34 U.S.C. § 30307 — Adoption and effect of national standards

(a) Publication of proposed standards. Within 1 year of getting the Commission's report described in section 30306(d)(3), the Attorney General must publish a final rule setting national standards for detecting, preventing, reducing, and punishing prison rape. These standards must reflect the Attorney General's own independent judgment, after properly weighing the Commission's recommended standards from section 30306(e) and any other data, opinions, or proposals the Attorney General thinks are worth considering. The Attorney General cannot adopt a standard that would add substantial costs beyond what federal, state, and local prisons already spend, though the Attorney General may still list improvements for prisons to consider on their own. Within 90 days of publishing the final rule, the Attorney General must send the new standards to every state's chief executive, every state's corrections department head, and the local governments that oversee prisons. (b) Applicability to Federal Bureau of Prisons. These national standards apply to the Federal Bureau of Prisons the moment the Attorney General finishes transmitting them, as described in (a)(4). (c) Applicability to detention facilities operated by the Department of Homeland Security. Within 180 days of March 7, 2013, the Secretary of Homeland Security must publish a final rule with national standards for detecting, preventing, reducing, and punishing rape and sexual assault in facilities that hold immigration detainees. These standards apply both to facilities DHS runs directly and to facilities run under contract with DHS — a term that includes contract detention facilities and facilities run under intergovernmental agreements. DHS must regularly check whether facilities are following these standards and must build the results into each facility's performance evaluations. In writing the standards, DHS must properly weigh the Commission's recommended standards from section 30306(e). (d) Applicability to custodial facilities operated by the Department of Health and Human Services. On the same 180-day deadline from March 7, 2013, the Secretary of Health and Human Services must publish a final rule with national standards for detecting, preventing, reducing, and punishing rape and sexual assault in facilities that hold unaccompanied alien children, as that term is defined in section 279(g) of title 6. These standards apply to facilities HHS runs directly and to facilities run under contract with HHS. HHS must regularly check compliance and build the results into facility performance evaluations, and must properly weigh the Commission's recommended standards in writing its own. (e) Eligibility for Federal funds. This subsection ties certain federal prison grant money to state compliance with the national standards. A grant program is "covered" by this subsection only if the Attorney General runs it (or it operates under the Attorney General's authority), it can give states money for prison purposes, and it is not run by the Justice Department's Office on Violence Against Women. Each year, the Attorney General must list every program that meets this test and share the list with every state. For each fiscal year, a state's share of money from a covered grant program is cut by 5 percent, unless the state's chief executive gives the Attorney General proof of compliance — either a certification that the state has fully adopted the national standards, or an assurance that the state is working toward full compliance. A state giving an assurance instead of a certification must either commit to spending at least 5 percent of the grant on compliance work, or ask the Attorney General to hold that 5 percent back until later. A state that certifies full compliance must also give the Attorney General a list of all prisons the state's executive branch controls, which of those were audited in the most recent audit year, the final audit reports for that year, and a schedule for auditing all of them over the next 3 audit years. Starting 3 years after December 16, 2016, a state can still certify full compliance even if one of its prisons has an audit appeal pending. A state that instead gives an assurance must provide similar information: a list of its prisons, which were audited recently, an explanation of what is blocking it from finishing required audits, the recent audit reports, a 3-year audit schedule, and an explanation of how far along it is in putting the standards into practice. Before it can actually receive the funds tied to an assurance, the state must also submit a plan for how it will spend them, and afterward must account in detail for how the funds were actually used. The option to submit an assurance instead of a certification does not last forever. The part letting a state ask the Attorney General to hold funds in abeyance stops working 3 years after December 16, 2016. The broader option to submit an assurance at all stops working 6 years after that date. But during the 2 years right after that 6-year mark, a state that has audited at least 90 percent of its prisons can ask the Attorney General for permission to keep submitting emergency assurances under the old rules; the Attorney General must grant that request within 60 days if the state shows good cause. Funds a state asked to have held back get handled in one of three ways. If the state later fully certifies compliance within 3 years of December 16, 2016, the Attorney General releases all the held-back funds for the state to use under the grant program's normal rules. If the state cannot certify full compliance within that time but can assure the Attorney General that it has audited at least two-thirds of its prisons at least once, the Attorney General still releases the funds — but only for the state to use working toward full compliance, and only if the state agrees to keep meeting the reporting and accounting rules described above. If the state can do neither, the Attorney General instead redistributes its held-back funds to other states under the grant program's normal rules. Within 1 year of December 16, 2016, the Attorney General must collect all final audit reports completed so far for each state's prisons and publish them on an appropriate government website, updating that website every year with new reports the states submit. Within 2 years of that date, the Attorney General must also report to the House and Senate Judiciary Committees on how well the national standards are being put into practice and what steps the Department is taking, together with the states and other stakeholders, to fix any problems. Each year by September 30, the Attorney General must publish a report listing every grantee that is not complying with the adopted national standards. Separately, a state cannot use covered-grant-program money for prison purposes at all — and must return any such money if it has no other authorized use for it — unless the state's chief executive certifies that neither the state nor any of its local governments appears on the list of non-cooperating institutions the Attorney General publishes under section 30303(c)(2)(C). Money a state loses because of the 5-percent reduction, or has to return under this rule, gets redistributed to other grantees who are not subject to the same cut or ban, following whatever other rules govern that grant program. The Attorney General must set up procedures to carry out this whole subsection, including for discretionary grant programs. The 5-percent-reduction rule first applies to grants made for the second fiscal year after the national standards are finalized; the cooperation-with-survey rule first applies to grants made for the fiscal year after September 4, 2003. Finally, this subsection sets standards for the auditors who check prison compliance. Anyone seeking Justice Department certification as an auditor must, if asked, submit fingerprints for state and FBI criminal history checks. Every certified auditor must sign a certification agreement matching, or closely matching, the Bureau of Justice Assistance's Auditor Certification Agreement as it existed in April 2018. The PREA Management Office within the Bureau of Justice Assistance evaluates every auditor against that agreement's standards, and may take remedial or disciplinary action — including decertifying an auditor — if the auditor fails to follow the agreement or the approved audit methods. The Office may suspend an auditor's certification while it investigates, and must publicly post the names of decertified auditors along with the reasons. A decertified or suspended auditor cannot take part in any audits, even as someone else's assistant. If an auditor is decertified, the Office must tell every facility that auditor audited in the past 3 years, and may recommend redoing those audits if appropriate. The Office also runs the system for assigning certified auditors to federal, state, and local facilities. The Director of the Bureau of Prisons must hand over whatever documentation a certified auditor needs to do an audit, following the terms of that auditor's certification agreement; the Director can require the auditor to sign a confidentiality agreement about how they use personal information, but that agreement can never stop the auditor from giving all required documentation to the Justice Department, as federal regulations require.