negatives) and overreporting 
(false positives) of sexual abuse. Under the ``principal'' method--the 
one the Department prefers among the three--no adjustment is made to 
the prevalence estimates to account either for false negatives (sexual 
abuses that occurred but were never reported) or false positives 
(sexual abuses that were reported by inmates but that did not actually 
occur). The ``adjusted'' approach uses an upper bound assumption as to 
the number of false negatives and a conservative approach to the 
adjustment for false positives; the ``lower bound'' approach uses a 
lower bound assumption as to the number of false negatives and a less 
conservative approach to adjusting for false positives. Under the 
principal approach, the RIA concludes that in 2008 more than 209,400 
persons were victims of sexual abuse in America's prisons, jails, and 
juvenile centers. Of these, at least 78,500 were prison and jail 
inmates and 4,300 were youth in juvenile facilities who were victims of 
the most serious forms of sexual abuse, including forcible rape and 
other nonconsensual sexual acts involving injury, force, or high 
incidence.
    Table 3 shows the estimated baseline prevalence of rape and sexual 
abuse in adult prison and jail facilities under each of the RIA's 
prevalence estimation methods. Table 4 shows the corresponding 
estimates for juvenile facilities, and Table 5 shows the composite 
prevalence estimates among all facility types.\44\
---------------------------------------------------------------------------

    \44\ For the definitions of the various types of sexual conduct 
listed in these tables, see Tables 1.1 and 1.2 in the RIA.

  Table 3--Baseline Prevalence of Sexual Abuse, Adult Prison and Jail Facilities, Using Alternative Prevalence
                                Estimation Approaches, by Type of Incident, 2008
----------------------------------------------------------------------------------------------------------------
                                                Adult prisons                           Adult jails
                                   -----------------------------------------------------------------------------
                                     Principal     Adjusted   Lower bound   Principal     Adjusted   Lower bound
----------------------------------------------------------------------------------------------------------------
Nonconsensual Sexual Acts--High...       32,900       33,100       25,600       45,600       43,000       26,000
Nonconsensual Sexual Acts--Low....       11,300       11,600        8,800        8,900        7,900        5,000
``Willing'' Sex with Staff........       17,600       17,800       13,500       15,500       14,800       10,400
Abusive Sexual Contacts--High.....        7,300        7,000        6,100        8,500        7,800        6,300
Abuse Sexual Contacts--Low........       10,900       11,200        9,000       14,400       13,600       10,700
Staff Sexual Misconduct Touching          9,700        9,400        7,500       16,300       14,200       10,800
 Only.............................
                                   -----------------------------------------------------------------------------
    Total.........................       89,700       90,100       70,500      109,200      101,300       69,200
----------------------------------------------------------------------------------------------------------------


Table 4--Baseline Prevalence of Sexual Abuse, Juvenile Facilities, Using
 Alternative Prevalence Estimation Approaches, by Type of Incident, 2008
------------------------------------------------------------------------
                                    Principal     Adjusted   Lower bound
------------------------------------------------------------------------
Serious Sexual Acts--High........        4,300        4,600        3,800
``Willing'' Sex With Staff--High.        2,800        2,700        2,500
Serious Sexual Acts--Low.........        2,000        2,700        1,800
Other Sexual Acts--High..........          600          600          500
Other Sexual Acts--Low...........          900        1,000          900
                                  --------------------------------------
    Total........................       10,600       11,600        9,500
------------------------------------------------------------------------


       Table 5--Baseline Prevalence of Sexual Abuse, Summary Chart
------------------------------------------------------------------------
                                    Principal     Adjusted   Lower bound
------------------------------------------------------------------------
Prisons..........................       89,700       90,100       70,500
Jails............................      109,200      101,300       69,200
Juveniles........................       10,600       11,600        9,500
                                  --------------------------------------
    Total........................      209,400      203,000      149,200
------------------------------------------------------------------------

Estimating the Monetized Unit Benefit of Avoiding a Prison Rape or 
Sexual Abuse
    As a number of commenters observed, placing a monetary value on 
avoided sexual abuse confronts considerable methodological 
difficulties. One commenter remarked that ``estimating the monetary 
`costs' of crime is at best a fraught and imperfect effort, 
particularly when dealing with crimes such as sexual abuse whose 
principal cost is due to the pain, suffering, and quality of life 
diminution of the victims.'' Executive Order 12866 nevertheless 
instructs agencies to measure quantifiable benefits ``to the fullest 
extent that [they] can be usefully estimated.'' Executive Order 12866, 
Sec. 1(a); see also Executive Order 13563, Sec. 1(c) (``[E]ach agency 
is directed to

[[Page 37191]]

use the best available techniques to quantify anticipated present and 
future benefits and costs as accurately as possible.''). Some 
uncertainty in such estimates is not itself reason to abandon the 
effort.
    The RIA estimates the monetary value of certain benefits of 
avoiding prison sexual abuse using values derived from general 
literature assessing the cost of rape,\45\ with adjustments made to 
account for the unique characteristics of sexual abuse in the prison 
setting. Using an approach known as the willingness to pay (WTP) model, 
the RIA first monetizes the benefit of avoiding sexual abuse in a 
confinement facility by consulting studies that have estimated how much 
society is willing to pay for the reduction of various crimes, 
including rape, and then assessing whether the conclusions of those 
studies would be different in the specific context of sexual abuse in 
confinement facilities. This approach yields a reliable estimate of the 
costs of the most serious categories of sexual abuse assessed in the 
RIA,\46\ but because of limitations in the way the underlying studies 
were conducted, it cannot be effectively used to monetize the cost of 
the less serious categories of sexual abuse.
---------------------------------------------------------------------------

    \45\ See, e.g., National Institute of Justice Research Report, 
Victim Costs and Consequences: A New Look (NCJ 155282) (Jan. 1996), 
available at http://www.ncjrs.gov/pdffiles/victcost.pdf; Ted R. 
Miller et al., Minn. Dep't of Health, Costs of Sexual Violence in 
Minnesota (July 2007), available at http://www.pire.org/documents/mn_brochure.pdf; Mark A. Cohen et al., Willingness-to-Pay for Crime 
Control Programs, 42 Criminology 89 (2004).
    \46\ These costs translate to benefits for the purpose of the 
RIA--i.e., the benefits that would accrue from avoiding such 
incidents.
---------------------------------------------------------------------------

    In part because of these limitations, the RIA also uses an 
alternative approach known as the victim compensation or willingness-
to-accept (WTA) model, which estimates how much the average victim of 
prison rape would be willing to accept as compensation for injuries 
suffered in the assault, including intangible injuries such as pain, 
suffering, and diminished quality of life. To do this, the RIA assesses 
certain monetizable costs of prison rape to the victim, such as the 
costs of medical and mental health care, and adds an element, drawn 
primarily from jury verdicts, to cover the intangible costs associated 
with pain and suffering. All of these costs were identified by 
reviewing the literature on the cost of rape generally, and then 
extrapolating the analogous costs in confinement facilities. Although 
the RIA calculates avoidance benefits on a per victim basis, it 
accounts for the fact that many victims of prison rape are victimized 
multiple times.
    Thus, the RIA essentially uses a hybrid approach that combines the 
WTP and WTA elements: For the one category of sexual conduct as to 
which an estimate using the WTP was possible (the most serious category 
for adult victims), it identifies a range of avoidance benefit values, 
with the WTP estimate at one bound and the WTA estimate on the other; 
for the remaining categories of conduct, as to which a WTP estimate was 
not possible, the RIA uses only the WTA estimate. Using this approach, 
the RIA derives monetized values for avoiding each of the six types of 
sexual contact (five for juveniles), depending upon whether the victim 
is a juvenile or an adult. These values are depicted in Tables 6 and 7. 
The RIA estimates the monetizable benefit to an adult of avoiding the 
highest category of prison sexual misconduct (nonconsensual sexual acts 
involving injury or force, or no injury or force but high incidence) as 
worth about $310,000 per victim using the willingness to pay model and 
$480,000 per victim under the victim compensation model. For juveniles, 
who typically experience significantly greater injury from sexual abuse 
than adults, the corresponding category is assessed as worth $675,000 
per victim under the victim compensation model. (A willingness to pay 
estimate was not calculated for juveniles.) These estimates are higher 
than in the IRIA because of changes the Department made, in response to 
public comments, to the definitions of the different types of sexual 
abuse and to the methodologies for monetizing the benefit of avoiding 
each type.

  Table 6--Avoidance Benefit Values for Sexual Abuse, Adult Prison and
       Jail Facilities, by Victimization Type and Valuation Method
------------------------------------------------------------------------
                                                               Victim
                                                    WTP     compensation
                                                                (WTA)
------------------------------------------------------------------------
Nonconsensual Sexual Acts--High................   $310,000     $480,000
Nonconsensual Sexual Acts--Low.................  .........      160,000
``Willing'' Sex With Staff.....................  .........      160,000
Abusive Sexual Contacts--High..................  .........        5,200
Abusive Sexual Contacts--Low...................  .........          600
Staff Sexual Misconduct Touching Only..........  .........          600
------------------------------------------------------------------------


Table 7--Unit Avoidance Values for Sexual Abuse, Juvenile Facilities, by
                           Victimization Type
------------------------------------------------------------------------
                                                              Victim
                                                           compensation
                                                               (WTA)
------------------------------------------------------------------------
Serious Sexual Acts--High...............................        $675,000
``Willing'' Sex With Staff--High........................         672,000
Serious Sexual Acts--Low................................         225,000
Other Sexual Acts--High.................................           7,300
Other Sexual Acts--Low..................................             900
------------------------------------------------------------------------

    The RIA next calculates the maximum monetizable benefit to society 
of totally eliminating each of the types of inappropriate sexual 
contact, by multiplying the baseline prevalence of such events by the 
unit benefit of an avoided victim. As depicted in Table 8, under the 
Department's principal approach for estimating prevalence, and using 
the victim compensation model, the RIA determines that the maximum 
monetizable cost to society of prison rape and sexual abuse (and 
correspondingly, the total maximum benefit of eliminating it) is about 
$46.6 billion annually for prisons and jails, and an additional $5.2 
billion annually for juvenile facilities.\47\
---------------------------------------------------------------------------

    \47\ The RIA calculates these figures six different ways, using 
the three different prevalence estimation approaches (principal, 
adjusted, and lower bound), and the two different approaches to 
monetizing avoidance benefit values (WTP and WTA). Expressed as a 
range that captures all six approaches, the RIA determines that the 
maximum monetizable cost to society of rape and sexual abuse in 
prisons, jails, and juvenile facilities (and correspondingly, the 
total maximum benefit of eliminating it from those facilities) 
ranges from $26.9 billion to $51.9 billion. These figures exclude 
the cost to society of rape and sexual abuse in community 
confinement facilities and lockups because of the unavailability of 
data regarding the prevalence of sexual abuse in those facilities.
---------------------------------------------------------------------------

    It bears cautioning, however, that the Department has not estimated 
in the RIA the expected monetized benefit of the standards themselves 
but has instead opted for a break-even approach that estimates the 
number of victims that would need to be avoided (taking into account 
the fact that many victims are victimized multiple times) for the 
benefits of the standards to break even with the costs of full 
nationwide compliance. Thus, the RIA does not estimate that the 
standards will actually yield an annual monetized benefit of $52 
billion, except in the hypothetical scenario where the standards would, 
by themselves, lead to the complete elimination of prison rape and 
sexual abuse. The actual monetized benefit of the standards will 
certainly be less than this hypothetical figure and will depend on a 
number of factors, including the extent to which facilities comply with

[[Page 37192]]

the standards, and the extent to which the standards are effective in 
achieving their goals.

Table 8--Total Cost of Sexual Abuse, Across Prisons, Jails, and Juvenile
     Facilities, Victim Compensation Method, by Prevalence Approach
                        [In millions of dollars]
------------------------------------------------------------------------
                                    Principal     Adjusted   Lower bound
------------------------------------------------------------------------
Prisons..........................      $20,637      $20,814      $16,051
Jails............................       26,011       24,493       15,083
Juveniles........................        5,239        5,532        4,654
                                  --------------------------------------
    Total........................       51,887       50,839       35,788
------------------------------------------------------------------------

Non-Monetizable Benefits
    Executive Order 13563 states that, ``[w]here appropriate and 
permitted by law, each agency may consider (and discuss qualitatively) 
values that are difficult or impossible to quantify, including equity, 
human dignity, fairness, and distributive impacts.'' Executive Order 
13563, Sec. 1(c). Under Executive Order 12866, costs and benefits must 
``include both quantifiable measures (to the fullest extent that these 
can be usefully estimated) and qualitative measures of costs and 
benefits that are difficult to quantify but nevertheless essential to 
consider.'' Executive Order 12866, Sec. 1(a). Benefits of regulatory 
action include ``the enhancement of health and safety, the protection 
of the natural environment, and the elimination or reduction of 
discrimination or bias.'' Id.
    In concluding its assessment of the benefits of prison rape 
avoidance, the RIA identifies a number of benefits that cannot be 
monetized. These are some of the most important and consequential 
benefits of the final rule, and the discussion in the RIA describes 
both the nature and scale of those benefits so that they can be 
appropriately factored into the analysis. For example, the RIA examines 
benefits for rape victims, for inmates who are not rape victims, for 
families of victims, for prison administrators and staff, and for 
society at large. These benefits include those relating to public 
health and public safety, as well as economic benefits and existence 
value benefits. The RIA also describes benefits to inmates in lockups 
and community confinement facilities, as to which information was 
lacking relating to the baseline prevalence of sexual abuse.
    Additionally, Congress predicated PREA on its conclusion--
consistent with decisions by the Supreme Court--that ``deliberate 
indifference to the substantial risk of sexual assault violates 
prisoners' rights under the Cruel and Unusual Punishment Clause of the 
Eighth Amendment.'' 42 U.S.C. 15601(13) (citing Farmer v. Brennan, 511 
U.S. 825 (1994)). The individual rights enshrined in the Constitution 
express our nation's deepest commitments to human dignity and equality, 
and American citizens place great value on knowing that their 
government aspires to protect those rights to their fullest extent. In 
thinking about the qualitative benefits that will accrue from the 
implementation of the final rule, these values carry great weight.
Cost Analysis
    The RIA presents a detailed analysis of the costs of full 
nationwide compliance with the standards in the final rule. The RIA 
concludes that full nationwide compliance with the standards would cost 
the correctional community approximately $6.9 billion over the period 
2012-2026, or $468.5 million per year when annualized at a 7 percent 
discount rate. The details of the RIA's cost estimates are summarized 
in Tables 9-14:
---------------------------------------------------------------------------

    \48\ For detailed sources, see RIA, at p. 70, n. 108.

    Table 9: Number of Facilities Assumed To Adopt and Implement the
                Standards, for Cost Analysis Purposes 48
------------------------------------------------------------------------
                                                             Number of
                          Type                              facilities
------------------------------------------------------------------------
Prisons (Federal).......................................             117
Prisons (State).........................................           1,190
Jails...................................................           2,860
Lockups (Police)........................................           3,753
Lockups (Court).........................................           2,330
Community Confinement...................................             529
Juvenile................................................           2,458
------------------------------------------------------------------------


[[Page 37193]]

[GRAPHIC] [TIFF OMITTED] TR20JN12.000


 Table 11--Estimated Cost of Full State and Local Compliance With the PREA Standards, in the Aggregate, by Year
                                              and by Facility Type
                                            [In Millions of dollars]
----------------------------------------------------------------------------------------------------------------
                                                                            Community
               Year                   Prisons       Jails       Lockups    confinement   Juveniles    Total all
                                                                            facilities                facilities
----------------------------------------------------------------------------------------------------------------
2012..............................        $87.2       $254.6       $180.1        $27.8       $196.0       $745.8
2013..............................         55.2        161.0        122.0         16.8         93.3        448.5
2014..............................         58.3        157.9        106.6         14.2         92.1        429.2
2015..............................         59.2        154.6         93.7         12.1         94.9        414.5
2016..............................         61.3        153.5         87.3         11.1        109.3        422.6
2017..............................         61.5        152.4         83.6         10.6        151.9        460.1
2018..............................         62.9        151.3         80.1         10.1        147.3        451.8
2019..............................         63.1        150.7         77.5          9.8        144.7        445.8
2020..............................         64.3        150.1         75.0          9.4        142.2        441.0
2021..............................         65.7        149.9         73.2          9.2        140.4        438.3
2022..............................         65.9        150.1         72.0          9.0        139.2        436.2
2023..............................         67.1        150.1         70.8          8.9        138.0        434.9
2024..............................         67.1        149.9         69.6          8.7        136.7        432.0
2025..............................         67.9        149.5         68.4          8.5        135.5        429.8
2026..............................         67.6        148.8         67.2          8.4        134.3        426.3
                                   -----------------------------------------------------------------------------
    15-yr Total...................        974.2      2,384.6      1,327.3        174.8      1,995.8      6,856.7
----------------------------------------------------------------------------------------------------------------
Present Value.....................        591.2      1,488.4        869.8        116.6      1,201.4      4,267.4
Annual............................         64.9        163.4         95.5         12.8        131.9        468.5
----------------------------------------------------------------------------------------------------------------


     Table 12--Estimated Average Annualized Compliance Cost per Unit
                            Facility, by Type
------------------------------------------------------------------------
                                                           Cost per unit
                          Type                               facility
------------------------------------------------------------------------
Prisons.................................................         $54,546
Jails...................................................          49,959
Lockups (per Agency)....................................          15,700
Community Confinement Facilities........................          24,190
Juvenile Facilities.....................................          53,666
------------------------------------------------------------------------


[[Page 37194]]

[GRAPHIC] [TIFF OMITTED] TR20JN12.001

[GRAPHIC] [TIFF OMITTED] TR20JN12.002

    Again, these tables reflect the estimated costs of full nationwide 
compliance, which will occur only if all State, local, and private 
confinement facilities adopt the standards contained in the final rule 
and then immediately and fully implement them. In this sense, the cost 
impact of the final rule, as represented here, is essentially 
theoretical--in effect treating the standards as if they were binding 
regulations on State and local confinement facilities.
    The true cost impact (which the RIA does not purport to assess), 
like the true impact of the final rule on preventing, detecting, and 
minimizing the effects of sexual abuse, will depend on the specific 
choices and expenditures that State, local, and private correctional 
agencies make with regard to adoption and implementation of the 
standards.
    In assessing the nationwide compliance costs for many of the 
standards, the RIA relies on work performed by the consulting firm Booz 
Allen Hamilton, with which the Department contracted to undertake cost 
analyses, first of the standards recommended by the NPREC, then of the 
standards proposed in the NPRM, and finally of the standards contained 
in the final rule. Booz Allen's initial cost analysis was based on a 
field study in which it surveyed 49 agencies of various types from 
across the country about the costs they would incur to comply with 
various aspects of the NPREC's recommended standards. Each of the final 
standards is examined in detail in the RIA to determine the full 
implementation costs of that standard. Where possible, the RIA 
distinguishes among costs applicable to prisons, jails, juvenile 
facilities, community confinement facilities, and lockups.
    Many of the standards are assessed as likely having minimal to no 
associated

[[Page 37195]]

compliance costs, including Sec. Sec.  115.15, 115.215, and 115.315, 
which, among other things, impose a general ban on cross-gender pat-
down searches of female inmates in adult prisons and jails and in 
community confinement facilities, and of male and female residents in 
juvenile facilities; and Sec. Sec.  115.83, 115.283, and 115.383, which 
requires agencies to provide medical and mental health care assessments 
and treatment to victims and to certain abusers. The conclusion of zero 
cost for these standards is predicated on a high level of baseline 
compliance and on the expectation that agencies will adopt the least 
costly means of complying with requirements when given flexibility to 
determine how to apply those requirements to the specific 
characteristics of their agencies.
    On an annualized basis, the most expensive standards, by the RIA's 
estimate, are: Sec. Sec.  115.13, 115.113, 115.213, and 115.313, which 
relate to staffing, supervision, and video monitoring and would impose 
annual compliance costs of $120 million per year if fully adopted; 
Sec. Sec.  115.11, 115.111, 115.211, and 115.311, which establish a 
zero-tolerance policy and require agencies to designate an agency-wide 
PREA coordinator and facilities to designate a PREA compliance manager, 
and would cost $110 million annually if fully adopted; the training 
standards (Sec. Sec.  115.31-115.35, 115.131-115.132, 115.134, 115.231-
115.235, and 115.331-115.335), which the RIA estimates would cost $82 
million per year if fully adopted; and the screening standards 
(Sec. Sec.  115.41-115.42, 115.141, 115.241-115.242, and 115.341-
115.342), which would have an estimated $61 million in annual costs if 
there were full nationwide compliance. Together, full nationwide 
compliance with these four sets of standards would cost $372 million 
annually, or about 80 percent of the total for all of the standards.
    Booz Allen's analyses assessed only the costs that State, local, 
and private agencies would incur if they adopted and implemented the 
standards in their own facilities. Thus, Booz Allen's analyses do not 
include the compliance costs of those Federal facilities to which the 
final rule applies. The RIA supplements these analyses with the 
Department's own internal assessments of the costs that its two 
relevant components--the Bureau of Prisons and the United States 
Marshals Service--would incur in implementing the standards in the 
facilities they operate or oversee. As shown in Table 15, these two 
components expect to spend approximately $1.75 million per year over 
fifteen years to comply with the standards.

     Table 15--Estimated Cost of Compliance With PREA Standards for
 Department of Justice Entities, by Standard, Annualized Over 2012-2026
                           at 7% Discount Rate
------------------------------------------------------------------------
                   Standard                         BOP          USMS
------------------------------------------------------------------------
115.11 Zero Tolerance.........................     $797,000     $445,000
115.21 Evidence Protocol......................       37,000            0
115.31-.35 Training...........................       20,000      103,000
115.41 Screening..............................          500            0
115.53 Inmate Reporting.......................        9,500            0
115.93, .402-.405 Audits......................      312,000            0
                                               -------------------------
    Total.....................................    1,176,000      548,000
------------------------------------------------------------------------

Comparison to Alternatives
    Executive Order 13563 calls upon agencies, ``in choosing among 
alternative regulatory approaches,'' to select ``those approaches that 
maximize net benefits (including potential economic, environmental, 
public health and safety, and other advantages; distributive impacts; 
and equity).'' Executive Order 13563, sec. 1(b)(3). The Attorney 
General has concluded that, among the available alternatives, the 
standards in the final rule define measures and programs that, when 
implemented, will prove effective in accomplishing the goals of the 
statute while also promoting flexible decisions by the affected 
agencies on how to achieve compliance in a manner that works best given 
their unique circumstances and environments. Standards that could 
potentially maximize net benefits in the abstract would risk actually 
being less effective, either due to the failure of States and 
localities to adopt them at all, or due to the damaging consequences 
that the full costs of compliance could have on funding available for 
other critical correctional programs.
    The RIA examines the cost implications of the two most obvious 
alternatives to the final standards--the NPREC's recommended standards, 
which are more stringent than the final rule in many respects, and the 
standards proposed in the NPRM, which by and large are less stringent--
and finds that the standards in the final rule are the most effective 
and cost-effective among the three alternatives. As shown in Table 16, 
the final standards are the least expensive of the three alternatives.

   Table 16--Comparison of Projected Nationwide Full Compliance Costs,
     Final Rule vs. NPRM vs. NPREC Recommendations, in Thousands of
                           Annualized Dollars
------------------------------------------------------------------------
                                      NPREC         NPRM      Final rule
------------------------------------------------------------------------
Prisons..........................   $1,018,301      $53,318      $64,910
Jails............................    2,278,566      332,106      163,416
Lockups..........................    2,246,775       72,914       95,504
Community Confinement Facilities.      235,884        2,147       12,797
Juvenile Facilities..............      188,215       50,002      131,912
                                  --------------------------------------
    Total........................    5,967,741      510,487      468,539
------------------------------------------------------------------------


[[Page 37196]]

Executive Order 13132--Federalism

    In drafting the standards, the Department was mindful of its 
obligation to meet the objectives of PREA while also minimizing 
conflicts between State law and Federal interests. In accordance with 
Executive Order 13132, it is determined that this final rule does not 
have sufficient federalism implications to warrant the preparation of a 
Federalism Assessment.
    Notwithstanding the determination that the formal consultation 
process described in Executive Order 13132 is not required for this 
final rule, the Department's PREA Working Group consulted with 
representatives of State and local prisons and jails, juvenile 
facilities, community confinement programs, and lockups--among other 
individuals and groups--during the listening sessions the Working Group 
conducted in 2010. The Department also solicited and received input 
from numerous public entities at several levels of government in both 
the ANPRM and the NPRM stages of this rulemaking.
    Insofar as it sets forth national standards that apply to 
confinement facilities operated by State and local governments, this 
final rule has the potential to affect the States, the relationship 
between the national government and the States, and the distribution of 
power and responsibilities among the various levels of government. 
However, with respect to the thousands of State and local agencies, and 
private companies, that own and operate confinement facilities across 
the country, PREA provides the Department with no direct authority to 
mandate binding standards for their facilities. Instead, PREA depends 
upon State and local agencies to make voluntary decisions to adopt and 
implement them.
    For State agencies that receive grant funding from the Department 
to support their correctional operations, Congress has provided that 
the Department shall withhold 5 percent of prison-related grant funding 
to any State that fails to certify that it ``has adopted, and is in 
full compliance with, the national standards,'' or that fails to 
alternatively provide ``an assurance that not less than 5 percent'' of 
the relevant grant funding ``shall be used only for the purpose of 
enabling the State to adopt, and achieve full compliance with, those 
national standards, so as to ensure that a certification [of 
compliance] may be submitted in future years.'' 42 U.S.C. 15607(c)(2). 
For county, municipal, and privately run agencies that operate 
confinement facilities, PREA lacks any corresponding sanctions for 
facilities that do not adopt or comply with the standards.\49\
---------------------------------------------------------------------------

    \49\ A small number of States operate unified correctional 
systems, in which correctional facilities typically administered by 
counties or cities--such as jails--are operated instead by State 
agencies. See Barbara Krauth, A Review of the Jail Function Within 
State Unified Corrections Systems (Sept. 1997), available at http://static.nicic.gov/Library/014024.pdf. In such States, an assessment 
of whether the State is in full compliance would encompass those 
facilities as well.
---------------------------------------------------------------------------

    Despite the absence of statutory authority to promulgate standards 
that would bind State, local, and private agencies, other consequences 
may flow from the issuance of national standards, which could provide 
incentives for voluntary compliance. For example, these standards may 
influence the standard of care that courts will apply in considering 
legal and constitutional claims brought against corrections agencies 
and their employees arising out of allegations of sexual abuse. 
Moreover, agencies seeking to be accredited by the major accreditation 
organizations may need to comply with the standards as a condition of 
accreditation.\50\
---------------------------------------------------------------------------

    \50\ The statute provides that an organization responsible for 
the accreditation of Federal, State, local, or private prisons, 
jails, or other penal facilities may not receive any new Federal 
grants unless it adopts accreditation standards consistent with the 
standards in the final rule. 42 U.S.C. 15608.
---------------------------------------------------------------------------

    Nevertheless, pivotal to the statutory scheme is a voluntary 
decision by State, county, local, and private correctional agencies to 
adopt the standards and to comply with them (or alternatively, for 
States, to commit to expending 5 percent of Department of Justice 
prison-related grant funds to come into compliance in future years). In 
deciding whether to adopt these standards, agencies will of necessity 
conduct their own analyses of whether they can commit to adopting the 
standards in light of other demands on their correctional budgets.
    The Department cannot assume that all agencies will choose to adopt 
and implement these standards. An agency assessing whether to do so may 
choose not to based upon an assessment that, with regard to that 
specific agency, the costs outweigh the benefits. Such a course of 
action would be regrettable. The Department certainly hopes that it 
will not be common, and that agencies will instead consider the 
benefits of prison rape prevention not only to the agencies themselves 
but also to the inmates in their charge and to the communities to which 
the agencies are accountable.
    Nevertheless, the Department cannot ignore the straitened fiscal 
realities confronting many correctional agencies. Congress was acutely 
aware of these circumstances in passing PREA, which authorized the 
Department to make grants to States ``to assist those States in 
ensuring that budgetary circumstances (such as reduced State and local 
spending on prisons) do not compromise efforts to protect inmates 
(particularly from prison rape).'' 42 U.S.C. 15605(a). Congress did not 
intend for the Department to impose unrealistic or unachievable 
standards but rather expected it to partner with those agencies in 
adopting and implementing policies that will yield successes at 
combating sexual abuse in confinement facilities, while enabling State 
and local correctional authorities to continue other correctional 
programs vital to protecting inmates, staff, and the community, and 
ensuring that inmates' eventual reintegration into the community is 
successful.
    The statute does not mandate any specific approach in developing 
the standards, but instead relies upon the Attorney General to exercise 
his independent judgment. The Attorney General has concluded that the 
standards in the final rule define measures and programs that, when 
implemented, will prove effective in accomplishing the goals of the 
statute while also promoting voluntary compliance decisions by State 
and local agencies.

Executive Order 12988--Civil Justice Reform

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

Unfunded Mandates Reform Act of 1995

    The Unfunded Mandates Reform Act of 1995 (UMRA) requires Federal 
agencies, unless otherwise prohibited by law, to assess the effects of 
Federal regulatory actions on State, local, and tribal governments, and 
the private sector (other than to the extent that such regulations 
incorporate requirements specifically set forth in law).
    The Department has assessed the probable impact of the final PREA 
standards and, as is more fully described in the RIA, believes that 
these standards, if fully adopted and implemented by all State, local, 
and private operators of confinement facilities, would theoretically 
result in an aggregate expenditure by such operators of approximately 
$467 million annually (i.e., the total of $468.5 million annually set 
forth above, minus $1.75 million annually attributable to Department of 
Justice entities), when annualized over fifteen years at a 7 percent 
discount rate.

[[Page 37197]]

    However, the Department concludes that the requirements of the UMRA 
do not apply to the PREA standards because UMRA excludes from its 
definition of ``Federal intergovernmental mandate'' those regulations 
imposing an enforceable duty on other levels of government which are 
``a condition of Federal assistance.'' 2 U.S.C. 658(5)(A)(i)(I). PREA 
provides that any amount that a State would otherwise receive for 
prison purposes from the Department in a given fiscal year shall be 
reduced by 5 percent unless the chief executive of the State certifies 
either that the State is in ``full compliance'' with the standards or 
that not less than 5 percent of such amount shall be used to enable the 
State to achieve full compliance with the standards. Accordingly, 
compliance with these PREA standards is a condition of Federal 
assistance for State governments.
    While the Department does not believe that a formal statement 
pursuant to the UMRA is required, it has, for the convenience of the 
public, summarized as follows various matters that are discussed at 
greater length elsewhere in this rulemaking and that would have been 
included in a UMRA statement should that have been required:
     These national standards are being issued pursuant to the 
requirements of the Prison Rape Elimination Act of 2003, 42 U.S.C. 
15601 et seq.;
     A qualitative and quantitative assessment of the 
anticipated costs and benefits of these national standards appears 
above in the section on Executive Order 12866, as elaborated in the 
RIA;
     The Department does not believe that these national 
standards will have an effect on national productivity, economic 
growth, full employment, creation of productive jobs, or international 
competitiveness of United States goods and services, except to the 
extent described in the RIA, which postulates inter alia that some 
agencies may add staff in order to comply with some of the standards;
     Notwithstanding how limited the Department's obligations 
may be under the formal requirements of UMRA, the Department has 
engaged in a variety of contacts and consultations with State and local 
governments, including during the listening sessions the Working Group 
conducted in 2010. In addition, the Department solicited and received 
input from public entities in both its ANPRM and its NPRM. The 
Department received numerous comments on its NPRM from State and local 
entities, the vast majority of which addressed the potential costs 
associated with certain of the proposed standards. Standards of 
particular cost concern included the training standards, the auditing 
standard, and the standards regarding staff supervision and video 
monitoring. The Department has altered various standards in ways that 
it believes will appropriately mitigate the cost concerns identified in 
the comments. State and local entities also expressed concern that the 
standards were overly burdensome on small correctional systems and 
facilities, especially in rural areas. The Department's final standards 
include various revisions to the proposed rule to address this issue.

Small Business Regulatory Enforcement Fairness Act of 1996

    This final rule is a major rule as defined by section 251 of the 
Small Business Regulatory Enforcement Fairness Act of 1996, 5 U.S.C. 
804. It may result in an annual effect on the economy of $100,000,000 
or more, although it will not result in 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 enterprises to compete with foreign-based enterprises in 
domestic and export markets.

Regulatory Flexibility Act

    The Department of Justice drafted this final rule so as to minimize 
its impact on small entities, in accordance with the Regulatory 
Flexibility Act, 5 U.S.C. 601-612, while meeting PREA's intended 
objectives. The Department has conducted an extensive consideration of 
the impact of this rule on small governmental entities, and available 
alternatives, as elaborated in the RIA and in the above discussions of 
Federalism and UMRA.
    The Department provided notice of the proposed standards to 
potentially affected small governments by publishing the ANPRM and 
NPRM, by conducting listening sessions, and by other activities; 
enabled officials of affected small governments to provide meaningful 
and timely input through the methods listed above; and worked (and will 
continue to work) to inform, educate, and advise small governments on 
compliance with the requirements.
    As discussed in the RIA summarized above, the Department has 
identified and considered a reasonable number of regulatory 
alternatives and from those alternatives has attempted to select the 
least costly, most cost-effective, and least burdensome alternative 
that achieves the objectives of PREA.

Paperwork Reduction Act

    This final rule contains a new ``collection of information'' 
covered by the Paperwork Reduction Act of 1995 (PRA), as amended, 44 
U.S.C. 3501-3521. Under the PRA, a covered agency may not conduct or 
sponsor, and a person is not required to respond to, a collection of 
information unless it displays a currently valid control number 
assigned by OMB. 44 U.S.C. 3507(a)(3), 3512.
    The information collections in this final rule require covered 
facilities to retain certain specified information relating to sexual 
abuse prevention planning, responsive planning, education and training, 
and investigations, as well as to collect and retain certain specified 
information relating to allegations of sexual abuse within the 
facility.
    At the time of the proposed rule, the Department submitted an 
information collection request to OMB for review and approval in 
accordance with the review procedures of the PRA.
    As part of the comment process on the NPRM, the Department received 
a few comments pertaining to the PRA, mostly raising questions whether 
certain recordkeeping requirements of the PREA standards duplicated in 
part the recordkeeping requirements imposed by other Department 
regulations. These comments and the Department's responses thereto are 
discussed above in the SUPPLEMENTARY INFORMATION portion of this 
preamble and in the RIA.
    Changes to the PREA standards made in response to comments on the 
NPRM and due to additional analysis resulted in the total PRA burden 
hours being greater than those estimated in the Department's initial 
information collection request. None of the comments received on the 
NPRM pertaining to the PRA aspects of the rule necessitated any changes 
in the PRA burden hours estimated by the Department. However, the 
Department has submitted to OMB a revised information collection 
request with the new burden estimates for review and approval.

List of Subjects in 28 CFR Part 115

    Community confinement facilities, Crime, Jails, Juvenile 
facilities, Lockups, Prisons, Prisoners.


0
Accordingly, part 115 of Title 28 of the Code of Federal Regulations is 
added as follows:

PART 115--PRISON RAPE ELIMINATION ACT NATIONAL STANDARDS

Sec.

[[Page 37198]]

115.5 General definitions.
115.6 Definitions related to sexual abuse.
Subpart A--Standards for Adult Prisons and Jails

Prevention Planning

115.11 Zero tolerance of sexual abuse and sexual harassment; PREA 
coordinator.
115.12 Contracting with other entities for the confinement of 
inmates.
115.13 Supervision and monitoring.
115.14 Youthful inmates.
115.15 Limits to cross-gender viewing and searches.
115.16 Inmates with disabilities and inmates who are limited English 
proficient.
115.17 Hiring and promotion decisions.
115.18 Upgrades to facilities and technologies.

Responsive Planning

115.21 Evidence protocol and forensic medical examinations.
115.22 Policies to ensure referrals of allegations for 
investigations.

Training and Education

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

Screening for Risk of Sexual Victimization and Abusiveness

115.41 Screening for risk of victimization and abusiveness.
115.42 Use of screening information.
115.43 Protective custody.

Reporting

115.51 Inmate reporting.
115.52 Exhaustion of administrative remedies.
115.53 Inmate access to outside confidential support services.
115.54 Third-party reporting.

Official Response Following an Inmate Report

115.61 Staff and agency reporting duties.
115.62 Agency protection duties.
115.63 Reporting to other confinement facilities.
115.64 Staff first responder duties.
115.65 Coordinated response.
115.66 Preservation of ability to protect inmates from contact with 
abusers.
115.67 Agency protection against retaliation.
115.68 Post-allegation protective custody.

Investigations

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

Discipline

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

Medical and Mental Care

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

Data Collection and Review

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

Audits

115.93 Audits of standards.
Subpart B--Standards for Lockups

Prevention Planning

115.111 Zero tolerance of sexual abuse and sexual harassment; PREA 
coordinator.
115.112 Contracting with other entities for the confinement of 
detainees.
115.113 Supervision and monitoring.
115.114 Juveniles and youthful detainees.
115.115 Limits to cross-gender viewing and searches.
115.116 Detainees with disabilities and detainees who are limited 
English proficient.
115.117 Hiring and promotion decisions.
115.118 Upgrades to facilities and technologies.

Responsive Planning

115.121 Evidence protocol and forensic medical examinations.
115.122 Policies to ensure referrals of allegations for 
investigations.

Training and Education

115.131 Employee and volunteer training.
115.132 Detainee, contractor, and inmate worker notification of the 
agency's zero-tolerance policy.
115.133 [Reserved]
115.134 Specialized training: Investigations.
115.135 [Reserved]

Screening for Risk of Sexual Victimization and Abusiveness

115.141 Screening for risk of victimization and abusiveness.
115.142 [Reserved]
115.143 [Reserved]

Reporting

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

Official Response Following a Detainee Report

115.161 Staff and agency reporting duties.
115.162 Agency protection duties.
115.163 Reporting to other confinement facilities.
115.164 Staff first responder duties.
115.165 Coordinated response.
115.166 Preservation of ability to protect detainees from contact 
with abusers.
115.167 Agency protection against retaliation.
115.168 [Reserved]

Investigations

115.171 Criminal and administrative agency investigations.
115.172 Evidentiary standard for administrative investigations.
115.173 [Reserved]

Discipline

115.176 Disciplinary sanctions for staff.
115.177 Corrective action for contractors and volunteers.
115.178 Referrals for prosecution for detainee-on-detainee sexual 
abuse.

Medical and Mental Care

115.181 [Reserved]
115.182 Access to emergency medical services.
115.183 [Reserved]

Data Collection and Review

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

Audits

115.193 Audits of standards.
Subpart C--Standards for Community Confinement Facilities

Prevention Planning

115.211 Zero tolerance of sexual abuse and sexual harassment; PREA 
coordinator.
115.212 Contracting with other entities for the confinement of 
residents.
115.213 Supervision and monitoring.
115.214 [Reserved]
115.215 Limits to cross-gender viewing and searches.
115.216 Residents with disabilities and residents who are limited 
English proficient.
115.217 Hiring and promotion decisions.
115.218 Upgrades to facilities and technologies.

Responsive Planning

115.221 Evidence protocol and forensic medical examinations.
115.222 Policies to ensure referrals of allegations for 
investigations.

Training and Education

115.231 Employee training.
115.232 Volunteer and contractor training.
115.233 Resident education.
115.234 Specialized training: Investigations.
115.235 Specialized training: Medical and mental health care.

Screening for Risk of Sexual Victimization and Abusiveness

115.241 Screening for risk of victimization and abusiveness.
115.242 Use of screening information.
115.243 [Reserved]

Reporting

115.251 Resident reporting.
115.252 Exhaustion of administrative remedies.

[[Page 37199]]

115.253 Resident access to outside confidential support services.
115.254 Third-party reporting.

Official Response Following a Resident Report

115.261 Staff and agency reporting duties.
115.262 Agency protection duties.
115.263 Reporting to other confinement facilities.
115.264 Staff first responder duties.
115.265 Coordinated response.
115.266 Preservation of ability to protect residents from contact 
with abusers.
115.267 Agency protection against retaliation.
115.268 [Reserved]

Investigations

115.271 Criminal and administrative agency investigations.
115.272 Evidentiary standard for administrative investigations.
115.273 Reporting to residents.

Discipline

115.276 Disciplinary sanctions for staff.
115.277 Corrective action for contractors and volunteers.
115.278 Disciplinary sanctions for residents.

Medical and Mental Care

115.281 [Reserved]
115.282 Access to emergency medical and mental health services.
115.283 Ongoing medical and mental health care for sexual abuse 
victims and abusers.

Data Collection and Review

115.286 Sexual abuse incident reviews.
115.287 Data collection.
115.288 Data review for corrective action.
115.289 Data storage, publication, and destruction.

Audits

115.293 Audits of standards.
Subpart D--Standards for Juvenile Facilities

Prevention Planning

115.311 Zero tolerance of sexual abuse and sexual harassment; PREA 
coordinator.
115.312 Contracting with other entities for the confinement of 
residents.
115.313 Supervision and monitoring.
115.314 [Reserved]
115.315 Limits to cross-gender viewing and searches.
115.316 Residents with disabilities and residents who are limited 
English proficient.
115.317 Hiring and promotion decisions.
115.318 Upgrades to facilities and technologies.

Responsive Planning

115.321 Evidence protocol and forensic medical examinations.
115.322 Policies to ensure referrals of allegations for 
investigations.

Training and Education

115.331 Employee training.
115.332 Volunteer and contractor training.
115.333 Resident education.
115.334 Specialized training: Investigations.
115.335 Specialized training: Medical and mental health care.

Screening for Risk of Sexual Victimization and Abusiveness

115.341 Obtaining information from residents.
115.342 Placement of residents in housing, bed, program, education, 
and work assignments.
115.343 [Reserved]

Reporting

115.351 Resident reporting.
115.352 Exhaustion of administrative remedies.
115.353 Resident access to outside support services and legal 
representation.
115.354 Third-party reporting.

Official Response Following a Resident Report

115.361 Staff and agency reporting duties.
115.362 Agency protection duties.
115.363 Reporting to other confinement facilities.
115.364 Staff first responder duties.
115.365 Coordinated response.
115.366 Preservation of ability to protect residents from contact 
with abusers.
115.367 Agency protection against retaliation.
115.368 Post-allegation protective custody.

Investigations

115.371 Criminal and administrative agency investigations.
115.372 Evidentiary standard for administrative investigations.
115.373 Reporting to residents.

Discipline

115.376 Disciplinary sanctions for staff.
115.377 Corrective action for contractors and volunteers.
115.378 Interventions and disciplinary sanctions for residents.

Medical and Mental Care

115.381 Medical and mental health screenings; history of sexual 
abuse.
115.382 Access to emergency medical and mental health services.
115.383 Ongoing medical and mental health care for sexual abuse 
victims and abusers.

Data Collection and Review

115.386 Sexual abuse incident reviews.
115.387 Data collection.
115.388 Data review for corrective action.
115.389 Data storage, publication, and destruction.

Audits

115.393 Audits of standards.
Subpart E--Auditing and Corrective Action
115.401 Frequency and scope of audits.
115.402 Auditor qualifications.
115.403 Audit contents and findings.
115.404 Audit corrective action plan.
115.405 Audit appeals.
Subpart F--State Compliance
115.501 State determination and certification of full compliance.

    Authority:  5 U.S.C. 301; 28 U.S.C. 509, 510; 42 U.S.C. 15601-
15609.


Sec.  115.5  General definitions.

    For purposes of this part, the term--
    Agency means the unit of a State, local, corporate, or nonprofit 
authority, or of the Department of Justice, with direct responsibility 
for the operation of any facility that confines inmates, detainees, or 
residents, including the implementation of policy as set by the 
governing, corporate, or nonprofit authority.
    Agency head means the principal official of an agency.
    Community confinement facility means a community treatment center, 
halfway house, restitution center, mental health facility, alcohol or 
drug rehabilitation center, or other community correctional facility 
(including residential re-entry centers), other than a juvenile 
facility, in which individuals reside as part of a term of imprisonment 
or as a condition of pre-trial release or post-release supervision, 
while participating in gainful employment, employment search efforts, 
community service, vocational training, treatment, educational 
programs, or similar facility-approved programs during nonresidential 
hours.
    Contractor means a person who provides services on a recurring 
basis pursuant to a contractual agreement with the agency.
    Detainee means any person detained in a lockup, regardless of 
adjudication status.
    Direct staff supervision means that security staff are in the same 
room with, and within reasonable hearing distance of, the resident or 
inmate.
    Employee means a person who works directly for the agency or 
facility.
    Exigent circumstances means any set of temporary and unforeseen 
circumstances that require immediate action in order to combat a threat 
to the security or institutional order of a facility.
    Facility means a place, institution, building (or part thereof), 
set of buildings, structure, or area (whether or not enclosing a 
building or set of buildings) that is used by an agency for the 
confinement of individuals.
    Facility head means the principal official of a facility.
    Full compliance means compliance with all material requirements of 
each standard except for de minimis violations, or discrete and 
temporary violations during otherwise sustained periods of compliance.

[[Page 37200]]

    Gender nonconforming means a person whose appearance or manner does 
not conform to traditional societal gender expectations.
    Inmate means any person incarcerated or detained in a prison or 
jail.
    Intersex means a person whose sexual or reproductive anatomy or 
chromosomal pattern does not seem to fit typical definitions of male or 
female. Intersex medical conditions are sometimes referred to as 
disorders of sex development.
    Jail means a confinement facility of a Federal, State, or local law 
enforcement agency whose primary use is to hold persons pending 
adjudication of criminal charges, persons committed to confinement 
after adjudication of criminal charges for sentences of one year or 
less, or persons adjudicated guilty who are awaiting transfer to a 
correctional facility.
    Juvenile means any person under the age of 18, unless under adult 
court supervision and confined or detained in a prison or jail.
    Juvenile facility means a facility primarily used for the 
confinement of juveniles pursuant to the juvenile justice system or 
criminal justice system.
    Law enforcement staff means employees responsible for the 
supervision and control of detainees in lockups.
    Lockup means a facility that contains holding cells, cell blocks, 
or other secure enclosures that are:
    (1) Under the control of a law enforcement, court, or custodial 
officer; and
    (2) Primarily used for the temporary confinement of individuals who 
have recently been arrested, detained, or are being transferred to or 
from a court, jail, prison, or other agency.
    Medical practitioner means a health professional who, by virtue of 
education, credentials, and experience, is permitted by law to evaluate 
and care for patients within the scope of his or her professional 
practice. A ``qualified medical practitioner'' refers to such a 
professional who has also successfully completed specialized training 
for treating sexual abuse victims.
    Mental health practitioner means a mental health professional who, 
by virtue of education, credentials, and experience, is permitted by 
law to evaluate and care for patients within the scope of his or her 
professional practice. A ``qualified mental health practitioner'' 
refers to such a professional who has also successfully completed 
specialized training for treating sexual abuse victims.
    Pat-down search means a running of the hands over the clothed body 
of an inmate, detainee, or resident by an employee to determine whether 
the individual possesses contraband.
    Prison means an institution under Federal or State jurisdiction 
whose primary use is for the confinement of individuals convicted of a 
serious crime, usually in excess of one year in length, or a felony.
    Resident means any person confined or detained in a juvenile 
facility or in a community confinement facility.
    Secure juvenile facility means a juvenile facility in which the 
movements and activities of individual residents may be restricted or 
subject to control through the use of physical barriers or intensive 
staff supervision. A facility that allows residents access to the 
community to achieve treatment or correctional objectives, such as 
through educational or employment programs, typically will not be 
considered to be a secure juvenile facility.
    Security staff means employees primarily responsible for the 
supervision and control of inmates, detainees, or residents in housing 
units, recreational areas, dining areas, and other program areas of the 
facility.
    Staff means employees.
    Strip search means a search that requires a person to remove or 
arrange some or all clothing so as to permit a visual inspection of the 
person's breasts, buttocks, or genitalia.
    Substantiated allegation means an allegation that was investigated 
and determined to have occurred.
    Transgender means a person whose gender identity (i.e., internal 
sense of feeling male or female) is different from the person's 
assigned sex at birth.
    Unfounded allegation means an allegation that was investigated and 
determined not to have occurred.
    Unsubstantiated allegation means an allegation that was 
investigated and the investigation produced insufficient evidence to 
make a final determination as to whether or not the event occurred.
    Volunteer means an individual who donates time and effort on a 
recurring basis to enhance the activities and programs of the agency.
    Youthful inmate means any person under the age of 18 who is under 
adult court supervision and incarcerated or detained in a prison or 
jail.
    Youthful detainee means any person under the age of 18 who is under 
adult court supervision and detained in a lockup.


Sec.  115.6  Definitions related to sexual abuse.

    For purposes of this part, the term--
    Sexual abuse includes--
    (1) Sexual abuse of an inmate, detainee, or resident by another 
inmate, detainee, or resident; and
    (2) Sexual abuse of an inmate, detainee, or resident by a staff 
member, contractor, or volunteer.
    Sexual abuse of an inmate, detainee, or resident by another inmate, 
detainee, or resident includes any of the following acts, if the victim 
does not consent, is coerced into such act by overt or implied threats 
of violence, or is unable to consent or refuse:
    (1) Contact between the penis and the vulva or the penis and the 
anus, including penetration, however slight;
    (2) Contact between the mouth and the penis, vulva, or anus;
    (3) Penetration of the anal or genital opening of another person, 
however slight, by a hand, finger, object, or other instrument; and
    (4) Any other intentional touching, either directly or through the 
clothing, of the genitalia, anus, groin, breast, inner thigh, or the 
buttocks of another person, excluding contact incidental to a physical 
altercation.
    Sexual abuse of an inmate, detainee, or resident by a staff member, 
contractor, or volunteer includes any of the following acts, with or 
without consent of the inmate, detainee, or resident:
    (1) Contact between the penis and the vulva or the penis and the 
anus, including penetration, however slight;
    (2) Contact between the mouth and the penis, vulva, or anus;
    (3) Contact between the mouth and any body part where the staff 
member, contractor, or volunteer has the intent to abuse, arouse, or 
gratify sexual desire;
    (4) Penetration of the anal or genital opening, however slight, by 
a hand, finger, object, or other instrument, that is unrelated to 
official duties or where the staff member, contractor, or volunteer has 
the intent to abuse, arouse, or gratify sexual desire;
    (5) Any other intentional contact, either directly or through the 
clothing, of or with the genitalia, anus, groin, breast, inner thigh, 
or the buttocks, that is unrelated to official duties or where the 
staff member, contractor, or volunteer has the intent to abuse, arouse, 
or gratify sexual desire;
    (6) Any attempt, threat, or request by a staff member, contractor, 
or volunteer to engage in the activities described in paragraphs (1) 
through (5) of this definition;
    (7) Any display by a staff member, contractor, or volunteer of his 
or her uncovered genitalia, buttocks, or breast in the presence of an 
inmate, detainee, or resident, and

[[Page 37201]]

    (8) Voyeurism by a staff member, contractor, or volunteer.
    Sexual harassment includes--
    (1) Repeated and unwelcome sexual advances, requests for sexual 
favors, or verbal comments, gestures, or actions of a derogatory or 
offensive sexual nature by one inmate, detainee, or resident directed 
toward another; and
    (2) Repeated verbal comments or gestures of a sexual nature to an 
inmate, detainee, or resident by a staff member, contractor, or 
volunteer, including demeaning references to gender, sexually 
suggestive or derogatory comments about body or clothing, or obscene 
language or gestures.
    Voyeurism by a staff member, contractor, or volunteer means an 
invasion of privacy of an inmate, detainee, or resident by staff for 
reasons unrelated to official duties, such as peering at an inmate who 
is using a toilet in his or her cell to perform bodily functions; 
requiring an inmate to expose his or her buttocks, genitals, or 
breasts; or taking images of all or part of an inmate's naked body or 
of an inmate performing bodily functions.

Subpart A--Standards for Adult Prisons and Jails

Prevention Planning


Sec.  115.11  Zero tolerance of sexual abuse and sexual harassment; 
PREA coordinator.

    (a) An agency shall have a written policy mandating zero tolerance 
toward all forms of sexual abuse and sexual harassment and outlining 
the agency's approach to preventing, detecting, and responding to such 
conduct.
    (b) An agency shall employ or designate an upper-level, agency-wide 
PREA coordinator with sufficient time and authority to develop, 
implement, and oversee agency efforts to comply with the PREA standards 
in all of its facilities.
    (c) Where an agency operates more than one facility, each facility 
shall designate a PREA compliance manager with sufficient time and 
authority to coordinate the facility's efforts to comply with the PREA 
standards.


Sec.  115.12  Contracting with other entities for the confinement of 
inmates.

    (a) A public agency that contracts for the confinement of its 
inmates with private agencies or other entities, including other 
government agencies, shall include in any new contract or contract 
renewal the entity's obligation to adopt and comply with the PREA 
standards.
    (b) Any new contract or contract renewal shall provide for agency 
contract monitoring to ensure that the contractor is complying with the 
PREA standards.


Sec.  115.13  Supervision and monitoring.

    (a) The agency shall ensure that each facility it operates shall 
develop, document, and make its best efforts to comply on a regular 
basis with a staffing plan that provides for adequate levels of 
staffing, and, where applicable, video monitoring, to protect inmates 
against sexual abuse. In calculating adequate staffing levels and 
determining the need for video monitoring, facilities shall take into 
consideration:
    (1) Generally accepted detention and correctional practices;
    (2) Any judicial findings of inadequacy;
    (3) Any findings of inadequacy from Federal investigative agencies;
    (4) Any findings of inadequacy from internal or external oversight 
bodies;
    (5) All components of the facility's physical plant (including 
``blind-spots'' or areas where staff or inmates may be isolated);
    (6) The composition of the inmate population;
    (7) The number and placement of supervisory staff;
    (8) Institution programs occurring on a particular shift;
    (9) Any applicable State or local laws, regulations, or standards;
    (10) The prevalence of substantiated and unsubstantiated incidents 
of sexual abuse; and
    (11) Any other relevant factors.
    (b) In circumstances where the staffing plan is not complied with, 
the facility shall document and justify all deviations from the plan.
    (c) Whenever necessary, but no less frequently than once each year, 
for each facility the agency operates, in consultation with the PREA 
coordinator required by Sec.  115.11, the agency shall assess, 
determine, and document whether adjustments are needed to:
    (1) The staffing plan established pursuant to paragraph (a) of this 
section;
    (2) The facility's deployment of video monitoring systems and other 
monitoring technologies; and
    (3) The resources the facility has available to commit to ensure 
adherence to the staffing plan.
    (d) Each agency operating a facility shall implement a policy and 
practice of having intermediate-level or higher-level supervisors 
conduct and document unannounced rounds to identify and deter staff 
sexual abuse and sexual harassment. Such policy and practice shall be 
implemented for night shifts as well as day shifts. Each agency shall 
have a policy to prohibit staff from alerting other staff members that 
these supervisory rounds are occurring, unless such announcement is 
related to the legitimate operational functions of the facility.


Sec.  115.14  Youthful inmates.

    (a) A youthful inmate shall not be placed in a housing unit in 
which the youthful inmate will have sight, sound, or physical contact 
with any adult inmate through use of a shared dayroom or other common 
space, shower area, or sleeping quarters.
    (b) In areas outside of housing units, agencies shall either:
    (1) Maintain sight and sound separation between youthful inmates 
and adult inmates, or
    (2) Provide direct staff supervision when youthful inmates and 
adult inmates have sight, sound, or physical contact.
    (c) Agencies shall make best efforts to avoid placing youthful 
inmates in isolation to comply with this provision. Absent exigent 
circumstances, agencies shall not deny youthful inmates daily large-
muscle exercise and any legally required special education services to 
comply with this provision. Youthful inmates shall also have access to 
other programs and work opportunities to the extent possible.


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

    (a) The facility shall not conduct cross-gender strip searches or 
cross-gender visual body cavity searches (meaning a search of the anal 
or genital opening) except in exigent circumstances or when performed 
by medical practitioners.
    (b) As of August 20, 2015, or August 21, 2017 for a facility whose 
rated capacity does not exceed 50 inmates, the facility shall not 
permit cross-gender pat-down searches of female inmates, absent exigent 
circumstances. Facilities shall not restrict female inmates' access to 
regularly available programming or other out-of-cell opportunities in 
order to comply with this provision.
    (c) The facility shall document all cross-gender strip searches and 
cross-gender visual body cavity searches, and shall document all cross-
gender pat-down searches of female inmates.
    (d) The facility shall implement policies and procedures that 
enable inmates to shower, perform bodily functions, and change clothing 
without nonmedical staff of the opposite gender viewing their breasts, 
buttocks, or genitalia, except in exigent circumstances or when such 
viewing is incidental to routine cell checks. Such policies and 
procedures shall require staff of the opposite gender to announce

[[Page 37202]]

their presence when entering an inmate housing unit.
    (e) The facility shall not search or physically examine a 
transgender or intersex inmate for the sole purpose of determining the 
inmate's genital status. If the inmate's genital status is unknown, it 
may be determined during conversations with the inmate, by reviewing 
medical records, or, if necessary, by learning that information as part 
of a broader medical examination conducted in private by a medical 
practitioner.
    (f) The agency shall train security staff in how to conduct cross-
gender pat-down searches, and searches of transgender and intersex 
inmates, in a professional and respectful manner, and in the least 
intrusive manner possible, consistent with security needs.


Sec.  115.16  Inmates with disabilities and inmates who are limited 
English proficient.

    (a) The agency shall take appropriate steps to ensure that inmates 
with disabilities (including, for example, inmates who are deaf or hard 
of hearing, those who are blind or have low vision, or those who have 
intellectual, psychiatric, or speech disabilities), have an equal 
opportunity to participate in or benefit from all aspects of the 
agency's efforts to prevent, detect, and respond to sexual abuse and 
sexual harassment. Such steps shall include, when necessary to ensure 
effective communication with inmates who are deaf or hard of hearing, 
providing access to interpreters who can interpret effectively, 
accurately, and impartially, both receptively and expressively, using 
any necessary specialized vocabulary. In addition, the agency shall 
ensure that written materials are provided in formats or through 
methods that ensure effective communication with inmates with 
disabilities, including inmates who have intellectual disabilities, 
limited reading skills, or who are blind or have low vision. An agency 
is not required to take actions that it can demonstrate would result in 
a fundamental alteration in the nature of a service, program, or 
activity, or in undue financial and administrative burdens, as those 
terms are used in regulations promulgated under title II of the 
Americans With Disabilities Act, 28 CFR 35.164.
    (b) The agency shall take reasonable steps to ensure meaningful 
access to all aspects of the agency's efforts to prevent, detect, and 
respond to sexual abuse and sexual harassment to inmates who are 
limited English proficient, including steps to provide interpreters who 
can interpret effectively, accurately, and impartially, both 
receptively and expressively, using any necessary specialized 
vocabulary.
    (c) The agency shall not rely on inmate interpreters, inmate 
readers, or other types of inmate assistants except in limited 
circumstances where an extended delay in obtaining an effective 
interpreter could compromise the inmate's safety, the performance of 
first-response duties under Sec.  115.64, or the investigation of the 
inmate's allegations.


Sec.  115.17  Hiring and promotion decisions.

    (a) The agency shall not hire or promote anyone who may have 
contact with inmates, and shall not enlist the services of any 
contractor who may have contact with inmates, who--
    (1) Has engaged in sexual abuse in a prison, jail, lockup, 
community confinement facility, juvenile facility, or other institution 
(as defined in 42 U.S.C. 1997);
    (2) Has been convicted of engaging or attempting to engage in 
sexual activity in the community facilitated by force, overt or implied 
threats of force, or coercion, or if the victim did not consent or was 
unable to consent or refuse; or
    (3) Has been civilly or administratively adjudicated to have 
engaged in the activity described in paragraph (a)(2) of this section.
    (b) The agency shall consider any incidents of sexual harassment in 
determining whether to hire or promote anyone, or to enlist the 
services of any contractor, who may have contact with inmates.
    (c) Before hiring new employees who may have contact with inmates, 
the agency shall:
    (1) Perform a criminal background records check; and
    (2) Consistent with Federal, State, and local law, make its best 
efforts to contact all prior institutional employers for information on 
substantiated allegations of sexual abuse or any resignation during a 
pending investigation of an allegation of sexual abuse.
    (d) The agency shall also perform a criminal background records 
check before enlisting the services of any contractor who may have 
contact with inmates.
    (e) The agency shall either conduct criminal background records 
checks at least every five years of current employees and contractors 
who may have contact with inmates or have in place a system for 
otherwise capturing such information for current employees.
    (f) The agency shall ask all applicants and employees who may have 
contact with inmates directly about previous misconduct described in 
paragraph (a) of this section in written applications or interviews for 
hiring or promotions and in any interviews or written self-evaluations 
conducted as part of reviews of current employees. The agency shall 
also impose upon employees a continuing affirmative duty to disclose 
any such misconduct.
    (g) Material omissions regarding such misconduct, or the provision 
of materially false information, shall be grounds for termination.
    (h) Unless prohibited by law, the agency shall provide information 
on substantiated allegations of sexual abuse or sexual harassment 
involving a former employee upon receiving a request from an 
institutional employer for whom such employee has applied to work.


Sec.  115.18  Upgrades to facilities and technologies.

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

Responsive Planning


Sec.  115.21  Evidence protocol and forensic medical examinations.

    (a) To the extent the agency is responsible for investigating 
allegations of sexual abuse, the agency shall follow a uniform evidence 
protocol that maximizes the potential for obtaining usable physical 
evidence for administrative proceedings and criminal prosecutions.
    (b) The protocol shall be developmentally appropriate for youth 
where applicable, and, as appropriate, shall be adapted from or 
otherwise based on the most recent edition of the U.S. Department of 
Justice's Office on Violence Against Women publication, ``A National 
Protocol for Sexual Assault Medical Forensic Examinations, Adults/
Adolescents,'' or similarly comprehensive and authoritative protocols 
developed after 2011.
    (c) The agency shall offer all victims of sexual abuse access to 
forensic medical examinations, whether on-site or at an outside 
facility, without financial cost, where evidentiarily or medically 
appropriate. Such examinations shall be performed by Sexual Assault 
Forensic Examiners (SAFEs) or Sexual Assault Nurse

[[Page 37203]]

Examiners (SANEs) where possible. If SAFEs or SANEs cannot be made 
available, the examination can be performed by other qualified medical 
practitioners. The agency shall document its efforts to provide SAFEs 
or SANEs.
    (d) The agency shall attempt to make available to the victim a 
victim advocate from a rape crisis center. If a rape crisis center is 
not available to provide victim advocate services, the agency shall 
make available to provide these services a qualified staff member from 
a community-based organization, or a qualified agency staff member. 
Agencies shall document efforts to secure services from rape crisis 
centers. For the purpose of this standard, a rape crisis center refers 
to an entity that provides intervention and related assistance, such as 
the services specified in 42 U.S.C. 14043g(b)(2)(C), to victims of 
sexual assault of all ages. The agency may utilize a rape crisis center 
that is part of a governmental unit as long as the center is not part 
of the criminal justice system (such as a law enforcement agency) and 
offers a comparable level of confidentiality as a nongovernmental 
entity that provides similar victim services.
    (e) As requested by the victim, the victim advocate, qualified 
agency staff member, or qualified community-based organization staff 
member shall accompany and support the victim through the forensic 
medical examination process and investigatory interviews and shall 
provide emotional support, crisis intervention, information, and 
referrals.
    (f) To the extent the agency itself is not responsible for 
investigating allegations of sexual abuse, the agency shall request 
that the investigating agency follow the requirements of paragraphs (a) 
through (e) of this section.
    (g) The requirements of paragraphs (a) through (f) of this section 
shall also apply to:
    (1) Any State entity outside of the agency that is responsible for 
investigating allegations of sexual abuse in prisons or jails; and
    (2) Any Department of Justice component that is responsible for 
investigating allegations of sexual abuse in prisons or jails.
    (h) For the purposes of this section, a qualified agency staff 
member or a qualified community-based staff member shall be an 
individual who has been screened for appropriateness to serve in this 
role and has received education concerning sexual assault and forensic 
examination issues in general.


Sec.  115.22  Policies to ensure referrals of allegations for 
investigations.

    (a) The agency shall ensure that an administrative or criminal 
investigation is completed for all allegations of sexual abuse and 
sexual harassment.
    (b) The agency shall have in place a policy to ensure that 
allegations of sexual abuse or sexual harassment are referred for 
investigation to an agency with the legal authority to conduct criminal 
investigations, unless the allegation does not involve potentially 
criminal behavior. The agency shall publish such policy on its Web site 
or, if it does not have one, make the policy available through other 
means. The agency shall document all such referrals.
    (c) If a separate entity is responsible for conducting criminal 
investigations, such publication shall describe the responsibilities of 
both the agency and the investigating entity.
    (d) Any State entity responsible for conducting administrative or 
criminal investigations of sexual abuse or sexual harassment in prisons 
or jails shall have in place a policy governing the conduct of such 
investigations.
    (e) Any Department of Justice component responsible for conducting 
administrative or criminal investigations of sexual abuse or sexual 
harassment in prisons or jails shall have in place a policy governing 
the conduct of such investigations.

Training and Education


Sec.  115.31  Employee training.

    (a) The agency shall train all employees who may have contact with 
inmates on:
    (1) Its zero-tolerance policy for sexual abuse and sexual 
harassment;
    (2) How to fulfill their responsibilities under agency sexual abuse 
and sexual harassment prevention, detection, reporting, and response 
policies and procedures;
    (3) Inmates' right to be free from sexual abuse and sexual 
harassment;
    (4) The right of inmates and employees to be free from retaliation 
for reporting sexual abuse and sexual harassment;
    (5) The dynamics of sexual abuse and sexual harassment in 
confinement;
    (6) The common reactions of sexual abuse and sexual harassment 
victims;
    (7) How to detect and respond to signs of threatened and actual 
sexual abuse;
    (8) How to avoid inappropriate relationships with inmates;
    (9) How to communicate effectively and professionally with inmates, 
including lesbian, gay, bisexual, transgender, intersex, or gender 
nonconforming inmates; and
    (10) How to comply with relevant laws related to mandatory 
reporting of sexual abuse to outside authorities.
    (b) Such training shall be tailored to the gender of the inmates at 
the employee's facility. The employee shall receive additional training 
if the employee is reassigned from a facility that houses only male 
inmates to a facility that houses only female inmates, or vice versa.
    (c) All current employees who have not received such training shall 
be trained within one year of the effective date of the PREA standards, 
and the agency shall provide each employee with refresher training 
every two years to ensure that all employees know the agency's current 
sexual abuse and sexual harassment policies and procedures. In years in 
which an employee does not receive refresher training, the agency shall 
provide refresher information on current sexual abuse and sexual 
harassment policies.
    (d) The agency shall document, through employee signature or 
electronic verification, that employees understand the training they 
have received.


Sec.  115.32  Volunteer and contractor training.

    (a) The agency shall ensure that all volunteers and contractors who 
have contact with inmates have been trained on their responsibilities 
under the agency's sexual abuse and sexual harassment prevention, 
detection, and response policies and procedures.
    (b) The level and type of training provided to volunteers and 
contractors shall be based on the services they provide and level of 
contact they have with inmates, but all volunteers and contractors who 
have contact with inmates shall be notified of the agency's zero-
tolerance policy regarding sexual abuse and sexual harassment and 
informed how to report such incidents.
    (c) The agency shall maintain documentation confirming that 
volunteers and contractors understand the training they have received.


Sec.  115.33  Inmate education.

    (a) During the intake process, inmates shall receive information 
explaining the agency's zero-tolerance policy regarding sexual abuse 
and sexual harassment and how to report incidents or suspicions of 
sexual abuse or sexual harassment.
    (b) Within 30 days of intake, the agency shall provide 
comprehensive education to inmates either in person or through video 
regarding their rights to be free from sexual abuse and sexual 
harassment and to be free from retaliation for reporting such 
incidents, and regarding agency policies and

[[Page 37204]]

procedures for responding to such incidents.
    (c) Current inmates who have not received such education shall be 
educated within one year of the effective date of the PREA standards, 
and shall receive education upon transfer to a different facility to 
the extent that the policies and procedures of the inmate's new 
facility differ from those of the previous facility.
    (d) The agency shall provide inmate education in formats accessible 
to all inmates, including those who are limited English proficient, 
deaf, visually impaired, or otherwise disabled, as well as to inmates 
who have limited reading skills.
    (e) The agency shall maintain documentation of inmate participation 
in these education sessions.
    (f) In addition to providing such education, the agency shall 
ensure that key information is continuously and readily available or 
visible to inmates through posters, inmate handbooks, or other written 
formats.


Sec.  115.34  Specialized training: Investigations.

    (a) In addition to the general training provided to all employees 
pursuant to Sec.  115.31, the agency shall ensure that, to the extent 
the agency itself conducts sexual abuse investigations, its 
investigators have received training in conducting such investigations 
in confinement settings.
    (b) Specialized training shall include techniques for interviewing 
sexual abuse victims, proper use of Miranda and Garrity warnings, 
sexual abuse evidence collection in confinement settings, and the 
criteria and evidence required to substantiate a case for 
administrative action or prosecution referral.
    (c) The agency shall maintain documentation that agency 
investigators have completed the required specialized training in 
conducting sexual abuse investigations.
    (d) Any State entity or Department of Justice component that 
investigates sexual abuse in confinement settings shall provide such 
training to its agents and investigators who conduct such 
investigations.


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

    (a) The agency shall ensure that all full- and part-time medical 
and mental health care practitioners who work regularly in its 
facilities have been trained in:
    (1) How to detect and assess signs of sexual abuse and sexual 
harassment;
    (2) How to preserve physical evidence of sexual abuse;
    (3) How to respond effectively and professionally to victims of 
sexual abuse and sexual harassment; and
    (4) How and to whom to report allegations or suspicions of sexual 
abuse and sexual harassment.
    (b) If medical staff employed by the agency conduct forensic 
examinations, such medical staff shall receive the appropriate training 
to conduct such examinations.
    (c) The agency shall maintain documentation that medical and mental 
health practitioners have received the training referenced in this 
standard either from the agency or elsewhere.
    (d) Medical and mental health care practitioners shall also receive 
the training mandated for employees under Sec.  115.31 or for 
contractors and volunteers under Sec.  115.32, depending upon the 
practitioner's status at the agency.

Screening for Risk of Sexual Victimization and Abusiveness


Sec.  115.41  Screening for risk of victimization and abusiveness.

    (a) All inmates shall be assessed during an intake screening and 
upon transfer to another facility for their risk of being sexually 
abused by other inmates or sexually abusive toward other inmates.
    (b) Intake screening shall ordinarily take place within 72 hours of 
arrival at the facility.
    (c) Such assessments shall be conducted using an objective 
screening instrument.
    (d) The intake screening shall consider, at a minimum, the 
following criteria to assess inmates for risk of sexual victimization:
    (1) Whether the inmate has a mental, physical, or developmental 
disability;
    (2) The age of the inmate;
    (3) The physical build of the inmate;
    (4) Whether the inmate has previously been incarcerated;
    (5) Whether the inmate's criminal history is exclusively 
nonviolent;
    (6) Whether the inmate has prior convictions for sex offenses 
against an adult or child;
    (7) Whether the inmate is or is perceived to be gay, lesbian, 
bisexual, transgender, intersex, or gender nonconforming;
    (8) Whether the inmate has previously experienced sexual 
victimization;
    (9) The inmate's own perception of vulnerability; and
    (10) Whether the inmate is detained solely for civil immigration 
purposes.
    (e) The initial screening shall consider prior acts of sexual 
abuse, prior convictions for violent offenses, and history of prior 
institutional violence or sexual abuse, as known to the agency, in 
assessing inmates for risk of being sexually abusive.
    (f) Within a set time period, not to exceed 30 days from the 
inmate's arrival at the facility, the facility will reassess the 
inmate's risk of victimization or abusiveness based upon any 
additional, relevant information received by the facility since the 
intake screening.
    (g) An inmate's risk level shall be reassessed when warranted due 
to a referral, request, incident of sexual abuse, or receipt of 
additional information that bears on the inmate's risk of sexual 
victimization or abusiveness.
    (h) Inmates may not be disciplined for refusing to answer, or for 
not disclosing complete information in response to, questions asked 
pursuant to paragraphs (d)(1), (d)(7), (d)(8), or (d)(9) of this 
section.
    (i) The agency shall implement appropriate controls on the 
dissemination within the facility of responses to questions asked 
pursuant to this standard in order to ensure that sensitive information 
is not exploited to the inmate's detriment by staff or other inmates.


Sec.  115.42  Use of screening information.

    (a) The agency shall use information from the risk screening 
required by Sec.  115.41 to inform housing, bed, work, education, and 
program assignments with the goal of keeping separate those inmates at 
high risk of being sexually victimized from those at high risk of being 
sexually abusive.
    (b) The agency shall make individualized determinations about how 
to ensure the safety of each inmate.
    (c) In deciding whether to assign a transgender or intersex inmate 
to a facility for male or female inmates, and in making other housing 
and programming assignments, the agency shall consider on a case-by-
case basis whether a placement would ensure the inmate's health and 
safety, and whether the placement would present management or security 
problems.
    (d) Placement and programming assignments for each transgender or 
intersex inmate shall be reassessed at least twice each year to review 
any threats to safety experienced by the inmate.
    (e) A transgender or intersex inmate's own views with respect to 
his or her own safety shall be given serious consideration.
    (f) Transgender and intersex inmates shall be given the opportunity 
to shower separately from other inmates.

[[Page 37205]]

    (g) The agency shall not place lesbian, gay, bisexual, transgender, 
or intersex inmates in dedicated facilities, units, or wings solely on 
the basis of such identification or status, unless such placement is in 
a dedicated facility, unit, or wing established in connection with a 
consent decree, legal settlement, or legal judgment for the purpose of 
protecting such inmates.


Sec.  115.43  Protective custody.

    (a) Inmates at high risk for sexual victimization shall not be 
placed in involuntary segregated housing unless an assessment of all 
available alternatives has been made, and a determination has been made 
that there is no available alternative means of separation from likely 
abusers. If a facility cannot conduct such an assessment immediately, 
the facility may hold the inmate in involuntary segregated housing for 
less than 24 hours while completing the assessment.
    (b) Inmates placed in segregated housing for this purpose shall 
have access to programs, privileges, education, and work opportunities 
to the extent possible. If the facility restricts access to programs, 
privileges, education, or work opportunities, the facility shall 
document:
    (1) The opportunities that have been limited;
    (2) The duration of the limitation; and
    (3) The reasons for such limitations.
    (c) The facility shall assign such inmates to involuntary 
segregated housing only until an alternative means of separation from 
likely abusers can be arranged, and such an assignment shall not 
ordinarily exceed a period of 30 days.
    (d) If an involuntary segregated housing assignment is made 
pursuant to paragraph (a) of this section, the facility shall clearly 
document:
    (1) The basis for the facility's concern for the inmate's safety; 
and
    (2) The reason why no alternative means of separation can be 
arranged.
    (e) Every 30 days, the facility shall afford each such inmate a 
review to determine whether there is a continuing need for separation 
from the general population.

Reporting


Sec.  115.51  Inmate reporting.

    (a) The agency shall provide multiple internal ways for inmates to 
privately report sexual abuse and sexual harassment, retaliation by 
other inmates or staff for reporting sexual abuse and sexual 
harassment, and staff neglect or violation of responsibilities that may 
have contributed to such incidents.
    (b) The agency shall also provide at least one way for inmates to 
report abuse or harassment to a public or private entity or office that 
is not part of the agency, and that is able to receive and immediately 
forward inmate reports of sexual abuse and sexual harassment to agency 
officials, allowing the inmate to remain anonymous upon request. 
Inmates detained solely for civil immigration purposes shall be 
provided information on how to contact relevant consular officials and 
relevant officials at the Department of Homeland Security.
    (c) Staff shall accept reports made verbally, in writing, 
anonymously, and from third parties and shall promptly document any 
verbal reports.
    (d) The agency shall provide a method for staff to privately report 
sexual abuse and sexual harassment of inmates.


Sec.  115.52  Exhaustion of administrative remedies.

    (a) An agency shall be exempt from this standard if it does not 
have administrative procedures to address inmate grievances regarding 
sexual abuse.
    (b)(1) The agency shall not impose a time limit on when an inmate 
may submit a grievance regarding an allegation of sexual abuse.
    (2) The agency may apply otherwise-applicable time limits to any 
portion of a grievance that does not allege an incident of sexual 
abuse.
    (3) The agency shall not require an inmate to use any informal 
grievance process, or to otherwise attempt to resolve with staff, an 
alleged incident of sexual abuse.
    (4) Nothing in this section shall restrict the agency's ability to 
defend against an inmate lawsuit on the ground that the applicable 
statute of limitations has expired.
    (c) The agency shall ensure that--
    (1) An inmate who alleges sexual abuse may submit a grievance 
without submitting it to a staff member who is the subject of the 
complaint, and
    (2) Such grievance is not referred to a staff member who is the 
subject of the complaint.
    (d)(1) The agency shall issue a final agency decision on the merits 
of any portion of a grievance alleging sexual abuse within 90 days of 
the initial filing of the grievance.
    (2) Computation of the 90-day time period shall not include time 
consumed by inmates in preparing any administrative appeal.
    (3) The agency may claim an extension of time to respond, of up to 
70 days, if the normal time period for response is insufficient to make 
an appropriate decision. The agency shall notify the inmate in writing 
of any such extension and provide a date by which a decision will be 
made.
    (4) At any level of the administrative process, including the final 
level, if the inmate does not receive a response within the time 
allotted for reply, including any properly noticed extension, the 
inmate may consider the absence of a response to be a denial at that 
level.
    (e)(1) Third parties, including fellow inmates, staff members, 
family members, attorneys, and outside advocates, shall be permitted to 
assist inmates in filing requests for administrative remedies relating 
to allegations of sexual abuse, and shall also be permitted to file 
such requests on behalf of inmates.
    (2) If a third party files such a request on behalf of an inmate, 
the facility may require as a condition of processing the request that 
the alleged victim agree to have the request filed on his or her 
behalf, and may also require the alleged victim to personally pursue 
any subsequent steps in the administrative remedy process.
    (3) If the inmate declines to have the request processed on his or 
her behalf, the agency shall document the inmate's decision.
    (f)(1) The agency shall establish procedures for the filing of an 
emergency grievance alleging that an inmate is subject to a substantial 
risk of imminent sexual abuse.
    (2) After receiving an emergency grievance alleging an inmate is 
subject to a substantial risk of imminent sexual abuse, the agency 
shall immediately forward the grievance (or any portion thereof that 
alleges the substantial risk of imminent sexual abuse) to a level of 
review at which immediate corrective action may be taken, shall provide 
an initial response within 48 hours, and shall issue a final agency 
decision within 5 calendar days. The initial response and final agency 
decision shall document the agency's determination whether the inmate 
is in substantial risk of imminent sexual abuse and the action taken in 
response to the emergency grievance.
    (g) The agency may discipline an inmate for filing a grievance 
related to alleged sexual abuse only where the agency demonstrates that 
the inmate filed the grievance in bad faith.


Sec.  115.53  Inmate access to outside confidential support services.

    (a) The facility shall provide inmates with access to outside 
victim advocates for emotional support services related to sexual abuse 
by giving inmates mailing

[[Page 37206]]

addresses and telephone numbers, including toll-free hotline numbers 
where available, of local, State, or national victim advocacy or rape 
crisis organizations, and, for persons detained solely for civil 
immigration purposes, immigrant services agencies. The facility shall 
enable reasonable communication between inmates and these organizations 
and agencies, in as confidential a manner as possible.
    (b) The facility shall inform inmates, prior to giving them access, 
of the extent to which such communications will be monitored and the 
extent to which reports of abuse will be forwarded to authorities in 
accordance with mandatory reporting laws.
    (c) The agency shall maintain or attempt to enter into memoranda of 
understanding or other agreements with community service providers that 
are able to provide inmates with confidential emotional support 
services related to sexual abuse. The agency shall maintain copies of 
agreements or documentation showing attempts to enter into such 
agreements.


Sec.  115.54  Third-party reporting.

    The agency shall establish a method to receive third-party reports 
of sexual abuse and sexual harassment and shall distribute publicly 
information on how to report sexual abuse and sexual harassment on 
behalf of an inmate.

Official Response Following an Inmate Report


Sec.  115.61  Staff and agency reporting duties.

    (a) The agency shall require all staff to report immediately and 
according to agency policy any knowledge, suspicion, or information 
regarding an incident of sexual abuse or sexual harassment that 
occurred in a facility, whether or not it is part of the agency; 
retaliation against inmates or staff who reported such an incident; and 
any staff neglect or violation of responsibilities that may have 
contributed to an incident or retaliation.
    (b) Apart from reporting to designated supervisors or officials, 
staff shall not reveal any information related to a sexual abuse report 
to anyone other than to the extent necessary, as specified in agency 
policy, to make treatment, investigation, and other security and 
management decisions.
    (c) Unless otherwise precluded by Federal, State, or local law, 
medical and mental health practitioners shall be required to report 
sexual abuse pursuant to paragraph (a) of this section and to inform 
inmates of the practitioner's duty to report, and the limitations of 
confidentiality, at the initiation of services.
    (d) If the alleged victim is under the age of 18 or considered a 
vulnerable adult under a State or local vulnerable persons statute, the 
agency shall report the allegation to the designated State or local 
services agency under applicable mandatory reporting laws.
    (e) The facility shall report all allegations of sexual abuse and 
sexual harassment, including third-party and anonymous reports, to the 
facility's designated investigators.


Sec.  115.62  Agency protection duties.

    When an agency learns that an inmate is subject to a substantial 
risk of imminent sexual abuse, it shall take immediate action to 
protect the inmate.


Sec.  115.63  Reporting to other confinement facilities.

    (a) Upon receiving an allegation that an inmate was sexually abused 
while confined at another facility, the head of the facility that 
received the allegation shall notify the head of the facility or 
appropriate office of the agency where the alleged abuse occurred.
    (b) Such notification shall be provided as soon as possible, but no 
later than 72 hours after receiving the allegation.
    (c) The agency shall document that it has provided such 
notification.
    (d) The facility head or agency office that receives such 
notification shall ensure that the allegation is investigated in 
accordance with these standards.


Sec.  115.64  Staff first responder duties.

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


Sec.  115.65  Coordinated response.

    The facility shall develop a written institutional plan to 
coordinate actions taken in response to an incident of sexual abuse, 
among staff first responders, medical and mental health practitioners, 
investigators, and facility leadership.


Sec.  115.66  Preservation of ability to protect inmates from contact 
with abusers.

    (a) Neither the agency nor any other governmental entity 
responsible for collective bargaining on the agency's behalf shall 
enter into or renew any collective bargaining agreement or other 
agreement that limits the agency's ability to remove alleged staff 
sexual abusers from contact with any inmates pending the outcome of an 
investigation or of a determination of whether and to what extent 
discipline is warranted.
    (b) Nothing in this standard shall restrict the entering into or 
renewal of agreements that govern:
    (1) The conduct of the disciplinary process, as long as such 
agreements are not inconsistent with the provisions of Sec. Sec.  
115.72 and 115.76; or
    (2) Whether a no-contact assignment that is imposed pending the 
outcome of an investigation shall be expunged from or retained in the 
staff member's personnel file following a determination that the 
allegation of sexual abuse is not substantiated.


Sec.  115.67  Agency protection against retaliation.

    (a) The agency shall establish a policy to protect all inmates and 
staff who report sexual abuse or sexual harassment or cooperate with 
sexual abuse or sexual harassment investigations from retaliation by 
other inmates or staff, and shall designate which staff members or 
departments are charged with monitoring retaliation.
    (b) The agency shall employ multiple protection measures, such as 
housing changes or transfers for inmate victims or abusers, removal of 
alleged staff or inmate abusers from contact with victims, and 
emotional support services for inmates or staff who fear retaliation 
for reporting sexual abuse or sexual harassment or for cooperating with 
investigations.
    (c) For at least 90 days following a report of sexual abuse, the 
agency shall monitor the conduct and treatment of inmates or staff who 
reported the sexual abuse and of inmates who were reported to have 
suffered sexual abuse to see if

[[Page 37207]]

there are changes that may suggest possible retaliation by inmates or 
staff, and shall act promptly to remedy any such retaliation. Items the 
agency should monitor include any inmate disciplinary reports, housing, 
or program changes, or negative performance reviews or reassignments of 
staff. The agency shall continue such monitoring beyond 90 days if the 
initial monitoring indicates a continuing need.
    (d) In the case of inmates, such monitoring shall also include 
periodic status checks.
    (e) If any other individual who cooperates with an investigation 
expresses a fear of retaliation, the agency shall take appropriate 
measures to protect that individual against retaliation.
    (f) An agency's obligation to monitor shall terminate if the agency 
determines that the allegation is unfounded.


Sec.  115.68  Post-allegation protective custody.

    Any use of segregated housing to protect an inmate who is alleged 
to have suffered sexual abuse shall be subject to the requirements of 
Sec.  115.43.

Investigations


Sec.  115.71  Criminal and administrative agency investigations.

    (a) When the agency conducts its own investigations into 
allegations of sexual abuse and sexual harassment, it shall do so 
promptly, thoroughly, and objectively for all allegations, including 
third-party and anonymous reports.
    (b) Where sexual abuse is alleged, the agency shall use 
investigators who have received special training in sexual abuse 
investigations pursuant to Sec.  115.34.
    (c) Investigators shall gather and preserve direct and 
circumstantial evidence, including any available physical and DNA 
evidence and any available electronic monitoring data; shall interview 
alleged victims, suspected perpetrators, and witnesses; and shall 
review prior complaints and reports of sexual abuse involving the 
suspected perpetrator.
    (d) When the quality of evidence appears to support criminal 
prosecution, the agency shall conduct compelled interviews only after 
consulting with prosecutors as to whether compelled interviews may be 
an obstacle for subsequent criminal prosecution.
    (e) The credibility of an alleged victim, suspect, or witness shall 
be assessed on an individual basis and shall not be determined by the 
person's status as inmate or staff. No agency shall require an inmate 
who alleges sexual abuse to submit to a polygraph examination or other 
truth-telling device as a condition for proceeding with the 
investigation of such an allegation.
    (f) Administrative investigations:
    (1) Shall include an effort to determine whether staff actions or 
failures to act contributed to the abuse; and
    (2) Shall be documented in written reports that include a 
description of the physical and testimonial evidence, the reasoning 
behind credibility assessments, and investigative facts and findings.
    (g) Criminal investigations shall be documented in a written report 
that contains a thorough description of physical, testimonial, and 
documentary evidence and attaches copies of all documentary evidence 
where feasible.
    (h) Substantiated allegations of conduct that appears to be 
criminal shall be referred for prosecution.
    (i) The agency shall retain all written reports referenced in 
paragraphs (f) and (g) of this section for as long as the alleged 
abuser is incarcerated or employed by the agency, plus five years.
    (j) The departure of the alleged abuser or victim from the 
employment or control of the facility or agency shall not provide a 
basis for terminating an investigation.
    (k) Any State entity or Department of Justice component that 
conducts such investigations shall do so pursuant to the above 
requirements.
    (l) When outside agencies investigate sexual abuse, the facility 
shall cooperate with outside investigators and shall endeavor to remain 
informed about the progress of the investigation.


Sec.  115.72  Evidentiary standard for administrative investigations.

    The agency shall impose no standard higher than a preponderance of 
the evidence in determining whether allegations of sexual abuse or 
sexual harassment are substantiated.


Sec.  115.73  Reporting to inmates.

    (a) Following an investigation into an inmate's allegation that he 
or she suffered sexual abuse in an agency facility, the agency shall 
inform the inmate as to whether the allegation has been determined to 
be substantiated, unsubstantiated, or unfounded.
    (b) If the agency did not conduct the investigation, it shall 
request the relevant information from the investigative agency in order 
to inform the inmate.
    (c) Following an inmate's allegation that a staff member has 
committed sexual abuse against the inmate, the agency shall 
subsequently inform the inmate (unless the agency has determined that 
the allegation is unfounded) whenever:
    (1) The staff member is no longer posted within the inmate's unit;
    (2) The staff member is no longer employed at the facility;
    (3) The agency learns that the staff member has been indicted on a 
charge related to sexual abuse within the facility; or
    (4) The agency learns that the staff member has been convicted on a 
charge related to sexual abuse within the facility.
    (d) Following an inmate's allegation that he or she has been 
sexually abused by another inmate, the agency shall subsequently inform 
the alleged victim whenever:
    (1) The agency learns that the alleged abuser has been indicted on 
a charge related to sexual abuse within the facility; or
    (2) The agency learns that the alleged abuser has been convicted on 
a charge related to sexual abuse within the facility.
    (e) All such notifications or attempted notifications shall be 
documented.
    (f) An agency's obligation to report under this standard shall 
terminate if the inmate is released from the agency's custody.

Discipline


Sec.  115.76  Disciplinary sanctions for staff.

    (a) Staff shall be subject to disciplinary sanctions up to and 
including termination for violating agency sexual abuse or sexual 
harassment policies.
    (b) Termination shall be the presumptive disciplinary sanction for 
staff who have engaged in sexual abuse.
    (c) Disciplinary sanctions for violations of agency policies 
relating to sexual abuse or sexual harassment (other than actually 
engaging in sexual abuse) shall be commensurate with the nature and 
circumstances of the acts committed, the staff member's disciplinary 
history, and the sanctions imposed for comparable offenses by other 
staff with similar histories.
    (d) All terminations for violations of agency sexual abuse or 
sexual harassment policies, or resignations by staff who would have 
been terminated if not for their resignation, shall be reported to law 
enforcement agencies, unless the activity was clearly not criminal, and 
to any relevant licensing bodies.


Sec.  115.77  Corrective action for contractors and volunteers.

    (a) Any contractor or volunteer who engages in sexual abuse shall 
be

[[Page 37208]]

prohibited from contact with inmates and shall be reported to law 
enforcement agencies, unless the activity was clearly not criminal, and 
to relevant licensing bodies.
    (b) The facility shall take appropriate remedial measures, and 
shall consider whether to prohibit further contact with inmates, in the 
case of any other violation of agency sexual abuse or sexual harassment 
policies by a contractor or volunteer.


Sec.  115.78  Disciplinary sanctions for inmates.

    (a) Inmates shall be subject to disciplinary sanctions pursuant to 
a formal disciplinary process following an administrative finding that 
the inmate engaged in inmate-on-inmate sexual abuse or following a 
criminal finding of guilt for inmate-on-inmate sexual abuse.
    (b) Sanctions shall be commensurate with the nature and 
circumstances of the abuse committed, the inmate's disciplinary 
history, and the sanctions imposed for comparable offenses by other 
inmates with similar histories.
    (c) The disciplinary process shall consider whether an inmate's 
mental disabilities or mental illness contributed to his or her 
behavior when determining what type of sanction, if any, should be 
imposed.
    (d) If the facility offers therapy, counseling, or other 
interventions designed to address and correct underlying reasons or 
motivations for the abuse, the facility shall consider whether to 
require the offending inmate to participate in such interventions as a 
condition of access to programming or other benefits.
    (e) The agency may discipline an inmate for sexual contact with 
staff only upon a finding that the staff member did not consent to such 
contact.
    (f) For the purpose of disciplinary action, a report of sexual 
abuse made in good faith based upon a reasonable belief that the 
alleged conduct occurred shall not constitute falsely reporting an 
incident or lying, even if an investigation does not establish evidence 
sufficient to substantiate the allegation.
    (g) An agency may, in its discretion, prohibit all sexual activity 
between inmates and may discipline inmates for such activity. An agency 
may not, however, deem such activity to constitute sexual abuse if it 
determines that the activity is not coerced.

Medical and Mental Care


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

    (a) If the screening pursuant to Sec.  115.41 indicates that a 
prison inmate has experienced prior sexual victimization, whether it 
occurred in an institutional setting or in the community, staff shall 
ensure that the inmate is offered a follow-up meeting with a medical or 
mental health practitioner within 14 days of the intake screening.
    (b) If the screening pursuant to Sec.  115.41 indicates that a 
prison inmate has previously perpetrated sexual abuse, whether it 
occurred in an institutional setting or in the community, staff shall 
ensure that the inmate is offered a follow-up meeting with a mental 
health practitioner within 14 days of the intake screening.
    (c) If the screening pursuant to Sec.  115.41 indicates that a jail 
inmate has experienced prior sexual victimization, whether it occurred 
in an institutional setting or in the community, staff shall ensure 
that the inmate is offered a follow-up meeting with a medical or mental 
health practitioner within 14 days of the intake screening.
    (d) Any information related to sexual victimization or abusiveness 
that occurred in an institutional setting shall be strictly limited to 
medical and mental health practitioners and other staff, as necessary, 
to inform treatment plans and security and management decisions, 
including housing, bed, work, education, and program assignments, or as 
otherwise required by Federal, State, or local law.
    (e) Medical and mental health practitioners shall obtain informed 
consent from inmates before reporting information about prior sexual 
victimization that did not occur in an institutional setting, unless 
the inmate is under the age of 18.


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

    (a) Inmate victims of sexual abuse shall receive timely, unimpeded 
access to emergency medical treatment and crisis intervention services, 
the nature and scope of which are determined by medical and mental 
health practitioners according to their professional judgment.
    (b) If no qualified medical or mental health practitioners are on 
duty at the time a report of recent abuse is made, security staff first 
responders shall take preliminary steps to protect the victim pursuant 
to Sec.  115.62 and shall immediately notify the appropriate medical 
and mental health practitioners.
    (c) Inmate victims of sexual abuse while incarcerated shall be 
offered timely information about and timely access to emergency 
contraception and sexually transmitted infections prophylaxis, in 
accordance with professionally accepted standards of care, where 
medically appropriate.
    (d) Treatment services shall be provided to the victim without 
financial cost and regardless of whether the victim names the abuser or 
cooperates with any investigation arising out of the incident.


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

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

Data Collection and Review


Sec.  115.86  Sexual abuse incident reviews.

    (a) The facility shall conduct a sexual abuse incident review at 
the conclusion of every sexual abuse investigation, including where the 
allegation has not been substantiated, unless the allegation has been 
determined to be unfounded.
    (b) Such review shall ordinarily occur within 30 days of the 
conclusion of the investigation.
    (c) The review team shall include upper-level management officials, 
with

[[Page 37209]]

input from line supervisors, investigators, and medical or mental 
health practitioners.
    (d) The review team shall:
    (1) Consider whether the allegation or investigation indicates a 
need to change policy or practice to better prevent, detect, or respond 
to sexual abuse;
    (2) Consider whether the incident or allegation was motivated by 
race; ethnicity; gender identity; lesbian, gay, bisexual, transgender, 
or intersex identification, status, or perceived status; or gang 
affiliation; or was motivated or otherwise caused by other group 
dynamics at the facility;
    (3) Examine the area in the facility where the incident allegedly 
occurred to assess whether physical barriers in the area may enable 
abuse;
    (4) Assess the adequacy of staffing levels in that area during 
different shifts;
    (5) Assess whether monitoring technology should be deployed or 
augmented to supplement supervision by staff; and
    (6) Prepare a report of its findings, including but not necessarily 
limited to determinations made pursuant to paragraphs (d)(1) through 
(d)(5) of this section, and any recommendations for improvement and 
submit such report to the facility head and PREA compliance manager.
    (e) The facility shall implement the recommendations for 
improvement, or shall document its reasons for not doing so.


Sec.  115.87  Data collection.

    (a) The agency shall collect accurate, uniform data for every 
allegation of sexual abuse at facilities under its direct control using 
a standardized instrument and set of definitions.
    (b) The agency shall aggregate the incident-based sexual abuse data 
at least annually.
    (c) The incident-based data collected shall include, at a minimum, 
the data necessary to answer all questions from the most recent version 
of the Survey of Sexual Violence conducted by the Department of 
Justice.
    (d) The agency shall maintain, review, and collect data as needed 
from all available incident-based documents, including reports, 
investigation files, and sexual abuse incident reviews.
    (e) The agency also shall obtain incident-based and aggregated data 
from every private facility with which it contracts for the confinement 
of its inmates.
    (f) Upon request, the agency shall provide all such data from the 
previous calendar year to the Department of Justice no later than June 
30.


Sec.  115.88  Data review for corrective action.

    (a) The agency shall review data collected and aggregated pursuant 
to Sec.  115.87 in order to assess and improve the effectiveness of its 
sexual abuse prevention, detection, and response policies, practices, 
and training, including by:
    (1) Identifying problem areas;
    (2) Taking corrective action on an ongoing basis; and
    (3) Preparing an annual report of its findings and corrective 
actions for each facility, as well as the agency as a whole.
    (b) Such report shall include a comparison of the current year's 
data and corrective actions with those from prior years and shall 
provide an assessment of the agency's progress in addressing sexual 
abuse.
    (c) The agency's report shall be approved by the agency head and 
made readily available to the public through its Web site or, if it 
does not have one, through other means.
    (d) The agency may redact specific material from the reports when 
publication would present a clear and specific threat to the safety and 
security of a facility, but must indicate the nature of the material 
redacted.


Sec.  115.89  Data storage, publication, and destruction.

    (a) The agency shall ensure that data collected pursuant to Sec.  
115.87 are securely retained.
    (b) The agency shall make all aggregated sexual abuse data, from 
facilities under its direct control and private facilities with which 
it contracts, readily available to the public at least annually through 
its Web site or, if it does not have one, through other means.
    (c) Before making aggregated sexual abuse data publicly available, 
the agency shall remove all personal identifiers.
    (d) The agency shall maintain sexual abuse data collected pursuant 
to Sec.  115.87 for at least 10 years after the date of the initial 
collection unless Federal, State, or local law requires otherwise.

Audits


Sec.  115.93  Audits of standards.

    The agency shall conduct audits pursuant to Sec. Sec.  115.401 
through 115.405.

Subpart B--Standards for Lockups

Prevention Planning


Sec.  115.111  Zero tolerance of sexual abuse and sexual harassment; 
PREA coordinator.

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


Sec.  115.112  Contracting with other entities for the confinement of 
detainees.

    (a) A law enforcement agency that contracts for the confinement of 
its lockup detainees in lockups operated by private agencies or other 
entities, including other government agencies, shall include in any new 
contract or contract renewal the entity's obligation to adopt and 
comply with the PREA standards.
    (b) Any new contract or contract renewal shall provide for agency 
contract monitoring to ensure that the contractor is complying with the 
PREA standards.


Sec.  115.113  Supervision and monitoring.

    (a) For each lockup, the agency shall develop and document a 
staffing plan that provides for adequate levels of staffing, and, where 
applicable, video monitoring, to protect detainees against sexual 
abuse. In calculating adequate staffing levels and determining the need 
for video monitoring, agencies shall take into consideration;
    (1) The physical layout of each lockup;
    (2) The composition of the detainee population;
    (3) The prevalence of substantiated and unsubstantiated incidents 
of sexual abuse; and
    (4) Any other relevant factors.
    (b) In circumstances where the staffing plan is not complied with, 
the lockup shall document and justify all deviations from the plan.
    (c) Whenever necessary, but no less frequently than once each year, 
the lockup shall assess, determine, and document whether adjustments 
are needed to:
    (1) The staffing plan established pursuant to paragraph (a) of this 
section;
    (2) Prevailing staffing patterns;
    (3) The lockup's deployment of video monitoring systems and other 
monitoring technologies; and
    (4) The resources the lockup has available to commit to ensure 
adequate staffing levels.
    (d) If vulnerable detainees are identified pursuant to the 
screening required by Sec.  115.141, security staff shall provide such 
detainees with

[[Page 37210]]

heightened protection, to include continuous direct sight and sound 
supervision, single-cell housing, or placement in a cell actively 
monitored on video by a staff member sufficiently proximate to 
intervene, unless no such option is determined to be feasible.


Sec.  115.114  Juveniles and youthful detainees.

    Juveniles and youthful detainees shall be held separately from 
adult detainees.


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

    (a) The lockup shall not conduct cross-gender strip searches or 
cross-gender visual body cavity searches (meaning a search of the anal 
or genital opening) except in exigent circumstances or when performed 
by medical practitioners.
    (b) The lockup shall document all cross-gender strip searches and 
cross-gender visual body cavity searches.
    (c) The lockup shall implement policies and procedures that enable 
detainees to shower, perform bodily functions, and change clothing 
without nonmedical staff of the opposite gender viewing their breasts, 
buttocks, or genitalia, except in exigent circumstances or when such 
viewing is incidental to routine cell checks. Such policies and 
procedures shall require staff of the opposite gender to announce their 
presence when entering an area where detainees are likely to be 
showering, performing bodily functions, or changing clothing.
    (d) The lockup shall not search or physically examine a transgender 
or intersex detainee for the sole purpose of determining the detainee's 
genital status. If the detainee's genital status is unknown, it may be 
determined during conversations with the detainee, by reviewing medical 
records, or, if necessary, by learning that information as part of a 
broader medical examination conducted in private by a medical 
practitioner.
    (e) The agency shall train law enforcement staff in how to conduct 
cross-gender pat-down searches, and searches of transgender and 
intersex detainees, in a professional and respectful manner, and in the 
least intrusive manner possible, consistent with security needs.


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

    (a) The agency shall take appropriate steps to ensure that 
detainees with disabilities (including, for example, detainees who are 
deaf or hard of hearing, those who are blind or have low vision, or 
those who have intellectual, psychiatric, or speech disabilities), have 
an equal opportunity to participate in or benefit from all aspects of 
the agency's efforts to prevent, detect, and respond to sexual abuse 
and sexual harassment. Such steps shall include, when necessary to 
ensure effective communication with detainees who are deaf or hard of 
hearing, providing access to interpreters who can interpret 
effectively, accurately, and impartially, both receptively and 
expressively, using any necessary specialized vocabulary. In addition, 
the agency shall ensure that written materials are provided in formats 
or through methods that ensure effective communication with detainees 
with disabilities, including detainees who have intellectual 
disabilities, limited reading skills, or who are blind or have low 
vision. An agency is not required to take actions that it can 
demonstrate would result in a fundamental alteration in the nature of a 
service, program, or activity, or in undue financial and administrative 
burdens, as those terms are used in regulations promulgated under title 
II of the Americans With Disabilities Act, 28 CFR 35.164.
    (b) The agency shall take reasonable steps to ensure meaningful 
access to all aspects of the agency's efforts to prevent, detect, and 
respond to sexual abuse and sexual harassment to detainees who are 
limited English proficient, including steps to provide interpreters who 
can interpret effectively, accurately, and impartially, both 
receptively and expressively, using any necessary specialized 
vocabulary.
    (c) The agency shall not rely on detainee interpreters, detainee 
readers, or other types of detainee assistants except in limited 
circumstances where an extended delay in obtaining an effective 
interpreter could compromise the detainee's safety, the performance of 
first-response duties under Sec.  115.164, or the investigation of the 
detainee's allegations.


Sec.  115.117  Hiring and promotion decisions.

    (a) The agency shall not hire or promote anyone who may have 
contact with detainees, and shall not enlist the services of any 
contractor who may have contact with detainees, who--
    (1) Has engaged in sexual abuse in a prison, jail, lockup, 
community confinement facility, juvenile facility, or other institution 
(as defined in 42 U.S.C. 1997);
    (2) Has been convicted of engaging or attempting to engage in 
sexual activity in the community facilitated by force, overt or implied 
threats of force, or coercion, or if the victim did not consent or was 
unable to consent or refuse; or
    (3) Has been civilly or administratively adjudicated to have 
engaged in the activity described in paragraph (a)(2) of this section.
    (b) The agency shall consider any incidents of sexual harassment in 
determining whether to hire or promote anyone, or to enlist the 
services of any contractor, who may have contact with detainees.
    (c) Before hiring new employees who may have contact with 
detainees, the agency shall:
    (1) Perform a criminal background records check; and
    (2) Consistent with Federal, State, and local law, make its best 
efforts to contact all prior institutional employers for information on 
substantiated allegations of sexual abuse or any resignation during a 
pending investigation of an allegation of sexual abuse.
    (d) The agency shall also perform a criminal background records 
check before enlisting the services of any contractor who may have 
contact with detainees.
    (e) The agency shall either conduct criminal background records 
checks at least every five years of current employees and contractors 
who may have contact with detainees or have in place a system for 
otherwise capturing such information for current employees.
    (f) The agency shall ask all applicants and employees who may have 
contact with detainees directly about previous misconduct described in 
paragraph (a) of this section in written applications or interviews for 
hiring or promotions and in any interviews or written self-evaluations 
conducted as part of reviews of current employees. The agency shall 
also impose upon employees a continuing affirmative duty to disclose 
any such misconduct.
    (g) Material omissions regarding such misconduct, or the provision 
of materially false information, shall be grounds for termination.
    (h) Unless prohibited by law, the agency shall provide information 
on substantiated allegations of sexual abuse or sexual harassment 
involving a former employee upon receiving a request from an 
institutional employer for whom such employee has applied to work.


Sec.  115.118  Upgrades to facilities and technologies.

    (a) When designing or acquiring any new lockup and in planning any 
substantial expansion or modification of existing lockups, the agency 
shall consider the effect of the design, acquisition, expansion, or 
modification

[[Page 37211]]

upon the agency's ability to protect detainees from sexual abuse.
    (b) When installing or updating a video monitoring system, 
electronic surveillance system, or other monitoring technology, the 
agency shall consider how such technology may enhance the agency's 
ability to protect detainees from sexual abuse.

Responsive Planning


Sec.  115.121  Evidence protocol and forensic medical examinations.

    (a) To the extent the agency is responsible for investigating 
allegations of sexual abuse in its lockups, the agency shall follow a 
uniform evidence protocol that maximizes the potential for obtaining 
usable physical evidence for administrative proceedings and criminal 
prosecutions.
    (b) The protocol shall be developmentally appropriate for youth 
where applicable, and, as appropriate, shall be adapted from or 
otherwise based on the most recent edition of the U.S. Department of 
Justice's Office on Violence Against Women publication, ``A National 
Protocol for Sexual Assault Medical Forensic Examinations, Adults/
Adolescents,'' or similarly comprehensive and authoritative protocols 
developed after 2011. As part of the training required in Sec.  
115.131, employees and volunteers who may have contact with lockup 
detainees shall receive basic training regarding how to detect and 
respond to victims of sexual abuse.
    (c) The agency shall offer all victims of sexual abuse access to 
forensic medical examinations whether on-site or at an outside 
facility, without financial cost, where evidentiarily or medically 
appropriate. Such examinations shall be performed by Sexual Assault 
Forensic Examiners (SAFEs) or Sexual Assault Nurse Examiners (SANEs) 
where possible. If SAFEs or SANEs cannot be made available, the 
examination can be performed by other qualified medical practitioners. 
The agency shall document its efforts to provide SAFEs or SANEs.
    (d) If the detainee is transported for a forensic examination to an 
outside hospital that offers victim advocacy services, the detainee 
shall be permitted to use such services to the extent available, 
consistent with security needs.
    (e) To the extent the agency itself is not responsible for 
investigating allegations of sexual abuse, the agency shall request 
that the investigating agency follow the requirements of paragraphs (a) 
through (d) of this section.
    (f) The requirements in paragraphs (a) through (e) of this section 
shall also apply to:
    (1) Any State entity outside of the agency that is responsible for 
investigating allegations of sexual abuse in lockups; and
    (2) Any Department of Justice component that is responsible for 
investigating allegations of sexual abuse in lockups.


Sec.  115.122  Policies to ensure referrals of allegations for 
investigations.

    (a) The agency shall ensure that an administrative or criminal 
investigation is completed for all allegations of sexual abuse and 
sexual harassment.
    (b) If another law enforcement agency is responsible for conducting 
investigations of allegations of sexual abuse or sexual harassment in 
its lockups, the agency shall have in place a policy to ensure that 
such allegations are referred for investigation to an agency with the 
legal authority to conduct criminal investigations, unless the 
allegation does not involve potentially criminal behavior. The agency 
shall publish such policy, including a description of responsibilities 
of both the agency and the investigating entity, on its Web site, or, 
if it does not have one, make available the policy through other means. 
The agency shall document all such referrals.
    (c) Any State entity responsible for conducting administrative or 
criminal investigations of sexual abuse or sexual harassment in lockups 
shall have in place a policy governing the conduct of such 
investigations.
    (d) Any Department of Justice component responsible for conducting 
administrative or criminal investigations of sexual abuse or sexual 
harassment in lockups shall have in place a policy governing the 
conduct of such investigations.

Training and Education


Sec.  115.131  Employee and volunteer training.

    (a) The agency shall train all employees and volunteers who may 
have contact with lockup detainees to be able to fulfill their 
responsibilities under agency sexual abuse prevention, detection, and 
response policies and procedures, including training on:
    (1) The agency's zero-tolerance policy and detainees' right to be 
free from sexual abuse and sexual harassment;
    (2) The dynamics of sexual abuse and harassment in confinement 
settings, including which detainees are most vulnerable in lockup 
settings;
    (3) The right of detainees and employees to be free from 
retaliation for reporting sexual abuse or harassment;
    (4) How to detect and respond to signs of threatened and actual 
abuse;
    (5) How to communicate effectively and professionally with all 
detainees; and
    (6) How to comply with relevant laws related to mandatory reporting 
of sexual abuse to outside authorities.
    (b) All current employees and volunteers who may have contact with 
lockup detainees shall be trained within one year of the effective date 
of the PREA standards, and the agency shall provide annual refresher 
information to all such employees and volunteers to ensure that they 
know the agency's current sexual abuse and sexual harassment policies 
and procedures.
    (c) The agency shall document, through employee signature or 
electronic verification, that employees understand the training they 
have received.


Sec.  115.132  Detainee, contractor, and inmate worker notification of 
the agency's zero-tolerance policy.

    (a) During the intake process, employees shall notify all detainees 
of the agency's zero-tolerance policy regarding sexual abuse and sexual 
harassment.
    (b) The agency shall ensure that, upon entering the lockup, 
contractors and any inmates who work in the lockup are informed of the 
agency's zero-tolerance policy regarding sexual abuse and sexual 
harassment.


Sec.  115.133  [Reserved]


Sec.  115.134  Specialized training: Investigations.

    (a) In addition to the general training provided to all employees 
and volunteers pursuant to Sec.  115.131, the agency shall ensure that, 
to the extent the agency itself conducts sexual abuse investigations, 
its investigators have received training in conducting such 
investigations in confinement settings.
    (b) Specialized training shall include techniques for interviewing 
sexual abuse victims, proper use of Miranda and Garrity warnings, 
sexual abuse evidence collection in confinement settings, and the 
criteria and evidence required to substantiate a case for 
administrative action or prosecution referral.
    (c) The agency shall maintain documentation that agency 
investigators have completed the required specialized training in 
conducting sexual abuse investigations.
    (d) Any State entity or Department of Justice component that 
investigates

[[Page 37212]]

sexual abuse in lockups shall provide such training to their agents and 
investigators who conduct such investigations.


Sec.  115.135  [Reserved]

Screening for Risk of Sexual Victimization and Abusiveness


Sec.  115.141  Screening for risk of victimization and abusiveness.

    (a) In lockups that are not utilized to house detainees overnight, 
before placing any detainees together in a holding cell, staff shall 
consider whether, based on the information before them, a detainee may 
be at a high risk of being sexually abused and, when appropriate, shall 
take necessary steps to mitigate any such danger to the detainee.
    (b) In lockups that are utilized to house detainees overnight, all 
detainees shall be screened to assess their risk of being sexually 
abused by other detainees or sexually abusive toward other detainees.
    (c) In lockups described in paragraph (b) of this section, staff 
shall ask the detainee about his or her own perception of 
vulnerability.
    (d) The screening process in the lockups described in paragraph (b) 
of this section shall also consider, to the extent that the information 
is available, the following criteria to screen detainees for risk of 
sexual victimization:
    (1) Whether the detainee has a mental, physical, or developmental 
disability;
    (2) The age of the detainee;
    (3) The physical build and appearance of the detainee;
    (4) Whether the detainee has previously been incarcerated; and
    (5) The nature of the detainee's alleged offense and criminal 
history.


Sec.  115.142  [Reserved]


Sec.  115.143  [Reserved]

Reporting


Sec.  115.151  Detainee reporting.

    (a) The agency shall provide multiple ways for detainees to 
privately report sexual abuse and sexual harassment, retaliation by 
other detainees or staff for reporting sexual abuse and sexual 
harassment, and staff neglect or violation of responsibilities that may 
have contributed to such incidents.
    (b) The agency shall also inform detainees of at least one way to 
report abuse or harassment to a public or private entity or office that 
is not part of the agency, and that is able to receive and immediately 
forward detainee reports of sexual abuse and sexual harassment to 
agency officials, allowing the detainee to remain anonymous upon 
request.
    (c) Staff shall accept reports made verbally, in writing, 
anonymously, and from third parties and promptly document any verbal 
reports.
    (d) The agency shall provide a method for staff to privately report 
sexual abuse and sexual harassment of detainees.


Sec.  115.152  [Reserved]


Sec.  115.153  [Reserved]


Sec.  115.154  Third-party reporting.

    The agency shall establish a method to receive third-party reports 
of sexual abuse and sexual harassment in its lockups and shall 
distribute publicly information on how to report sexual abuse and 
sexual harassment on behalf of a detainee.

Official Response Following a Detainee Report


Sec.  115.161  Staff and agency reporting duties.

    (a) The agency shall require all staff to report immediately and 
according to agency policy any knowledge, suspicion, or information 
regarding an incident of sexual abuse or sexual harassment that 
occurred in an agency lockup; retaliation against detainees or staff 
who reported such an incident; and any staff neglect or violation of 
responsibilities that may have contributed to an incident or 
retaliation.
    (b) Apart from reporting to designated supervisors or officials, 
staff shall not reveal any information related to a sexual abuse report 
to anyone other than to the extent necessary, as specified in agency 
policy, to make treatment and investigation decisions.
    (c) If the alleged victim is under the age of 18 or considered a 
vulnerable adult under a State or local vulnerable persons statute, the 
agency shall report the allegation to the designated State or local 
services agency under applicable mandatory reporting laws.
    (d) The agency shall report all allegations of sexual abuse, 
including third-party and anonymous reports, to the agency's designated 
investigators.


Sec.  115.162  Agency protection duties.

    When an agency learns that a detainee is subject to a substantial 
risk of imminent sexual abuse, it shall take immediate action to 
protect the detainee.


Sec.  115.163  Reporting to other confinement facilities.

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


Sec.  115.164  Staff first responder duties.

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


Sec.  115.165  Coordinated response.

    (a) The agency shall develop a written institutional plan to 
coordinate actions taken in response to a lockup incident of sexual 
abuse, among staff first responders, medical and mental health 
practitioners, investigators, and agency leadership.
    (b) If a victim is transferred from the lockup to a jail, prison, 
or medical facility, the agency shall, as permitted by law, inform the 
receiving facility of the incident and the victim's potential need for 
medical or social services, unless the victim requests otherwise.

[[Page 37213]]

Sec.  115.166  Preservation of ability to protect detainees from 
contact with abusers.

    (a) Neither the agency nor any other governmental entity 
responsible for collective bargaining on the agency's behalf shall 
enter into or renew any collective bargaining agreement or other 
agreement that limits the agency's ability to remove alleged staff 
sexual abusers from contact with detainees pending the outcome of an 
investigation or of a determination of whether and to what extent 
discipline is warranted.
    (b) Nothing in this standard shall restrict the entering into or 
renewal of agreements that govern:
    (1) The conduct of the disciplinary process, as long as such 
agreements are not inconsistent with the provisions of Sec. Sec.  
115.172 and 115.176; or
    (2) Whether a no-contact assignment that is imposed pending the 
outcome of an investigation shall be expunged from or retained in the 
staff member's personnel file following a determination that the 
allegation of sexual abuse is not substantiated.


Sec.  115.167  Agency protection against retaliation.

    (a) The agency shall establish a policy to protect all detainees 
and staff who report sexual abuse or sexual harassment or cooperate 
with sexual abuse or sexual harassment investigations from retaliation 
by other detainees or staff, and shall designate which staff members or 
departments are charged with monitoring retaliation.
    (b) The agency shall employ multiple protection measures, such as 
housing changes or transfers for detainee victims or abusers, removal 
of alleged staff or detainee abusers from contact with victims, and 
emotional support services for staff who fear retaliation for reporting 
sexual abuse or sexual harassment or for cooperating with 
investigations.
    (c) The agency shall monitor the conduct and treatment of detainees 
or staff who have reported sexual abuse and of detainees who were 
reported to have suffered sexual abuse, and shall act promptly to 
remedy any such retaliation.
    (d) If any other individual who cooperates with an investigation 
expresses a fear of retaliation, the agency shall take appropriate 
measures to protect that individual against retaliation.
    (e) An agency's obligation to monitor shall terminate if the agency 
determines that the allegation is unfounded.


Sec.  115.168  [Reserved]

Investigations


Sec.  115.171  Criminal and administrative agency investigations.

    (a) When the agency conducts its own investigations into 
allegations of sexual abuse and sexual harassment, it shall do so 
promptly, thoroughly, and objectively for all allegations, including 
third-party and anonymous reports.
    (b) Where sexual abuse is alleged, the agency shall use 
investigators who have received special training in sexual abuse 
investigations pursuant to Sec.  115.134.
    (c) Investigators shall gather and preserve direct and 
circumstantial evidence, including any available physical and DNA 
evidence and any available electronic monitoring data; shall interview 
alleged victims, suspected perpetrators, and witnesses; and shall 
review prior complaints and reports of sexual abuse involving the 
suspected perpetrator.
    (d) When the quality of evidence appears to support criminal 
prosecution, the agency shall conduct compelled interviews only after 
consulting with prosecutors as to whether compelled interviews may be 
an obstacle for subsequent criminal prosecution.
    (e) The credibility of an alleged victim, suspect, or witness shall 
be assessed on an individual basis and shall not be determined by the 
person's status as detainee or staff. No agency shall require a 
detainee who alleges sexual abuse to submit to a polygraph examination 
or other truth-telling device as a condition for proceeding with the 
investigation of such an allegation.
    (f) Administrative investigations:
    (1) Shall include an effort to determine whether staff actions or 
failures to act contributed to the abuse; and
    (2) Shall be documented in written reports that include a 
description of the physical and testimonial evidence, the reasoning 
behind credibility assessments, and investigative facts and findings.
    (g) Criminal investigations shall be documented in a written report 
that contains a thorough description of physical, testimonial, and 
documentary evidence and attaches copies of all documentary evidence 
where feasible.
    (h) Substantiated allegations of conduct that appears to be 
criminal shall be referred for prosecution.
    (i) The agency shall retain all written reports referenced in 
paragraphs (f) and (g) of this section for as long as the alleged 
abuser is incarcerated or employed by the agency, plus five years.
    (j) The departure of the alleged abuser or victim from the 
employment or control of the lockup or agency shall not provide a basis 
for terminating an investigation.
    (k) Any State entity or Department of Justice component that 
conducts such investigations shall do so pursuant to the above 
requirements.
    (l) When outside agencies investigate sexual abuse, the agency 
shall cooperate with outside investigators and shall endeavor to remain 
informed about the progress of the investigation.


Sec.  115.172  Evidentiary standard for administrative investigations.

    The agency shall impose no standard higher than a preponderance of 
the evidence in determining whether allegations of sexual abuse or 
sexual harassment are substantiated.


Sec.  115.173  [Reserved]

Discipline


Sec.  115.176  Disciplinary sanctions for staff.

    (a) Staff shall be subject to disciplinary sanctions up to and 
including termination for violating agency sexual abuse or sexual 
harassment policies.
    (b) Termination shall be the presumptive disciplinary sanction for 
staff who have engaged in sexual abuse.
    (c) Disciplinary sanctions for violations of agency policies 
relating to sexual abuse or sexual harassment (other than actually 
engaging in sexual abuse) shall be commensurate with the nature and 
circumstances of the acts committed, the staff member's disciplinary 
history, and the sanctions imposed for comparable offenses by other 
staff with similar histories.
    (d) All terminations for violations of agency sexual abuse or 
sexual harassment policies, or resignations by staff who would have 
been terminated if not for their resignation, shall be reported to law 
enforcement agencies, unless the activity was clearly not criminal, and 
to any relevant licensing bodies.


Sec.  115.177  Corrective action for contractors and volunteers.

    (a) Any contractor or volunteer who engages in sexual abuse shall 
be prohibited from contact with detainees and shall be reported to law 
enforcement agencies, unless the activity was clearly not criminal, and 
to relevant licensing bodies.
    (b) The facility shall take appropriate remedial measures, and 
shall consider whether to prohibit further contact with detainees, in 
the case of any other violation of agency sexual abuse or

[[Page 37214]]

sexual harassment policies by a contractor or volunteer.


Sec.  115.178  Referrals for prosecution for detainee-on-detainee 
sexual abuse.

    (a) When there is probable cause to believe that a detainee 
sexually abused another detainee in a lockup, the agency shall refer 
the matter to the appropriate prosecuting authority.
    (b) To the extent the agency itself is not responsible for 
investigating allegations of sexual abuse, the agency shall inform the 
investigating entity of this policy.
    (c) Any State entity or Department of Justice component that is 
responsible for investigating allegations of sexual abuse in lockups 
shall be subject to this requirement.

Medical and Mental Care


Sec.  115.181  [Reserved]


Sec.  115.182  Access to emergency medical services.

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


Sec.  115.183  [Reserved]

Data Collection and Review


Sec.  115.186  Sexual abuse incident reviews.

    (a) The lockup shall conduct a sexual abuse incident review at the 
conclusion of every sexual abuse investigation, including where the 
allegation has not been substantiated, unless the allegation has been 
determined to be unfounded.
    (b) Such review shall ordinarily occur within 30 days of the 
conclusion of the investigation.
    (c) The review team shall include upper-level management officials, 
with input from line supervisors and investigators.
    (d) The review team shall:
    (1) Consider whether the allegation or investigation indicates a 
need to change policy or practice to better prevent, detect, or respond 
to sexual abuse;
    (2) Consider whether the incident or allegation was motivated by 
race; ethnicity; gender identity; lesbian, gay, bisexual, transgender, 
or intersex identification, status, or perceived status; or gang 
affiliation; or was motivated or otherwise caused by other group 
dynamics at the lockup;
    (3) Examine the area in the lockup where the incident allegedly 
occurred to assess whether physical barriers in the area may enable 
abuse;
    (4) Assess the adequacy of staffing levels in that area during 
different shifts;
    (5) Assess whether monitoring technology should be deployed or 
augmented to supplement supervision by staff; and
    (6) Prepare a report of its findings, including but not necessarily 
limited to determinations made pursuant to paragraphs (d)(1) through 
(d)(5) of this section, and any recommendations for improvement and 
submit such report to the lockup head and agency PREA coordinator.
    (e) The lockup shall implement the recommendations for improvement, 
or shall document its reasons for not doing so.


Sec.  115.187  Data collection.

    (a) The agency shall collect accurate, uniform data for every 
allegation of sexual abuse at lockups under its direct control using a 
standardized instrument and set of definitions.
    (b) The agency shall aggregate the incident-based sexual abuse data 
at least annually.
    (c) The incident-based data collected shall include, at a minimum, 
the data necessary to answer all questions from the most recent version 
of the Local Jail Jurisdictions Survey of Sexual Violence conducted by 
the Department of Justice, or any subsequent form developed by the 
Department of Justice and designated for lockups.
    (d) The agency shall maintain, review, and collect data as needed 
from all available incident-based documents, including reports, 
investigation files, and sexual abuse incident reviews.
    (e) The agency also shall obtain incident-based and aggregated data 
from any private agency with which it contracts for the confinement of 
its detainees.
    (f) Upon request, the agency shall provide all such data from the 
previous calendar year to the Department of Justice no later than June 
30.


Sec.  115.188  Data review for corrective action.

    (a) The agency shall review data collected and aggregated pursuant 
to Sec.  115.187 in order to assess and improve the effectiveness of 
its sexual abuse prevention, detection, and response policies, 
practices, and training, including:
    (1) Identifying problem areas;
    (2) Taking corrective action on an ongoing basis; and
    (3) Preparing an annual report of its findings and corrective 
actions for each lockup, as well as the agency as a whole.
    (b) Such report shall include a comparison of the current year's 
data and corrective actions with those from prior years and shall 
provide an assessment of the agency's progress in addressing sexual 
abuse.
    (c) The agency's report shall be approved by the agency head and 
made readily available to the public through its Web site or, if it 
does not have one, through other means.
    (d) The agency may redact specific material from the reports when 
publication would present a clear and specific threat to the safety and 
security of a lockup, but must indicate the nature of the material 
redacted.


Sec.  115.189  Data storage, publication, and destruction.

    (a) The agency shall ensure that data collected pursuant to Sec.  
115.187 are securely retained.
    (b) The agency shall make all aggregated sexual abuse data, from 
lockups under its direct control and any private agencies with which it 
contracts, readily available to the public at least annually through 
its Web site or, if it does not have one, through other means.
    (c) Before making aggregated sexual abuse data publicly available, 
the agency shall remove all personal identifiers.
    (d) The agency shall maintain sexual abuse data collected pursuant 
to Sec.  115.187 for at least 10 years after the date of the initial 
collection unless Federal, State, or local law requires otherwise.

Audits


Sec.  115.193  Audits of standards.

    The agency shall conduct audits pursuant to Sec. Sec.  115.401 
through 115.405. Audits need not be conducted of individual lockups 
that are not utilized to house detainees overnight.

Subpart C--Standards for Community Confinement Facilities

Prevention Planning


Sec.  115.211  Zero tolerance of sexual abuse and sexual harassment; 
PREA coordinator.

    (a) An agency shall have a written policy mandating zero tolerance 
toward all forms of sexual abuse and sexual harassment and outlining 
the agency's approach to preventing, detecting, and responding to such 
conduct.
    (b) An agency shall employ or designate an upper-level, agency-wide 
PREA coordinator, with sufficient time and authority to develop, 
implement, and oversee agency efforts to comply

[[Page 37215]]

with the PREA standards in all of its community confinement facilities.


Sec.  115.212  Contracting with other entities for the confinement of 
residents.

    (a) A public agency that contracts for the confinement of its 
residents with private agencies or other entities, including other 
government agencies, shall include in any new contract or contract 
renewal the entity's obligation to adopt and comply with the PREA 
standards.
    (b) Any new contract or contract renewal shall provide for agency 
contract monitoring to ensure that the contractor is complying with the 
PREA standards.
    (c) Only in emergency circumstances in which all reasonable 
attempts to find a private agency or other entity in compliance with 
the PREA standards have failed, may the agency enter into a contract 
with an entity that fails to comply with these standards. In such a 
case, the public agency shall document its unsuccessful attempts to 
find an entity in compliance with the standards.


Sec.  115.213  Supervision and monitoring.

    (a) For each facility, the agency shall develop and document a 
staffing plan that provides for adequate levels of staffing, and, where 
applicable, video monitoring, to protect residents against sexual 
abuse. In calculating adequate staffing levels and determining the need 
for video monitoring, agencies shall take into consideration:
    (1) The physical layout of each facility;
    (2) The composition of the resident population;
    (3) The prevalence of substantiated and unsubstantiated incidents 
of sexual abuse; and
    (4) Any other relevant factors.
    (b) In circumstances where the staffing plan is not complied with, 
the facility shall document and justify all deviations from the plan.
    (c) Whenever necessary, but no less frequently than once each year, 
the facility shall assess, determine, and document whether adjustments 
are needed to:
    (1) The staffing plan established pursuant to paragraph (a) of this 
section;
    (2) Prevailing staffing patterns;
    (3) The facility's deployment of video monitoring systems and other 
monitoring technologies; and
    (4) The resources the facility has available to commit to ensure 
adequate staffing levels.


Sec.  115.214  [Reserved]


Sec.  115.215  Limits to cross-gender viewing and searches.

    (a) The facility shall not conduct cross-gender strip searches or 
cross-gender visual body cavity searches (meaning a search of the anal 
or genital opening) except in exigent circumstances or when performed 
by medical practitioners.
    (b) As of August 20, 2015, or August 21, 2017 for a facility whose 
rated capacity does not exceed 50 residents, the facility shall not 
permit cross-gender pat-down searches of female residents, absent 
exigent circumstances. Facilities shall not restrict female residents' 
access to regularly available programming or other outside 
opportunities in order to comply with this provision.
    (c) The facility shall document all cross-gender strip searches and 
cross-gender visual body cavity searches, and shall document all cross-
gender pat-down searches of female residents.
    (d) The facility shall implement policies and procedures that 
enable residents to shower, perform bodily functions, and change 
clothing without nonmedical staff of the opposite gender viewing their 
breasts, buttocks, or genitalia, except in exigent circumstances or 
when such viewing is incidental to routine cell checks. Such policies 
and procedures shall require staff of the opposite gender to announce 
their presence when entering an area where residents are likely to be 
showering, performing bodily functions, or changing clothing.
    (e) The facility shall not search or physically examine a 
transgender or intersex resident for the sole purpose of determining 
the resident's genital status. If the resident's genital status is 
unknown, it may be determined during conversations with the resident, 
by reviewing medical records, or, if necessary, by learning that 
information as part of a broader medical examination conducted in 
private by a medical practitioner.
    (f) The agency shall train security staff in how to conduct cross-
gender pat-down searches, and searches of transgender and intersex 
residents, in a professional and respectful manner, and in the least 
intrusive manner possible, consistent with security needs.


Sec.  115.216  Residents with disabilities and residents who are 
limited English proficient.

    (a) The agency shall take appropriate steps to ensure that 
residents with disabilities (including, for example, residents who are 
deaf or hard of hearing, those who are blind or have low vision, or 
those who have intellectual, psychiatric, or speech disabilities), have 
an equal opportunity to participate in or benefit from all aspects of 
the agency's efforts to prevent, detect, and respond to sexual abuse 
and sexual harassment. Such steps shall include, when necessary to 
ensure effective communication with residents who are deaf or hard of 
hearing, providing access to interpreters who can interpret 
effectively, accurately, and impartially, both receptively and 
expressively, using any necessary specialized vocabulary. In addition, 
the agency shall ensure that written materials are provided in formats 
or through methods that ensure effective communication with residents 
with disabilities, including residents who have intellectual 
disabilities, limited reading skills, or who are blind or have low 
vision. An agency is not required to take actions that it can 
demonstrate would result in a fundamental alteration in the nature of a 
service, program, or activity, or in undue financial and administrative 
burdens, as those terms are used in regulations promulgated under title 
II of the Americans With Disabilities Act, 28 CFR 35.164.
    (b) The agency shall take reasonable steps to ensure meaningful 
access to all aspects of the agency's efforts to prevent, detect, and 
respond to sexual abuse and sexual harassment to residents who are 
limited English proficient, including steps to provide interpreters who 
can interpret effectively, accurately, and impartially, both 
receptively and expressively, using any necessary specialized 
vocabulary.
    (c) The agency shall not rely on resident interpreters, resident 
readers, or other types of resident assistants except in limited 
circumstances where an extended delay in obtaining an effective 
interpreter could compromise the resident's safety, the performance of 
first-response duties under Sec.  115.264, or the investigation of the 
resident's allegations.


Sec.  115.217  Hiring and promotion decisions.

    (a) The agency shall not hire or promote anyone who may have 
contact with residents, and shall not enlist the services of any 
contractor who may have contact with residents, who--
    (1) Has engaged in sexual abuse in a prison, jail, lockup, 
community confinement facility, juvenile facility, or other institution 
(as defined in 42 U.S.C. 1997);
    (2) Has been convicted of engaging or attempting to engage in 
sexual activity in the community facilitated by force, overt or implied 
threats of force, or

[[Page 37216]]

coercion, or if the victim did not consent or was unable to consent or 
refuse; or
    (3) Has been civilly or administratively adjudicated to have 
engaged in the activity described in paragraph (a)(2) of this section.
    (b) The agency shall consider any incidents of sexual harassment in 
determining whether to hire or promote anyone, or to enlist the 
services of any contractor, who may have contact with residents.
    (c) Before hiring new employees who may have contact with 
residents, the agency shall:
    (1) Perform a criminal background records check; and
    (2) Consistent with Federal, State, and local law, make its best 
efforts to contact all prior institutional employers for information on 
substantiated allegations of sexual abuse or any resignation during a 
pending investigation of an allegation of sexual abuse.
    (d) The agency shall also perform a criminal background records 
check before enlisting the services of any contractor who may have 
contact with residents.
    (e) The agency shall either conduct criminal background records 
checks at least every five years of current employees and contractors 
who may have contact with residents or have in place a system for 
otherwise capturing such information for current employees.
    (f) The agency shall also ask all applicants and employees who may 
have contact with residents directly about previous misconduct 
described in paragraph (a) of this section in written applications or 
interviews for hiring or promotions and in any interviews or written 
self-evaluations conducted as part of reviews of current employees. The 
agency shall also impose upon employees a continuing affirmative duty 
to disclose any such misconduct.
    (g) Material omissions regarding such misconduct, or the provision 
of materially false information, shall be grounds for termination.
    (h) Unless prohibited by law, the agency shall provide information 
on substantiated allegations of sexual abuse or sexual harassment 
involving a former employee upon receiving a request from an 
institutional employer for whom such employee has applied to work.


Sec.  115.218  Upgrades to facilities and technologies.

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

Responsive Planning


Sec.  115.221  Evidence protocol and forensic medical examinations.

    (a) To the extent the agency is responsible for investigating 
allegations of sexual abuse, the agency shall follow a uniform evidence 
protocol that maximizes the potential for obtaining usable physical 
evidence for administrative proceedings and criminal prosecutions.
    (b) The protocol shall be developmentally appropriate for youth 
where applicable, and, as appropriate, shall be adapted from or 
otherwise based on the most recent edition of the U.S. Department of 
Justice's Office on Violence Against Women publication, ``A National 
Protocol for Sexual Assault Medical Forensic Examinations, Adults/
Adolescents,'' or similarly comprehensive and authoritative protocols 
developed after 2011.
    (c) The agency shall offer all victims of sexual abuse access to 
forensic medical examinations whether on-site or at an outside 
facility, without financial cost, where evidentiarily or medically 
appropriate. Such examinations shall be performed by Sexual Assault 
Forensic Examiners (SAFEs) or Sexual Assault Nurse Examiners (SANEs) 
where possible. If SAFEs or SANEs cannot be made available, the 
examination can be performed by other qualified medical practitioners. 
The agency shall document its efforts to provide SAFEs or SANEs.
    (d) The agency shall attempt to make available to the victim a 
victim advocate from a rape crisis center. If a rape crisis center is 
not available to provide victim advocate services, the agency shall 
make available to provide these services a qualified staff member from 
a community-based organization or a qualified agency staff member. 
Agencies shall document efforts to secure services from rape crisis 
centers. For the purpose of this standard, a rape crisis center refers 
to an entity that provides intervention and related assistance, such as 
the services specified in 42 U.S.C. 14043g(b)(2)(C), to victims of 
sexual assault of all ages. The agency may utilize a rape crisis center 
that is part of a governmental unit as long as the center is not part 
of the criminal justice system (such as a law enforcement agency) and 
offers a comparable level of confidentiality as a nongovernmental 
entity that provides similar victim services.
    (e) As requested by the victim, the victim advocate, qualified 
agency staff member, or qualified community-based organization staff 
member shall accompany and support the victim through the forensic 
medical examination process and investigatory interviews and shall 
provide emotional support, crisis intervention, information, and 
referrals.
    (f) To the extent the agency itself is not responsible for 
investigating allegations of sexual abuse, the agency shall request 
that the investigating agency follow the requirements of paragraphs (a) 
through (e) of this section.
    (g) The requirements of paragraphs (a) through (f) of this section 
shall also apply to:
    (1) Any State entity outside of the agency that is responsible for 
investigating allegations of sexual abuse in community confinement 
facilities; and
    (2) Any Department of Justice component that is responsible for 
investigating allegations of sexual abuse in community confinement 
facilities.
    (h) For the purposes of this standard, a qualified agency staff 
member or a qualified community-based staff member shall be an 
individual who has been screened for appropriateness to serve in this 
role and has received education concerning sexual assault and forensic 
examination issues in general.


Sec.  115.222  Policies to ensure referrals of allegations for 
investigations.

    (a) The agency shall ensure that an administrative or criminal 
investigation is completed for all allegations of sexual abuse and 
sexual harassment.
    (b) The agency shall have in place a policy to ensure that 
allegations of sexual abuse or sexual harassment are referred for 
investigation to an agency with the legal authority to conduct criminal 
investigations, unless the allegation does not involve potentially 
criminal behavior. The agency shall publish such policy on its Web site 
or, if it does not have one, make the policy available through other 
means. The agency shall document all such referrals.
    (c) If a separate entity is responsible for conducting criminal 
investigations, such publication shall describe the responsibilities of 
both the agency and the investigating entity.

[[Page 37217]]

    (d) Any State entity responsible for conducting administrative or 
criminal investigations of sexual abuse or sexual harassment in 
community confinement facilities shall have in place a policy governing 
the conduct of such investigations.
    (e) Any Department of Justice component responsible for conducting 
administrative or criminal investigations of sexual abuse or sexual 
harassment in community confinement facilities shall have in place a 
policy governing the conduct of such investigations.

Training and Education


Sec.  115.231  Employee training.

    (a) The agency shall train all employees who may have contact with 
residents on:
    (1) Its zero-tolerance policy for sexual abuse and sexual 
harassment;
    (2) How to fulfill their responsibilities under agency sexual abuse 
and sexual harassment prevention, detection, reporting, and response 
policies and procedures;
    (3) Residents' right to be free from sexual abuse and sexual 
harassment;
    (4) The right of residents and employees to be free from 
retaliation for reporting sexual abuse and sexual harassment;
    (5) The dynamics of sexual abuse and sexual harassment in 
confinement;
    (6) The common reactions of sexual abuse and sexual harassment 
victims;
    (7) How to detect and respond to signs of threatened and actual 
sexual abuse;
    (8) How to avoid inappropriate relationships with residents;
    (9) How to communicate effectively and professionally with 
residents, including lesbian, gay, bisexual, transgender, intersex, or 
gender nonconforming residents; and
    (10) How to comply with relevant laws related to mandatory 
reporting of sexual abuse to outside authorities.
    (b) Such training shall be tailored to the gender of the residents 
at the employee's facility. The employee shall receive additional 
training if the employee is reassigned from a facility that houses only 
male residents to a facility that houses only female residents, or vice 
versa.
    (c) All current employees who have not received such training shall 
be trained within one year of the effective date of the PREA standards, 
and the agency shall provide each employee with refresher training 
every two years to ensure that all employees know the agency's current 
sexual abuse and sexual harassment policies and procedures. In years in 
which an employee does not receive refresher training, the agency shall 
provide refresher information on current sexual abuse and sexual 
harassment policies.
    (d) The agency shall document, through employee signature or 
electronic verification, that employees understand the training they 
have received.


Sec.  115.232  Volunteer and contractor training.

    (a) The agency shall ensure that all volunteers and contractors who 
have contact with residents have been trained on their responsibilities 
under the agency's sexual abuse and sexual harassment prevention, 
detection, and response policies and procedures.
    (b) The level and type of training provided to volunteers and 
contractors shall be based on the services they provide and level of 
contact they have with residents, but all volunteers and contractors 
who have contact with residents shall be notified of the agency's zero-
tolerance policy regarding sexual abuse and sexual harassment and 
informed how to report such incidents.
    (c) The agency shall maintain documentation confirming that 
volunteers and contractors understand the training they have received.


Sec.  115.233  Resident education.

    (a) During the intake process, residents shall receive information 
explaining the agency's zero-tolerance policy regarding sexual abuse 
and sexual harassment, how to report incidents or suspicions of sexual 
abuse or sexual harassment, their rights to be free from sexual abuse 
and sexual harassment and to be free from retaliation for reporting 
such incidents, and regarding agency policies and procedures for 
responding to such incidents.
    (b) The agency shall provide refresher information whenever a 
resident is transferred to a different facility.
    (c) The agency shall provide resident education in formats 
accessible to all residents, including those who are limited English 
proficient, deaf, visually impaired, or otherwise disabled as well as 
residents who have limited reading skills.
    (d) The agency shall maintain documentation of resident 
participation in these education sessions.
    (e) In addition to providing such education, the agency shall 
ensure that key information is continuously and readily available or 
visible to residents through posters, resident handbooks, or other 
written formats.


Sec.  115.234  Specialized training: Investigations.

    (a) In addition to the general training provided to all employees 
pursuant to Sec.  115.231, the agency shall ensure that, to the extent 
the agency itself conducts sexual abuse investigations, its 
investigators have received training in conducting such investigations 
in confinement settings.
    (b) Specialized training shall include techniques for interviewing 
sexual abuse victims, proper use of Miranda and Garrity warnings, 
sexual abuse evidence collection in confinement settings, and the 
criteria and evidence required to substantiate a case for 
administrative action or prosecution referral.
    (c) The agency shall maintain documentation that agency 
investigators have completed the required specialized training in 
conducting sexual abuse investigations.
    (d) Any State entity or Department of Justice component that 
investigates sexual abuse in confinement settings shall provide such 
training to its agents and investigators who conduct such 
investigations.


Sec.  115.235  Specialized training: Medical and mental health care.

    (a) The agency shall ensure that all full- and part-time medical 
and mental health care practitioners who work regularly in its 
facilities have been trained in:
    (1) How to detect and assess signs of sexual abuse and sexual 
harassment;
    (2) How to preserve physical evidence of sexual abuse;
    (3) How to respond effectively and professionally to victims of 
sexual abuse and sexual harassment; and
    (4) How and to whom to report allegations or suspicions of sexual 
abuse and sexual harassment.
    (b) If medical staff employed by the agency conduct forensic 
examinations, such medical staff shall receive the appropriate training 
to conduct such examinations.
    (c) The agency shall maintain documentation that medical and mental 
health practitioners have received the training referenced in this 
standard either from the agency or elsewhere.
    (d) Medical and mental health care practitioners shall also receive 
the training mandated for employees under Sec.  115.231 or for 
contractors and volunteers under Sec.  115.232, depending upon the 
practitioner's status at the agency.

[[Page 37218]]

Screening for Risk of Sexual Victimization and Abusiveness


Sec.  115.241  Screening for risk of victimization and abusiveness.

    (a) All residents shall be assessed during an intake screening and 
upon transfer to another facility for their risk of being sexually 
abused by other residents or sexually abusive toward other residents.
    (b) Intake screening shall ordinarily take place within 72 hours of 
arrival at the facility.
    (c) Such assessments shall be conducted using an objective 
screening instrument.
    (d) The intake screening shall consider, at a minimum, the 
following criteria to assess residents for risk of sexual 
victimization:
    (1) Whether the resident has a mental, physical, or developmental 
disability;
    (2) The age of the resident;
    (3) The physical build of the resident;
    (4) Whether the resident has previously been incarcerated;
    (5) Whether the resident's criminal history is exclusively 
nonviolent;
    (6) Whether the resident has prior convictions for sex offenses 
against an adult or child;
    (7) Whether the resident is or is perceived to be gay, lesbian, 
bisexual, transgender, intersex, or gender nonconforming;
    (8) Whether the resident has previously experienced sexual 
victimization; and
    (9) The resident's own perception of vulnerability.
    (e) The intake screening shall consider prior acts of sexual abuse, 
prior convictions for violent offenses, and history of prior 
institutional violence or sexual abuse, as known to the agency, in 
assessing residents for risk of being sexually abusive.
    (f) Within a set time period, not to exceed 30 days from the 
resident's arrival at the facility, the facility will reassess the 
resident's risk of victimization or abusiveness based upon any 
additional, relevant information received by the facility since the 
intake screening.
    (g) A resident's risk level shall be reassessed when warranted due 
to a referral, request, incident of sexual abuse, or receipt of 
additional information that bears on the resident's risk of sexual 
victimization or abusiveness.
    (h) Residents may not be disciplined for refusing to answer, or for 
not disclosing complete information in response to, questions asked 
pursuant to paragraphs (d)(1), (d)(7), (d)(8), or (d)(9) of this 
section.
    (i) The agency shall implement appropriate controls on the 
dissemination within the facility of responses to questions asked 
pursuant to this standard in order to ensure that sensitive information 
is not exploited to the resident's detriment by staff or other 
residents.


Sec.  115.242  Use of screening information.

    (a) The agency shall use information from the risk screening 
required by Sec.  115.241 to inform housing, bed, work, education, and 
program assignments with the goal of keeping separate those residents 
at high risk of being sexually victimized from those at high risk of 
being sexually abusive.
    (b) The agency shall make individualized determinations about how 
to ensure the safety of each resident.
    (c) In deciding whether to assign a transgender or intersex 
resident to a facility for male or female residents, and in making 
other housing and programming assignments, the agency shall consider on 
a case-by-case basis whether a placement would ensure the resident's 
health and safety, and whether the placement would present management 
or security problems.
    (d) A transgender or intersex resident's own views with respect to 
his or her own safety shall be given serious consideration.
    (e) Transgender and intersex residents shall be given the 
opportunity to shower separately from other residents.
    (f) The agency shall not place lesbian, gay, bisexual, transgender, 
or intersex residents in dedicated facilities, units, or wings solely 
on the basis of such identification or status, unless such placement is 
in a dedicated facility unit, or wing established in connection with a 
consent decree, legal settlement, or legal judgment for the purpose of 
protecting such residents.


Sec.  115.243  [Reserved]

Reporting


Sec.  115.251  Resident reporting.

    (a) The agency shall provide multiple internal ways for residents 
to privately report sexual abuse and sexual harassment, retaliation by 
other residents or staff for reporting sexual abuse and sexual 
harassment, and staff neglect or violation of responsibilities that may 
have contributed to such incidents.
    (b) The agency shall also inform residents of at least one way to 
report abuse or harassment to a public or private entity or office that 
is not part of the agency and that is able to receive and immediately 
forward resident reports of sexual abuse and sexual harassment to 
agency officials, allowing the resident to remain anonymous upon 
request.
    (c) Staff shall accept reports made verbally, in writing, 
anonymously, and from third parties and shall promptly document any 
verbal reports.
    (d) The agency shall provide a method for staff to privately report 
sexual abuse and sexual harassment of residents.


Sec.  115.252  Exhaustion of administrative remedies.

    (a) An agency shall be exempt from this standard if it does not 
have administrative procedures to address resident grievances regarding 
sexual abuse.
    (b)(1) The agency shall not impose a time limit on when a resident 
may submit a grievance regarding an allegation of sexual abuse.
    (2) The agency may apply otherwise-applicable time limits on any 
portion of a grievance that does not allege an incident of sexual 
abuse.
    (3) The agency shall not require a resident to use any informal 
grievance process, or to otherwise attempt to resolve with staff, an 
alleged incident of sexual abuse.
    (4) Nothing in this section shall restrict the agency's ability to 
defend against a lawsuit filed by a resident on the ground that the 
applicable statute of limitations has expired.
    (c) The agency shall ensure that--
    (1) A resident who alleges sexual abuse may submit a grievance 
without submitting it to a staff member who is the subject of the 
complaint, and
    (2) Such grievance is not referred to a staff member who is the 
subject of the complaint.
    (d)(1) The agency shall issue a final agency decision on the merits 
of any portion of a grievance alleging sexual abuse within 90 days of 
the initial filing of the grievance.
    (2) Computation of the 90-day time period shall not include time 
consumed by residents in preparing any administrative appeal.
    (3) The agency may claim an extension of time to respond, of up to 
70 days, if the normal time period for response is insufficient to make 
an appropriate decision. The agency shall notify the resident in 
writing of any such extension and provide a date by which a decision 
will be made.
    (4) At any level of the administrative process, including the final 
level, if the resident does not receive a response within the time 
allotted for reply, including any properly noticed extension, the 
resident may consider the absence of a response to be a denial at that 
level.

[[Page 37219]]

    (e)(1) Third parties, including fellow residents, staff members, 
family members, attorneys, and outside advocates, shall be permitted to 
assist residents in filing requests for administrative remedies 
relating to allegations of sexual abuse, and shall also be permitted to 
file such requests on behalf of residents.
    (2) If a third party files such a request on behalf of a resident, 
the facility may require as a condition of processing the request that 
the alleged victim agree to have the request filed on his or her 
behalf, and may also require the alleged victim to personally pursue 
any subsequent steps in the administrative remedy process.
    (3) If the resident declines to have the request processed on his 
or her behalf, the agency shall document the resident's decision.
    (f)(1) The agency shall establish procedures for the filing of an 
emergency grievance alleging that a resident is subject to a 
substantial risk of imminent sexual abuse.
    (2) After receiving an emergency grievance alleging a resident is 
subject to a substantial risk of imminent sexual abuse, the agency 
shall immediately forward the grievance (or any portion thereof that 
alleges the substantial risk of imminent sexual abuse) to a level of 
review at which immediate corrective action may be taken, shall provide 
an initial response within 48 hours, and shall issue a final agency 
decision within 5 calendar days. The initial response and final agency 
decision shall document the agency's determination whether the resident 
is in substantial risk of imminent sexual abuse and the action taken in 
response to the emergency grievance.
    (g) The agency may discipline a resident for filing a grievance 
related to alleged sexual abuse only where the agency demonstrates that 
the resident filed the grievance in bad faith.


Sec.  115.253  Resident access to outside confidential support 
services.

    (a) The facility shall provide residents with access to outside 
victim advocates for emotional support services related to sexual abuse 
by giving residents mailing addresses and telephone numbers, including 
toll-free hotline numbers where available, of local, State, or national 
victim advocacy or rape crisis organizations, and by enabling 
reasonable communication between residents and these organizations, in 
as confidential a manner as possible.
    (b) The facility shall inform residents, prior to giving them 
access, of the extent to which such communications will be monitored 
and the extent to which reports of abuse will be forwarded to 
authorities in accordance with mandatory reporting laws.
    (c) The agency shall maintain or attempt to enter into memoranda of 
understanding or other agreements with community service providers that 
are able to provide residents with confidential emotional support 
services related to sexual abuse. The agency shall maintain copies of 
agreements or documentation showing attempts to enter into such 
agreements.


Sec.  115.254  Third-party reporting.

    The agency shall establish a method to receive third-party reports 
of sexual abuse and sexual harassment and shall distribute publicly 
information on how to report sexual abuse and sexual harassment on 
behalf of a resident.

Official Response Following a Resident Report


Sec.  115.261  Staff and agency reporting duties.

    (a) The agency shall require all staff to report immediately and 
according to agency policy any knowledge, suspicion, or information 
regarding an incident of sexual abuse or sexual harassment that 
occurred in a facility, whether or not it is part of the agency; 
retaliation against residents or staff who reported such an incident; 
and any staff neglect or violation of responsibilities that may have 
contributed to an incident or retaliation.
    (b) Apart from reporting to designated supervisors or officials, 
staff shall not reveal any information related to a sexual abuse report 
to anyone other than to the extent necessary, as specified in agency 
policy, to make treatment, investigation, and other security and 
management decisions.
    (c) Unless otherwise precluded by Federal, State, or local law, 
medical and mental health practitioners shall be required to report 
sexual abuse pursuant to paragraph (a) of this section and to inform 
residents of the practitioner's duty to report, and the limitations of 
confidentiality, at the initiation of services.
    (d) If the alleged victim is under the age of 18 or considered a 
vulnerable adult under a State or local vulnerable persons statute, the 
agency shall report the allegation to the designated State or local 
services agency under applicable mandatory reporting laws.
    (e) The facility shall report all allegations of sexual abuse and 
sexual harassment, including third-party and anonymous reports, to the 
facility's designated investigators.


Sec.  115.262  Agency protection duties.

    When an agency learns that a resident is subject to a substantial 
risk of imminent sexual abuse, it shall take immediate action to 
protect the resident.


Sec.  115.263  Reporting to other confinement facilities.

    (a) Upon receiving an allegation that a resident was sexually 
abused while confined at another facility, the head of the facility 
that received the allegation shall notify the head of the facility or 
appropriate office of the agency where the alleged abuse occurred.
    (b) Such notification shall be provided as soon as possible, but no 
later than 72 hours after receiving the allegation.
    (c) The agency shall document that it has provided such 
notification.
    (d) The facility head or agency office that receives such 
notification shall ensure that the allegation is investigated in 
accordance with these standards.


Sec.  115.264  Staff first responder duties.

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


Sec.  115.265  Coordinated response.

    The facility shall develop a written institutional plan to 
coordinate actions taken in response to an incident of sexual abuse, 
among staff first responders, medical and mental health practitioners, 
investigators, and facility leadership.

[[Page 37220]]

Sec.  115.266  Preservation of ability to protect residents from 
contact with abusers

    (a) Neither the agency nor any other governmental entity 
responsible for collective bargaining on the agency's behalf shall 
enter into or renew any collective bargaining agreement or other 
agreement that limits the agency's ability to remove alleged staff 
sexual abusers from contact with residents pending the outcome of an 
investigation or of a determination of whether and to what extent 
discipline is warranted.
    (b) Nothing in this standard shall restrict the entering into or 
renewal of agreements that govern:
    (1) The conduct of the disciplinary process, as long as such 
agreements are not inconsistent with the provisions of Sec. Sec.  
115.272 and 115.276; or
    (2) Whether a no-contact assignment that is imposed pending the 
outcome of an investigation shall be expunged from or retained in the 
staff member's personnel file following a determination that the 
allegation of sexual abuse is not substantiated.


Sec.  115.267  Agency protection against retaliation.

    (a) The agency shall establish a policy to protect all residents 
and staff who report sexual abuse or sexual harassment or cooperate 
with sexual abuse or sexual harassment investigations from retaliation 
by other residents or staff and shall designate which staff members or 
departments are charged with monitoring retaliation.
    (b) The agency shall employ multiple protection measures, such as 
housing changes or transfers for resident victims or abusers, removal 
of alleged staff or resident abusers from contact with victims, and 
emotional support services for residents or staff who fear retaliation 
for reporting sexual abuse or sexual harassment or for cooperating with 
investigations.
    (c) For at least 90 days following a report of sexual abuse, the 
agency shall monitor the conduct and treatment of residents or staff 
who reported the sexual abuse and of residents who were reported to 
have suffered sexual abuse to see if there are changes that may suggest 
possible retaliation by residents or staff, and shall act promptly to 
remedy any such retaliation. Items the agency should monitor include 
any resident disciplinary reports, housing, or program changes, or 
negative performance reviews or reassignments of staff. The agency 
shall continue such monitoring beyond 90 days if the initial monitoring 
indicates a continuing need.
    (d) In the case of residents, such monitoring shall also include 
periodic status checks.
    (e) If any other individual who cooperates with an investigation 
expresses a fear of retaliation, the agency shall take appropriate 
measures to protect that individual against retaliation.
    (f) An agency's obligation to monitor shall terminate if the agency 
determines that the allegation is unfounded.


Sec.  115.268  [Reserved]

Investigations


Sec.  115.271  Criminal and administrative agency investigations.

    (a) When the agency conducts its own investigations into 
allegations of sexual abuse and sexual harassment, it shall do so 
promptly, thoroughly, and objectively for all allegations, including 
third-party and anonymous reports.
    (b) Where sexual abuse is alleged, the agency shall use 
investigators who have received special training in sexual abuse 
investigations pursuant to Sec.  115.234.
    (c) Investigators shall gather and preserve direct and 
circumstantial evidence, including any available physical and DNA 
evidence and any available electronic monitoring data; shall interview 
alleged victims, suspected perpetrators, and witnesses; and shall 
review prior complaints and reports of sexual abuse involving the 
suspected perpetrator.
    (d) When the quality of evidence appears to support criminal 
prosecution, the agency shall conduct compelled interviews only after 
consulting with prosecutors as to whether compelled interviews may be 
an obstacle for subsequent criminal prosecution.
    (e) The credibility of an alleged victim, suspect, or witness shall 
be assessed on an individual basis and shall not be determined by the 
person's status as resident or staff. No agency shall require a 
resident who alleges sexual abuse to submit to a polygraph examination 
or other truth-telling device as a condition for proceeding with the 
investigation of such an allegation.
    (f) Administrative investigations:
    (1) Shall include an effort to determine whether staff actions or 
failures to act contributed to the abuse; and
    (2) Shall be documented in written reports that include a 
description of the physical and testimonial evidence, the reasoning 
behind credibility assessments, and investigative facts and findings.
    (g) Criminal investigations shall be documented in a written report 
that contains a thorough description of physical, testimonial, and 
documentary evidence and attaches copies of all documentary evidence 
where feasible.
    (h) Substantiated allegations of conduct that appears to be 
criminal shall be referred for prosecution.
    (i) The agency shall retain all written reports referenced in 
paragraphs (f) and (g) of this section for as long as the alleged 
abuser is incarcerated or employed by the agency, plus five years.
    (j) The departure of the alleged abuser or victim from the 
employment or control of the facility or agency shall not provide a 
basis for terminating an investigation.
    (k) Any State entity or Department of Justice component that 
conducts such investigations shall do so pursuant to the above 
requirements.
    (l) When outside agencies investigate sexual abuse, the facility 
shall cooperate with outside investigators and shall endeavor to remain 
informed about the progress of the investigation.


Sec.  115.272  Evidentiary standard for administrative investigations.

    The agency shall impose no standard higher than a preponderance of 
the evidence in determining whether allegations of sexual abuse or 
sexual harassment are substantiated.


Sec.  115.273  Reporting to residents.

    (a) Following an investigation into a resident's allegation of 
sexual abuse suffered in an agency facility, the agency shall inform 
the resident as to whether the allegation has been determined to be 
substantiated, unsubstantiated, or unfounded.
    (b) If the agency did not conduct the investigation, it shall 
request the relevant information from the investigative agency in order 
to inform the resident.
    (c) Following a resident's allegation that a staff member has 
committed sexual abuse against the resident, the agency shall 
subsequently inform the resident (unless the agency has determined that 
the allegation is unfounded) whenever:
    (1) The staff member is no longer posted within the resident's 
unit;
    (2) The staff member is no longer employed at the facility;
    (3) The agency learns that the staff member has been indicted on a 
charge related to sexual abuse within the facility; or
    (4) The agency learns that the staff member has been convicted on a 
charge related to sexual abuse within the facility.
    (d) Following a resident's allegation that he or she has been 
sexually abused by another resident, the agency shall subsequently 
inform the alleged victim whenever:

[[Page 37221]]

    (1) The agency learns that the alleged abuser has been indicted on 
a charge related to sexual abuse within the facility; or
    (2) The agency learns that the alleged abuser has been convicted on 
a charge related to sexual abuse within the facility.
    (e) All such notifications or attempted notifications shall be 
documented.
    (f) An agency's obligation to report under this standard shall 
terminate if the resident is released from the agency's custody.

Discipline


Sec.  115.276  Disciplinary sanctions for staff.

    (a) Staff shall be subject to disciplinary sanctions up to and 
including termination for violating agency sexual abuse or sexual 
harassment policies.
    (b) Termination shall be the presumptive disciplinary sanction for 
staff who have engaged in sexual abuse.
    (c) Disciplinary sanctions for violations of agency policies 
relating to sexual abuse or sexual harassment (other than actually 
engaging in sexual abuse) shall be commensurate with the nature and 
circumstances of the acts committed, the staff member's disciplinary 
history, and the sanctions imposed for comparable offenses by other 
staff with similar histories.
    (d) All terminations for violations of agency sexual abuse or 
sexual harassment policies, or resignations by staff who would have 
been terminated if not for their resignation, shall be reported to law 
enforcement agencies, unless the activity was clearly not criminal, and 
to any relevant licensing bodies.


Sec.  115.277  Corrective action for contractors and volunteers.

    (a) Any contractor or volunteer who engages in sexual abuse shall 
be prohibited from contact with residents and shall be reported to law 
enforcement agencies, unless the activity was clearly not criminal, and 
to relevant licensing bodies.
    (b) The facility shall take appropriate remedial measures, and 
shall consider whether to prohibit further contact with residents, in 
the case of any other violation of agency sexual abuse or sexual 
harassment policies by a contractor or volunteer.


Sec.  115.278  Disciplinary sanctions for residents.

    (a) Residents shall be subject to disciplinary sanctions pursuant 
to a formal disciplinary process following an administrative finding 
that the resident engaged in resident-on-resident sexual abuse or 
following a criminal finding of guilt for resident-on-resident sexual 
abuse.
    (b) Sanctions shall be commensurate with the nature and 
circumstances of the abuse committed, the resident's disciplinary 
history, and the sanctions imposed for comparable offenses by other 
residents with similar histories.
    (c) The disciplinary process shall consider whether a resident's 
mental disabilities or mental illness contributed to his or her 
behavior when determining what type of sanction, if any, should be 
imposed.
    (d) If the facility offers therapy, counseling, or other 
interventions designed to address and correct underlying reasons or 
motivations for the abuse, the facility shall consider whether to 
require the offending resident to participate in such interventions as 
a condition of access to programming or other benefits.
    (e) The agency may discipline a resident for sexual contact with 
staff only upon a finding that the staff member did not consent to such 
contact.
    (f) For the purpose of disciplinary action, a report of sexual 
abuse made in good faith based upon a reasonable belief that the 
alleged conduct occurred shall not constitute falsely reporting an 
incident or lying, even if an investigation does not establish evidence 
sufficient to substantiate the allegation.
    (g) An agency may, in its discretion, prohibit all sexual activity 
between residents and may discipline residents for such activity. An 
agency may not, however, deem such activity to constitute sexual abuse 
if it determines that the activity is not coerced.

Medical and Mental Care


Sec.  115.281  [Reserved]


Sec.  115.282  Access to emergency medical and mental health services.

    (a) Resident victims of sexual abuse shall receive timely, 
unimpeded access to emergency medical treatment and crisis intervention 
services, the nature and scope of which are determined by medical and 
mental health practitioners according to their professional judgment.
    (b) If no qualified medical or mental health practitioners are on 
duty at the time a report of recent abuse is made, security staff first 
responders shall take preliminary steps to protect the victim pursuant 
to Sec.  115.262 and shall immediately notify the appropriate medical 
and mental health practitioners.
    (c) Resident victims of sexual abuse while incarcerated shall be 
offered timely information about and timely access to emergency 
contraception and sexually transmitted infections prophylaxis, in 
accordance with professionally accepted standards of care, where 
medically appropriate.
    (d) Treatment services shall be provided to the victim without 
financial cost and regardless of whether the victim names the abuser or 
cooperates with any investigation arising out of the incident.


Sec.  115.283  Ongoing medical and mental health care for sexual abuse 
victims and abusers.

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

Data Collection and Review


Sec.  115.286  Sexual abuse incident reviews.

    (a) The facility shall conduct a sexual abuse incident review at 
the conclusion of every sexual abuse investigation, including where the 
allegation has not been substantiated, unless the allegation has been 
determined to be unfounded.

[[Page 37222]]

    (b) Such review shall ordinarily occur within 30 days of the 
conclusion of the investigation.
    (c) The review team shall include upper-level management officials, 
with input from line supervisors, investigators, and medical or mental 
health practitioners.
    (d) The review team shall:
    (1) Consider whether the allegation or investigation indicates a 
need to change policy or practice to better prevent, detect, or respond 
to sexual abuse;
    (2) Consider whether the incident or allegation was motivated by 
race; ethnicity; gender identity; lesbian, gay, bisexual, transgender, 
or intersex identification, status, or perceived status; or gang 
affiliation; or was motivated or otherwise caused by other group 
dynamics at the facility;
    (3) Examine the area in the facility where the incident allegedly 
occurred to assess whether physical barriers in the area may enable 
abuse;
    (4) Assess the adequacy of staffing levels in that area during 
different shifts;
    (5) Assess whether monitoring technology should be deployed or 
augmented to supplement supervision by staff; and
    (6) Prepare a report of its findings, including but not necessarily 
limited to determinations made pursuant to paragraphs (d)(1) through 
(d)(5) of this section, and any recommendations for improvement, and 
submit such report to the facility head and PREA compliance manager.
    (e) The facility shall implement the recommendations for 
improvement, or shall document its reasons for not doing so.


Sec.  115.287  Data collection.

    (a) The agency shall collect accurate, uniform data for every 
allegation of sexual abuse at facilities under its direct control using 
a standardized instrument and set of definitions.
    (b) The agency shall aggregate the incident-based sexual abuse data 
at least annually.
    (c) The incident-based data collected shall include, at a minimum, 
the data necessary to answer all questions from the most recent version 
of the Survey of Sexual Violence conducted by the Department of 
Justice.
    (d) The agency shall maintain, review, and collect data as needed 
from all available incident-based documents including reports, 
investigation files, and sexual abuse incident reviews.
    (e) The agency also shall obtain incident-based and aggregated data 
from every private facility with which it contracts for the confinement 
of its residents.
    (f) Upon request, the agency shall provide all such data from the 
previous calendar year to the Department of Justice no later than June 
30.


Sec.  115.288  Data review for corrective action.

    (a) The agency shall review data collected and aggregated pursuant 
to Sec.  115.287 in order to assess and improve the effectiveness of 
its sexual abuse prevention, detection, and response policies, 
practices, and training, including:
    (1) Identifying problem areas;
    (2) Taking corrective action on an ongoing basis; and
    (3) Preparing an annual report of its findings and corrective 
actions for each facility, as well as the agency as a whole.
    (b) Such report shall include a comparison of the current year's 
data and corrective actions with those from prior years and shall 
provide an assessment of the agency's progress in addressing sexual 
abuse.
    (c) The agency's report shall be approved by the agency head and 
made readily available to the public through its Web site or, if it 
does not have one, through other means.
    (d) The agency may redact specific material from the reports when 
publication would present a clear and specific threat to the safety and 
security of a facility, but must indicate the nature of the material 
redacted.


Sec.  115.289  Data storage, publication, and destruction.

    (a) The agency shall ensure that data collected pursuant to Sec.  
115.287 are securely retained.
    (b) The agency shall make all aggregated sexual abuse data, from 
facilities under its direct control and private facilities with which 
it contracts, readily available to the public at least annually through 
its Web site or, if it does not have one, through other means.
    (c) Before making aggregated sexual abuse data publicly available, 
the agency shall remove all personal identifiers.
    (d) The agency shall maintain sexual abuse data collected pursuant 
to Sec.  115.287 for at least 10 years after the date of the initial 
collection unless Federal, State, or local law requires otherwise.

Audits


Sec.  115.293  Audits of standards.

    The agency shall conduct audits pursuant to Sec. Sec.  115.401 
through 115.405.

Subpart D--Standards for Juvenile Facilities

Prevention Planning


Sec.  115.311  Zero tolerance of sexual abuse and sexual harassment; 
PREA coordinator.

    (a) An agency shall have a written policy mandating zero tolerance 
toward all forms of sexual abuse and sexual harassment and outlining 
the agency's approach to preventing, detecting, and responding to such 
conduct.
    (b) An agency shall employ or designate an upper-level, agency-wide 
PREA coordinator with sufficient time and authority to develop, 
implement, and oversee agency efforts to comply with the PREA standards 
in all of its facilities.
    (c) Where an agency operates more than one facility, each facility 
shall designate a PREA compliance manager with sufficient time and 
authority to coordinate the facility's efforts to comply with the PREA 
standards.


Sec.  115.312  Contracting with other entities for the confinement of 
residents.

    (a) A public agency that contracts for the confinement of its 
residents with private agencies or other entities, including other 
government agencies, shall include in any new contract or contract 
renewal the entity's obligation to adopt and comply with the PREA 
standards.
    (b) Any new contract or contract renewal shall provide for agency 
contract monitoring to ensure that the contractor is complying with the 
PREA standards.


Sec.  115.313  Supervision and monitoring.

    (a) The agency shall ensure that each facility it operates shall 
develop, implement, and document a staffing plan that provides for 
adequate levels of staffing, and, where applicable, video monitoring, 
to protect residents against sexual abuse. In calculating adequate 
staffing levels and determining the need for video monitoring, 
facilities shall take into consideration:
    (1) Generally accepted juvenile detention and correctional/secure 
residential practices;
    (2) Any judicial findings of inadequacy;
    (3) Any findings of inadequacy from Federal investigative agencies;
    (4) Any findings of inadequacy from internal or external oversight 
bodies;
    (5) All components of the facility's physical plant (including 
``blind spots'' or areas where staff or residents may be isolated);
    (6) The composition of the resident population;

[[Page 37223]]

    (7) The number and placement of supervisory staff;
    (8) Institution programs occurring on a particular shift;
    (9) Any applicable State or local laws, regulations, or standards;
    (10) The prevalence of substantiated and unsubstantiated incidents 
of sexual abuse; and
    (11) Any other relevant factors.
    (b) The agency shall comply with the staffing plan except during 
limited and discrete exigent circumstances, and shall fully document 
deviations from the plan during such circumstances.
    (c) Each secure juvenile facility shall maintain staff ratios of a 
minimum of 1:8 during resident waking hours and 1:16 during resident 
sleeping hours, except during limited and discrete exigent 
circumstances, which shall be fully documented. Only security staff 
shall be included in these ratios. Any facility that, as of the date of 
publication of this final rule, is not already obligated by law, 
regulation, or judicial consent decree to maintain the staffing ratios 
set forth in this paragraph shall have until October 1, 2017, to 
achieve compliance.
    (d) Whenever necessary, but no less frequently than once each year, 
for each facility the agency operates, in consultation with the PREA 
coordinator required by Sec.  115.311, the agency shall assess, 
determine, and document whether adjustments are needed to:
    (1) The staffing plan established pursuant to paragraph (a) of this 
section;
    (2) Prevailing staffing patterns;
    (3) The facility's deployment of video monitoring systems and other 
monitoring technologies; and
    (4) The resources the facility has available to commit to ensure 
adherence to the staffing plan.
    (e) Each secure facility shall implement a policy and practice of 
having intermediate-level or higher level supervisors conduct and 
document unannounced rounds to identify and deter staff sexual abuse 
and sexual harassment. Such policy and practice shall be implemented 
for night shifts as well as day shifts. Each secure facility shall have 
a policy to prohibit staff from alerting other staff members that these 
supervisory rounds are occurring, unless such announcement is related 
to the legitimate operational functions of the facility.


Sec.  115.314  [Reserved]


Sec.  115.315  Limits to cross-gender viewing and searches.

    (a) The facility shall not conduct cross-gender strip searches or 
cross-gender visual body cavity searches (meaning a search of the anal 
or genital opening) except in exigent circumstances or when performed 
by medical practitioners.
    (b) The agency shall not conduct cross-gender pat-down searches 
except in exigent circumstances.
    (c) The facility shall document and justify all cross-gender strip 
searches, cross-gender visual body cavity searches, and cross-gender 
pat-down searches.
    (d) The facility shall implement policies and procedures that 
enable residents to shower, perform bodily functions, and change 
clothing without nonmedical staff of the opposite gender viewing their 
breasts, buttocks, or genitalia, except in exigent circumstances or 
when such viewing is incidental to routine cell checks. Such policies 
and procedures shall require staff of the opposite gender to announce 
their presence when entering a resident housing unit. In facilities 
(such as group homes) that do not contain discrete housing units, staff 
of the opposite gender shall be required to announce their presence 
when entering an area where residents are likely to be showering, 
performing bodily functions, or changing clothing.
    (e) The facility shall not search or physically examine a 
transgender or intersex resident for the sole purpose of determining 
the resident's genital status. If the resident's genital status is 
unknown, it may be determined during conversations with the resident, 
by reviewing medical records, or, if necessary, by learning that 
information as part of a broader medical examination conducted in 
private by a medical practitioner.
    (f) The agency shall train security staff in how to conduct cross-
gender pat-down searches, and searches of transgender and intersex 
residents, in a professional and respectful manner, and in the least 
intrusive manner possible, consistent with security needs.


Sec.  115.316  Residents with disabilities and residents who are 
limited English proficient.

    (a) The agency shall take appropriate steps to ensure that 
residents with disabilities (including, for example, residents who are 
deaf or hard of hearing, those who are blind or have low vision, or 
those who have intellectual, psychiatric, or speech disabilities), have 
an equal opportunity to participate in or benefit from all aspects of 
the agency's efforts to prevent, detect, and respond to sexual abuse 
and sexual harassment. Such steps shall include, when necessary to 
ensure effective communication with residents who are deaf or hard of 
hearing, providing access to interpreters who can interpret 
effectively, accurately, and impartially, both receptively and 
expressively, using any necessary specialized vocabulary. In addition, 
the agency shall ensure that written materials are provided in formats 
or through methods that ensure effective communication with residents 
with disabilities, including residents who have intellectual 
disabilities, limited reading skills, or who are blind or have low 
vision. An agency is not required to take actions that it can 
demonstrate would result in a fundamental alteration in the nature of a 
service, program, or activity, or in undue financial and administrative 
burdens, as those terms are used in regulations promulgated under title 
II of the Americans With Disabilities Act, 28 CFR 35.164.
    (b) The agency shall take reasonable steps to ensure meaningful 
access to all aspects of the agency's efforts to prevent, detect, and 
respond to sexual abuse and sexual harassment to residents who are 
limited English proficient, including steps to provide interpreters who 
can interpret effectively, accurately, and impartially, both 
receptively and expressively, using any necessary specialized 
vocabulary.
    (c) The agency shall not rely on resident interpreters, resident 
readers, or other types of resident assistants except in limited 
circumstances where an extended delay in obtaining an effective 
interpreter could compromise the resident's safety, the performance of 
first-response duties under Sec.  115.364, or the investigation of the 
resident's allegations.


Sec.  115.317  Hiring and promotion decisions.

    (a) The agency shall not hire or promote anyone who may have 
contact with residents, and shall not enlist the services of any 
contractor who may have contact with residents, who--
    (1) Has engaged in sexual abuse in a prison, jail, lockup, 
community confinement facility, juvenile facility, or other institution 
(as defined in 42 U.S.C. 1997);
    (2) Has been convicted of engaging or attempting to engage in 
sexual activity in the community facilitated by force, overt or implied 
threats of force, or coercion, or if the victim did not consent or was 
unable to consent or refuse; or
    (3) Has been civilly or administratively adjudicated to have 
engaged in the activity described in paragraph (a)(2) of this section.
    (b) The agency shall consider any incidents of sexual harassment in 
determining whether to hire or promote anyone, or to enlist the 
services of any

[[Page 37224]]

contractor, who may have contact with residents.
    (c) Before hiring new employees who may have contact with 
residents, the agency shall:
    (1) Perform a criminal background records check;
    (2) Consult any child abuse registry maintained by the State or 
locality in which the employee would work; and
    (3) Consistent with Federal, State, and local law, make its best 
efforts to contact all prior institutional employers for information on 
substantiated allegations of sexual abuse or any resignation during a 
pending investigation of an allegation of sexual abuse.
    (d) The agency shall also perform a criminal background records 
check, and consult applicable child abuse registries, before enlisting 
the services of any contractor who may have contact with residents.
    (e) The agency shall either conduct criminal background records 
checks at least every five years of current employees and contractors 
who may have contact with residents or have in place a system for 
otherwise capturing such information for current employees.
    (f) The agency shall also ask all applicants and employees who may 
have contact with residents directly about previous misconduct 
described in paragraph (a) of this section in written applications or 
interviews for hiring or promotions and in any interviews or written 
self-evaluations conducted as part of reviews of current employees. The 
agency shall also impose upon employees a continuing affirmative duty 
to disclose any such misconduct.
    (g) Material omissions regarding such misconduct, or the provision 
of materially false information, shall be grounds for termination.
    (h) Unless prohibited by law, the agency shall provide information 
on substantiated allegations of sexual abuse or sexual harassment 
involving a former employee upon receiving a request from an 
institutional employer for whom such employee has applied to work.


Sec.  115.318  Upgrades to facilities and technologies.

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

Responsive Planning


Sec.  115.321  Evidence protocol and forensic medical examinations.

    (a) To the extent the agency is responsible for investigating 
allegations of sexual abuse, the agency shall follow a uniform evidence 
protocol that maximizes the potential for obtaining usable physical 
evidence for administrative proceedings and criminal prosecutions.
    (b) The protocol shall be developmentally appropriate for youth 
and, as appropriate, shall be adapted from or otherwise based on the 
most recent edition of the U.S. Department of Justice's Office on 
Violence Against Women publication, ``A National Protocol for Sexual 
Assault Medical Forensic Examinations, Adults/Adolescents,'' or 
similarly comprehensive and authoritative protocols developed after 
2011.
    (c) The agency shall offer all residents who experience sexual 
abuse access to forensic medical examinations whether on-site or at an 
outside facility, without financial cost, where evidentiarily or 
medically appropriate. Such examinations shall be performed by Sexual 
Assault Forensic Examiners (SAFEs) or Sexual Assault Nurse Examiners 
(SANEs) where possible. If SAFEs or SANEs cannot be made available, the 
examination can be performed by other qualified medical practitioners. 
The agency shall document its efforts to provide SAFEs or SANEs.
    (d) The agency shall attempt to make available to the victim a 
victim advocate from a rape crisis center. If a rape crisis center is 
not available to provide victim advocate services, the agency shall 
make available to provide these services a qualified staff member from 
a community-based organization or a qualified agency staff member. 
Agencies shall document efforts to secure services from rape crisis 
centers. For the purpose of this standard, a rape crisis center refers 
to an entity that provides intervention and related assistance, such as 
the services specified in 42 U.S.C. 14043g(b)(2)(C), to victims of 
sexual assault of all ages. The agency may utilize a rape crisis center 
that is part of a governmental unit as long as the center is not part 
of the criminal justice system (such as a law enforcement agency) and 
offers a comparable level of confidentiality as a nongovernmental 
entity that provides similar victim services.
    (e) As requested by the victim, the victim advocate, qualified 
agency staff member, or qualified community-based organization staff 
member shall accompany and support the victim through the forensic 
medical examination process and investigatory interviews and shall 
provide emotional support, crisis intervention, information, and 
referrals.
    (f) To the extent the agency itself is not responsible for 
investigating allegations of sexual abuse, the agency shall request 
that the investigating agency follow the requirements of paragraphs (a) 
through (e) of this section.
    (g) The requirements of paragraphs (a) through (f) of this section 
shall also apply to:
    (1) Any State entity outside of the agency that is responsible for 
investigating allegations of sexual abuse in juvenile facilities; and
    (2) Any Department of Justice component that is responsible for 
investigating allegations of sexual abuse in juvenile facilities.
    (h) For the purposes of this standard, a qualified agency staff 
member or a qualified community-based staff member shall be an 
individual who has been screened for appropriateness to serve in this 
role and has received education concerning sexual assault and forensic 
examination issues in general.


Sec.  115.322  Policies to ensure referrals of allegations for 
investigations.

    (a) The agency shall ensure that an administrative or criminal 
investigation is completed for all allegations of sexual abuse and 
sexual harassment.
    (b) The agency shall have in place a policy to ensure that 
allegations of sexual abuse or sexual harassment are referred for 
investigation to an agency with the legal authority to conduct criminal 
investigations, unless the allegation does not involve potentially 
criminal behavior. The agency shall publish such policy on its Web site 
or, if it does not have one, make the policy available through other 
means. The agency shall document all such referrals.
    (c) If a separate entity is responsible for conducting criminal 
investigations, such publication shall describe the responsibilities of 
both the agency and the investigating entity.
    (d) Any State entity responsible for conducting administrative or 
criminal investigations of sexual abuse or sexual harassment in 
juvenile facilities shall have in place a policy governing the conduct 
of such investigations.
    (e) Any Department of Justice component responsible for conducting 
administrative or criminal investigations of sexual abuse or sexual

[[Page 37225]]

harassment in juvenile facilities shall have in place a policy 
governing the conduct of such investigations.

Training and Education


Sec.  115.331  Employee training.

    (a) The agency shall train all employees who may have contact with 
residents on:
    (1) Its zero-tolerance policy for sexual abuse and sexual 
harassment;
    (2) How to fulfill their responsibilities under agency sexual abuse 
and sexual harassment prevention, detection, reporting, and response 
policies and procedures;
    (3) Residents' right to be free from sexual abuse and sexual 
harassment;
    (4) The right of residents and employees to be free from 
retaliation for reporting sexual abuse and sexual harassment;
    (5) The dynamics of sexual abuse and sexual harassment in juvenile 
facilities;
    (6) The common reactions of juvenile victims of sexual abuse and 
sexual harassment;
    (7) How to detect and respond to signs of threatened and actual 
sexual abuse and how to distinguish between consensual sexual contact 
and sexual abuse between residents;
    (8) How to avoid inappropriate relationships with residents;
    (9) How to communicate effectively and professionally with 
residents, including lesbian, gay, bisexual, transgender, intersex, or 
gender nonconforming residents; and
    (10) How to comply with relevant laws related to mandatory 
reporting of sexual abuse to outside authorities;
    (11) Relevant laws regarding the applicable age of consent.
    (b) Such training shall be tailored to the unique needs and 
attributes of residents of juvenile facilities and to the gender of the 
residents at the employee's facility. The employee shall receive 
additional training if the employee is reassigned from a facility that 
houses only male residents to a facility that houses only female 
residents, or vice versa.
    (c) All current employees who have not received such training shall 
be trained within one year of the effective date of the PREA standards, 
and the agency shall provide each employee with refresher training 
every two years to ensure that all employees know the agency's current 
sexual abuse and sexual harassment policies and procedures. In years in 
which an employee does not receive refresher training, the agency shall 
provide refresher information on current sexual abuse and sexual 
harassment policies.
    (d) The agency shall document, through employee signature or 
electronic verification, that employees understand the training they 
have received.


Sec.  115.332  Volunteer and contractor training.

    (a) The agency shall ensure that all volunteers and contractors who 
have contact with residents have been trained on their responsibilities 
under the agency's sexual abuse and sexual harassment prevention, 
detection, and response policies and procedures.
    (b) The level and type of training provided to volunteers and 
contractors shall be based on the services they provide and level of 
contact they have with residents, but all volunteers and contractors 
who have contact with residents shall be notified of the agency's zero-
tolerance policy regarding sexual abuse and sexual harassment and 
informed how to report such incidents.
    (c) The agency shall maintain documentation confirming that 
volunteers and contractors understand the training they have received.


Sec.  115.333  Resident education.

    (a) During the intake process, residents shall receive information 
explaining, in an age appropriate fashion, the agency's zero tolerance 
policy regarding sexual abuse and sexual harassment and how to report 
incidents or suspicions of sexual abuse or sexual harassment.
    (b) Within 10 days of intake, the agency shall provide 
comprehensive age-appropriate education to residents either in person 
or through video regarding their rights to be free from sexual abuse 
and sexual harassment and to be free from retaliation for reporting 
such incidents, and regarding agency policies and procedures for 
responding to such incidents.
    (c) Current residents who have not received such education shall be 
educated within one year of the effective date of the PREA standards, 
and shall receive education upon transfer to a different facility to 
the extent that the policies and procedures of the resident's new 
facility differ from those of the previous facility.
    (d) The agency shall provide resident education in formats 
accessible to all residents, including those who are limited English 
proficient, deaf, visually impaired, or otherwise disabled, as well as 
to residents who have limited reading skills.
    (e) The agency shall maintain documentation of resident 
participation in these education sessions.
    (f) In addition to providing such education, the agency shall 
ensure that key information is continuously and readily available or 
visible to residents through posters, resident handbooks, or other 
written formats.


Sec.  115.334  Specialized training: Investigations.

    (a) In addition to the general training provided to all employees 
pursuant to Sec.  115.331, the agency shall ensure that, to the extent 
the agency itself conducts sexual abuse investigations, its 
investigators have received training in conducting such investigations 
in confinement settings.
    (b) Specialized training shall include techniques for interviewing 
juvenile sexual abuse victims, proper use of Miranda and Garrity 
warnings, sexual abuse evidence collection in confinement settings, and 
the criteria and evidence required to substantiate a case for 
administrative action or prosecution referral.
    (c) The agency shall maintain documentation that agency 
investigators have completed the required specialized training in 
conducting sexual abuse investigations.
    (d) Any State entity or Department of Justice component that 
investigates sexual abuse in juvenile confinement settings shall 
provide such training to its agents and investigators who conduct such 
investigations.


Sec.  115.335  Specialized training: Medical and mental health care.

    (a) The agency shall ensure that all full- and part-time medical 
and mental health care practitioners who work regularly in its 
facilities have been trained in:
    (1) How to detect and assess signs of sexual abuse and sexual 
harassment;
    (2) How to preserve physical evidence of sexual abuse;
    (3) How to respond effectively and professionally to juvenile 
victims of sexual abuse and sexual harassment; and
    (4) How and to whom to report allegations or suspicions of sexual 
abuse and sexual harassment.
    (b) If medical staff employed by the agency conduct forensic 
examinations, such medical staff shall receive the appropriate training 
to conduct such examinations.
    (c) The agency shall maintain documentation that medical and mental 
health practitioners have received the training referenced in this 
standard either from the agency or elsewhere.
    (d) Medical and mental health care practitioners shall also receive 
the training mandated for employees under Sec.  115.331 or for 
contractors and volunteers under Sec.  115.332, depending

[[Page 37226]]

upon the practitioner's status at the agency.

Screening for Risk of Sexual Victimization and Abusiveness


Sec.  115.341  Obtaining information from residents.

    (a) Within 72 hours of the resident's arrival at the facility and 
periodically throughout a resident's confinement, the agency shall 
obtain and use information about each resident's personal history and 
behavior to reduce the risk of sexual abuse by or upon a resident.
    (b) Such assessments shall be conducted using an objective 
screening instrument.
    (c) At a minimum, the agency shall attempt to ascertain information 
about:
    (1) Prior sexual victimization or abusiveness;
    (2) Any gender nonconforming appearance or manner or identification 
as lesbian, gay, bisexual, transgender, or intersex, and whether the 
resident may therefore be vulnerable to sexual abuse;
    (3) Current charges and offense history;
    (4) Age;
    (5) Level of emotional and cognitive development;
    (6) Physical size and stature;
    (7) Mental illness or mental disabilities;
    (8) Intellectual or developmental disabilities;
    (9) Physical disabilities;
    (10) The resident's own perception of vulnerability; and
    (11) Any other specific information about individual residents that 
may indicate heightened needs for supervision, additional safety 
precautions, or separation from certain other residents.
    (d) This information shall be ascertained through conversations 
with the resident during the intake process and medical and mental 
health screenings; during classification assessments; and by reviewing 
court records, case files, facility behavioral records, and other 
relevant documentation from the resident's files.
    (e) The agency shall implement appropriate controls on the 
dissemination within the facility of responses to questions asked 
pursuant to this standard in order to ensure that sensitive information 
is not exploited to the resident's detriment by staff or other 
residents.


Sec.  115.342  Placement of residents in housing, bed, program, 
education, and work assignments.

    (a) The agency shall use all information obtained pursuant to Sec.  
115.341 and subsequently to make housing, bed, program, education, and 
work assignments for residents with the goal of keeping all residents 
safe and free from sexual abuse.
    (b) Residents may be isolated from others only as a last resort 
when less restrictive measures are inadequate to keep them and other 
residents safe, and then only until an alternative means of keeping all 
residents safe can be arranged. During any period of isolation, 
agencies shall not deny residents daily large-muscle exercise and any 
legally required educational programming or special education services. 
Residents in isolation shall receive daily visits from a medical or 
mental health care clinician. Residents shall also have access to other 
programs and work opportunities to the extent possible.
    (c) Lesbian, gay, bisexual, transgender, or intersex residents 
shall not be placed in particular housing, bed, or other assignments 
solely on the basis of such identification or status, nor shall 
agencies consider lesbian, gay, bisexual, transgender, or intersex 
identification or status as an indicator of likelihood of being 
sexually abusive.
    (d) In deciding whether to assign a transgender or intersex 
resident to a facility for male or female residents, and in making 
other housing and programming assignments, the agency shall consider on 
a case-by-case basis whether a placement would ensure the resident's 
health and safety, and whether the placement would present management 
or security problems.
    (e) Placement and programming assignments for each transgender or 
intersex resident shall be reassessed at least twice each year to 
review any threats to safety experienced by the resident.
    (f) A transgender or intersex resident's own views with respect to 
his or her own safety shall be given serious consideration.
    (g) Transgender and intersex residents shall be given the 
opportunity to shower separately from other residents.
    (h) If a resident is isolated pursuant to paragraph (b) of this 
section, the facility shall clearly document:
    (1) The basis for the facility's concern for the resident's safety; 
and
    (2) The reason why no alternative means of separation can be 
arranged.
    (i) Every 30 days, the facility shall afford each resident 
described in paragraph (h) of this section a review to determine 
whether there is a continuing need for separation from the general 
population.


Sec.  115.343  [Reserved]

Reporting


Sec.  115.351  Resident reporting.

    (a) The agency shall provide multiple internal ways for residents 
to privately report sexual abuse and sexual harassment, retaliation by 
other residents or staff for reporting sexual abuse and sexual 
harassment, and staff neglect or violation of responsibilities that may 
have contributed to such incidents.
    (b) The agency shall also provide at least one way for residents to 
report abuse or harassment to a public or private entity or office that 
is not part of the agency and that is able to receive and immediately 
forward resident reports of sexual abuse and sexual harassment to 
agency officials, allowing the resident to remain anonymous upon 
request. Residents detained solely for civil immigration purposes shall 
be provided information on how to contact relevant consular officials 
and relevant officials at the Department of Homeland Security.
    (c) Staff shall accept reports made verbally, in writing, 
anonymously, and from third parties and shall promptly document any 
verbal reports.
    (d) The facility shall provide residents with access to tools 
necessary to make a written report.
    (e) The agency shall provide a method for staff to privately report 
sexual abuse and sexual harassment of residents.


Sec.  115.352  Exhaustion of administrative remedies.

    (a) An agency shall be exempt from this standard if it does not 
have administrative procedures to address resident grievances regarding 
sexual abuse.
    (b)(1) The agency shall not impose a time limit on when a resident 
may submit a grievance regarding an allegation of sexual abuse.
    (2) The agency may apply otherwise-applicable time limits on any 
portion of a grievance that does not allege an incident of sexual 
abuse.
    (3) The agency shall not require a resident to use any informal 
grievance process, or to otherwise attempt to resolve with staff, an 
alleged incident of sexual abuse.
    (4) Nothing in this section shall restrict the agency's ability to 
defend against a lawsuit filed by a resident on the ground that the 
applicable statute of limitations has expired.
    (c) The agency shall ensure that--
    (1) A resident who alleges sexual abuse may submit a grievance 
without submitting it to a staff member who is the subject of the 
complaint, and

[[Page 37227]]

    (2) Such grievance is not referred to a staff member who is the 
subject of the complaint.
    (d)(1) The agency shall issue a final agency decision on the merits 
of any portion of a grievance alleging sexual abuse within 90 days of 
the initial filing of the grievance.
    (2) Computation of the 90-day time period shall not include time 
consumed by residents in preparing any administrative appeal.
    (3) The agency may claim an extension of time to respond, of up to 
70 days, if the normal time period for response is insufficient to make 
an appropriate decision. The agency shall notify the resident in 
writing of any such extension and provide a date by which a decision 
will be made.
    (4) At any level of the administrative process, including the final 
level, if the resident does not receive a response within the time 
allotted for reply, including any properly noticed extension, the 
resident may consider the absence of a response to be a denial at that 
level.
    (e)(1) Third parties, including fellow residents, staff members, 
family members, attorneys, and outside advocates, shall be permitted to 
assist residents in filing requests for administrative remedies 
relating to allegations of sexual abuse, and shall also be permitted to 
file such requests on behalf of residents.
    (2) If a third party, other than a parent or legal guardian, files 
such a request on behalf of a resident, the facility may require as a 
condition of processing the request that the alleged victim agree to 
have the request filed on his or her behalf, and may also require the 
alleged victim to personally pursue any subsequent steps in the 
administrative remedy process.
    (3) If the resident declines to have the request processed on his 
or her behalf, the agency shall document the resident's decision.
    (4) A parent or legal guardian of a juvenile shall be allowed to 
file a grievance regarding allegations of sexual abuse, including 
appeals, on behalf of such juvenile. Such a grievance shall not be 
conditioned upon the juvenile agreeing to have the request filed on his 
or her behalf.
    (f)(1) The agency shall establish procedures for the filing of an 
emergency grievance alleging that a resident is subject to a 
substantial risk of imminent sexual abuse.
    (2) After receiving an emergency grievance alleging a resident is 
subject to a substantial risk of imminent sexual abuse, the agency 
shall immediately forward the grievance (or any portion thereof that 
alleges the substantial risk of imminent sexual abuse) to a level of 
review at which immediate corrective action may be taken, shall provide 
an initial response within 48 hours, and shall issue a final agency 
decision within 5 calendar days. The initial response and final agency 
decision shall document the agency's determination whether the resident 
is in substantial risk of imminent sexual abuse and the action taken in 
response to the emergency grievance.
    (g) The agency may discipline a resident for filing a grievance 
related to alleged sexual abuse only where the agency demonstrates that 
the resident filed the grievance in bad faith.


Sec.  115.353  Resident access to outside support services and legal 
representation.

    (a) The facility shall provide residents with access to outside 
victim advocates for emotional support services related to sexual 
abuse, by providing, posting, or otherwise making accessible mailing 
addresses and telephone numbers, including toll free hotline numbers 
where available, of local, State, or national victim advocacy or rape 
crisis organizations, and, for persons detained solely for civil 
immigration purposes, immigrant services agencies. The facility shall 
enable reasonable communication between residents and these 
organizations and agencies, in as confidential a manner as possible.
    (b) The facility shall inform residents, prior to giving them 
access, of the extent to which such communications will be monitored 
and the extent to which reports of abuse will be forwarded to 
authorities in accordance with mandatory reporting laws.
    (c) The agency shall maintain or attempt to enter into memoranda of 
understanding or other agreements with community service providers that 
are able to provide residents with confidential emotional support 
services related to sexual abuse. The agency shall maintain copies of 
agreements or documentation showing attempts to enter into such 
agreements.
    (d) The facility shall also provide residents with reasonable and 
confidential access to their attorneys or other legal representation 
and reasonable access to parents or legal guardians.


Sec.  115.354  Third-party reporting.

    The agency shall establish a method to receive third-party reports 
of sexual abuse and sexual harassment and shall distribute publicly 
information on how to report sexual abuse and sexual harassment on 
behalf of a resident.

Official Response Following a Resident Report


Sec.  115.361  Staff and agency reporting duties.

    (a) The agency shall require all staff to report immediately and 
according to agency policy any knowledge, suspicion, or information 
they receive regarding an incident of sexual abuse or sexual harassment 
that occurred in a facility, whether or not it is part of the agency; 
retaliation against residents or staff who reported such an incident; 
and any staff neglect or violation of responsibilities that may have 
contributed to an incident or retaliation.
    (b) The agency shall also require all staff to comply with any 
applicable mandatory child abuse reporting laws.
    (c) Apart from reporting to designated supervisors or officials and 
designated State or local services agencies, staff shall be prohibited 
from revealing any information related to a sexual abuse report to 
anyone other than to the extent necessary, as specified in agency 
policy, to make treatment, investigation, and other security and 
management decisions.
    (d)(1) Medical and mental health practitioners shall be required to 
report sexual abuse to designated supervisors and officials pursuant to 
paragraph (a) of this section, as well as to the designated State or 
local services agency where required by mandatory reporting laws.
    (2) Such practitioners shall be required to inform residents at the 
initiation of services of their duty to report and the limitations of 
confidentiality.
    (e)(1) Upon receiving any allegation of sexual abuse, the facility 
head or his or her designee shall promptly report the allegation to the 
appropriate agency office and to the alleged victim's parents or legal 
guardians, unless the facility has official documentation showing the 
parents or legal guardians should not be notified.
    (2) If the alleged victim is under the guardianship of the child 
welfare system, the report shall be made to the alleged victim's 
caseworker instead of the parents or legal guardians.
    (3) If a juvenile court retains jurisdiction over the alleged 
victim, the facility head or designee shall also report the allegation 
to the juvenile's attorney or other legal representative of record 
within 14 days of receiving the allegation.
    (f) The facility shall report all allegations of sexual abuse and 
sexual harassment, including third-party and anonymous reports, to the 
facility's designated investigators.

[[Page 37228]]

Sec.  115.362  Agency protection duties.

    When an agency learns that a resident is subject to a substantial 
risk of imminent sexual abuse, it shall take immediate action to 
protect the resident.


Sec.  115.363  Reporting to other confinement facilities.

    (a) Upon receiving an allegation that a resident was sexually 
abused while confined at another facility, the head of the facility 
that received the allegation shall notify the head of the facility or 
appropriate office of the agency where the alleged abuse occurred and 
shall also notify the appropriate investigative agency.
    (b) Such notification shall be provided as soon as possible, but no 
later than 72 hours after receiving the allegation.
    (c) The agency shall document that it has provided such 
notification.
    (d) The facility head or agency office that receives such 
notification shall ensure that the allegation is investigated in 
accordance with these standards.


Sec.  115.364  Staff first responder duties.

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


Sec.  115.365  Coordinated response.

    The facility shall develop a written institutional plan to 
coordinate actions taken in response to an incident of sexual abuse 
among staff first responders, medical and mental health practitioners, 
investigators, and facility leadership.


Sec.  115.366  Preservation of ability to protect residents from 
contact with abusers.

    (a) Neither the agency nor any other governmental entity 
responsible for collective bargaining on the agency's behalf shall 
enter into or renew any collective bargaining agreement or other 
agreement that limits the agency's ability to remove alleged staff 
sexual abusers from contact with residents pending the outcome of an 
investigation or of a determination of whether and to what extent 
discipline is warranted.
    (b) Nothing in this standard shall restrict the entering into or 
renewal of agreements that govern:
    (1) The conduct of the disciplinary process, as long as such 
agreements are not inconsistent with the provisions of Sec. Sec.  
115.372 and 115.376; or
    (2) Whether a no-contact assignment that is imposed pending the 
outcome of an investigation shall be expunged from or retained in the 
staff member's personnel file following a determination that the 
allegation of sexual abuse is not substantiated.


Sec.  115.367  Agency protection against retaliation.

    (a) The agency shall establish a policy to protect all residents 
and staff who report sexual abuse or sexual harassment or cooperate 
with sexual abuse or sexual harassment investigations from retaliation 
by other residents or staff and shall designate which staff members or 
departments are charged with monitoring retaliation.
    (b) The agency shall employ multiple protection measures, such as 
housing changes or transfers for resident victims or abusers, removal 
of alleged staff or resident abusers from contact with victims, and 
emotional support services for residents or staff who fear retaliation 
for reporting sexual abuse or sexual harassment or for cooperating with 
investigations.
    (c) For at least 90 days following a report of sexual abuse, the 
agency shall monitor the conduct or treatment of residents or staff who 
reported the sexual abuse and of residents who were reported to have 
suffered sexual abuse to see if there are changes that may suggest 
possible retaliation by residents or staff, and shall act promptly to 
remedy any such retaliation. Items the agency should monitor include 
any resident disciplinary reports, housing, or program changes, or 
negative performance reviews or reassignments of staff. The agency 
shall continue such monitoring beyond 90 days if the initial monitoring 
indicates a continuing need.
    (d) In the case of residents, such monitoring shall also include 
periodic status checks.
    (e) If any other individual who cooperates with an investigation 
expresses a fear of retaliation, the agency shall take appropriate 
measures to protect that individual against retaliation.
    (f) An agency's obligation to monitor shall terminate if the agency 
determines that the allegation is unfounded.


Sec.  115.368  Post-allegation protective custody.

    Any use of segregated housing to protect a resident who is alleged 
to have suffered sexual abuse shall be subject to the requirements of 
Sec.  115.342.

Investigations


Sec.  115.371  Criminal and administrative agency investigations.

    (a) When the agency conducts its own investigations into 
allegations of sexual abuse and sexual harassment, it shall do so 
promptly, thoroughly, and objectively for all allegations, including 
third-party and anonymous reports.
    (b) Where sexual abuse is alleged, the agency shall use 
investigators who have received special training in sexual abuse 
investigations involving juvenile victims pursuant to Sec.  115.334.
    (c) Investigators shall gather and preserve direct and 
circumstantial evidence, including any available physical and DNA 
evidence and any available electronic monitoring data; shall interview 
alleged victims, suspected perpetrators, and witnesses; and shall 
review prior complaints and reports of sexual abuse involving the 
suspected perpetrator.
    (d) The agency shall not terminate an investigation solely because 
the source of the allegation recants the allegation.
    (e) When the quality of evidence appears to support criminal 
prosecution, the agency shall conduct compelled interviews only after 
consulting with prosecutors as to whether compelled interviews may be 
an obstacle for subsequent criminal prosecution.
    (f) The credibility of an alleged victim, suspect, or witness shall 
be assessed on an individual basis and shall not be determined by the 
person's status as resident or staff. No agency shall require a 
resident who alleges sexual abuse to submit to a polygraph examination 
or other truth-telling device as a condition for proceeding with the 
investigation of such an allegation.
    (g) Administrative investigations:
    (1) Shall include an effort to determine whether staff actions or

[[Page 37229]]

failures to act contributed to the abuse; and
    (2) Shall be documented in written reports that include a 
description of the physical and testimonial evidence, the reasoning 
behind credibility assessments, and investigative facts and findings.
    (h) Criminal investigations shall be documented in a written report 
that contains a thorough description of physical, testimonial, and 
documentary evidence and attaches copies of all documentary evidence 
where feasible.
    (i) Substantiated allegations of conduct that appears to be 
criminal shall be referred for prosecution.
    (j) The agency shall retain all written reports referenced in 
paragraphs (g) and (h) of this section for as long as the alleged 
abuser is incarcerated or employed by the agency, plus five years, 
unless the abuse was committed by a juvenile resident and applicable 
law requires a shorter period of retention.
    (k) The departure of the alleged abuser or victim from the 
employment or control of the facility or agency shall not provide a 
basis for terminating an investigation.
    (l) Any State entity or Department of Justice component that 
conducts such investigations shall do so pursuant to the above 
requirements.
    (m) When outside agencies investigate sexual abuse, the facility 
shall cooperate with outside investigators and shall endeavor to remain 
informed about the progress of the investigation.


Sec.  115.372  Evidentiary standard for administrative investigations.

    The agency shall impose no standard higher than a preponderance of 
the evidence in determining whether allegations of sexual abuse or 
sexual harassment are substantiated.


Sec.  115.373  Reporting to residents.

    (a) Following an investigation into a resident's allegation of 
sexual abuse suffered in an agency facility, the agency shall inform 
the resident as to whether the allegation has been determined to be 
substantiated, unsubstantiated, or unfounded.
    (b) If the agency did not conduct the investigation, it shall 
request the relevant information from the investigative agency in order 
to inform the resident.
    (c) Following a resident's allegation that a staff member has 
committed sexual abuse against the resident, the agency shall 
subsequently inform the resident (unless the agency has determined that 
the allegation is unfounded) whenever:
    (1) The staff member is no longer posted within the resident's 
unit;
    (2) The staff member is no longer employed at the facility;
    (3) The agency learns that the staff member has been indicted on a 
charge related to sexual abuse within the facility; or
    (4) The agency learns that the staff member has been convicted on a 
charge related to sexual abuse within the facility.
    (d) Following a resident's allegation that he or she has been 
sexually abused by another resident, the agency shall subsequently 
inform the alleged victim whenever:
    (1) The agency learns that the alleged abuser has been indicted on 
a charge related to sexual abuse within the facility; or
    (2) The agency learns that the alleged abuser has been convicted on 
a charge related to sexual abuse within the facility.
    (e) All such notifications or attempted notifications shall be 
documented.
    (f) An agency's obligation to report under this standard shall 
terminate if the resident is released from the agency's custody.

Discipline


Sec.  115.376  Disciplinary sanctions for staff.

    (a) Staff shall be subject to disciplinary sanctions up to and 
including termination for violating agency sexual abuse or sexual 
harassment policies.
    (b) Termination shall be the presumptive disciplinary sanction for 
staff who have engaged in sexual abuse.
    (c) Disciplinary sanctions for violations of agency policies 
relating to sexual abuse or sexual harassment (other than actually 
engaging in sexual abuse) shall be commensurate with the nature and 
circumstances of the acts committed, the staff member's disciplinary 
history, and the sanctions imposed for comparable offenses by other 
staff with similar histories.
    (d) All terminations for violations of agency sexual abuse or 
sexual harassment policies, or resignations by staff who would have 
been terminated if not for their resignation, shall be reported to law 
enforcement agencies, unless the activity was clearly not criminal, and 
to any relevant licensing bodies.


Sec.  115.377  Corrective action for contractors and volunteers.

    (a) Any contractor or volunteer who engages in sexual abuse shall 
be prohibited from contact with residents and shall be reported to law 
enforcement agencies, unless the activity was clearly not criminal, and 
to relevant licensing bodies.
    (b) The facility shall take appropriate remedial measures, and 
shall consider whether to prohibit further contact with residents, in 
the case of any other violation of agency sexual abuse or sexual 
harassment policies by a contractor or volunteer.


Sec.  115.378  Interventions and disciplinary sanctions for residents.

    (a) A resident may be subject to disciplinary sanctions only 
pursuant to a formal disciplinary process following an administrative 
finding that the resident engaged in resident-on-resident sexual abuse 
or following a criminal finding of guilt for resident-on-resident 
sexual abuse.
    (b) Any disciplinary sanctions shall be commensurate with the 
nature and circumstances of the abuse committed, the resident's 
disciplinary history, and the sanctions imposed for comparable offenses 
by other residents with similar histories. In the event a disciplinary 
sanction results in the isolation of a resident, agencies shall not 
deny the resident daily large-muscle exercise or access to any legally 
required educational programming or special education services. 
Residents in isolation shall receive daily visits from a medical or 
mental health care clinician. Residents shall also have access to other 
programs and work opportunities to the extent possible.
    (c) The disciplinary process shall consider whether a resident's 
mental disabilities or mental illness contributed to his or her 
behavior when determining what type of sanction, if any, should be 
imposed.
    (d) If the facility offers therapy, counseling, or other 
interventions designed to address and correct underlying reasons or 
motivations for the abuse, the facility shall consider whether to offer 
the offending resident participation in such interventions. The agency 
may require participation in such interventions as a condition of 
access to any rewards-based behavior management system or other 
behavior-based incentives, but not as a condition to access to general 
programming or education.
    (e) The agency may discipline a resident for sexual contact with 
staff only upon a finding that the staff member did not consent to such 
contact.
    (f) For the purpose of disciplinary action, a report of sexual 
abuse made in good faith based upon a reasonable belief that the 
alleged conduct occurred shall not constitute falsely reporting an 
incident or lying, even if an investigation does not establish evidence 
sufficient to substantiate the allegation.

[[Page 37230]]

    (g) An agency may, in its discretion, prohibit all sexual activity 
between residents and may discipline residents for such activity. An 
agency may not, however, deem such activity to constitute sexual abuse 
if it determines that the activity is not coerced.

Medical and Mental Care


Sec.  115.381  Medical and mental health screenings; history of sexual 
abuse.

    (a) If the screening pursuant to Sec.  115.341 indicates that a 
resident has experienced prior sexual victimization, whether it 
occurred in an institutional setting or in the community, staff shall 
ensure that the resident is offered a follow-up meeting with a medical 
or mental health practitioner within 14 days of the intake screening.
    (b) If the screening pursuant to Sec.  115.341 indicates that a 
resident has previously perpetrated sexual abuse, whether it occurred 
in an institutional setting or in the community, staff shall ensure 
that the resident is offered a follow-up meeting with a mental health 
practitioner within 14 days of the intake screening.
    (c) Any information related to sexual victimization or abusiveness 
that occurred in an institutional setting shall be strictly limited to 
medical and mental health practitioners and other staff, as necessary, 
to inform treatment plans and security and management decisions, 
including housing, bed, work, education, and program assignments, or as 
otherwise required by Federal, State, or local law.
    (d) Medical and mental health practitioners shall obtain informed 
consent from residents before reporting information about prior sexual 
victimization that did not occur in an institutional setting, unless 
the resident is under the age of 18.


Sec.  115.382  Access to emergency medical and mental health services.

    (a) Resident victims of sexual abuse shall receive timely, 
unimpeded access to emergency medical treatment and crisis intervention 
services, the nature and scope of which are determined by medical and 
mental health practitioners according to their professional judgment.
    (b) If no qualified medical or mental health practitioners are on 
duty at the time a report of recent abuse is made, staff first 
responders shall take preliminary steps to protect the victim pursuant 
to Sec.  115.362 and shall immediately notify the appropriate medical 
and mental health practitioners.
    (c) Resident victims of sexual abuse while incarcerated shall be 
offered timely information about and timely access to emergency 
contraception and sexually transmitted infections prophylaxis, in 
accordance with professionally accepted standards of care, where 
medically appropriate.
    (d) Treatment services shall be provided to the victim without 
financial cost and regardless of whether the victim names the abuser or 
cooperates with any investigation arising out of the incident.


Sec.  115.383  Ongoing medical and mental health care for sexual abuse 
victims and abusers.

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

Data Collection and Review


Sec.  115.386  Sexual abuse incident reviews.

    (a) The facility shall conduct a sexual abuse incident review at 
the conclusion of every sexual abuse investigation, including where the 
allegation has not been substantiated, unless the allegation has been 
determined to be unfounded.
    (b) Such review shall ordinarily occur within 30 days of the 
conclusion of the investigation.
    (c) The review team shall include upper-level management officials, 
with input from line supervisors, investigators, and medical or mental 
health practitioners.
    (d) The review team shall:
    (1) Consider whether the allegation or investigation indicates a 
need to change policy or practice to better prevent, detect, or respond 
to sexual abuse;
    (2) Consider whether the incident or allegation was motivated by 
race; ethnicity; gender identity; lesbian, gay, bisexual, transgender, 
or intersex identification, status, or perceived status; or, gang 
affiliation; or was motivated or otherwise caused by other group 
dynamics at the facility;
    (3) Examine the area in the facility where the incident allegedly 
occurred to assess whether physical barriers in the area may enable 
abuse;
    (4) Assess the adequacy of staffing levels in that area during 
different shifts;
    (5) Assess whether monitoring technology should be deployed or 
augmented to supplement supervision by staff; and
    (6) Prepare a report of its findings, including but not necessarily 
limited to determinations made pursuant to paragraphs (d)(1) through 
(d)(5) of this section, and any recommendations for improvement and 
submit such report to the facility head and PREA compliance manager.
    (e) The facility shall implement the recommendations for 
improvement, or shall document its reasons for not doing so.


Sec.  115.387  Data collection.

    (a) The agency shall collect accurate, uniform data for every 
allegation of sexual abuse at facilities under its direct control using 
a standardized instrument and set of definitions.
    (b) The agency shall aggregate the incident-based sexual abuse data 
at least annually.
    (c) The incident-based data collected shall include, at a minimum, 
the data necessary to answer all questions from the most recent version 
of the Survey of Sexual Violence conducted by the Department of 
Justice.
    (d) The agency shall maintain, review, and collect data as needed 
from all available incident-based documents, including reports, 
investigation files, and sexual abuse incident reviews.
    (e) The agency also shall obtain incident-based and aggregated data 
from every private facility with which it contracts for the confinement 
of its residents.

[[Page 37231]]

    (f) Upon request, the agency shall provide all such data from the 
previous calendar year to the Department of Justice no later than June 
30.


Sec.  115.388  Data review for corrective action.

    (a) The agency shall review data collected and aggregated pursuant 
to Sec.  115.387 in order to assess and improve the effectiveness of 
its sexual abuse prevention, detection, and response policies, 
practices, and training, including:
    (1) Identifying problem areas;
    (2) Taking corrective action on an ongoing basis; and
    (3) Preparing an annual report of its findings and corrective 
actions for each facility, as well as the agency as a whole.
    (b) Such report shall include a comparison of the current year's 
data and corrective actions with those from prior years and shall 
provide an assessment of the agency's progress in addressing sexual 
abuse.
    (c) The agency's report shall be approved by the agency head and 
made readily available to the public through its Web site or, if it 
does not have one, through other means.
    (d) The agency may redact specific material from the reports when 
publication would present a clear and specific threat to the safety and 
security of a facility, but must indicate the nature of the material 
redacted.


Sec.  115.389  Data storage, publication, and destruction.

    (a) The agency shall ensure that data collected pursuant to Sec.  
115.387 are securely retained.
    (b) The agency shall make all aggregated sexual abuse data, from 
facilities under its direct control and private facilities with which 
it contracts, readily available to the public at least annually through 
its Web site or, if it does not have one, through other means.
    (c) Before making aggregated sexual abuse data publicly available, 
the agency shall remove all personal identifiers.
    (d) The agency shall maintain sexual abuse data collected pursuant 
to Sec.  115.387 for at least 10 years after the date of its initial 
collection unless Federal, State, or local law requires otherwise.

Audits


Sec.  115.393  Audits of standards.

    The agency shall conduct audits pursuant to Sec. Sec.  115.401 
through 115.405.

Subpart E--Auditing and Corrective Action


Sec.  115.401  Frequency and scope of audits.

    (a) During the three-year period starting on August 20, 2013, and 
during each three-year period thereafter, the agency shall ensure that 
each facility operated by the agency, or by a private organization on 
behalf of the agency, is audited at least once.
    (b) During each one-year period starting on August 20, 2013, the 
agency shall ensure that at least one-third of each facility type 
operated by the agency, or by a private organization on behalf of the 
agency, is audited.
    (c) The Department of Justice may send a recommendation to an 
agency for an expedited audit if the Department has reason to believe 
that a particular facility may be experiencing problems relating to 
sexual abuse. The recommendation may also include referrals to 
resources that may assist the agency with PREA-related issues.
    (d) The Department of Justice shall develop and issue an audit 
instrument that will provide guidance on the conduct of and contents of 
the audit.
    (e) The agency shall bear the burden of demonstrating compliance 
with the standards.
    (f) The auditor shall review all relevant agency-wide policies, 
procedures, reports, internal and external audits, and accreditations 
for each facility type.
    (g) The audits shall review, at a minimum, a sampling of relevant 
documents and other records and information for the most recent one-
year period.
    (h) The auditor shall have access to, and shall observe, all areas 
of the audited facilities.
    (i) The auditor shall be permitted to request and receive copies of 
any relevant documents (including electronically stored information).
    (j) The auditor shall retain and preserve all documentation 
(including, e.g., video tapes and interview notes) relied upon in 
making audit determinations. Such documentation shall be provided to 
the Department of Justice upon request.
    (k) The auditor shall interview a representative sample of inmates, 
residents, and detainees, and of staff, supervisors, and 
administrators.
    (l) The auditor shall review a sampling of any available videotapes 
and other electronically available data (e.g., Watchtour) that may be 
relevant to the provisions being audited.
    (m) The auditor shall be permitted to conduct private interviews 
with inmates, residents, and detainees.
    (n) Inmates, residents, and detainees shall be permitted to send 
confidential information or correspondence to the auditor in the same 
manner as if they were communicating with legal counsel.
    (o) Auditors shall attempt to communicate with community-based or 
victim advocates who may have insight into relevant conditions in the 
facility.


Sec.  115.402  Auditor qualifications.

    (a) An audit shall be conducted by:
    (1) A member of a correctional monitoring body that is not part of, 
or under the authority of, the agency (but may be part of, or 
authorized by, the relevant State or local government);
    (2) A member of an auditing entity such as an inspector general's 
or ombudsperson's office that is external to the agency; or
    (3) Other outside individuals with relevant experience.
    (b) All auditors shall be certified by the Department of Justice. 
The Department of Justice shall develop and issue procedures regarding 
the certification process, which shall include training requirements.
    (c) No audit may be conducted by an auditor who has received 
financial compensation from the agency being audited (except for 
compensation received for conducting prior PREA audits) within the 
three years prior to the agency's retention of the auditor.
    (d) The agency shall not employ, contract with, or otherwise 
financially compensate the auditor for three years subsequent to the 
agency's retention of the auditor, with the exception of contracting 
for subsequent PREA audits.


Sec.  115.403  Audit contents and findings.

    (a) Each audit shall include a certification by the auditor that no 
conflict of interest exists with respect to his or her ability to 
conduct an audit of the agency under review.
    (b) Audit reports shall state whether agency-wide policies and 
procedures comply with relevant PREA standards.
    (c) For each PREA standard, the auditor shall determine whether the 
audited facility reaches one of the following findings: Exceeds 
Standard (substantially exceeds requirement of standard); Meets 
Standard (substantial compliance; complies in all material ways with 
the standard for the relevant review period); Does Not Meet Standard 
(requires corrective action). The audit summary shall indicate, among 
other things, the number of provisions the facility has achieved at 
each grade level.
    (d) Audit reports shall describe the methodology, sampling sizes, 
and basis for the auditor's conclusions with regard to each standard 
provision for each

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audited facility, and shall include recommendations for any required 
corrective action.
    (e) Auditors shall redact any personally identifiable inmate or 
staff information from their reports, but shall provide such 
information to the agency upon request, and may provide such 
information to the Department of Justice.
    (f) The agency shall ensure that the auditor's final report is 
published on the agency's Web site if it has one, or is otherwise made 
readily available to the public.


Sec.  115.404  Audit corrective action plan.

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


Sec.  115.405  Audit appeals.

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

Subpart F--State Compliance


Sec.  115.501  State determination and certification of full 
compliance.

    (a) In determining pursuant to 42 U.S.C. 15607(c)(2) whether the 
State is in full compliance with the PREA standards, the Governor shall 
consider the results of the most recent agency audits.
    (b) The Governor's certification shall apply to all facilities in 
the State under the operational control of the State's executive 
branch, including facilities operated by private entities on behalf of 
the State's executive branch.

    Dated: May 17, 2012.
Eric H. Holder, Jr.,
Attorney General.
[FR Doc. 2012-12427 Filed 6-19-12; 8:45 am]
BILLING CODE 4410-05-P; 4410-18-P